The Original Constitution vs the 14th Amendment

Should we follow the original Constitution or the Constitution of 1868?

If you suggest the former, then according to many “conservatives” and libertarians, you are walking into a minefield.

You see, many Americans see the original Constitution as “pro-slavery.” This stance comes from the arguments of nineteenth-century abolitionists like William Lloyd Garrison who considered the document to be a “covenant with death.”

On the other hand, some abolitionists like Frederick Douglass and Lysander Spooner thought the Constitution was explicitly anti-slavery. Douglass, in fact, came to this position after reading Spooner.

Neither are correct. The Garrisonian position is more popular among those on the left because it works well with their political positions. If the Constitution “enshrined slavery,” and if the document was nothing more than a “covenant with death”, then scrapping it makes logical sense.

Who says the 1850s are dead? It’s not the right that’s living in the 1850s, its the progressive left who constantly dust off early Republican Party talking points.

The right likes to use the Douglass narrative because it buttresses their Lincolnian myth and theoretically helps them ward off charges of racism.

We know that doesn’t really work.

The reality is that the Constitution was neither proslavery nor antislavery. It was neutral. The word “slave” never appears in the document, and while Americans could make the case that the United States government was the government of the “white man”–and what else would it have been in the 1840s?–race was not specified in any article of the Constitution.

It did not “enshrine slavery.” It allowed for States to use federalism to either maintain or abolish the institution. It continued the international slave trade for 20 years, but gave the power to Congress to abolish it at that point. It mandated that fugitives from the law face justice. It did not give Congress any power over the institution either pro or con. It did protect property rights, and as slaves were property in the nineteenth century, the United States government had a legal obligation to protect that property in federal territory, hence the rub with the common property of the United States, but again, that does not make the document “proslavery.”

Barnett and I, whom I have sharply criticized over the last three days, agree on this point.

Just because the left wants to make stupid arguments doesn’t mean we should come up with our own stupid arguments to push back, like abandoning real originalism for “14th Amendment originalism.”

You know who wins in that scenario?

The progressive left and the progressive right.

Not you or I.

I wrap up my three episodes on Barnett’s piece with Episode 774 of The Brion McClanahan Show.