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Published by EH.NET (April, 2002)

Don E. Fehrenbacher, edited and completed by Ward M. McAfee, The

Slaveholding Republic: An Account of the United States Government’s Relations

to Slavery. New York and Oxford: Oxford University Press, 2001. xiii + 466

pp. $35.00 (cloth), ISBN: 0-19-514177-6.

Reviewed for EH.NET by Donald F. Schaefer, Department of Economics, Washington

State University (retired).

Don Fehrenbacher died in 1997 having substantially completed the manuscript

for this book. His student Professor Ward M. McAfee completed chapters nine,

and ten, wrote the conclusion and edited the entire manuscript. We are indebted

to both for producing a well written and thought provoking work.

Fehrenbacher’s thesis is that the founding fathers did not intend slavery to be

a national institution. However, throughout much of the antebellum period, the

federal government took the position that the institution of slavery was

protected by the Constitution thereby causing sectional conflict and ultimately

eliminating the institution of slavery. This view is in direct opposition to

that of William Lloyd Garrison and his antebellum abolitionist followers who

saw the Constitution as a pro-slavery document.

Chapter one describes two slave property cases brought before Congress. In both

instances the owners lost the use of slave services due to federal government

action and asked for compensation for their property. This in turn led to the

discussion of whether slaves were property under federal law and to the more

fundamental question of the authority of the federal government over the

institution. These cases, occurring in the late 1820s and 1830s were largely

decided by sectional voting in the House of Representatives. But they raised a

broader set of issues concerning the new territories and states in the West,

namely, who was to determine whether slavery was allowed. Fehrenbacher

concludes that while the Constitution guided federal practice with respect to

slavery, federal practice shaped our understanding of the intent of the

Constitution. The remainder of the book makes this case.

Chapters two and three document the early legal framework of the nation to be.

Fehrenbacher argues that the Constitution was only tangentially involved with

slavery and did not signal federal control over the institution. For example,

the ‘three-fifths rule’ was a way of taxing the states rather than a federal

determination about the fundamental worth of slaves. The federal government did

acknowledge its role in the slave trade, but not slavery itself. The congress

did legitimize slavery in the nation’s capital, however Fehrenbacher

characterizes these laws as a ‘series of unthinking decisions’ rather than a

conscious effort to federally endorse slavery even though, de facto, they

appeared to have that result.

Chapters four through six examine the international aspects of slavery through

foreign relations and the slave trade. Here Fehrenbacher argues that the

Constitution is neutral with respect to foreign relations while in practice

diplomacy had acted to protect slavery. For example, the treaty ending the

Revolutionary War prohibited the British from carrying away any Negroes. The

subsequent efforts to enforce this clause, made clear that the federal

government had a role to play in maintaining property rights in slaves. In

1826, the federal government and Britain agreed upon compensation to American

slaveholders of over $1 million for the slaves taken away by the British. The

federal government also pursued the matter of fugitive slaves escaping overland

to territories held by foreign powers. The delay in recognizing Haiti was also

a manifestation of the power of the proslavery lobby in the nation’s capital.

Similarly, the annexation of Texas was widely seen as an attempt to forestall

the efforts of British abolitionists to rid Texas of slaves.

As Fehrenbacher is careful to point out, the United States was both a shipper

and a destination for slaves. Unlike the apparent pro-slavery bias of the

federal government there was no broad support for the international slave

trade. Yet even the constitutionally allowed 1808 abolition of the slave trade

was the subject of intense congressional debate with substantial weakening of

clauses on the coastal slave trade. By the 1820s federal laws effectively

eliminated the importation of slaves while the efforts to eliminate American

involvement in the trade were less successful, with the trade flourishing

through the 1850s. In part this lack of success seems to have been the result

of antipathy towards Britain. Although he doesn’t couch his argument in public

choice terms, Fehrenbacher’s contrast between the governmental and sectional

responses to slavery and the slave trade is consistent with that approach. The

slave trade had no concentrated and powerful forces backing it while the

opposite was true for slavery.

In chapters seven and eight Fehrenbacher turns to the issue of fugitive slaves.

The Constitution, he acknowledges, deals explicitly with this issue. In

addition, the Supreme Court in 1842 ruled that the federal government alone had

jurisdiction over fugitive slaves. In 1850, the Fugitive Slave Act greatly

expanded the role of the federal government and was perceived as necessary to

calm sectional tensions.

Chapter nine addresses the issue of the federal territories. The Northwest

Ordinance prohibited slavery in the old Northwest while other laws permitted it

in the Southwest. Further legislation extended the congressional role in

regulating slavery in the territories. The Supreme Court in theory negated much

of this legislation by ruling in the Dred Scott case that the Constitution did

not allow Congress to interfere with southern property rights. However, as

Fehrenbacher and McAfee argue, western territories were unlikely to become

slave states since they would have to enact slave codes. There was no reason to

believe that this would occur. Thus, the southern states feared the ultimate

prohibition of slavery as additional (de facto) non-slave states entered the

union.

In chapter ten the southern secession is presented as a result of the election

of Lincoln who was expected to work towards the repeal of the fugitive slave

laws, the overturning of the Dred Scott case, the prohibition of slavery in the

District of Columbia, and the prohibition of the interstate slave trade. The

policy of two slave policies (one for the North and one for the South) was seen

as inherently unstable, especially under a Republican president. Thus the

secession and war are presented as the result of fears concerning the

dismantling of federal policy towards slavery rather than the desire for states

rights.

With the end of the war, and the passage of the Thirteenth and Fourteenth

Amendments, there was a movement toward the removal of the vestiges of slavery,

yet Black Codes were enacted throughout the South limiting the freedom of black

Americans. Congress retreated from overseeing the welfare of the freed slaves

and the Republicans lost power at the national level and in the South, thus

effectively halting the overthrow of the slave republic. The Supreme Court in

1883, with its decision in the Civil Rights Cases, further limited the role of

the federal government in the arena of civil rights. The Constitution or its

interpretation or its enforcement remained ambiguous on the issue of civil

rights.

What makes Fehrenbacher’s argument especially persuasive are the many

documented instances in which Congress had to choose whether or not to include

antislavery language in treaties and laws. While some of these occurred prior

to the ratification of the Constitution others occurred later. If the

Constitution mandated slavery there would have been no point in debating the

inclusion of this language.

Donald F. Schaefer has published numerous articles on the Southern economy in

journals including Explorations in Economic History, the Journal of

Economic History, the Southern Economic Journal, and the American

Economic Review.