Making Ethical Judgements

The Constitution & Slavery

The most controversial issues discussed at the Constitutional Convention involved slavery. Among the matters that Convention debated was whether states were obligated to return runaway slaves; whether slaves would count in apportioning representation or taxation; whether Congress had the power to abolish or regulate the slave trade from Africa or the West Indies or to regulate the interstate slave trade; and whether Congress had the right to prohibit slavery in the western territories. In the end, the Northern delegates’ commitment to union proved to be greater than any commitment to weaken slavery.

On the 200th anniversary of the U.S. Constitution, Thurgood Marshall, the first African American to sit on the Supreme Court, said that the Constitution was “defective from the start.” He pointed out that the framers had left out a majority of Americans when they wrote the phrase, “We the People.” While some members of the Constitutional Convention voiced “eloquent objections” to slavery, Marshall said they “consented to a document which laid a foundation for the tragic events which were to follow.”

The word “slave” does not appear in the Constitution. The framers consciously avoided the word, recognizing that it would sully the document. Nevertheless, slavery received important protections in the Constitution. The notorious three-fifths clause, which counted three-fifths of the slave population in apportioning representation, gave the South extra representation in the House and extra votes in the electoral college. Thomas Jefferson would have lost the election of 1800 and Andrew Jackson the election of 1828 if not for the three-fifths compromise. The Constitution also prohibited Congress from outlawing the Atlantic slave trade for twenty years. A fugitive slave clause gave Congress the power to require the return of runaway slaves to their owners. The Constitution gave the federal government the power to put down domestic rebellions, including slave insurrections.

The framers of the Constitution believed that concessions on slavery were the price for the support of Southern delegates for a strong central government. They were convinced that if the Constitution restricted the slave trade, South Carolina and Georgia would refuse to join the Union. But by sidestepping the slavery issue, the framers left the seeds for future conflict. After the convention approved the great compromise, Madison wrote, “It seems now to be pretty well understood that the real difference of interests lies not between the large and small but between the northern and southern states. The institution of slavery and its consequences form the line of discrimination.”

Of the fifty-five Convention delegates, about twenty-five owned slaves. Many of the framers harbored moral qualms about slavery. Some, including Benjamin Franklin (a former slave-owner) and Alexander Hamilton (who was born in a slave colony in the British West Indies) became members of antislavery societies.

On August 21, 1787, a bitter debate broke out over a South Carolina proposal to prohibit the federal government from regulating the Atlantic slave trade. Luther Martin of Maryland, a slaveholder, said that the slave trade should be subject to federal regulation since the entire nation would be responsible for suppressing slave revolts. He also considered the slave trade contrary to America’s republican ideals. “It is inconsistent with the principles of the Revolution,” he said, “and dishonorable to the American character to have such a feature in the Constitution.”

John Rutledge of South Carolina responded forcefully. “Religion and humanity have nothing to do with this question,” he insisted. Unless regulation of the slave trade was left to the states, the southern-most states “shall not be parties to the union.” A Virginia delegate, George Mason, who owned hundreds of slaves, spoke out against slavery in ringing terms. “Slavery,” he said, “discourages arts and manufactures. The poor despise labor when performed by slaves.” Slavery also corrupted slaveholders and threatened the country with divine punishment: “Every master of slaves is born a petty tyrant. They bring the judgment of Heaven on a country.”

Oliver Ellsworth of Connecticut accused slaveholders from Maryland and Virginia of hypocrisy. They could afford to oppose the slave trade, he claimed, because “slaves multiply so fast in Virginia and Maryland that it is cheaper to raise than import them, whilst in the sickly rice swamps [of South Carolina and Georgia] foreign supplies are necessary.” Ellsworth suggested that ending the slave trade would benefit slave-owners in the Chesapeake region, since the demand for slaves in other parts of the South would increase the price of slaves once the external supply was cut off.

The controversy over the Atlantic slave trade was ultimately settled by compromise. In exchange for a twenty-year ban on any restrictions on the Atlantic slave trade, Southern delegates agreed to remove a clause restricting the national government’s power to enact laws requiring goods to be shipped on American vessels (benefiting Northeastern shipbuilders and sailors). The same day this agreement was reached, the convention also adopted the fugitive slave clause, giving Congress the power to require the return of runaway slaves to their owners.

Was the Constitution a proslavery document, as abolitionist William Lloyd Garrison claimed when he burned the document in 1854 and called it “a covenant with death and an agreement with Hell”? This question still provokes controversy. If the Constitution temporarily strengthened slavery, it also created a central government powerful enough to eventually abolish the institution.

