17A034 I Erred by Jim Davies, 10/3/2017    

I don't err, of course; regular readers of the ZGBlog know that. But when I do, it's news; and I should own up. So here goes.

The context is that of slavery in the South. It was possible only because it was enforced by agents of State and Federal Governments, in the North as well as the South; for if a slave escaped from his "owner" but was found and caught, he was returned. But for that enforcement, any trickle of escapes would quickly have grown into a stream, and then to a torrent unless "owners" renegotiated, which would have meant the end of slavery and its replacement by terms of offered employment.

The error I made, several times, was to believe and say that repeal of those "Fugitive Slave Acts" would have been an easy option. From a recent interaction with archists on the PBS News Hour site, I found it would not. I thought there was no Constitutional obligation to return escaped slaves; but there is. I had failed to notice Article 4 Section 2 Clause 3 . Mea culpa.

It says, in plain black and white:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Specific Acts were passed to implement this, and when in 1863 Lincoln proclaimed Emancipation (for those territories he did not control!) he was careful to do it by an "order" as Commander in Chief in the course of suppressing a "rebellion." Otherwise, he would have been pre-empting the Constitution. I missed that bit, too. Full abolition of slavery had to wait for Amendment Thirteen in 1865.

The significance of this is heavy. It means that from the get-go, from the very foundation of this country, slavery was not merely tolerated but deliberately built into its fabric, everywhere.

Arguably, the Northern delegates to the Constitutional Convention were uneasy about slavery; it may be that they agreed to the above Clause, together with the "three-fifths" one in Article 1 Section 2, by way of a compromise, so as to keep the Southerners on-side. But that's what they did, along with all who voted to ratify the whole charter; the cause of unifying the 13 States under a single government was considered more important than liberating a couple of million kidnapped residents with black skins. The Constitution took what might have remained a localized obscenity, and nationalized it.

The founders were careful to make it the servant of the several states, not the master; they were of course not careful enough. The new beast did not take many decades to turn on its creators, and Lincoln's war was a case in point. The charter gave him no authority at all to prevent secession, but he exercised it anyway. From 1865 onwards, Amendment 10 was toothless.

It would have been easy enough, in 1787, for the Convention to dissolve without agreement, without having established a new political union. The several States could have continued as before, perhaps after making another agreement, to contribute funds and manpower to supply a common defense in case of attack; that was a worry at the time, since His Britannic Majesty was not at all pleased to have lost his American colonies. And/or, they might have made a couple of tighter unions, a slave-based CSA in the South and a slaveless USA in the North, as separate neighbors. There was no compelling need to form a single Union, just the political ambitions of the 39 lawyers convened.

Had such a dissolution taken place, no Article 4 §2 would have obliged any state to return escaped slaves, so the rising cost of damming the flow would have cost the "owners" more than the alternative of ordinary labor contracts.

It might have fizzled out - without bloodshed, of course - even faster than it did in the British Empire in 1833, with help from Wilberforce and others. Almost certainly, it would have been over before 1865 and the awful, century-long history of animosity between the races would not have followed.

So the blame for this huge tragedy does belong, it seems to me, on the Constitution and those who wrote and ratified it. This is sobering. Libertarians - including myself - have praised the Constitution as a limit on government power, but really it pretends only to limit the government it was setting up; and it didn't even need to set one up in the first place. Our Constitutionalist friends are, like it or not, committing themseleves to a charter that explicitly endorsed slavery; its fine words about justice and the blessings of liberty and its guarantees about due process and the right to carry firearms, ring hollow when Article 4 §2 clarifies that it all applies only to non-slaves. There is no way to reconcile that with a commitment to freedom.

Freedom in any case requires not just that state governments abstain from creating a supra-government which sets a certain class of human beings in permanent bondage; it requires them to close their doors and go out of business - for all government is a denial of freedom, it all takes away the fundamental right of self-governance with which every individual is naturally endowed. That was, however, never the intent of the founders in 1787; they met in Philly as delegates of existing governments and set about the task of creating a new one. They were politicians and lawyers; and lawyers need laws so as to make a living, and laws need governments. They met not to increase liberty, but to reduce it. Real freedom will result only when governments can find nobody to work for them.