Race and Constitutional Law Casebooks: Recognizing the Proslavery Constitution

Federalist No. 54 shows that part of Madison\u27s public defense of the Constitution included the defense of some of its proslavery provisions. Madison and his reading public were well aware that aspects of the Constitution protected slavery. These aspects of the Constitution were publicly debated in the press and in state ratification conventions. Just as the Constitution\u27s protections for slavery were debated at the time of its framing and ratification, the relationship between slavery and the Constitution remains a subject of debate. Historians continue to debate the centrality of slavery to the Constitution. The majority position among historians today appears to be that the Constitution was proslavery, in the sense that slavery and slavery protection played a central role in the formation of the Constitution. Furthermore, these historians argue that several of its provisions protected and promoted slavery. As George Van Cleve, the author of A Slaveholders\u27 Union, concludes, the Constitution was pro-slavery in its politics, its economics, and its law (p. 270). Despite this majority position among historians, the authors of constitutional law casebooks sometimes ignore or, more generally, minimize the proslavery interpretation of the Constitution. Certain casebook authors, while acknowledging the importance of slavery before and after the Constitution\u27s ratification, adopt a more benign interpretation of the Constitution itself as neutral on slavery. Accordingly, a significant divergence exists between the proslavery interpretation held by many historians and the interpretation promulgated by many constitutional law casebook authors. As this Review explores, the failure of many constitutional law casebooks to engage prominently with the proslavery interpretation of the Constitution has important consequences for our understanding of the relationship between slavery and the Constitution and our understanding of how these origins of the Constitution may make a difference today