Race and Constitutional Law Casebooks: Recognizing the Proslavery Constitution

Abstract

Protections for slavery played a crucial role in the debates on the drafting and ratification of the Constitution. Indeed, a majority of historians today understand the Constitution as a proslavery document. This article, reviewing George Van Cleve’s A Slaveholder’s Union, presents evidence of the proslavery Constitution, including excerpts from James Madison’s Notes of Debates in the Federal Convention of 1787, excerpts from state ratification debates, and the language of the Constitution itself. The evidence makes clear that the Framers of the Constitution, the ratifying public, and the Supreme Court understood that the Constitution protected slavery.

This article then examines the general failure of constitutional law casebooks to engage with the implications of a proslavery Constitution. The Constitution is known as the foundational and supreme law, and one would expect constitutional law casebooks to discuss its origins, including this evidence of its proslavery character. However, the authors of constitutional law casebooks choose to ignore or, more generally, minimize the proslavery interpretation of the Constitution. The failure to fully engage with these materials perpetuates widespread ignorance about the inextricable relationship between race, slavery, and the Constitution. In addition, the neglect of or minimization of the role of slavery in the Constitution leaves students of constitutional law ill-prepared to understand the centrality of past and present racial hierarchy in the United States.

Keywords: Constitution, Constitutional Law, Legal Education, Legal History, Race, Race Inequality, Racism, Slavery

JEL Classification: K00