John Mikhail ’91 Discusses Constitution’s Relationship to Slavery

John Mikhail ’91, Carroll professor of jurisprudence at the Georgetown University Law Center, gave the Amherst Political Union’s (APU) first talk of the year on Nov. 17.

The event was titled: “Was Frederick Douglass Right?: A look at slavery and anti-slavery movements at their foundings,” a question which Mikhail considers to be “one of the greatest controversies in the history of American law and politics.”

The question at issue was whether the original Constitution vested the United States with the power to abolish slavery. For generations, people assumed the answer was no, Mikhail said.

The “federal consensus” said that the Constitution did not allow for the United States to abolish slavery by ordinary legislation. Instead, emancipation would have to be done by other measures.

Mikhail explained that this “federal consensus” was agreed upon by a vast majority of Americans throughout the 19th century and notable historians.

“The ‘federal consensus’ over slavery is a good example of how the conventional wisdom can sometimes be mistaken, or at least less obviously correct than is commonly assumed,” Mikhail said.

Frederick Douglass countered this “federal consensus.”

“Douglass said that the Constitution was a ‘glorious liberty document’ when it was properly construed and that it was only a combination of cowardice, ignorance, racism, and sheer unwillingness that led so many predominantly white Americans to believe otherwise,” Mikhail said.

While abolitionists like William Lloyd Garrison firmly held that the Constitution was a pro-slavery document, and believed that “we should rip up the Constitution, rip up the union, break away and found our own country,” Douglass rejected that belief as foolish and extinguishing any hope for liberation, Mikhail said.

Mikhail held that Douglass was largely correct in the argument that the federal government did have the power to abolish slavery.

Mikhail noted that often, when others make arguments that the founders and Constitution were more anti-slavery than assumed, “they are doing so from a very different vantage point.”

“They tend to be hostile to the 1619 project and to critical race theory and that's not where I'm coming from at all,” Mikhail said. “I agree with the core insights of the 1619 project that slavery was absolutely central to the founding of the United States. I agree with the claim that one of the reasons why at least some of the founders broke with Great Britain was in order to protect slavery.”

Mikhail further clarified that historians underestimated how important protecting slavery was to some of the founders, that slavery flourished in the decades after the Constitution, and that constitutional powers to end slavery in individual Southern states were less likely to be exercised.

These clarifications were separate from the federal government’s powers, which Mikhail said he was most interested in.

Mikhail said that though the Constitution neither guaranteed slavery, as the federal consensus claimed, nor entirely prohibited it, as Douglass claimed, it gave the United States’ federal government the powers to legislate on slavery.

“You might ask yourself: ‘What relevance does this all have today?’ The answer is that very similar arguments are made on the scope of national power today to address pressing social problems.”

Currently, the Supreme Court is hostile to the idea of implied powers, Mikhail said, which shows how a reading of the Constitution based on the “federal consensus” carries through to recent constitutional law.

“It hews to the familiar maxim that the Government of the United States is ‘a government of limited and enumerated powers,’” Mikhail added.

Mikhail noted that many people on the left of the political spectrum are inclined to give up on the Constitution.

He noted, however, that the ideas promoted by Douglass are a “good reminder that there are many ways to interpret the Constitution, some of which are progressive or can be used to further progressive goals.”

Mikhail hoped that attendees might walk away with “a heightened curiosity about the earliest constitutional debates over slavery, which played such a pivotal role in American history — and whose legacies still continue to shape American law and society today.”

APU Vice President Ava Knapp ’24 said that the connection to current decisions based on “viewing the Constitution in a new light” was very relevant.

She said that the idea of implied powers through the “general welfare clause” could help to further causes like healthcare that individuals thought could not be solved at the federal level.

Knapp said that the club intends to revive in-person speaker events like these.

“We try to vary our speakers as much as possible and we hadn't had someone with this kind of expertise,” Knapp said.

Knapp said that she was especially interested in Mikhail’s work, including his research on the emolument clause that was central to investigations against former president Donald Trump.

“He also was responsible for doing some research at Georgetown that exposed the institution's ties to slavery. Those projects are really important,” Knapp said.

Mikhail plans to write a series of articles, or even a book, on the Constitutional debate around slavery, which he said was inspired by “an explosion of scholarship and public commentary on the role of slavery in the creation of the United States.”

“This was the first time I had the chance to give a lecture and interact with current [Amherst] students — and I enjoyed it very much. The students who attended my talk were impressive and asked great questions,” Mikhail said.

Although there was a smaller turnout at the lecture, which Knapp attributed to decreased engagement in clubs post-pandemic and the event’s timing before Thanksgiving break, she said that it was a productive conversation.

Knapp added that APU has had conversations about how to increase the attendance for their club at events like this one because participation “is vital to having a politically engaged student body.”

“Our mission since the 1930s [has been] to stimulate political discussion and fight political apathy on college campuses,” Knapp said. “Amherst is a great place to do that which has implications for how we participate as citizens going forward.”

Mikhail also said that political discourse is important in a liberal arts education.

“I hope my talk and others like it will help promote more informed and thoughtful conversations about potentially divisive topics, such as the legacies of slavery, racism, and white supremacy in our society, and what we can do to address them,” Mikhail said. “Disagreements about these issues are normal and healthy. They are simply part of how we grow and learn from one another.”

Editor’s note: This article was updated on Dec. 1, 2022, to correct a few inaccuracies in the reporting and paraphrasing of Mikhail’s words.