Examining the Evidence: Do Racist and Pro-Slavery Elements Exist in the Constitution of 1787?
I do not expect to get near the worth of him; but cannot think of punishing him by transportation merely for coveting that liberty for which we have paid the price of so much blood, and have proclaimed so often to be the right, & worthy the pursuit, of every human being.
—James Madison, a Founding Father and a slaveholder, in a letter to his father, obviously troubled about the institution of slavery as he explained he would have to sell the slave who had been accompanying him—
Man is either governed by his own laws—freedom—or the laws of another—slavery. Are you willing to become slaves? Will you give up your freedom, your life and your property without a single struggle? No man has a right to rule over his fellow creatures.
—Alexander Hamilton, a Founding Father and a non-slaveholder—
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Part 1 is available here.
Links to all the articles in this series are available here.
On May 25, 1787, delegates to the Constitutional Convention began their deliberations. Charged with crafting a governing document for the then 11-year old nation, they knew the task before them would be formidable. They met at the Pennsylvania State House, which later became known as Independence Hall. The Convention lasted from May 25 to September 17, 1787. The delegates from the states talked, shared ideas, argued, debated, compromised, and in the end were able to draft a document that, indeed, would serve as the foundation for governing a stable and free nation for more than two hundred years. The US Constitution is “the oldest written constitution still in use today.”
Much has been written about the compromises forged during those hot months in Philadelphia in 1787. Slavery was one of the more contentious issues the delegates faced. In the end, the Constitution that emerged permitted it—but did it condone it? This and numerous other related questions are at the heart of this article.
Last time, we considered one of the compromises relating to slavery—the Three-Fifths Clause. This week we’ll give further consideration to this clause and will examine two others. We’ll also discuss other issues relating to slavery in the United States in the late eighteenth century and the delegates’ perspectives on the institution’s future. Fasten your seat belts! Here goes!
The Three-Fifths Clause read
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a term of years, and excluding Indians not taxed, three-fifths of all other Persons.
ARTICLE I, SECTION 2, CLAUSE 3
(Read the clause in context here.)
THE THREE-FIFTHS CLAUSE EXPLAINED
To determine the number of representatives a state would have in the House of Representatives, as well as the amount of money a state would pay in taxes to the federal government, the population of that state (and of every other state) had to be determined. The Three-Fifths Clause established that this number would be derived by adding
- the total number of free persons in a state, plus
- the total number servants who performed their duties on a contract basis, plus
- three-fifths of “all other persons.”
Indians, who were not taxed, were excluded entirely from the count. Nor were their number reflected in a state’s representation in the House.
The phrase “all other persons” was a reference to slaves. The fact that the Three-Fifths Clause mentions other classes of people specifically—free individuals, bondservants, and Indians—and does not explicitly mention slaves “proves the reluctance of the Founders to include slavery in the Constitution.” More on this a bit later.
Delegates from the South wanted to include slaves in their states’ population counts to strengthen their influence in the House of Representatives, but delegates from the North wanted slaves not to be counted at all, to minimize Southern states’ influence in the House. The two sides compromised; each state’s population number included three-fifths of its slaves.
Slaves in 17th-century Virginia working the tobacco crop
The delegates to the Constitutional Convention addressed other issues related to slavery as well. Near the end of the Convention, the Framers dealt with the issue of fugitive slaves, although, again, they avoided using the word “slave” or “slaves” in the resulting provision. States that permitted slavery
wanted other states to return escaped slaves. The Articles of Confederation had not guaranteed this. But when Congress adopted the Northwest Ordinance [on July 13 of 1787], it [included] a clause promising that slaves who escaped to the Northwest Territories would be returned to their owners. The delegates placed a similar fugitive slave clause in the Constitution. This was part of a deal with New England states. In exchange for the fugitive slave clause, the New England states got concessions on shipping and trade.
The clause read:
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
ARTICLE IV, SECTION 2, CLAUSE 3
(Read the clause in context here.)
The Heritage Foundation’s Matthew Spalding explains,
In Dred Scott v. Sandford [decided on March 6, 1857], Chief Justice Roger B. Taney attempted to use this clause, along with the so-called Slave Trade Clause (Article I, Section 9, Clause 1), as evidence that slaves were not citizens but were to be considered property according to the Constitution. By this clause, Taney argued, “the States pledge themselves to each other to maintain the right of property of the master, by delivering up to him any slave who may have escaped from his service.”
The more generally accepted interpretation, however, is that this clause did not speak to the issue of citizenship at all, but was a necessary accommodation to existing slavery interests in particular states, required for the sake of establishing the Constitution…. This point is underscored by the fact that, although slavery was abolished by constitutional amendment (see the Thirteenth Amendment), not one word of the original text had to be amended or deleted.
