Book Review: No Property in Man
By: Jack Carlson, Michigan State University
Book: No Property in Man: Slavery and Antislavery at the Nation’s Founding. Sean Wilentz. (Cambridge, MA: Harvard University Press, 2018) 350 pp.
For many modern historians, the Constitution was inextricably tied to the protection of slavery. With its repeated references to “free persons,” the notorious three-fifths and Atlantic slave trade clauses, and its failure to achieve emancipation without being amended, such an interpretation of the founding document is understandable. But was it truly a proslavery document? In his book No Property in Man, Sean Wilentz lucidly makes the case that the Constitution was neither a proslavery or antislavery document, but rather a flawed, complicated, and misunderstood text. With great detail, Wilentz outlines arguments from both sides –those who believed the Constitution enshrined slavery and those who believed it limited it – drawing back the curtain to reveal that no clear consensus about the Constitution’s relationship to slavery existed at the nation’s founding. Wilentz’s No Property in Man serves as an important counterpoint to historian’s proslavery interpretations of the Constitution, demonstrating that, despite giving costly concessions to Southern slaveholders, it successfully left open the door for future abolition movements and the abolishment of slavery with its “exclusion of property in man.”
The Constitution’s relationship with slavery was harshly contested during the convention in Philadelphia and battled out in the following decades, ultimately presenting two distinct interpretations of the Constitution for future generations to follow. During the convention, Southern slaveholding delegates tirelessly advanced arguments for protections of slavery to be embedded in the Constitution. To the dismay of Northern opponents of slavery, the three-fifths clause was incorporated into the document to bolster the South’s electoral power, granting Southern states increased representation in Congress by counting enslaved people as three-fifths the electoral representation of a white person. Elements such as these have led contemporary historians to conclude the Constitution, after a series of compromises, emerged from the convention as a proslavery document committed to protecting the institution of slavery for generations to come. Wilentz argues otherwise.
While the Constitution incorporated a number of compromises that helped legitimize and protect slavery, Wilentz insists these compromises, made in part by antislavery Northerners, prevented the Constitution from becoming an entirely proslavery document and enshrining property in man. Yet for many historians, such compromises were undoubtedly concessions to slaveholders. That compromises between antislavery and proslavery delegates were made, however, was testament to the efforts of antislavery delegates to separate the Constitution’s ties with slavery to the furthest extent possible. The three-fifths clause, rather than handing over substantial power to slaveholders, was an attempt by Northern delegates to limit the power of the slaveholding South in Congress. Indeed, Southern delegates had been adamant that enslaved people – which they also claimed were property – should be counted under their state’s populations as equal to that of a white person, greatly increasing their representation in Congress. Reluctant to surrender this electoral power to the South, antislavery delegates used the tool of compromise to bludgeon Southern efforts, ultimately giving the South less representation in Congress than they would have without the clause and leading some Southern delegates to deem it a “major concession” to antislavery proponents. Laying out this historical interpretation, Wilentz argues the compromise resulted in a Constitution less proslavery than one which would have counted enslaved people equally.
Underlying these compromises and clauses was the intention of the majority of delegates to exclude property in man. Despite claims by Southern delegates during the convention that slaveholders had a right to protect their “property” – that is, enslaved people – the Constitution that emerged from the convention contained no language supporting their heinous idea. Indeed, Northern delegates such as Elbridge Gerry strove to purge from the Constitution any mention of enslaved people being considered property. Wilentz describes Gerry, among others, as voicing “what appears to have been the majority view, that the new government had to be scrupulous about leaving slavery entirely in the hands of the states where it exists but it equally had to be vigilant ‘not to give any sanction to it.’” By excluding property in man, antislavery proponents such as Gerry prevented both slaveholders during the founding from protecting their deeply racist “right” to deem enslaved people as property and stubbornly proslavery politicians in later decades from making a similar case under the cover of state’s rights.
In strenuously working to embed provisions that would eventually limit the expansion of slavery, Northern delegates succeeded in delegating to Congress – a powerful, federal institution – the power to regulate slavery under the Northwest Ordinance, further reducing the power held by states over the control of slavery. Intended to help organize and admit the Northwest Territories, Wilentz describes how a last-minute provision added to the ordinance banned slavery in the territories and allowed Congress to regulate slavery instead. “Without question,” he explains, “Congress, working under the Articles of Confederation, exercised authority to legislate decisively on slavery’s future in territories outside the existing states.” Through the constitutional authority given to Congress under the ordinance, future efforts to prevent the spread of slavery could be done without having to bend to popular sovereignty or proslavery Southerners. To be sure, the ordinance did little to restrict the expansion of slavery outside of the Northwest Territories. Wilentz’s analysis, however, works to reveal how the consensus in granting Congress the authority to forcefully regulate slavery under the ordinance helped add substance and legitimacy to future efforts to contain the spread of slavery with federal power.
