II. The Constitutional Legacy of Slavery

excerpted from: Paul Finkelman, THE ROOT OF THE PROBLEM: HOW THE PROSLAVERY CONSTITUTION SHAPED AMERICAN RACE RELATIONS , 4 Barry Law Review 1 (Fall 2003)

The protections about which Pinckney bragged set the stage for a proslavery national government and a proslavery jurisprudence in the nineteenthcentury. The United States still lives with some of the legacy of these political decisions and jurisprudential developments.

The three-fifths clause is the most obvious example of how Constitutional arrangements protected slavery. Starting with the debate over the Missouri Compromise the South won a series of close Congressional votes on issues involving slavery. Supporters of slavery were usually able to muster a majority in the Senate. Until 1850 there was almost always an equal number of slave and free states. For a brief time in the 1840s there were actually more slave states than free states, as Texas and Florida achieved statehood before Iowa and Wisconsin were admitted to the Union. Representation in the House, however, was based on population. The free population of the South was vastly smaller than that of the North. From the first census on the South was in the minority in the House of Representatives. Without the three-fifths clause the South would have been overwhelmingly outvoted in the House. But, with its representation augmented by the three-fifths clause, the South was often able to hold its own in the House with the help of a few allies from the North.

If the South had not had its extra representation based on the three-fifths clause the outcome of many of these votes would have been different. The South simply would not have been able to muster enough northern support to get its way. Counterfactuals are of course impossible to prove, but possible scenarios seem plausible. In 1820 Missouri might have come into the Union as a freestate, or with a gradual emancipation scheme built into its new Constitution. This might very well have altered the whole trajectory of national politics. The debate over slavery in the West might have been stopped before it could begin. The annexation of Texas as a vast territory for the expansion of slavery might similarly have been thwarted, either by not annexing the Republic or by forcing some gradual end to slavery. It is similarly difficult to imagine the passage of the draconian fugitive slave law of 1850 if the three-fifths clause had not provided so many members of Congress for the slave states. That law squeaked through the House only because the master politician, Stephen A. Douglas, was able to persuade a number of northern representatives to stay away from Congress on the day of the vote. With fewer southerners in the House, it would probably have been impossible for Douglas to accomplish this victory. Other votes, not directly related to slavery, might also have been changed. Southerners generally opposed internal improvements, federal support for railroad development, protective tariffs, the national bank, and a uniform bankruptcy law. A substantially smaller southern delegation in the House of Representatives might have led to quite different policies in these areas. From the late 1820s until the Civil War the South dominated the Democratic Party. With fewer southerners in the House, northern Democrats would have had more power within their own party. At the same time, the total number of Democrats in the House might have been reduced, thus making the Whig Partymore competitive.

Perhaps the most obvious example of southern power in the House of Representative concerns the "gag rule," first adopted by the House in 1836. In the early 1830's the emerging abolitionist movement embarked on a strategy of flooding Congress with antislavery petitions. These were designed to both express the petitioners' disgust with slavery and to stimulate public debate on the institution. In 1836 the House adopted a "gag rule," requiring that all petitions over slavery be tabled without being read or debated. The rule remained in effect until 1844, when southerners could no longer muster enough northern support to push it through the House. Without the three-fifths clause it is unlikely such a rule could ever have been adopted.

The gag rule symbolized the danger of slavery to the body politic. Many northerners found the rule oppressive because it so blatantly and directly denied their constituents the constitutional right "to petition the government for a redress of grievances." The policy ultimately backfired, by allowing opponents of slavery to link their cause to fundamental constitutional rights and to simultaneously make the obviously correct claim that slavery threatened the civil liberties of whites as well as blacks. The rule also closed off opportunities to debate slavery and prevented southerners from hearing how deeply many northerners felt about slavery. Most of all, the rule encouraged southern arrogance in Congress that damaged sectional harmony.

It is unlikely-indeed it seems impossible to imagine-that it would have ever been possible to achieve a peaceful political solution to the problem of slavery. But, it is possible to imagine a government that was less protective of the institution.

