I. Slavery in the Constitutional Structure


The word "slavery" appears in only one place in the Constitution--the Thirteenth Amendment, where the institution is abolished. In the main body of the Constitution, slaves are referred to as "other persons," "such persons," or in the singular as a "person held to Service or Labour." Why is this the case?

Throughout the Constitutional Convention the delegates talked about "blacks," "Negroes," and "slaves." But the final document avoided these terms. The final language was designed to make the Constitution more palatable to the North. In a debate over representation, William Paterson of New Jersey pointed out that the Congress under the Articles of Confederation "had been ashamed to use the term 'Slaves' & had substituted a description."

This argument was more than a little disingenuous. It is hard to imagine that the many slaveholders in the Continental Congress were truly "ashamed" over owning slaves. For example, during one debate in the Continental Congress over taxation, Thomas Lynch of South Carolina asserted: "If it is debated whether (our) slaves are (our) property, there is an end of the confederation." Indeed, throughout the Confederation period slaveholders protected slavery in a number of ways in the Congress. Similarly, in the treaty ending the Revolutionary War, the southerners in Congress were careful that their interest in slaves was made clear, demanding that the departing BritishArmy refrain from "carrying away any negroes or other property of the American inhabitants." Britain failed to comply with this provision and also refused the return slaves taken when the Army left America. Thus " (f)rom 1783 onward, Congress repeatedly instructed its diplomatic emissaries abroad to seek satisfaction for the thousands of slaves carried off in disregard of the treaty." Clearly, the members of the Continental Congress were not embarrassed by slavery or afraid to use the term--or simply to use the racial term Negroes--when it suited their purpose. However, when the Congress did avoid a direct use of the term it was because the delegates in Congress understood that some people in America found slavery distasteful, and that in Europe many who were naturally sympathetic to the revolutionary movement were also opposed to slavery. Not a few Englishmen read the Declaration of Independence and wondered, as did Samuel Johnson, "How is it that we hear the loudest yelps for liberty among the drivers of negroes?" Thus, during the Revolution and immediately after it, the politicians of the new nation understood that it made sense to sometimes avoid the word " slave" and substitute a description for it.

Delegates to the Constitutional Convention understood that the word "slave" made some people uncomfortable, even though they were not ashamed to use it. Similarly, many used the terms "Negro," "black," and "slave" interchangeably, illustrating the extent to which race was tied to slavery. Fewmade any apology for the institution. James Madison, for example, in discussing how the president should be elected, told the Convention that "the people at large" were "the fittest" to choose the president. But he rejected this idea because the "right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of the Negroes." Madison, who was as humane a slaveowner as one might find, was hardly embarrassed by arguing that Virginia should get political power for its slaves. Indeed, almost none of the slaveholders at the Convention felt any great shame over their human property. South Carolina's Charles Pinckney, the cousin of the more famous General Charles Cotesworth Pinckney, declared that, "(I)f slavery be wrong, it is justified by the example of all the world." He then "cited the case of Greece Rome & other ancient States; the sanction given by France England, Holland & other modern States." Pinckney reminded the Convention that "In all ages one half of mankind have been slaves."

Nor were a number of leading non-slaveowners at the Convention embarrassed by slavery. Indeed, some of the northerners were clearly uninterested in raising any questions about the morality of slaveholding. During a debate over the slave trade, for example, Oliver Ellsworth of Connecticut refused to even consider the"morality or wisdom of slavery," simply asserting that " (w)hat enriches a part enriches the whole." Ellsworth asserted thatbecause he "had never owned a slave," he "could not judge of the effects of slavery on character." Similarly, in the same debate, Roger Sherman of Connecticut declared his personal disapproval of slavery and his desire to see it eradicated in his home state, but he refused to condemn it in other parts of the nation. In opposing a prohibition of the African slave trade he asserted that "the public good did not require" an end to the trade. Noting that the states already had the right to import slaves, Sherman saw no point in taking a right away from the states unnecessarily because "it was expedient to have as few objections as possible" to the new Constitution.

