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

Its emerging counterpoint was that Congress had no power over slavery whatsoever and, among other things, abolitionists thus had no freedom to petition for antislavery legislation.⁶

With perceived threats to slavery increasing, southern strategists searched for more secure doctrinal footing. A key reference was the Constitution itself, which, although originally avoiding outright endorsement or repudiation of slavery, was increasingly the object of revisionist interpretive notions. Abolitionist thinking divided over whether the Constitution was an antislavery document that should be so animated or a pro-slavery charter that should be structurally overhauled. The South, meanwhile, turned toward doctrinal formulations that would not just accommodate but support slavery. In championing slavery in the District of Columbia, southern legislators asserted that the federal government was an agent of the several states with the affirmative obligation of supporting their various institutions, including slavery. Prefacing a significant premise in Dred Scott v. Sandford, they also argued that slaves were property protected by the Fifth Amendment.⁷

The issue of Texas annexation, which Congress faced in the 1840s, disclosed further how constitutional thought was coursing beyond premises of a neutral federal role to competition over whether the document required an affirmative position for or against slavery. The Wilmot Proviso, which would have prohibited slavery in all territory acquired from Mexico, ultimately failed, but not without sharpening sectional divisions. The proviso was significant, even if not enacted, insofar as it contemplated a deviation from the lines drawn and the sectional balance struck by the Missouri Compromise. Its mere proposal suggested a movement in the North and South away from accommodation and toward confrontation.

Such events were the backdrop against which consensus was fragmenting. Pro-slavery sentiment, as noted previously, evolved from traditional calibrations of federalism toward support for slavery as an incident of national policy. Antislavery thinking, which never merged into a unified front, presented a variety of sometimes conflicting positions. The perspective of William Lloyd Garrison was that the Constitution endorsed slavery.