Other elements of the Constitution reaffirm Wilentz’s interpretation. Congress’s authority to regulate slavery in the Constitution was further strengthened by the Atlantic slave trade clause. Indeed, under the clause Congress had the power to levy taxes on enslaved people imported against their will to the United States, prohibit American ships from transporting them into states, and permanently bring an end to the trade. The stunning potential for Congress to suffocate slavery through these powers, Wilentz shows, became the subject of heated debate and gave rise to threats of disunion. Yet while proslavery advocates repeatedly asserted that Congress had no right to exercise this constitutional power, antislavery advocates pointed to language in the Constitution to strike down these fallacious claims. Under the Constitution, antislavery politicians argued, Congress’s authority was clear: the Atlantic slave clause broadened congressional power to regulate slavery outside of individual states and gave Congress the power to eventually abolish the trade by 1808. What is more, Wilentz insists how the absence of property in man from the clause became another resilient defense of congressional power against the institution of slavery.
It is understandable that contemporary historians may be led to believe the Constitution, despite these provisions, remained a proslavery document. Modern historians argue that even in if Congress had the power to regulate slavery under the Northwest Ordinance or Atlantic slave trade clause, and even if it did not directly endorse a right to property in man, the Constitution did not do enough to undermine the institution of slavery. In finding support for this interpretation, many historians have pointed to the arguments presented by William Lloyd Garrison, the noble and well-intentioned abolitionist who led the charge against slavery while also denouncing the Constitution as a proslavery document. Rather than glossing over this important historical criticism, Wilentz details the truth behind this argument as well as its falsehoods, delivering a balanced and fair assessment of what he believes is a misleading interpretation of the Constitution.
The 1830s and forties saw the rise of William Lloyd Garrison’s abolition movement and the mounting criticism of antislavery constitutionalists. For Garrison and other abolitionists, the Constitution was a “pact with evil” and, taken together with its compromises over slavery, was “formed at the expense of human liberty.” As he addresses other counterarguments to his interpretation of the Constitution, Wilentz describes in great deal the philosophy of Garrisonian abolitionists and the conclusions they drew from the Constitution’s proslavery elements. Among other things, he argues the Garrisonian view of a proslavery Constitution rested on the compromise over the Atlantic slave trade. Allowing the Atlantic slave trade to continue for years after the nation’s founding in their view was evidence of the framers sympathies with slavery and desire to enshrine the institution within the Constitution. Yet the fact the Atlantic slave trade clause gave Congress the power to limit and potentially abolish the trade reaffirmed the idea that the Constitution was, in part, an antislavery document. Ironically, though abolitionists advanced a proslavery interpretation of the Constitution, it was the same interpretation held by slaveholding Southerners. Indeed, Senator John C. Calhoun of South Carolina advocated a position similar to Garrison’s, describing the Constitution as a proslavery document enshrining into law the right of states to regulate and renew slavery. But while some abolitionists and slaveholders believed the Constitution to be proslavery, several leading antebellum politicians and orators believed it was committed to undermining slavery and eventually putting the institution on a road to extinction.
Standing behind the Constitution to support their antislavery arguments were two of the nineteenth century’s leading orators and most intelligent supporters of abolition: Frederick Douglass and Abraham Lincoln. Wilentz argues that both figures were antislavery constitutionalists who believed the Constitution’s absence of property in man supported their calls for abolition. Lincoln, a moderate Republican who did not immediately support abolition before assuming the Presidency, still expressed abolitionist sentiments through his references to antislavery elements in the Constitution. “The Constitution, of necessity,” Wilentz describes Lincoln saying, “contained compromises with slavery,” but the framers “had gone no further than those compromises.” Lincoln’s assessment of the Constitution viewed its notorious compromises over slavery in a way similar to Northern delegates at the Philadelphia Convention. That compromises had to be made with Southern slaveholders was not for strictly proslavery reasons, Lincoln believed. They were “of necessity” and, however serious the concessions to slaveholders were, demonstrated the efforts of Northern delegates to limit slavery in the Constitution as much as they could. And in light of Southern threats of disunion and secession by the 1850s, Lincoln repeatedly espoused his belief that the framers intended to keep out of the Constitution any right to property in man.
Likewise, Frederick Douglass believed the Constitution was an antislavery document, and that claims by proslavery Southerners to the contrary were based in misleading and false interpretations of the document. Indeed, Douglass’s conception of the Constitution viewed its “principles and purposes” as being “hostile to the existence of slavery.” The natural rights of man and the lack of any endorsement to a right to property in man, Douglass believed, could be taken together as evidence of the Constitution’s antislavery components and its potential to be unshackled from its complicity in slavery. Ultimately, what modern historians label “commendable but wishful distortions” on behalf of Lincoln and Douglass, Wilentz shows to be successful evaluations of the Constitution’s exclusion of property in man.