Indeed, in the end it was "expedient" behavior, not ideology or shame that led framers to avoid using the word "slave" in the Constitution. This was made clear during the debates over the African slave trade. Under the proposed Constitution, Congress would have had the power to regulate all foreign commerce, which meant that Congress could have banned the African slave trade if it had chosen to do so. The delegates from the Carolinas and Georgia vigorously demanded that the African trade remain open under the new Constitution. They wanted a specific exemption for the trade from the normal operation of what became the Commerce Clause. Gouverneur Morris of Pennsylvania, furious at what he considered an immoral compromise, suggested that the proposed clause read: the "Importation of slaves into N. Carolina, S.Carolina & Georgia" shall not be prohibited. Connecticut's Roger Sherman, who voted with the deep South to allow the trade, objected, not only to the singling out of specific states, but also to the term "slave." He declared that he "liked a description better than the terms proposed, which had been declined by the old Congs & were not pleasing to some people." George Clymer of Pennsylvania "concurred with Mr. Sherman" on this issue. When he returned from the Philadelphia Convention, James Iredell explained to the North Carolina ratifying convention that "(T)he word 'slave' is not mentioned" because "(t)he northern delegates, owing to their particular scruples on the subject of slavery, did not choose the word 'slave' to be mentioned."

In the end the Convention avoided using the term "slave" or "Negro" because it was expedient to do so. Northern delegates wanted to avoid antagonizing their own constituents, who might support a stronger Union but were hostile to slavery; southerners were ready to acquiesce on this point because the description was clear and unmistakable. But, despite the circumlocution, the Constitution directly sanctioned slavery in five provisions:

Art. I, Sec. 2. Cl. 3. The "three fifths clause" provided for counting three-fifths of all slaves for purposes of representation in Congress. This clause also provided that, if any "direct tax" was levied on the states, itcould be imposed only proportionately, according to population, and that only three-fifths of all slaves would be counted in assessing what each state's contribution would be.

Art. I, Sec. 9, Cl. 1. The "slave trade clause" prohibited Congress from banning the "(M)igration or Importation of such Persons as any of the States now existing shall think proper to admit" before the year 1808. Awkwardly phrased and designed to confuse readers, this clause prevented Congress from ending the African slave trade before 1808, but did not require Congress to ban the trade after that date. The clause was a significant exception to the general power granted to Congress to regulate all international commerce.

Art. I, Sec. 9, Cl. 4. The "capitation tax clause" insured that any "capitation" or other "direct tax" had to take into account the three-fifths clause. It ensured that, if a head tax were ever levied, slaves would be taxed at three-fifths the rate of free people. The "direct tax" portion of this clause was redundant, because that was provided for in the three-fifths clause.

Art. IV, Sec. 2, Cl. 3. The "fugitive slave clause" prohibited the states from emancipating fugitive slaves and required that runaways be returned to their owners "on demand."

Art. V. The amendment provisions prohibited any amendment of the slave importation or capitation clauses before 1808.

Taken together, these five provisions gave the South a strong claim to "special treatment" for its peculiar institution. The three-fifths clause also gave the South extra political muscle--in the House of Representatives and in the electoral college--to support that claim.

Numerous other clauses of the Constitution supplemented the five clauses that directly protected slavery. Some provisions that indirectly guarded slavery, such as the prohibition on taxing exports, were included primarily to protect the interests of slaveholders. Others, such as the guarantee of federal support to "suppress Insurrections" and the creation of the electoral college, were written with slavery in mind, although delegates also supported them for reasons having nothing to do with slavery. The most prominent indirect protections of slavery were:

Art. I, Sec. 8, Cl. 15, empowered Congress to call "forth the Militia" to "suppress Insurrections," including slave rebellions. This clause would be implemented to help suppress Garbiels' rebellion, the Nat Turner Rebellion, and John Brown's attempts to make war on slavery in Virginia.

Art. I, Sec. 9, Cl. 5, prohibited federal taxes on exports and thus prevented an indirect tax on slavery by taxing the staple products of slave labor, such as tobacco, rice, and eventually cotton.

Art. I, Sec. 10, Cl. 2, prohibited the states from taxing exports or imports, thus preventing an indirect tax on the products of slave labor by anonslaveholding state. This was especially important to the slave states because almost all slave states produced export products--tobacco, rice, and eventually cotton which were shipped out of Northern ports.

