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Paul Moreno on Paul Finkelman on Marshall, Story and Slavery
Michael Ramsey

At Liberty Law Blog, Paul Moreno (Hillsdale College, constitutional history): Failed Attempt to Cut Marshall and Story Down to Size (commenting [unfavorably] on Paul Finkelman,   Supreme Injustice: Slavery in the Nation’s Highest Court [Harvard University Press 2018]).  From the introduction:

What if William Lloyd Garrison, the fiery abolitionist editor and activist, had gotten a Ph.D. and become an academic? He would be Paul Finkelman, the itinerant law professor now president of Gratz College in Philadelphia. Finkelman has spent this career making the argument that the Constitution was a pro-slavery document, regularly pounding the Founding for its racism. Indeed, he used Garrison’s famous description of the Constitution as a “covenant with death” as the subtitle of an essay on the Constitutional Convention.

Historian Don E. Fehrenbacher, on the other hand, has more convincingly shown that the Constitution was an anti-slavery document that was interpreted and administered in a pro-slavery way, creating what he called, in his 2001 book, The Slaveholding Republic. (This was the view of anti-slavery constitutionalists like Frederick Douglass and Abraham Lincoln.)

In Supreme Injustice: Slavery in the Nation’s Highest Court, Finkelman now extends his analysis to the antebellum Court and claims that it “invariably voted against liberty and in favor of slavery.” While not without merit, the new book displays the rhetorical overkill that characterizes Finkelman’s earlier work.

Its title is somewhat misleading. Supreme Injustice (given as the Nathan I. Huggins lecture series at Harvard) is really about three justices: John Marshall, Joseph Story, and Roger B. Taney. The bombshell revelation here is that John Marshall owned hundreds of slaves, and actively bought and sold them throughout his life. His biographers have all either ignored or denied this fact—Jean Smith, for example, wrote that Marshall owned a few slaves for domestic work, and G. Edward White said that Marshall was “not a slave owner.” But Finkelman tries to turn this discovery into the dominant theme of Marshall’s life and career. ...

And on Story:

Justice Story ... has always been regarded as an ardent opponent of slavery. The author does concede that he was, in his early years. “In 1819-20 he was truly a just judge,” writes Finkelman sanctimoniously. He offers no explanation as to why Story became more accommodating to slavery later; but again, the 1819-20 period looks pivotal. More to the point is the question of whether Story really did alter his views.

The key case here is Prigg v. Pennsylvania (1842). Story upheld the constitutionality of the Fugitive Slave Act of 1793 and struck down the “personal liberty laws” of free states, which might have obstructed that Act in an effort to protect their free black citizens. On the other hand, Story held that states could not be compelled to cooperate in the enforcement of the Fugitive Slave Act. Most commentators have seen Prigg as a compromise, with the no-commandeering provision bolstering abolitionist forces. As the leading textbook in U.S. constitutional history puts it, Prigg appeared to be “a major victory for the slave interest . . . yet Story’s opinion also contained a discordant note that proved to have antislavery potential.” Finkelman admitted as much in an earlier article in Civil War History whose subtitle was, “Anti-Slavery Use of a Pro-Slavery Decision.”


Here again it appears that nationalism trumped liberty, this time with Justice Story. But this hardly makes Story a friend of slavery. Daniel Webster was similarly vilified by the Garrisonians for his support of the Fugitive Slave Act. Abraham Lincoln, too, accepted the fact of the Constitution’s fugitive slave clause and recognized the rights of slaveholders under it. But Lincoln also pointed out that the Constitution must protect the rights of free blacks. “In any law upon this subject ought not all the safeguards of liberty known in civilized and humane jurisprudence to be introduced, so that a free man may not in any case be surrendered as a slave?” he said in his First Inaugural address. Lincoln called for legislation to protect the privileges and immunities of all American citizens. It is likely that these would also have been part of Story’s position on the fugitive slave question.

(Thanks to Mark Pulliam for the pointer).

RELATED: Also at Liberty Law Blog, Allen Guelzo (Gettysburg College, history): The Constitution: A Pro-Slavery or Anti-Slavery Document?

Curiously, the most vehement arguments construing the Constitution as a pro-slavery document came from abolitionists. William Lloyd Garrison denounced the Constitution as an “infamous bargain” that trampled the “solemn and heaven-attested Declaration [of Independence], that all men are created equal.” Frederick Douglass was even more explicit, itemizing the Three Fifths Clause, the 20-year breathing room given to the importation of slaves, the fugitive clause, and even the provisions for suppression of domestic insurrection as deliberately written to befriend slavery.

Modern neo-abolitionist historians have taken up the Garrison-Douglass argument, beginning with Paul Finkelman, who develops an even longer list of provisions in the Constitution which betray a pro-slavery bias—the Electoral College and the direction that assessment of direct taxes, both of which are calculated by using the Three Fifths clause, the ban on export taxes (to favor cotton as an export commodity), and the limitation of civil suits and “privileges and immunities” to “citizens” (Article 3, Section 2). “A careful reading of the Constitution,” Finkelman insists, “reveals that the Garrisonians were correct: the national compact did favor slavery. . . . No one who attended the Philadelphia Convention could have believed that slavery was temporary.” Similar arguments are made by David Waldstreicher, who notes that “Of its eighty-four clauses, six are directly concerned with slaves and their owners,” while “five others had implications for slavery.” In fact, Waldstreicher adds, the motivation for many of the Founders in their Revolution was a desire to protect slavery from what they perceived as increasing British imperial hostility to it, beginning with the Somerset decision in 1772. Hence, in “growing their government, the framers and their constituents created fundamental laws that sustained human bondage.”

But in conclusion:

The original abolitionist argument was less a matter of serious constitutional argument and more a sensationalist strategy for awakening Americans to the encroachments of “the Slave Power.” The neo-abolitionist case is a more serious one, but it is marred by a highly partisan reading of the Constitution’s provisions, arising in some measure from a hostility to Constitutional originalism (so that if the Constitution is to be read through an originalist lens, originalism could be embarrassed into supporting slaveholding). The arguments of Lincoln, Fehrenbacher, and Oakes could be construed as suffering from an equal-but-opposite optimism about the Constitution’s pro-freedom intentions. But the proof surely lies in the slaveholders’ response to the election of Lincoln to the presidency in 1860: they were so convinced that the Constitution would not protect slavery that they attempted to secede from the Union, and then wrote a replacement Constitution which did expressly legitimize slavery. Their actions spoke louder than the neo-abolitionists’ words, and testified that the Constitution is a freedom document, after all.