Another example of the importance of the southern power in House and the Democratic Party concerns the suppression of the African slave trade. In 1807 Congress passed legislation prohibiting the importation of foreign slaves. Many southerners, including almost all Virginia politicians, agreed with this legislation. The Virginian support for this legislation is complicated. Collectively, Virginia had more slaves than it needed, and had become a net exporter of slaves. It would remain so until the Civil War. Thus, unlike their counterparts in Georgia and South Carolina, few, if any, Virginians had a personal interest in importing slaves from Africa. Those Virginians who did own more slaves than they needed understood that closing the African trade would increase the value of their own surplus slaves. Thus, narrow economic self-interest put Virginians and Marylanders (who also had excess slaves) firmly in the camp of those wished to end the trade. Many Virginians, including Thomas Jefferson, believed that blacks were inherently dangerous, and thus ending the trade would help the nation by setting the stage for a reduction in the percentage of blacks in the society. Others believed that people recently enslaved and freshly imported from Africa weremore likely to rebel than those raised as slaves in the United States. Thus, stopping the trade was a wise move. Finally, some Virginians and other southerners undoubtedly believed that the African trade was truly immoral. They could make a moral distinction between owning people who were born into slavery, and enslaving those who were captured in Africa and brought here. Thus, for a variety of reasons, Members of Congress from Virginia and other slave states joined their northern counterparts in voting to end the African slave trade. The Three-Fifths Clause had no effect on this outcome.

However, banning the slave trade did not end it. Slaves were still available in Africa and were being brought to the New World. They remained a valuable commodity and demand for them was high, especially as the cotton kingdom expanded west from the Carolinas into Georgia, Alabama, the Mississippi Delta and beyond. There was always market for illegally imported slaves, and incentives for smuggling them were high. While southerners had voted to ban the trade in 1808, they were never fully committed to actually suppressing it. Thus, from 1808 until the Civil War the illegal trade continued. Under its own statutes as well as international agreements, the United States was obligated to help suppress the trade. But, Congress never properly funded the Africa Squadron, and thus smugglers were rarely intercepted. Had the South not had its extra muscle from the three-fifths clause, it is likely that Congress would have provided sufficient resources to suppress the trade.

As already noted, the three-fifths clause affected presidential elections through the electoral college. The electors created by slaves provided Jefferson's margin of victory over Adams in 1800. This outcome had a profound effect on our relationship with Haiti, and most likely on that nation's subsequent history. On the eve of the election of 1800 the United States was on the verge of extending full diplomatic relations to Haiti. The United States was already Haiti's most important trading partner. Had Adams been reelected, the United States and Haiti would have remained close friends. The United States would not only have provided a market for Haiti's goods, but could also have provided a model for Haiti to emulate. In the century-and-a-half before Independence the American colonists had been involved in their own governance, run elections, and held public office. Thus, the people of the new American nation were superbly prepared for self-government. They were arguably the best prepared colonial population in the history of the world. The Haitians, on the other hand, had been slaves up to the time they threw off their French masters and French rule. As slaves they had no experience with voting, holding office, or government. They were perhaps the most ill-prepared people to ever gain their independence from an imperial master. The Haitians looked to the United States for guidance. They wanted to do more than trade with us; they wanted to learn from us. Had Adams been reelected this might have occurred. In addition, diplomatic recognition ofHaiti would have brought to the United States a diplomat who was a person of color-a black or mulatto. This would have been at least a minor blow to the white supremacy endemic to official Washington in the nineteenth century. But, the election of Jefferson changed all this.

Haiti was Jefferson's-and the South's-worst nightmare. Immediately after his election, Jefferson withdrew all American diplomatic personnel from Haiti. Any chance of diplomatic recognition was over. Then, with "implacable malice" toward the black republic, Jefferson did everything in his power to undermine the Haitian Revolution, including banning trade with the island and offering to aid the French in re-conquering the island. In 1806 Congressman John Wayles Eppes, Jefferson's son-in-law, declared he would "pledge the Treasury of the United States that the Negro government should be destroyed." On this issue Eppes was clearly the spokesman for his father-in-law, the President. Once in office Jefferson instituted an embargo against Haiti, which was designed to crush the young nation's economy. While not wholly successful, Jefferson's actions surely harmed the struggling country.

Because of Jefferson's hostility to Haiti, and the proslavery tenor of American politics in the next six decades, the United States did not grant diplomatic recognition to Haiti until the Lincoln administration. We can never know how the history of the hemisphere would have turned out,but it is not hard to imagine that that half of the world would be a better place if the United States had developed, early-on, a better relationship with Haiti. Today, when the United States deports desperate Haitian refugees, seeking an escape from their dire poverty, we can only wonder what their world, and our world, would be like if proslavery compromises at the Constitutional Convention had not sent John Adams into retirement in 1801.