[tptacek]

But what they collectively agreed to and wrote down was a pro-slavery document. It drastically boosted the electoral power of plantation states by counting slaves. It enshrined a national mandate to hunt down and recover slaves who escaped to the north. The one part of the Constitution Article V prohibits amending is the moratorium on slave importation laws!

Clearly, despite whatever lip service they felt they needed to pay to their forefathers, Lincoln's Republicans sharply reconsidered the consensus of the founding fathers, tore up the old rules, and remade them.

And whatever deference you want to give to Lincoln's political rhetoric over his actions, I don't see how you can muster any similar defense for the 19th Amendment.

And, respectfully: so long as the path we take to reaching a reconsideration of the 2nd Amendment --- a reconsideration supported by a pretty big faction of constitutional scholars! --- follows the rules in the Constitution, nothing has been "canceled". We're using the tools we've been provided specifically for the purposes they were provided for.

[rayiner]

> But what they collectively agreed to and wrote down was a pro-slavery document. It drastically boosted the electoral power of plantation states by counting slaves. It enshrined a national mandate to hunt down and recover slaves who escaped to the north.

This reading is illogical and ahistorical. Illogical because there is a logical difference between a document that enshrines slavery as an animating principle, and one that contains compromises with slavery to preserve the fledging union between the free states and the slave states. The Constitution is the latter kind of document.

It's a-historical because it wasn't viewed as a pro-slavery document at the time or even decades thereafter. People smarter than I have covered this thoroughly: https://reason.com/2019/09/13/the-anti-slavery-constitution/

To address your specific example of "boosting the electoral power of plantation states," for example, you have it precisely backwards. Today Constitution apportions votes based on the number of "persons" in each state. Then, as now, that includes every person, whether or not they can vote or otherwise have legal rights. And nobody disputed that enslaved persons were persons (and that is how the 1789 Constitution treats them--it distinguishes between "free persons" and "all other persons"). Therefore, the baseline was for each enslaved person to count fully towards representation of the slave states. The free states argued that enslaved persons should be excluded from the count because under the laws of the slave states, they were treated like property. That argument succeeded in part, and the compromise operated to reduce the power of the slave states.

> Clearly, despite whatever lip service they felt they needed to pay to their forefathers, Lincoln's Republicans sharply reconsidered the consensus of the founding fathers, tore up the old rules, and remade them.

What did Lincoln reconsider? Did they reconsider federalism, gun rights, bicameral legislature? There are a whole host of principles underlying the Constitution, the virtues of which were extolled at length in the Federalist Papers. Did he reconsider any of those? What they reconsidered was a compromise that enabled certain states to retain slavery, but which didn't serve as a foundation for anything else in the Constitution. As Frederick Douglas observed, it took almost no revision to the Constitution itself to eliminate slavery. The 13th/14th/15th amendments were all directed at preventing the south from re-establishing slavery and protecting newly freed people.

> And, respectfully: so long as the path we take to reaching a reconsideration of the 2nd Amendment --- a reconsideration supported by a pretty big faction of constitutional scholars! --- follows the rules in the Constitution, nothing has been "canceled". We're using the tools we've been provided specifically for the purposes they were provided for.

We are cancelling one of the most foundational aspects of rule of law, which is: what did the people who wrote this legal document think these words meant? People designed a system with inter-locking rules. They had a design! What does "freedom of speech" mean? What does "freedom of the press mean?” What does "the right to bear arms" mean? If we can disregard what the people who wrote those words thought they meant, because those people owned slaves--if that becomes a valid mode of argumentation when it comes time to applying those rules--then the notion of constitutional governance would become a farce.

To appreciate the problem that arises, compare to how the German constitution handles things: https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1.... In Germany, there is an explicit hierarchy of structural and substantive principles that guide constitutional interpretation. For example, Germany is a federal republic, and Germany’s constitutional court interprets the basic law with an express eye to considering federalism concerns, and related concerns such as separation of powers, etc. They take it very seriously over there. In US constitutional scheme, we rely on our understanding of the framers’ Constitutional design to effectuate these principles and serve that same purpose. If we can dismiss the framers’ deliberate design because of their moral shortcomings, then it would become trivial to eviscerate these principles. At that point I’d demand a new constitutional convention because what would be left wouldn’t be worth the paper it’s printed on.

[tptacek]

First, let me just say that it's rarely a pleasure for me to write a brief comment and get an essay in response, but I'm always glad to get one from you, and I appreciate you taking the time.

Having said that: no, I think you have this pretty much wrong. I took the time to read Sandefur's National Review article, and while I don't find much of what he writes persuasive, I also don't think his argument can be conscripted as cleanly as you suppose it can be.

Sandefur is a biographer of Frederick Douglass and writes about what F.D. believed to be a viable legal argument for constitutional abolition of slavery. Sandefur acknowledges that historians find many of these arguments strained; for instance: the Slave Trade Clause doesn't mention slavery, just "importation of persons", and the Fugitive Slave Clause mentions only "persons held to service or labor". That's interesting and all, but there's a reason the Fugitive Slave Clause is a proper noun: it was talking about slavery. Meanwhile: at the time, F.D.'s arguments didn't work. We had to fight a war to get rid of slavery. Lincoln had to preempt the constitution to eliminate slavery.

I don't dispute that compromise with northern abolitionists forced the framers to couch their language more carefully than they would have otherwise. But then: the author of the tweet you're talking about also didn't blot everyone's faces out. And the fact that there were convicted abolitionists among the framers makes it all the more notable that the document they ultimately ratified protected the institution of slavery, so much so that slavery had to be abolished by name in the 13th Amendment.

Your three-fifths compromise argument makes my point for me: as I said, abolitionists wanted slaves to count zero. Slavers fought to have their chattel property counted. Historians appear to accept that the result of this --- padding southern-state representation with slaves --- strengthened and prolonged the institution of slavery.

All of these arguments, by the way, seem reasonable! It's an interesting debate! My answer to "have Volokh and the National Review refuted the 1619 Project" is not the same as my answer to "have they shown the constitution of the Fugitive Slave Clause to be an anti-slavery document". But, more importantly: just the fact that we even have to have this debate, and to rewrite the story of US history most of us were taught as children, is a pretty strong indication that what we're talking about isn't a revolutionary reconsideration of the founding principles of the country.

Using the tools the framers gave us to bring the Constitution into line with our current principles isn't a refutation of the framers, any more than it was when we gave women the vote. You don't need to wait to demand a constitutional convention! Generate the support you need and do it now! That's the point of an amendable constitution.

(I don't think 2A is going to get amended at all, for what it's worth. But it's also the case that people smarter than both of us, including some who've sat on the Supreme Court, reject the way it's currently interpreted. I think it's a dumb amendment, and I love this country and its system of government.)