difficulty of amending Constitution a result of the slave trade?

Calvin Johnson CJohnson at law.utexas.edu
Thu Oct 15 05:31:01 PDT 2009


I am skeptical, although we do know too little about it.
          General attitude in the North as to slavery was, as Sherman (Conn)  put it, "let us leave things as they lay, and get about our business."  Salvery is a very hot button issue, but the nationalists are dedicated to pushing it under the rug, because getting the war debts paid is far more important.  The desperate need is to pay the Dutch on debts of the Revolutionary War because in teh coming inevitable war, we will borrow from them again.  The National government needs a reliable tax system, not requisitions which nobody was paying.  Slavery disputes could have upset the applecart.
         The norm inherited from teh War was unanimity.  All for one.  United we stand divided we fall.  The Articles required unanimous consent for all amendments.   They dropped back to three quarters for ratification,9 of 13 states because they did nto think they could get NY, Va., RI, perhaps NH, all of hwich had vetoed the 1781 and 1783 impost propsals at some point or other.   9 of 13 was a respectable majority, the amoutn needed for charging expenses to the federal treasury, but made the ratification possible.
    In any event, slavery is very much of a side show issue in 1787, always there, always under hte table, the sleepign bear.  But the pressing need was fiscal, and nationalists north and south were willing to make whatever compromises were needed to get the Constitution through.
     Massachusetts and Pennsylvania are ready for abolition, even though Boston and Philadelphia are major ports.  The assumption is that the slave trade will end in 1806.  I dont think you need to tar the North with some kind of Marxist proslavery.   They jsut see that the Constitution as more important than abolition.
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From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark Stein [chmyankel at live.com]
Sent: Wednesday, October 14, 2009 10:05 PM
To: conlawprof at lists.ucla.edu
Subject: difficulty of amending Constitution a result of the slave trade?


One issue not referenced in the article abstract I circulated earlier tonight is whether the Constl Convention proposal to require two-thirds of the states to ratify amendments (instead of three-fourths, as eventuated) was defeated by a coalition intent on protecting the slave trade.  Following is what I say on pp. 57-58.  The issue is not central to my argument, but I'd be interested in any reaction

...

            At the Constitutional Convention of 1787, James Wilson of Pennsylvania proposed that approval by two-thirds of the states should suffice for amendments.[1]  Wilson’s motion was defeated by a vote of only six to five.[2]  The six states voting against the motion were Massachusetts, Connecticut, New Jersey, North Carolina, South Carolina, and Georgia.[3]  Wilson then moved to require approval of three-fourths of the states, which was adopted unanimously.[4]
            It appears that much or most opposition to Wilson’s initial two-thirds proposal was related to the protection of the African slave trade.  The three deeper-South states that were interested in protecting the slave trade – North Carolina, South Carolina, and Georgia – voted as a bloc against the two-thirds proposal.[5] This vote occurred before a provision was inserted in Article V making the protection of the African slave trade until 1808 completely unamendable;[6] that provision was inserted later on the same day.[7]  Moreover, Massachusetts and Connecticut, two of the three Northern states that voted against the two-thirds proposal, had allied themselves with the deeper-South states on matters concerning the African slave trade, in order to gain approval for what became the Commerce clause.[8]  The votes of Massachusetts and Connecticut against the two-thirds proposal may have represented a continuation of their support of the slave-trading interest, although these states may also have had other concerns.
            In any event, the bloc vote of the deeper-South states suggests that the Constitution would have been a little easier to amend if it were not for the interest of some states in protecting the slave trade.[9]

________________________________

[1] 2 The Records of the Federal Convention of 1787, at 558 (Max Farrand ed., 1911).

[2] Id. at 558-59.

[3] Id.

[4] Id. at 559.

[5] Id. at 558-59.

[6] “[N]o amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article…”  U.S. Const. art. V.

[7] Farrand, 2 Records of the Federal Convention, supra note 149, at 559.

[8] See Finkelman, Slavery and the Founders, supra note 9, at 27-31; David Brian Robertson, The Constitution and America’s Destiny 180-81 (2005).

[9] To my knowledge, this history has not previously been discussed in connection with the originalism debate.  Finkelman mentions the three-fourths requirement in Article 5, Finkelman, Slavery and the Founders, supra note 9 at 8, but he does not discuss it in detail.

...

Mark


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