Art. II, Sec. 1, Cl. 2, provided for the indirect election of the president through an electoral college based on congressional representation. This provision incorporated the three-fifths clause into the electoral college and gave whites in slave states a disproportionate influence in the election of the president. This clause had a major impact on the politics of slavery as well as American history in general. Thomas Jefferson's victory in the election of 1800 would be possible only because of the electoral votes the southern states gained on account of their slaves. Thus Jefferson, who spent most of his career quietly and privately protecting slavery while publicly trying to avoid any conflict over slavery, was elevated to the presidency in part because of slavery.

Art. IV, Sec. 3, Cl. 1, allowed for the admission of new states. The delegates to the Convention anticipated the admission of new slave states to the Union.

Art. IV, Sec. 4, through this provision, known as the "guarantee clause," the United States government promised to protect states from "domestic Violence," including slave rebellions.

Art. V required a three-fourths majority of the states to ratify anyamendment to the Constitution. This Article ensured that the slaveholding states would have a perpetual veto over any constitutional changes. The power of this provision in protecting slavery was profound. It effectively prevented any normal constitutional end to slavery. Had all 15 slave states that existed in 1860 remained in the Union, they would to this day be able to prevent an amendment on any subject. In a 50-state union, it takes only 13 states to block any amendment.

Besides specific clauses of the Constitution, the structure of the entire document ensured against emancipation of slaves by the new federal government. Because the Constitution created a government of limited powers, Congress lacked the power to interfere in the domestic institutions of the states. Thus, during the ratification debates only the most fearful southern antifederalists opposed the Constitution on the grounds that it threatened slavery. Most southerners, even those who opposed the Constitution for other reasons, agreed with General Charles Cotesworth Pinckney of South Carolina, who crowed to his state's house of representatives: "We have a security that the general government can never emancipate them, for no such authority is granted and it is admitted, on all hands, that the general government has no powers but what are expressly granted by the Constitution, and that all rights not expressed were reserved by the several states."

From the perspective of modern constitutional analysis, it is of coursepossible to imagine numerous ways in which Congress or the President might have undermined slavery. Under modern law Congress could have limited the interstate movement or sale of slaves, or even the products of their labor. This would certainly have ended the institution, just as Congress was able to end child labor or establish a minimum wage. But, modern commerce clause jurisprudence did not emerge until the 1930s. In the Nineteenth Century it was impossible to imagine Congress using its powers in this way and it is equally impossible to image the Supreme Court allowing it. Congress might also have abolished slavery in the nation's capital, using its power to govern the District of Columbia. Indeed, during the Civil War Congress would do this. It is of course doubtful that the Supreme Court under Chief Justice Taney would have upheld an emancipation act for the District of Columbia, given the Court's position in Dred Scott. But, even if Congress had ended slavery in the District of Columbia, and the Court had allowed this to go forward, this would have been just a minor victory affecting only a small number of slaves. Thus, when we consider how the Constitution protected slavery, it is vital to understand the Constitution within the context of the late eighteenth century and the period up to the Civil War. In that context it is clear that the Constitution created in 1787 gave enormous protection to slavery and made it impossible to end slavery within the existing constitutional structure.

Southerners understood this. At the Virginia ratifying convention, Edmund Randolph denied that the Constitution posed any threat at all to slavery. He challenged opponents of the Constitution to show, "Where is the part that has a tendency to the abolition of slavery?" He answered his own question asserting, "Were it right here to mention what passed in (the Philadelphia) convention... I might tell you that the Southern States, even South Carolina herself, conceived this property to be secure" and that "there was not a member of the Virginia delegation who had the smallest suspicion of the abolition of slavery." South Carolinians, who had already ratified the Constitution, would have agreed with Randolph. As I noted earlier, in summing up the entire Constitution, General Charles Cotesworth Pinckney, who had been one of the ablest defenders of slavery at the Convention, proudly told the South Carolina House of Representatives: "In short, considering all circumstances, we have made the best terms for the security of this species of property it was in our power to make. We would have made better if we could; but on the whole, I do not think them bad." On this point he was truly correct.