Slavery and the Founders’
Constitution
Teaching American History
Corning, New York
The S word is not in the
Constitution. Does this matter?
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Some scholars say that the absence of the words “slave” and “slavery” in
the Constitution is a largely meaningless concession consistent with prior
precedent (prior acts of the Confederation Congress had not explicitly used
the word slavery but rather substituted a description of it) and as a matter of
delicacy to make the document more palatable to Northern delegates. Even
without these words, they point out, the Constitution confers considerable
power on the slave states.
Others suggest that this absence is extremely important because law gains
its meaning primarily from the language of the text, not the purposes of the
drafters and “the sharp contrast here between text and purpose has its own
significant effect, whether intended or not.”[1] Moreover, the circumlocutions
that were used in the Constitution to speak about slavery, according to
these scholars, indicated only a “shamefaced recognition” of slavery in a
document that otherwise “lent no explicit reinforcement to the idea of human
property” and did not recognize “slavery as having any legitimacy in federal
law.”[2]
[1] Fehrenbacher, Dred Scott, 27.
[2] Fehrenbacher, Slaveholding Republic, 10, 41, 44.
The Three Fifths Clause
“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.” (United
States Constitution, Article I, Section 2,
Paragraph 3).
The Three Fifths Clause
(continued)
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Contrary to a common misperception the three-fifths clause does not
suggest that blacks slaves are three –fifths of a human being. It is part of a
formula for apportioning representatives. To figure out how many
representatives a state gets under the original Constitution, you took the
total number of free inhabitants (including women, children, and men with
and without property) and then added to that 60% of the slave population.
You then figured out what percentage of the total population of the United
States that figure was.
Total Free inhabitants + 60% of slaves (“federal ratio” or “slave bonus”)
--------------------------------------------------Total Population of the United States
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E.g. if a state’s total population of free inhabitants plus 60% of its slaves
equal ten percent of the total population of the United States, then it gets
10% of the representatives in the Congress.
The Three Fifths Clause
(continued)
• Slaves would have been far worse off by being counted
as full persons for persons of the apportionment of
representatives under the original Constitution. Slaves
were not merely disenfranchised; they were owned.
Being counted as full persons for purposes of
representation would have meant their owners would
have had even greater political power in the House of
Representatives. Slaves would have been better off if
they had not been counted at all for purposes of
representation (unless of course they were freed and
then given the vote) because counting three –fifths of
them for purposes of representation gave greater power
to slave states and, in effect, to their masters – who were
the most prominent politicians in those states.
The Three Fifths Clause
(continued)
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“Modern laypersons and law students confronting the words “three fifths” for
the first time often suffer from a similar confusion, recoiling at the idea of
valuing slaves at less than 100 percent. This initial reaction misses the
point. The clause did not aim to apportion how much a slave was a person
as opposed to a chattel. Had this been the question, the anti-slavery answer
in the 1780s would have been to value slaves fully: five-fifths. Yet in the
context of House apportionment, a five-fifths formula would not have freed a
single slave, or endowed any bondsman with more rights of personhood
against his master or the world. Five-fifths would simply have given slave
states even more voting power vis-à-vis free states. The precise Article I
question concerned Congress’s proportions, not the slaves’. The principled
antislavery answer to this question in 1787 was that for legislative
apportionment purposes, slaves should be valued not at five-fifths, or even
three-fifths, but rather zero-fifths.” [1]
•
[1] Akhil Reed Amar, America’s Constitution: A Biography (New York:
Random House, 2005), 89.
The Three Fifths Clause
(continued)
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The Three Fifths clause was a concession given to the Southern states that
increased their political power in the Union. Under the Articles of
Confederation, the three-fifths formula was a measure of the productivity of
slaves and had applied only to taxation. It had not then applied to
representation. Every state was of course given equal representation under
the Articles of Confederation.
In the area of taxation, Southerners had protested that it was unfair to tax
them for their slaves because, they argued, slaves were not as productive
as free men. Under the Articles, slave holding states had sought to have
slaves enumerated at the lowest percentage possible – again because the
provision applied only to taxation. At the Convention, the three fifths formula
was applied to taxation and representation. Still, Southern states did not
worry much about the application of the three –fifths formula to taxation
because direct taxes – those in which the enumeration of slaves would have
placed a greater burden on slave-holding states – were never considered a
major source of federal revenue by Convention delegates and this indeed
turned out to be the case. The central sources of tax revenue were impost
duties and land sales and these were unaffected by this provision.
The Three Fifths Clause
(continued)
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Effects of the Three-Fifths Clause
It gave slave states a number of what were, in effect “slave seats” in Congress.
