Social Contract Theory, Slavery, and the Antebellum Courts

Abstract

Social contract theory holds that political order 'is legitimate if and only if it is (or could be) the outcome of a collective agreement of free, equal, and rational individuals.' American law has a special relationship to social contract theory. According to some scholars, American colonists relied upon liberal, Lockean notions of a social contract to justify revolution against British rule. Historians maintain that social contractarian theories of political order significantly influenced the people who wrote and defended the Declaration of Independence, the original Constitution, and the Bill of Rights.Although much has been written about the contractarian foundations of the Declaration of Independence and the Constitution, little has been written about the role contractarian thought played in subsequent jurisprudence. This article identifies distinctly contractarian 'justifications' for black slavery found in antebellum court opinions. We elaborate three lines of contractarian argument. The first justifies permitting slavery on the ground that the U.S. Constitution is a white-only social contract under which blacks are not free and equal. The second justifies permitting slavery on the ground that slavery is blacks’ best deal for escaping the state of nature, give (putative) black inferiority. The third justifies slavery on the ground that death to the vanquished is a just consequence of war, and that slavery is a rationally preferable fate to death. We limit our attention here to social contractarian arguments.