Still, if the Constitution left open the door for future antislavery politicians and movements, it did little to prevent the continuation of state laws that promoted and worsened the conditions of slavery within their borders. Laws enacted in several Southern states prohibited discourse on slavery in the hope of keeping the institution safe from criticism, while for decades the federal government failed to hold accountable slaveholders who horrifically abused and even killed enslaved people. Clearly, the Constitution’s incorporation of antislavery elements did little to hold back the sweeping tide of new state laws surrounding slavery. Subordination, desperation, and helplessness – characteristics which defined those under slavery since before the nation’s founding – were not erased with the enactment of the Constitution. Wilentz’s analysis carefully keeps these tragic legacies of slavery in mind, working to show that with all of its antislavery features, the Constitution was far from enough help for the situation of enslaved people.
With a comprehensive account of the history behind the Constitution and its incorporation of both proslavery and antislavery elements, are historians right to judge the Constitution as being committed to the protection of slavery? Sean Wilentz’s detailed and intelligent analysis of both the proslavery and antislavery interpretations of the document reveals a more complicated history than what contemporary scholars are led to think. Tied together with its compromises with slaveholders and absence of any direct language against the institution of slavery, the Constitution contains many glaring, proslavery features. Yet when viewed with Wilentz’s additional historical context, its compromises and concessions to slavery were also an effort by antislavery founders to strive for a document that did not completely protect slavery, that would serve as a tool for future generations to purge from the nation the despicable institution of human enslavement. In viewing the Constitution as a complex document that refused to enshrine the “right” to property in man, then, future generations of historians may better understand the tragic legacies of slavery that comprise America’s history. Wilentz’s No Property in Man helps lighten the ambiguous shadow of slavery’s influence over the Constitution and forcefully shows that our perceptions of the Constitution still matter.
 Wilentz contrasts his thesis with contemporary historians in saying “Recent historians have demeaned the distinction [between antislavery and proslavery elements in the Constitution] as at best a mere technicality and at worst a despicable evasion, born of embarrassment and chicanery rather than principle.” Sean Wilentz, No Property in Man: Slavery and Antislavery at the Nation’s Founding. (Cambridge, MA: Harvard University Press, 2018), 4. For a brief list of recent scholarship referring to the Constitution as a proslavery document, see 271-272.  For a far more detailed discussion on the Constitution’s components, the intentions of the framer’s, and its worrisome relationship with slavery, see Wilentz, “The Federal Convention and the Curse from Heaven,” No Property in Man, 58-114.  Ibid., xiii.  “The slaveholder’s power in national politics,” Wilentz notes, was “enlarged by the notorious three-fifths compromise.” Ibid., 3.  Pierce Butler and Charles Cotsworth Pickney, among others, advocated for enslaved people to represented “equally with the Whites,” Ibid., 64. This, however, was almost immediately struck down by delegates in what James Wilson called “the necessity of compromise.” Ibid., 65.  Ibid., 63.  The exclusion of “property in man” from the Constitution created a political environment in which future abolition and antislavery movements could grow and eventually “bring slavery to its knees.” Ibid., 268.  Ibid., 100.  Ibid., 103-104.  While other compromises and constitutional provisions still left slavery the subject of state laws, the ordinance, Wilentz writes, “was the most ambitious legislative measure yet enacted in America to limit slavery” through the “exercise of congressional authority.” Ibid., 4  “[Slavery] would color the turbulent politics . . . for decades to come.” Ibid., 114.  James Wilson, a moderate antislavery delegate, argued that the Constitution opened the possibility for “Congress [to] ban slavery in the territories, a policy which, in combination with the Atlantic slave trade’s abolition in 1808, would ensure slavery’s abolition.” Ibid., 134  Wilentz describes the text of the clause: “At no point [. . .] did the proviso recognize slaves as property.” Ibid., 110.  Ibid., 229.  Ibid.  “Property,” Calhoun said in referring to slavery, “is guarantied [sic] by the Constitution.” Ibid., 221. Most famously, however, were Chief Justice Taney’s infamous words in the Supreme Court’s Dred Scott decision, in which Taney insisted enslaved people “are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.” Dred Scott v. John F. A. Sandford 60 U.S. 393 (1857)  Wilentz, No Property in Man, 241.  Ibid., 227.  Ibid., 4.  Wilentz notes that the end of the Atlantic trade, among other actions by Congress to undermine slavery, “hardly cleared the way for slavery’s demise.” Ibid., 185.  “In the 1830s, various states sought to ban ‘incendiary’ [abolitionist] publications and wanted federal officials to cooperate by closing the mails to such publications.” Akhil Amar, The Bill of Rights: Creation and Reconstruction, (New Haven, CT: Yale University Press, 1998), 159. Frederick Douglass, in his impassioned autobiography, describes in painful detail the lack of accountability of slaveholders in Maryland who heinously abused and murdered enslaved people, while also noting that “killing a slave, or any colored person, in Talbot County, Maryland, is not treated as a crime, either by the courts or the community.” Frederick Douglass, Narrative of the Life of Frederick Douglass, (New York, NY: First Signet Printing, 1968), 41.