Americans traditionally have revered their Constitution—as they should, if only because of the astounding success the United States has enjoyed under its governance.
However, the Constitution always has had critics, particularly among those who believe the federal government should be all-powerful rather than limited in scope. Socialists, for example, recognize that the Constitution’s restrictions on federal authority could frustrate their plans for intrusive government programs, such as the Green New Deal.
Recently, socialism has come back into fashion, thereby intensifying the assaults on the Constitution. These assaults come from politicians, political activists, and academics—including many academics who should know better.
Most of these attacks reveal ignorance of the reasons behind the Constitution’s rules and of the history of the document’s drafting and ratification. That history encompasses the framing of the document in 1787 and its ratification by popularly elected conventions in the 13 original states and in Vermont, meeting from late 1787 through 1791.
Why does the Constitution restrict majorities that way? Because the founders recognized that for self-governance to work, it must respect certain rules, including rules that curb majority demands. The founders had learned from history that when democracies tyrannize minorities, they degenerate into dictatorships or civil war.
Still another charge is that the Constitution was adopted by slaveholders. If this were true, it would not be surprising: At the time, almost every nation recognized slavery.
In fact, however, the claim that slaveholders adopted the Constitution is substantially false.
The 1787 convention drafted the Constitution, but it became law only when ratified by popular conventions meeting in each state. Slaveholders composed only a tiny percentage of the voters electing state delegates. Similarly, slaveholders probably composed only a sliver of the 1757 delegates in the 14 state ratifying conventions.
Slaveholding was more prevalent among the delegates to the drafting convention. Key figures such as George Washington, James Madison, John Rutledge, and Edmund Randolph were slaveholders. On the other hand, most of the key delegates held no slaves. These included John Dickinson, Benjamin Franklin, Alexander Hamilton, Roger Sherman, James Wilson, and Gouverneur Morris. Indeed, most of these men actively opposed slavery. Dickinson had inherited slaves, but emancipated all of them.
Moreover, many prominent slaveholders, such as Patrick Henry and George Mason, opposed ratification. If the Constitution is discredited because some of its supporters owned slaves, then opposition to the Constitution should be equally discredited.
Finally, the “based on slavery” argument disregards the fact that leaders in the founding generation acknowledged that slavery violated natural law and were working for its extinction. For example, in the 11 years between the Declaration of Independence and the Constitutional Convention, some states enacted emancipation laws and most abolished the international slave trade.
The common claim that the Constitution was adopted only by white people is also substantially false. Most states granted the voting franchise to American Indians who renounced tribal loyalties. The United States population included many free African Americans, and five states enfranchised them as well.
Even more baseless is the claim that the Constitution was adopted only by “the rich.” In fact, the electorate that approved the Constitution consisted primarily of small farmers, merchants, and tradesmen. Property requirements for voting were modest in most states, and some states dropped even those requirements for the ratification elections.
Actually, the text of the U.S. Constitution is color blind, unlike some of the then-existing state constitutions. However, the charge of racism is based on the original Constitution’s Three-Fifths Clause. It provided that a state’s direct tax burden and its representation in the House of Representatives were generally determined by its population—but that five slaves would count as only three free persons.
The reason for the clause was that the framers believed that representation should follow taxation, and taxation should be based on ability to pay. A congressional study had shown that because slaves couldn’t sell their labor on the open market, they produced only about 60 percent as much wealth as free persons, thereby reducing a state’s ability to pay taxes.
Although the three-fifths formula frequently is described as a concession to slavery, it can also be described as a punishment for slavery, because it denied slave states the full population-based representation enjoyed by free states.
That having been said, the three-fifths rule is simply irrelevant today because it was removed from the Constitution more than 150 years ago.
Perhaps the most nonsensical charge I have heard is that the Electoral College was created to support slavery. There is almost no evidence to support this.