Delegates also dealt with the slave trade. The Framers agreed that “Congress would not be able to prohibit the importation of slaves before 1808,” but that it could levy taxes on such importation. Article I, section 9 carried this provision. Here is the wording.
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
ARTICLE I, SECTION 9, CLAUSE 1
(Read the clause in context here.)
You may remember that this 20-year reprieve for the slave trade was mentioned in this quote at the end of last week’s article1: “Sadly, the new nation’s founding document sanctioned slavery: at the insistence of Southern states, the Constitution specifically prohibited Congress from passing any laws that abolished or restricted the slave trade until 1808.”2 Actually, it wasn’t entirely true that Congress had no way to restrict the trade, since the Slave Trade Clause permitted Congress to tax “such Importation” in the amount of up to “ten dollars for each Person.” Taxation certainly can be considered a form of restriction.
THE BURNING QUESTION
Still, putting this point aside for the moment, we are prompted to ask, Does the Constitution’s slave trade provision, as well as the other clauses addressing slavery, really indicate that “the new nation’s founding document sanctioned” it?
Did the Framers of the Constitution and the document they produced really sanction slavery?
It isn’t hard to find articles on the Internet that make the case that they did. Here is a small sampling of quotes.
Despite these perspectives, as we said last week, the fact that slavery continued in America for many years beyond the ratification of the Constitution may not tell the whole story. To find out more, we need to reach beyond a surface understanding of what happened in Philadelphia in 1787.
THE WORLD OF THE EIGHTEENTH CENTURY
The founders were born into a world where slavery was a part of the fabric of life. The evil of slavery came to America nearly 200 years before the Founders lived, so they cannot be held responsible for introducing it to America. While some of the Founders indeed were slaveholders, not all were, and many—even some of those who owned slaves—were troubled by the injustices of the institution. (Consider the James Madison quote cited at the top.) In fact, a majority opposed it: “It is clear that all but a tiny few of the delegates to the Constitutional Convention morally disapproved of slavery.”3 Some expressed their opposition in more than words; John Jay, Alexander Hamilton, and Benjamin Franklin lent their support to the growing effort to end the practice.
John Jay became the first Chief Justice of the Supreme Court. He observed that before the American Revolution and the establishment of a stable government for the independent states, very little had been done to pry the institution of slavery from American life.
John Jay
It’s significant that in an early draft of the Declaration of Independence, Thomas Jefferson included this grievance against King George III.
He [the King] has waged cruel war against human nature itself, violating its most sacred rights of life & liberty in the persons of a distant people, who never offended him, captivating & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. this piratical warfare, the opprobrium of infidel powers, is the warfare of the Christian king of Great Britain. determined to keep open a market where MEN should be bought & sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce: and that this assemblage of horrors might want no fact of distinguished dye, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them by murdering the people upon whom he also obtruded them; thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of another.
This item was replaced in the final draft of the Declaration: “Decades later Jefferson blamed the removal of the passage on delegates from South Carolina and Georgia and Northern delegates who represented merchants who were at the time actively involved in the Trans-Atlantic slave trade.” Still, it reflects a perspective on slavery that was quite evident among numerous delegates to the Constitutional Convention.
Many would call some of the Founders hypocrites for owning slaves, and they might even call all of them hypocrites for upholding the ideals of equality and liberty for everyone without working harder to eliminate the glaring evil around them. While I recognize the tension between belief and practice, I also believe we need to appreciate the Framers’ opposition to slavery in a world where the institution was a part of the normal course of life.
Prying away an institution from the fabric of society and getting rid of it is a process, not an overnight event. The same can be said of certain personal bad habits, as well.
Prying away an institution from the fabric of society and getting rid of it is a process, not an overnight event. (The same can be said of certain bad personal habits, as well.) Moreover, while eliminating slavery and the slave trade was a concern at the Constitutional Convention, it wasn’t the core purpose for which the delegates had gathered. We need to appreciate their efforts to at least forge a Constitution that, on balance, would not hinder anti-slavery efforts—one that even could pave the way for slavery’s demise.
It’s true that the Constitution of 1787 did not immediately terminate slavery in the United States, and it even allowed it to continue for the time being—but it did not endorse slavery, either. For one thing, “not a word of the Constitution would have to be changed if the states continued to emancipate the slaves on their own.”4
There’s even more evidence along these lines. Let’s take a look. The evidence falls into several different categories, some of which we’ve already discussed.
