To prepare the audience for this week's Interfaith Lecture Series on the Civil War and human rights, Michael Klarman cleared some misconceptions, laid the groundwork for the week and rooted people's minds in constitutional history.
During Monday's lecture, the Rev. Joan Brown Campbell, director of the Department of Religion, introduced the multi-degree-holding Harvard law professor to an audience that had just been warned against saving
seats in the packed Hall of Philosophy.
As if speaking to a lecture hall within the Harvard walls, Klarman launched right into his lecture "Slavery and the Constitution," which centered around three main points: the Constitutional Convention in Philadelphia in 1787, the debate about fugitive slaves and the controversy surrounding slavery in the federal territories.
Klarman prefaced his statements about the Constitutional Convention by reminding the audience that, at this point, slavery still was popular even among northern states. Although the northern states often come out of history textbooks as the "good guys," Klarman repeatedly pointed out instances in which the roles are reversed. In 1787, it was inconceivable that slavery would be abolished anytime soon. It was the Civil War that sped up the process, Klarman said with a promise to elaborate later in the lecture.
Three of the provisions that arose from the Convention were the three-fifths rule, a foreign slave trade provision and the fugitive slave clause. All of these provisions sought to find compromises between the North and South so that no state would secede.
Ultimately, the debates surrounding these provisions were about power. When the three-fifths rule was created, the five northern states and the eight southern states all had approximately 1.9 million people, if the number included slaves. The North was afraid this higher population in the South would translate to more power in Congress, Klarman said.
The three-fifths rule was a bargain between the North and South over power, and the foreign slave trade provision eased the South away from its threat of secession. A lot of the decisions made about slavery
before the Civil War were efforts to prevent the Civil War.
The language in the Constitution is vague, but it is clear that the Founding Fathers were not fans of slavery. In fact, the words "slave" and "slavery" are replaced by euphemisms, like "other persons," in the text of the Constitution, Klarman said. Although the Founders thought slavery was against natural law and hoped for and expected it to end, the challenge was that the founders had to weigh the interests of
anti-slavery with their desire to preserve the Union.
"It's not entirely obvious what more (the framers) could have done. Any significant steps they took against slavery would have made it impossible to form a Union," Klarman said, adding that a Union without slavery, the ideal option, would not have been easy either, because the Framers could not imagine colonization with free blacks.
This led Klarman easily into his next point, in which he discussed the issue of fugitive slave rights and the rights of slave owners when their slaves escaped.
This debate often morphs into one of federalism, not of slavery, Klarman said. The law was clear in stating that the national government had little power over the actions of the states. But slavery was a
slippery issue and seeped into national politics on many levels. And often, though it solved few problems, the federal government simply delegated the power to the territorial legislatures and gave them the
For example, in the 1830s, the postal service refused to mail abolitionist literature. Although this issue is physically between the territories, it threatened the First Amendment rights of those abolitionists, a concept governed by the national government.
Another question was what role the Constitution played in determining national versus state power. Article IV, Section 2 of the Constitution makes it clear that when a slave escapes, the owner still has the right
to recapture that slave. The questions of how and where are more ambiguous, and a case called Prigg v. Pennsylvania attempted to clarify.
In Prigg, the U.S. Supreme Court upheld the Federal Fugitive Slave Act and overturned a Pennsylvania statute that gave special procedural protections to suspected fugitive slaves.
Between the lines, this decision, written by Chief Justice Joseph Story, generally held that a slave owner had a limited right to
recapturing his escaped slave, without making a claim with the territory in which the slave now lived. This suspected fugitive slave had very minimal rights to due process, and there was no violation of the Bill of Rights in this case.
Although this decision seems strict, Klarman said he could make an educated guess that Story sensed the impending dissolution of the Union and used this case as an effort to prevent it. Klarman once again reminded the audience that, despite the North's defense of freedom, Story's decision was not unpopular.
"I would suggest to you that the Constitution is largely indeterminate on many of these issues...I don't want to say the court's decision is clearly wrong (or right) as a legal matter," Klarman said.
"But we can't judge them by our (moral) standards today.”
The rights of fugitive slaves in northern territories also raised the question of federalism, which led Klarman to his third and final point. Disagreement over fugitive slave territories fed the conflict between
the North and the South, and as a result, many compromises had to be made to preserve the unity of the country. Eventually, no amount of compromise was enough to prevent the Civil War.
The Northwest Ordinance of 1787, for example, was one of the first instances in which Congress expanded westward by admitting new states. This new territory was admitted as a free state, a bargain in favor of the North but also the implied promise that southwest territories would
be slave states.
The Kansas-Nebraska Act of 1854 created the territories of Kansas and Nebraska and allowed the settlers of those territories to decide whether or not to allow slavery. The Missouri Compromise of 1820 led eventually to the rise of an angry, anti-slavery Republican party in the North and the secession of the southern states — a secession that would spark a bloody Civil War.
"The nation breathes a sigh of relief; the Compromise of 1850 is very popular in the country … but what happens next is an unmitigated disaster," Klarman said.
As the hour quickly drew to a close and Klarman was inviting the audience to ask questions, he expressed subtle regret at not being able to finish his discussion of the infamous Dred Scott case — to which one clever questioner responded, "Could you tell us about the Dred Scott
case?" One of the main points was that even the decision in Dred Scott v. Sandford was an effort to preserve the union.
Another audience member wondered how inevitable the Civil War was, and if there might have been more options to peacefully preserve the Union. After a short discussion of the overall support of slavery even
up until President Abraham Lincoln's signing of the Emancipation Proclamation, and of the fact that the preservation of the Union tended to take very high priority, Klarman closed the lecture with a statement that set up the audience for the rest of the week.
"I think slavery probably was destined for extinction, but it certainly wasn't in 1860. Lincoln was prepared to sign on to a
constitutional amendment … that would have forever protected slavery in the existing states," Klarman said. "There was no sense that slavery was going to end anytime soon, except the South provoked the war … and the
more the war was fought, the more incomprehensible it was that slavery
Michael Klarman is the Kirkland & Ellis Professor of Law at Harvard Law School. He was a member of the Law School faculty from 1987-2008.
While at Stanford Law School, Klarman won numerous awards and served as senior articles and symposium editor of the Stanford Law Review; he also is a member of the Order of the Coif and Phi Beta Kappa. After graduation, Klarman clerked for Judge Ruth Bader Ginsburg of the U.S. Court of Appeals for the D.C. Circuit. He then completed his doctoral thesis in legal history as a Marshall Scholar at Magdalen College,
Oxford. In 2005, Klarman won the Bancroft Prize for "From Jim Crow to Civil Rights" (Oxford University Press, 2004).