Slavery and the U.S. Constitution
From Paul Finkleman, “Slavery and the Constitutional Convention: Making a Covenant with Death,” in
Beyond Confederation: Origins of the Constitution and American National Identity, Edited by Richard
Beeman, Stephen Botein, and Edward C. Carter II. Chapel Hill: University of North Carolina Press, 1987,
pp.188-225.
Five Clauses That Directly Protected Slavery
Article I, Section 2: The 3/5 clause provided for counting 3/5 of all slaves for purposes
of representation in Congress. This clause also provided that, if any “direct tax” was
levied on the states, it could be imposed only proportionately, according to population,
and that only 3/5 of all slaves would be counted in assessing what each state’s
contribution would be.
Article I, Section 9, Paragraph 1: The slave importation clause prohibited Congress
from banning the African slave trade before 1808, but did not require Congress to end the
trade after that date.
Article I, Section 9, Paragraph 4: This clause declared that any “capitation” or other
“direct tax” imposed had to take into account the 3/5 clause. It ensured that, if a head tax
were levied, slaves would be taxed at 3/5 the rate of whites. The “direct tax” portion of
this clause was redundant, because that was provided for in the 3/5 clause.
Article IV, Section 2, Paragraph 3: The fugitive slave clause prohibited the states from
emancipating fugitive slaves and required that runaways be returned to their owners “on
demand.”
Article V: This article prohibited any amendment of the slave importation or capitation
clauses before 1808.
Prominent Clauses Indirectly Protecting Slavery
Article I, Section 8, Paragraph 15: Empowering congress to call “forth the Militia” to
“suppress Insurrections,” including slave rebellions.
Article I, Section 9, Paragraph 5: Prohibiting taxes on exports and thus preventing an
indirect tax on slavery by taxing the staple products of slave labor, such as tobacco, rice,
and eventually cotton.
Article I, Section 10, Paragraph 2: Prohibiting states from taxing exports, thus
preventing an indirect tax on the products of slave labor by a nonslaveholding state.
Article II, Section 1, Paragraph 2: Providing for the indirect election of the president
through an electoral college based on congressional representation. This provision
incorporated the 3/5 clause into the electoral college and gave whites in slave states a
disproportionate influence in the election of the president.
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Article III, Section 2, Paragraph 1: Limiting federal diversity jurisdiction to “Citizens
of different States” (rather than inhabitants). This ensured that slaves and, in some cases,
free blacks would not have access to federal courts.
Article IV, Section 1: Requiring that “Full Faith and Credit” be given to the laws and
judicial proceedings of other states, thus obligating free states to recognize laws creating
and protecting slavery.
Article IV, Section 2, Paragraph 1: Limiting the privileges and immunities clause to
“citizens” and denying these protections to slaves and, in some cases, free blacks.
Article IV, Section 2, Paragraph 2: Providing for the return of fugitives from justice,
thus requiring that free states return for trial whites and free blacks accused of aiding
fugitive slaves or in some other way violating slave codes.
Article IV, Section 4: Guaranteeing that the United States government would protect
states from “domestic Violence,” including slave rebellions.
Article V: Requiring a ¾ majority of the states to ratify the Constitution, thus ensuring
that the slaveholding states would have a perpetual veto over any constitutional changes.