UNCOVERING ADDITIONAL FACTS ABOUT THE THREE-FIFTHS CLAUSE
ARTICLE I, SECTION 2, CLAUSE 3
(Read the clause in context here.)
Consider these points:
First, any state genuinely interested in increasing its influence in the House of Representatives and in the electoral college could bolster it because of the Three-Fifths Clause. States that freed their slaves would increase their political strength; former slaves—individuals who now were free—would be fully counted.
Second, progressives can write and talk forever about how the Three-Fifths Clause strengthened the South’s representation in the House of Representatives and how it thus enhanced its ability to preserve slavery. One writer says outright, “The three-fifths compromise increased the South’s representation in Congress and the Electoral College.”
Here’s the problem. Their point is valid only if the representation afforded the South by the Three-Fifths Clause is contrasted to what the slave states’ influence would have been had slaves not been numbered in population counts at all, as delegates from the North had wished. The Three-Fifths Compromise saddled the states in the South with a weaker presence in the House of Representatives than they wanted. Gary DeMar writes,
If none of the slaves had been included in the population count for representation, as Northern delegates wanted, the slave states would have had only 41 percent of the seats in the House. If all the slaves had been included, as the pro-slave states wanted, the slave states would have had 50 percent of the seats. By agreeing to count slaves as three-fifths of a person for representation purposes, the slaveholding states ended up with a minority voting position—47 percent.
For another balanced assessment, go here.
Third, While the phrase “all other Persons” refers to slaves, it is noteworthy that their race is not mentioned. Free blacks, who resided in both the North and the South,5 were considered to be, and were numbered as, “free Persons.” Michael Sabo writes,
Nowhere does the Declaration or the Constitution, for that matter, classify human beings according to the color of their skin.
Far from the principle of equality being a product of racism, it actually struck at the heart of slavery. By making equality the defining principle of the nation, the Founders hoped to put slavery on the course of its ultimate extinction.
While some of the Founders held slaves, they knew that blacks were human beings.
In a rough draft of the Declaration, Jefferson charged King George III with waging “cruel war against human nature itself” by keeping “open a market where men should be bought & sold.” [Earlier we cited the larger quote of which these phrases are a part.] By calling slaves men, Jefferson clearly recognized their humanity.
Not only did the Founders think that blacks were human beings, but they also acknowledged the wrongness of slavery in principle.
The Constitution—and, for that matter, the Declaration of Independence—are not racist documents.
Fourth, the three-fifths formula was not pulled out of thin air. Here’s the background.
It was derived from a mechanism adopted in 1783 to apportion requisitions (the national government’s only revenue source under the Articles of Confederation) among the states. That rule was intended to provide rough equality between the North and the South, and when the idea first appeared at the Convention, no one suggested that another fraction would be more appropriate.
A LITTLE-KNOWN FACT ABOUT THE FUGITIVE SLAVE CLAUSE
ARTICLE IV, SECTION 2, CLAUSE 3
(Read the clause in context here.)
Eastman Johnson, A Ride for Liberty—The Fugitive Slaves, painted about 1862
People need to know the background of the final draft of this provision. The clause ensured
the return upon claim of any “Person held to Service or Labour” in one state who had escaped to another state. At the last minute, the phrase “Person legally held to Service or Labour in one state” was amended to read “Person held to Service or Labour in one state, under the Laws thereof.” This revision emphasized that slaves were held according to the laws of individual states and, as the historian Don Fehrenbacher has noted, “made it impossible to infer from the passage that the Constitution itself legally sanctioned slavery.” Indeed, none of these clauses recognized slavery as having any legitimacy from the point of view of federal law.
The wording of the Fugitive Slave Clause was carefully crafted to make it clear that slaveholding states—not the federal government—authorized slavery.
DIGGING DEEPER TO BETTER UNDERSTAND THE EFFECT OF THE SLAVE TRADE CLAUSE
ARTICLE I, SECTION 9, CLAUSE 1
(Read the clause in context here.)
Consider these points.
First, however terrible the 20-year reprieve for the slave trade was, it had a benefit; it established a date when Congress could act to end it. You may know that the Federalist Papers were written by several of America’s Founders to promote the ratification of the Constitution. In Federalist #38 James Madison defended this stipulation with these words: “Is the importation of slaves permitted by the new Constitution for twenty years? By the old [the Articles of Confederation], it is permitted forever.”
Matthew Spalding writes, “Although protection of the slave trade was a major concession demanded by pro-slavery delegates, the final clause was only a temporary exemption from a recognized federal power for the existing states.” Furthermore, while it was true that the provision did not require Congress to pass legislation eliminating the slave trade in 1808 but permitted it to do so, on March 2, 1807, Congress did just that, and President Thomas Jefferson signed it into law. The act took effect on January 1, 1808.
