The Constitution, Race, and Renewed Relevance of Original Intent: ...

Given the state-accommodating principles of federalism that were glossed onto the Fourteenth Amendment, outcomes have been a function of evolved but nonetheless mainstream values. The nation’s experience with slavery is a particularly powerful example of how political engagement and resolution are critical to the traction of policy. The inability of the political process to effectively address this issue eventually led to the union’s breakdown.

The challenge of reconciling pro-slavery and antislavery cultures manifested itself early in the nation’s history. Congress in 1787, acting under powers granted by the Articles of Confederation, enacted the Northwest Ordinance. This law precluded “slavery…in the said territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted.”¹ There are competing perspectives on whether the enactment represented “a symbol of the [American] Revolution’s liberalism” or was “part of a larger, and insidious bargain” constituting “the first and last antislavery achievement by the central government.”² On its face, and despite inclusion of a fugitive-slave clause, the Northwest Ordinance may seem consonant with a sense that slavery was a terminal institution. Some historians, noting that the ordinance was enacted by a southern dominated Congress one day after the three-fifths compromise on apportionment (counting slaves as a fractional person for purposes of politicial representation), suggest that the prohibition was an exercise in calculated cynicism. They propose that support for the territorial proscription was offered in exchange for constitutional concessions on slavery, to secure political debts that would translate into support of the South’s agenda in Congress, and to establish a tacit understanding that slavery was permissible in the Southwest.³

Creation of the Northwest Territory was a precursor to a process of national expansion that would become increasingly competitive and debilitating. Two years later, the Southwest Territory (comprising the future states of Kentucky and Tennessee) was created. A key incident of this ordinance was a prohibition against federal interference with slavery. A similar restriction conditioned establishment of the Mississippi Territory. As the nineteenth century began to unfold, the Louisiana and Missouri territories elicited more extensive debate over slavery, and antislavery amendments to the respective enactments were defeated.