Race and Constitutional Law Casebooks: Recognizing the Proslavery Constitution

Michigan Law Review Volume 110 | Issue 6 2012 Race and Constitutional Law Casebooks: Recognizing the Proslavery Constitution Juan F. Perea Loyola University Chicago School of Law Follow this and additional works at: http://repository.law.umich.edu/mlr Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, Law and Race Commons, and the Legal History, Theory and Process Commons Recommended Citation Juan F. Perea, Race and Constitutional Law Casebooks: Recognizing the Proslavery Constitution, 110 Mich. L. Rev. 1123 (2012). Available at: http://repository.law.umich.edu/mlr/vol110/iss6/12 This Review is brought to you for free and open access by the Journals at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact . RACE AND CONSTITUTIONAL LAW CASEBOOKS: RECOGNIZING THE PROSLAVERY CONSTITUTIONf Juan F. Perea* A SLAVEHOLDERS' UNION: SLAVERY, POLITICS, AND THE CONSTI- TUTION IN THE EARLY AMERICAN REPUBLIC. By George William Van Cleve. Chicago and London: The University of Chicago Press. 2010. Pp. 391. Cloth, $39; paper $22.50. The federal Constitution, therefore, decides with great propriety on the case of our slaves, when it views them in the mixt character of persons and of property .... Let the compromising expedient of the Constitution be mutually adopted, which regards them as inhabitants, but as debased by servitude below the equal level of free inhabitants; which regards the slave as divested of two fifth of the man. -James Madison, FederalistNo. 54' INTRODUCTION James Madison's defense of the Constitution's treatment of slaves as part human and part property-less than a man by two-fifths-may surprise many readers. This is not The Federalistwe're used to seeing. Madison was responding to robust attacks on the Three-Fifths Clause that were published during debates on the ratification of the Constitution.2 t Copyright 2012, All rights reserved. * Professor of Law, Loyola University Chicago School of Law. I thank Al Brophy, Martha Jones, Margaret Moses, John Nowak, Jennifer Rosato, Dani Sokol, Barry Sullivan, Alex Tsesis, George William Van Cleve, and Mike Zimmer for their insightful comments and suggestions on prior drafts of this Review. I also thank participants at the University of Michigan Law School Conference on Race, Law, and History in the Americas; the Northwestern University School of Law Constitutional Law Colloquium; the Second Annual Loyola University Chicago School of Law Constitutional Law Colloquium; and a Villanova University School of Law faculty workshop for their helpful comments and suggestions. 1. THE FEDERALIST No. 54 (James Madison), reprinted in THE AMERICAN CONSTITU- TION 240 (J.R. Pole ed., 1987). 2. Brutus, for example, complained that counting slaves violated the spirit of the American Revolution, as well as republican principles of representation: If [slaves] have no share in government, why is the number of members in the assembly, to be increased on their account?... By this mode of apportionment, the representatives of the different parts of the union, will be extremely unequal; in some of the southern states, the slaves are nearly equal in number to the free men; and for all these slaves, they will be entitled to a proportionate share in the legislature-this will give them an unreasonable weight in the government, which can derive no additional strength, protection, nor defence from the slaves, but the contrary. Why then should they be represented? 1123 1124 Michigan Law Review [Vol. 110:1123 Presenting the views of "our Southern brethren,"3 Madison made several arguments in response to criticisms of the Three-Fifths Clause. First, Madison described the status of slaves under the laws of the slave states: The true state of the case is that they partake of both these qualities: being considered by our laws, in some respects, as persons, and in other respects as property .... The federal Constitution, therefore, decides with great propriety on the case of our slaves, when it views them in the mixt character of persons and of property. This is in fact their true character. It is the character bestowed on them by the laws under which they live; and it will not be denied that these are the proper criterion .... I Furthermore, since the same three-fifths ratio was used in calculating taxation, Southern states would not agree to be burdened by counting slaves for tax purposes without a corresponding benefit in representation: It is agreed on all sides that numbers are the best scale of wealth and taxation, as they are the only proper scale of representation. Would the convention have been impartial or consistent, if they had rejected the slaves from the list of inhabitants when the shares of representation were to be calculated, and inserted them on the lists when the tariff of contributions was to be adjusted? Could it be reasonably expected that the Southern States would concur in a system which considered their slaves in some degree as men when burdens were to be imposed, but refused to consider them in the same light when advantages were to be conferred? 5 Madison also argued that it was proper to apportion representation in part based on wealth: After all, may not another ground be taken on which this article of the Constitution will admit of a still more ready defense? We have hitherto proceeded on the idea that representation related to persons only, and not at all to property. But is it a just idea? Government is instituted no less for protection of the property than of the persons of individuals.6 Madison's response failed to answer, however, why only slave property and not other forms of property would count toward representation. The inclusion of slave property as a basis for representation was a major flaw in republican theory and was recognized as such both during the Constitutional Convention and during ratification debates. Madison's justifications in Federalist No. 54 have been described appropriately as "pretextual" (p. 136), since, as this Review discusses below, they had little to do with the reasons why slave property was protected under the Constitution. The Essays of Brutus, N.Y.J., Nov. 15, 1787, reprinted in THE AMERICAN CONSTITUTION, supra note 1, at 44-45. 3. THE FEDERALIST No. 54, at 304 (James Madison) (Clinton Rossiter ed., 1961). Madison, a landowner and slaveholder in Virginia, was one of the "Southern brethren" in whose name he purported to speak. 4. Id. at 305. 5. Id. at 305-06. 6. Id. at 307. April 20121 The Proslavery Constitution 1125 FederalistNo. 54 shows that part of Madison's public defense of the Constitution included the defense of some of its proslavery provisions. Madison and his reading public were well aware that aspects of the Constitution protected slaver (...truncated)