Year: 2012
Type: article
Abstract: The American Constitution does not mention slavery until 1865, with the adoption of the Thirteenth Amendment, which abolished the institution.Yet the Constitution, written in 1787, is riddled with provisions tied to slavery which protected it without naming it.The goal of this chapter is relatively modest: to examine how the US Constitution and the Supreme Court 'understood' what slavery was and how the Court defined it.I begin by exploring how seventeenthcentury Englishmen in colonial Virginia developed a legal system to accommodate and perpetuate slavery within a common law regime that was essentially hostile to human bondage.The colonial lawmakers had to develop rules to balance the tension between treating Africans and others as persons held to labor and as property owned by other people.This colonial background sets the stage for understanding how the framers at the Constitutional Convention in 1787 protected slavery in law.Next, I examine how the US Supreme Court came to define slavery through its jurisprudence.A constant theme of this discussion is how the legal system balanced the dual status of slaves as 'people' and as 'property'. A. Slavery, the Common Law, and Colonial AmericaThe Spanish and the Portuguese, who first settled the New World, had well developed slave cultures at the time of the first voyage of Columbus in 1492.Not surprisingly they brought concepts of slavery with them and quickly established the institution.1 Ironically, the first trans-Atlantic slave trade went from west to east, when Christopher Columbus sent 500 Carib Indians to Spain in 1495. 2 1 They did not of course introduce slavery to the New World.Slavery could be found throughout Central and South America, and flourished among the Maya, Inca, and Aztec.In addition, various North American Indians held slaves, and some, like the Tlingit, were vigorous in capturing slaves from other nations.See entries on Maya, Aztec, Inca, and other native peoples in Paul Finkelman and
Author: Paul Finkelman
Language: English
Subfield: History
Field: Arts and Humanities
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W4073698