Second, while the constitutional restriction prohibited Congress from eliminating the slave trade for a 20-year period, individual states were free to put an end to the trade, and many already had.
Third, we should note that the final version of this guideline “limits the Congressional prohibition to the existing States thus inviting the future restriction of slavery in the territories. In this regard, it is important to note that the Confederation Congress restricted slavery in the Northwest Territories in exchange for the return of fugitive slaves. The delegates adopt this Ordinance solution as part of Article IV.” This provision read, “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.” See Article IV, Section 3, Clause 2 in context.
NO MENTION OF SLAVERY AND NO CLASSIFICATION OF PEOPLE BY RACE IN THE CONSTITUTION
Consider these points.
First, it is noteworthy
that the words “slave” and “slavery” were kept out of the Constitution. Madison recorded in his notes that the delegates “thought it wrong to admit in the Constitution the idea that there could be property in men.” This seemingly minor distinction of insisting on the use of the word “person” rather than “property” was not a euphemism to hide the hypocrisy of slavery but was of the utmost importance. Madison explained this in Federalist No. 54:
But we must deny the fact, that slaves are considered merely as property, and in no respect whatever as persons. The true state of the case is, that they partake of both these qualities: being considered by our laws, in some respects, as persons, and in other respects as property. In being compelled to labor, not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty and chastised in his body, by the capricious will of another—the slave may appear to be degraded from the human rank, and classed with those irrational animals which fall under the legal denomination of property. In being protected, on the other hand, in his life and in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others—the slave is no less evidently regarded by the law as a member of the society, not as a part of the irrational creation; as a moral person, not as a mere article of property.
Second, it is disingenuous to claim the delegates to the Convention didn’t explicitly mention slaves or slavery in the Constitution because they were trying to preserve the practice. It is equally disingenuous to call this approach “damage control,” as one writer has.
One effect of the refusal of the delegates to explicitly mention slaves was that the Constitution referred to them as “persons,” not even as Negroes or blacks. An essay from the Heritage Foundation about the Three-Fifths Clause observes, “Even though slaves were property under the laws of the Southern states, the Constitution itself acknowledged that they were persons. In addition, by tying both representation and direct taxation to apportionment, the Framers removed any sectional benefit, and thus any proslavery taint, from the special counting rule.”
THE PROBLEM WITH DRAWING A LINE IN THE SAND
It is unrealistic to assume that the Southern states would have joined the Union if delegates from Northern states had had refused to compromise and had demanded a total end to slavery in the new nation. Thus, demanding an end to slavery in the year that produced the Declaration would have put an end to the Revolution, and demanding an end to it in the year that gave rise to the Constitution would have derailed efforts to establish a unified nation. It likely would have thwarted efforts to form a nation at all. When the delegates to the Convention adjourned in September, they had reached a consensus on most of the pressing concerns. Despite their differences, they had managed to work together to complete the task they’d gathered to accomplish. No one got everything he wanted, but everyone, on occasion, got something.6 “The framers were highly focused only on Republic building, acting on the assumption that the Union was the highest good, and that ultimately all problems, including slavery, would be resolved if they could keep the country together long enough.”7
Remember too that the delegates, who now had spent months meeting at what we now know as Independence Hall, were well aware that their deliberations were only the first step in a long, difficult process. If they succeeded in offering a proposal to the states, the new nation might be established, but if the train didn’t even leave the station, so to speak, the United States of America was certain to splinter and die.
What would have been the prospects for ending slavery in the South then?
This question is among those we will consider next week.
Copyright © 2016 by B. Nathaniel Sullivan. All Rights Reserved.
Part 3 is available here.
Notes:
1Go here for the entire quote in context.
2The editors of Time, The Making of America, (New York: Time, Inc., 2005), 83.
3William Bennett, America, the Last Best Hope: Volume 1: From the Age of Discovery to a World at War, (Nashville: Nelson, 2006), 123.
4Ibid.
5At the time of the American Civil War, more free blacks resided in the South than in the North. Henry Louis Gates writes, “A few months before the Confederacy was born, there were 35,766 more free black people living in the slave-owning South than in the North, and removing D.C. from the equation wouldn’t have shifted the result. And they stayed there during the Civil War.”
6Most of the unquoted statements in this paragraph comprise a paraphrase of statements in Larry Schweikart and Michael Allen, A Patriot’s History of the United States: From Columbus’s Great Discovery to the War on Terror, (New York: Sentinel, 2004), 116.
7Ibid.
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