No Property in Man

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I read “The Counter-Revolution of 1776” by Gerald Horne at the same time that I read “No Property in Man” by Sean Wilentz. Two books make first-rate bookends for the subject. The former deals with the influence of slavery on politics in the American colonies up to 1776 and the latter takes up the same subject from the Constitutional Convention of 1789 up to the Civil War. Both books essentially deal with the world of ideas relative to slavery and politics. Horne's book is more Manichean and, at bottom, anti-American. Wilentz's book more properly shows the ambiguities of history and how those ambiguities played out over time.

For Horne, the American Revolution was fundamentally and predominately a reaction by American slave-owners to prevent England from abolishing or restricting their peculiar property, particularly after 1772, when Justice Mansfield had ruled in Somerset's Case that slaves brought to England - which had no positive law of slavery - were freed upon coming into Britain. Horne would have all colonists be supporters of slavery inasmuch as slavery existed in every American colony in 1776.

Wilentz takes up the narrative as of the Constitutional Convention in 1788. By that time, northern colonies had either emancipated their slaves or were in the process of emancipation. In addition, abolition societies had been formed to work against slavery. These northerners came into the Constitutional Convention with an anti-slavery agenda, or, at least, the calm assurance that slavery was on its way out and that freedom was the normative condition of humanity. This attitude was shared by most of the upper South, although they did not intend to force the issue in their lifetime. To their credit, they had adopted laws to permit individual emancipations.

The Southerners disagreed. They had their slave property and, apparently, did not expect to see that property disappear. They used the threat of disunion to defuse any anti-slavery provision into the Constitution. For example, the South was able to obtain language prohibiting Congress from interfering with the slave trade until 1808. It was also able to get a nebulous fugitive slave clause put into the Constitution.

From one perspective, it would appear that the Constitution was being written against a backdrop of an assumption that slavery was not a natural condition of mankind.

On the other hand, Congress was not given the power to interfere with slavery within states. Slave states were able to increase their representation in Congress with the “3/5ths Clause” and there was the Fugitive Slave Clause, which betokened recognition of slavery in the Constitution. (Interestingly, the 3/5ths clause started out as part of a discussion to weight representation by state wealth. Slaves represented a “rough and ready” way of determining wealth. Although the discussion moved away from wealth, the 3/5th clause became a deal point for the slave-holding South.)

Clearly, the Constitution was founded on a conundrum. It is not clearly an anti-slave document, but it is not - despite the argument of modern historians - a pro-slave document.

Wilentz's argument is that - surprise! - the Constitution was a compromise, and that the anti-slavery faction fought hard and deliberately to prevent any recognition of “Property in Man” from being found in the Constitution so that there would be no argument that the Constitution recognized slavery as opposed to state laws recognizing slavery.

Wilentz makes his case by examining the statements and writing of the founders and marshaling the arguments and counter-arguments. I found his development of the arguments over the period of 1788 to 1861 to be absolutely fascinating. Frankly, I think Wilentz gives the best explanation of “Popular Sovereignty” and the role that the Dredd Scott decision played in unraveling American democracy than any I have seen.

What I also got from reading the Wilentz book in conjunction with the Horne book is a better understanding for the South's position. I had always considered the South's position on slavery, and the Dred Scott decision, to be ginned up ad hoc. However, if you read the Horne book, you will find that the South's arguments in 1788 and 1858 were the same as 1776. In that earlier period, the South was seceding from Britain because of the threat to its slave property, just it did in 1860.

In addition, according to Horne, the secession was triggered by the Somerset decision, which held that, in the absence of English laws of slavery, slaves were free in England. This, of course, was the same issue that confronted Taney in Dred Scott. The difference was, of course, that Taney decided that the Constitution was positive law at the federal level recognizing “Property in Man,” or, alternatively, he thought that slavery was a part of the natural law for Africans.

Although Wilentz does not say this, he does spend a lot of time on the issue of whether slaves were property under the Constitution or just under state law. Clearly, in light of Somerset's Case, this was the key issue; if the Constitution recognized slavery, then there was positive law, i.e., man-made law, that could be used to recognize a right to slavery in the territories and in free states. In other words, it would seem that Somerset's Case defined the controvery in America for 90 years after it was announced.

Another factor that Wilentz points out is that the flashpoint over slavery was in the territories. Southerners wanted the right to bring their slaves into the territories, which they viewed as belonging to them as much to Northerners. This is interesting in light of the fact that a reason for the American Revolution was the policy of the British Crown to prevent western expansion. Again, there seems to be a parallel here.

Wilentz also makes understandable Lincoln's “either slave or free” argument. While the South was concerned about slavery being meddled within their states, Northerners were threatened with nothing less than having slavery re-introduced into the North under the principles announced in Dred Scott. If slaves were property under the Constitution, then the privileges and immunities clause would seem to protect them when they brought their slaves to the North.

Wilentz ultimately shows that America was founded on a compromise that created a quandary. This quandary was possible only because the Constitution was not a pro-slavery document, despite the history that could have made it one.

I listened to this as an audiobook. I thought the writing was engaging and clear. I do not understand why there are complaints about Wilentz's writing style, which was effective and lucid. I recommend this book.