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Historical Debates

Was the Constitution a Pro-Slavery Document?

During the decades preceding the Civil War, abolitionists bitterly debated whether the Constitution was a proslavery or antislavery document. Some opponents of slavery, such as William Lloyd Garrison (1805-1879), attacked the Constitution as a proslavery document on the grounds that it guaranteed that Congress could not interfere with the African slave trade until 1808; failed to recognize free blacks as citizens; provided for the return of fugitive slaves; and counted slaves as three-fifths of white persons in apportioning representation and taxation, and therefore augmented southern strength in the House of Representatives.

Other abolitionists, however, maintained that the Constitution had strong antislavery implications. They pointed to the provision that stated that Congress could not regulate the slave trade until 1808. They argued that this provision gave Congress the power to prohibit the movement of slaves into the territories or new states and after 1808 into the original states. Further, the Constitution did not bar states from closing off the slave trade. Portions of the Constitutional Convention discussion over the slave trade follow.

The revolution’s promise of natural rights and equality carried far-reaching implications for the issue of slavery. In 1777, Vermont adopted the first constitution, specifically prohibiting slavery. In 1780, Pennsylvania passed the first gradual emancipation law in the New World. In 1782, Virginia enacted a law (but later repealed) allowing voluntary manumission. The 1783, Massachusetts case of Commonwealth v. Jennison removed judicial sanction from slavery in that state, and judicial decisions also eroded slavery in New Hampshire. In 1784, Connecticut and Rhode Island enacted gradual emancipation laws and Congress narrowly rejected Thomas Jefferson’s proposal to exclude slavery from all western territories after 1800. In 1787, the Continental Congress prohibited slavery from the territories north of the Ohio and east of the Mississippi river.

Still, it would be a mistake to underestimate the opposition to slave emancipation in revolutionary America, even in the North. New York did not adopt a gradual emancipation law until 1799 and New Jersey until 1804.

Two economists have described the gradual emancipation laws adopted outside of New England as “philanthropy at bargain prices,” since the laws required adult slaves to remain in bondage and only freed their children after a period of years, in order to compensate owners for the costs of raising them. Such laws worked extremely slowly. Slavery did not come to a final end in New York until 1827 and, at the beginning of the Civil War, there were still more slaves in the “free” state of New Jersey than in Delaware, a “slave” state.

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“Constitutionally, Slavery Is No National Institution”

Sean Wilentz, New York Times, September 16, 2015

The Civil War began over a simple question: Did the Constitution of the United States recognize slavery—property in humans—in national law? Southern slaveholders, inspired by Senator John C. Calhoun of South Carolina, charged that it did and that the Constitution was proslavery; Northern Republicans, led by Abraham Lincoln, and joined by abolitionists including Frederick Douglass, resolutely denied it. After Lincoln’s election to the presidency, 11 Southern states seceded to protect what the South Carolina secessionists called their constitutional “right of property in slaves.”

The war settled this central question on the side of Lincoln and Douglass. Yet the myth that the United States was founded on racial slavery persists, notably among scholars and activists on the left who are rightly angry at America’s racist past…

Yes, slavery was a powerful institution in 1787. Yes, most white Americans presumed African inferiority. And in 1787, proslavery delegates to the Constitutional Convention in Philadelphia fought to inscribe the principle of property in humans in the Constitution. But on this matter the slaveholders were crushed.

James Madison (himself a slaveholder) opposed the ardent proslavery delegates and stated that it would be “wrong to admit in the Constitution the idea that there could be property in men.” The Constitutional Convention not only deliberately excluded the word “slavery,” but it also quashed the proslavery effort to make slavery a national institution, and so prevented enshrining the racism that justified slavery.

The property question was the key controversy. The delegates could never have created a federal union if they had given power to the national government to meddle in the property laws of the slave states. Slavery would have to be tolerated as a local institution. This hard fact, though, did not sanction slavery in national law, as a national institution, as so many critics presume. This sanction was precisely what the proslavery delegates sought with their failed machinations to ensure, as Madison wrote, that “some provision should be included in favor of property in slaves.” Most of the framers expected slavery to gradually wither away. They would do nothing to obstruct slavery’s demise.

The South did win some concessions at the convention, but they were largely consolation prizes. The notorious three-fifths clause tied slaveholding to political power, but proslavery delegates, led by South Carolinians, repeatedly pressed for slaves to be counted as full persons, which Charles Pinckney professed was “nothing more than justice.” They finally conceded to the three-fifths compromise. Over time, the congressional bulwark of the slave power became the Senate, where the three-fifths rule did not apply.

