Home Life & CultureSlavery, the Constitution, Natural Law, Legal Positivism, and the Central Theme of American History

Slavery, the Constitution, Natural Law, Legal Positivism, and the Central Theme of American History

The New York Times Magazine’s The 1619 Project is part of a larger post-modern attack on the Founding Fathers and the principles of the American Republic. The 1619 Project’s thesis is that racism is the central theme of American History. Such a critique arises from the old Marxist spin on American History. The truth is that liberty and the struggle to preserve and perfect liberty is the central theme of American History.

 

Slavery in one form or another was nearly universally practiced in the world at the time of the Founding of the American Republic.1 Slavery was introduced to the English colonies by the Kings of England, so America did not establish slavery, but it was the legacy from England with which it had to contend.

 

The Founding Fathers understood slavery was wrong and violated natural rights,  and they hoped and expected slavery would eventually be abolished by the states. The northern and central states abolished slavery early on. In 1807, the United States became the first nation to ban the slave trade which marked great progress in the advancement of human rights.
England joined America in the fight against the Trans-Atlantic slave trade, banning the slave trade in 1807 right after Congress abolished the slave trade.2 The end of slavery in Canada happened shortly after the end of slavery in the northern states.

 

The Constitution was based on natural law rights both in its provisions and by being established on the foundation of the Declaration of Independence. The Bill of Rights upholds the natural law rights of men, not by granting rights, but by protecting pre-existing rights.

 

For example, the 2nd Amendment directly references the “right of the people to keep and bear arms shall not be infringed.”3 Thus, the right to bear arms was a right the people already had and the 2nd amendment forbids the federal government from the violation of said right.

 

Constitutionality was viewed differently in the days of the Founding Fathers and balancing tests were not used. Rather, the legislative and executive branches recognized their duty to review the constitutionality of any bill or executive action before passing a bill or taking executive action. The Courts asked if a bill had a rational purpose for regulating a right and regulates it with no intent to violate said right. Also, the Courts would ask if the bill serves the general welfare that is the general public purpose and that it did not favor any special interest or target anyone for harm.4

 

An often overlooked but important part of the Constitution is the Privileges and Immunities Clause, which states, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”5 Privileges and Immunities were the rights of a “Free Englishman,” an expression that references the innate nature of rights and the natural rights of all men. Therefore, they represent the rights that all Americans must have as a foundation.6

 

However, the Privileges and Immunities Clause was viewed as being limited to a citizen from one state visiting another and that their rights had to be protected. The Privileges and Immunities Clause served as the basis for fugitive slaves to receive protection when they escaped to free states. However, it did not serve as a basis to free the slaves.

 

The Constitution was a document created by the states, and the states did not give the federal government direct jurisdiction and enforcement authority to uphold an American citizen’s rights against state violation. Therefore, even though the Privileges and Immunities Clause pointed toward the basic rights of all men, the southern states were still able to uphold slavery.7

 

Slavery was defended on the legal positive grounds and was grounded in the rejection of natural law. The legal positive defense of slavery climaxed in the infamous Supreme Court decision of Dred Scott v. Sandford, 60 U.S. 393 (1857). The case arose because Dred Scott, a slave, was taken to the free state of Illinois. Scott claimed he was now a free man and the Privileges and Immunities Clause of the Constitution supported his claim because the state of Illinois could not deny him the same rights as others who resided there. Chief Justice Taney, however, was blinded by pro-southern bias and legal positivist views.8

 

Taney claimed that the Declaration’s words “all men are created” only includes American citizens. Such a claim is not supported by the debate around the Declaration and no Founding Father advocated such an interpretation, which goes against any reasonable grammatical interpretation and would make all grammar flexible. Taney’s reasoning was not logical if Scott was a non-citizen with no standing then the court should have simply dismissed his claim for lack of standing. Instead, Taney’s opinion struck the Missouri Compromise, which restricted slavery in federal territories and declared slavery a property right of the owner and that the slave was a non-person.9

 

Abraham Lincoln centered his opposition to slavery on the principles of the Declaration and Natural Law. He spoke of the nation as having departed from the ways of the Founding Fathers in regards to the Dred Scott decision and the rise of legal positivism.10 The legacy of legal positivism, which began in the defense of slavery, continued in those who defended segregation. And the legal positivism opened the door for Woodrow Wilson to introduce Hegelism and secular statism in the federal government, a legacy that has endangered the American Republic.

 

Slavery and racism were great problems with which the American Republic has had to contend, but the principles of the Founding Fathers were the basis for ending slavery and served as the basis for ending segregation. Martin Luther King Jr. directly cited the Declaration of Independence in his fight against segregation.

 

The true central theme of American History is not slavery or racism. The central theme of America is the noble legacy of the Founding Fathers and their principles of liberty and truth. The principles of the Founding Fathers have never been fully realized and have always faced opposition from the forces of tyranny. America needs to return to and fully realize the true principles and ideals of the Founding Fathers.

 

1 John Alvis The Slavery Provisions of the U.S.Constitution: Means for Emancipation 17 The Political Science Reviewer, 243-246 (1987).

2 Ibid, at 283-289.

3 United States Constitution 2nd Amendment.

Robert Bork, Natural Law and the Constitution https://www.firstthings.com/article/1992/03/natural-law-and-the-constitution, (Viewed on 28 April 2017).

United States Constitution Article IV, Section 2, Clause 1.

6 David F. Forte and Ronald Rotunda, Privileges and Immunities Clause. http://www.heritage.org/constitution/#!/articles/4/essays/122/privileges-and-immunities-clause (viewed 28 April
2017).

7 Ibid.

Paul Finkelman, Scott V. Sandford: The Court’s Most Dreadful Case and How It Changed History, Vol 82 Chicago-Kent Law Review 2-5, 10-14 (2006).

9 Ibid, at 3-7, 13-18.

10 Richard Brookhiser, Founder’s Son: A Life of Abraham Lincoln,  154-157 (2016).