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18 SLAVERY AND THE CONSTITUTIONAL CONVENTION certain sort—not the endorsement of slavery as the Neo-Garrisonians have it nor the rejection that the Neo-Lincolnians say—but an acceptance of the principle that, in a federal system, it is a matter up to the states. It is an acceptance only of a certain sort, though, and the embarrassed circumlocutions in the text, the frequent denunciations of slavery as unjust—inside and outside of the Convention— show that this was not an acceptance of slavery in the states as a matter of official indifference or neutrality with regard to it. So, to give a sampling of that view, Luther Martin of the slave state Maryland called for abolishing the slave trade because it was “inconsistent with the principles of the revolution.” 8 That, I think, was a fairly widely held view. Slavery is accepted as a state institution but, at the same time, regarded as an anomaly and as incompatible with the principles of right endorsed in the revolution and after. Nonetheless, the Constitution did little about this incompatibility. It in effect defers, postpones, or displaces any decision for later and elsewhere. The Founding generation acted in the hope that somehow the issue would be taken care of in the future. My point is that the way in which slavery was treated in the Constitution was inevitable, or at least nearly so, when we understand what the Founders were doing as they understood it. The first and really central point is this: in making a constitution, they were making a federation and not a nation—they were making a union of otherwise independent states for certain very important but still limited purposes. The internal ordering of the members of the federation was not one of the accepted purposes of such unions, and hardly anyone in 1787 thought that was what was at stake in making the Constitution. Almost no one thought that the Convention or the union it was making had the power, right, or responsibility to settle questions of the internal ordering of the member states. Abraham Baldwin of Georgia made the point when he intervened in the discussion of the slave trade and said he thought that “national objects alone are to be before the Convention, not [matters] such as [slavery, which] were of a local nature.” 9 That in itself made the rest more or less inevitable. But there was more to it than that, actually, and that more
MICHAEL P. ZUCKERT 19 reinforced the same point. The two leading structural principles of the Constitution were to be a new kind of federalism and a new kind of republicanism. As I learned in Walter Berns’s Introduction to American Government course, this new kind of federalism involved a direct interaction between the government of the Union and the human individuals within the member states in ways that had never been the case in previous federations. But the condition for this unprecedented kind of interaction is a very clear line of demarcation between matters of rightful concern to the general government and all the remaining matters that belong to the states. The new federalism reaffirmed the general idea that matters of internal governance are not matters for the general government. And that reaffirmation was particularly necessary because of the deep intrusiveness of the general government into the member states. The republicanism of the Constitution, like every form of republicanism, is a commitment to self-government. Each unit should be republican—that is to say, a self-governing entity. That means that other units should not make decisions for it, and that’s a thought that reinforced the division of authority demanded by the new federalism. So the way slavery was treated in the Constitution was perfectly in accord with, and in a way required by, the nature of the task of union-making as they understood it and by the two chief principles of federalism and republicanism. So despite the Neo-Garrisonians’ 18 or more clauses, slavery was not in fact a central theme at the Convention, and all of what was done with respect to it was pretty much a side effect of other things that they were doing. That is not to say that they didn’t see slavery to be important, or that they thought it was insignificant—far from it—but that they saw it as a matter for the individual states and not for the Union. And as I’ve tried to suggest, in 1787, they at least had some good reason to believe that the states were on a trajectory to abolish this institution that had no place in a free country. If we conclude that the best way to characterize the place of slavery in the Constitution and in the Convention is in terms of inadvertence, deferral, and avoidance, this is not to deny that the issue played a major role in the travail of the American republic in the
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