The proslavery delegates desperately wanted the Constitution to bar the national government from regulating the Atlantic slave trade, believing it would be an enormous blow against slavery. The first draft of the Constitution acceded to their bluster. But antislavery Northerners erupted in protest and proposed that the new government have the power not only to regulate the trade but also to abolish it after 1800. The proslavery men, over Madison’s furious objection, got the date extended to 1808, but it was a salvage operation.

In the convention’s waning days, proslavery delegates won a clause for the return of runaway slaves from free states. Yet the clause was a measure of slavery’s defensiveness, prompted by then landmark Northern gradual emancipation laws, and was so passively worded that enforcement was left to nobody, certainly not the federal government. Antislavery Northerners further refined the wording to ensure it did not recognize slaves as property…

Far from a proslavery compact of “racist principles,” the Constitution was based on a repudiation of the idea of a nation dedicated to the proposition of property in humans. Without that antislavery outcome in 1787, slavery would not have reached “ultimate extinction” in 1865.

“How the Constitution Was Indeed Pro-Slavery”

David Waldstreicher, The Atlantic, September 19, 2015

On Monday, Senator Bernie Sanders told his audience at Liberty University that the United States “in many ways was created” as a nation “from way back on racist principles.” Not everyone agreed. The historian Sean Wilentz took to The New York Times to write that Bernie Sanders—and a lot of his colleagues—have it all wrong about the founding of the United States. The Constitution that protected slavery for three generations, until a devastating war and a constitutional amendment changed the game, was actually antislavery because it didn’t explicitly recognize “property in humans”…

If the absence of an ironclad guarantee of a right to property in men really “quashed” the slaveholders, it should be apparent in the rest of the document, by which the nation was actually governed. But of the 11 clauses in the Constitution that deal with or have policy implications for slavery, 10 protect slave property and the powers of masters. Only one, the international slave-trade clause, points to a possible future power by which, after 20 years, slavery might be curtailed—and it didn’t work out that way at all.

The three-fifths clause, which states that three-fifths of “all other persons” (i.e. slaves) will be counted for both taxation and representation, was a major boon to the slave states. This is well known; it’s astounding to see Wilentz try to pooh-pooh it. No, it wasn’t counting five-fifths, but counting 60 percent of slaves added enormously to slave-state power in the formative years of the republic. By 1800, northern critics called this phenomenon “the slave power” and called for its repeal. With the aid of the second article of the Constitution, which numbered presidential electors by adding the number of representatives in the House to the number of senators, the three-fifths clause enabled the elections of plantation masters Jefferson in 1800 and Polk in 1844.

Just as importantly, the tax liability for three-fifths of the slaves turned out to mean nothing. Sure the federal government could pass a head tax, but it almost never did. It hardly could when the taxes had to emerge from the House, where the South was 60 percent overrepresented. So the South gained political power, without having to surrender much of anything in exchange.

The refusal to mention slavery as property or anything else in the Constitution means something. But what it meant was embarrassment—and damage control.

Indeed, all the powers delegated to the House—that is, the most democratic aspects of the Constitution—were disproportionately affected by what critics quickly came to call “slave representation.” These included the commerce clause—a compromise measure that gave the federal government power to regulate commerce, but only at the price of giving disproportionate power to slave states. And as if that wasn’t enough, Congress was forbidden from passing export duties—at a time when most of the value of what the U.S. exported lay in slave-grown commodities. This was one of the few things (in addition to regulating the slave trade for 20 years) that Congress was forbidden to do. Slavery and democracy in the U.S. were joined at the 60-percent-replaced hip.

Another clause in Article I allowed Congress to mobilize “the Militia” to “suppress insurrections”—again, the House with its disproportionate votes would decide whether a slave rebellion counted as an insurrection. Wilentz repeats the old saw that with the rise of the northwest, the slave power’s real bastion was the Senate. Hence the battles over the admission of slave and free states that punctuated the path to Civil War. But this reads history backwards from the 1850s, not forward from 1787. The shaping policies of the early republic were proslavery because the federal government was controlled by southern expansionists like Jefferson and Jackson, who saw Africans as a captive nation, a fifth column just waiting to be liberated (again) by the British.

The refusal to mention slavery as property or anything else in the Constitution means something. But what it meant was embarrassment—and damage control. Domestic and foreign critics had lambasted Americans for their hypocrisy in calling themselves a beacon to human freedom while only a few states moved on the slavery question. The planters didn’t need or even want an explicit statement that slaves were property; it would have stated the obvious while opening up the United States to international ridicule in an era when slavery was coming into question.

On balance, the Constitution was deliberately ambiguous—but operationally proslavery…