Leonard Richards has observed: “The slave states always had one-third more seats
in Congress than their free populations warranted- forty-seven instead of thirty-three
in 1793, seventy-six instead of fifty-nine in 1812, and ninety-eight instead of seventythree in 1833.” [1]
Similarly, Akhil Reed Amar has noted:
“The numbers from the 1790 census illustrate the practical effect of the three-fifths
clause in its early years. New Hampshire’s 140,000 free citizens entitled it to four
seats in the expanded House, compared to six seats for South Carolina’s 140,000
free citizens and 100,000 slaves. Connecticut boasted 20,000 more citizens than
Maryland but won one less seat because Maryland got to count its 100,000
bondsmen. Although slave-less Massachusetts had a significantly larger free
population than did Virginia, the Old Dominion got five more seats, thanks to her
nearly 300,000 slaves.” [2]
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[1] Richards, The Slave Power, 56-57.
[2] Amar, America’s Constitution, 91
The Three Fifths Clause
(continued)
• Second, as William Patterson and Gouverneur Morris observed at
the Constitutional Convention, the three-fifths clause allowed the
South the prospect of increasing its representation in Congress by
obtaining more slaves. Indeed, when the three-fifth clause was
combined with the 1808 slave trade provision that protected the
importation of slaves for at least twenty years after the ratification of
the Constitution, slave-holders were given a strong incentive and
legal sanction to increase their slave populations as means of
increasing their proportional power in Congress.[1] As Ahkil Reed
Amar has noted that the three-fifths clause “gave a state extra credit
for each new unit of slave property it could breed, buy, or steal.”[2]
• [1] See the speeches of Patterson on July 9th and Morris on July 11
and August 8 at Koch ed., Notes of Debates, 259, 276, 411-412.
• .”[2] Amar, America’s Constitution, 93.
The Three Fifths Clause
(continued)
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Finally, the three fifths clause gave Southern states greater power in
passing or blocking constitutional amendments and in the selection of the
President.
Since the first stage in the most common method of amending the
Constitution is passage by two-thirds of members present in Congress,
these extra seats in the House gave slave states extra political clout in the
House of Representatives to either pass or block constitutional
amendments.
Under the Electoral College, states receive a number of electors equal to
their number of representatives plus their Senators. Tying Presidential
electors to representation in Congress meant that the “slave bonus” that
states received as a result of the three-fifths clause would be registered in
the strength that they had in the selection of the President. Obviously, since
slaves were not voters, this bonus would only come about through the
Electoral College not by virtue of direct election of the President.[1]
[1] Paul Finkelman, “The Proslavery Origins of the Electoral College,”
Cardozo Law Review 23 (2001-2002), 1145-1157.
1808 Slave Trade Provision
• “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.” (United States
Constitution, Article I, Section 9,
Paragraph 1).
1808 Slave Trade Provision
(continued)
• Article I, Section 8 of the Constitution provides for
Congress to have plenary power over international
commerce. The provision above, however, gave the
slave trade (not slavery) a twenty year immunity from
Congressional prohibition. It did not mandate the end of
the slave trade after twenty years.[ Instead, it became
constitutional to end the slave trade in twenty years
(1808). This provision also allowed the banning the slave
trade for any new state admitted into the union. It
provides protection of the slave trade only for “any of the
States now existing.” It was a common claim and belief
by supporters of the Constitution that Congress would
outlaw the slave trade in 1808 and that the abolishment
of the slave trade would lead to the gradual abolishment
of slavery.
1808 Slave Trade Provision
(continued)
• The 1808 slave trade provision did not affect the ability of the states
to end the slave trade for their boundaries or repel existing bans. By
1788, the ten most northerly states had effectively banned the slave
trade. Only North and South Carolina and Georgia had not.[1] These
states had prohibited the slave trade for a variety of reasons.
Northern states that had enacted gradual emancipation schemes or
abolished slavery altogether had generally already banned the slave
trade by 1787. In Virginia and Maryland, the slave trade had simply
become unnecessary because the birth rates of slaves more than
provided enough slaves. After 1790, Georgia and South Carolina,
reopened the slave trade to meet the demand for cotton. South
Carolina imported nearly 60,000 slaves before 1808 when Congress
banned the African slave trade for the nation. [2]
[1] Amar, America’s Constitution, 20.
• [2] Murrin et. al. Liberty, Equality, Power, 233.
1808 Slave Trade Provision
(continued)
Congress banned the slave trade on the
day that it was empowered under the
Constitution to do so. Jefferson helped to
summon and organize the political forces
necessary for its passage by calling for the
end of the slave trade in his 1806 annual
message and then eventually signed this
bill into law. Jefferson’s motives may not
have been unambiguous.
Fugitive Slave Clause
"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." (United States
Constitution, Article IV, Section 2,
Paragraph 3).
Fugitive Slave Clause (continued)
• This clause, as Akhil Reed Amar has observed, was “about humans
in bondage seeking liberation.” It was placed immediately after the
clause in the Constitution requiring states to cooperate in the
extradition of fugitives fleeing from justice (Article IV, Section 2,
paragraph 2). But really it is about “pitiable folk whose only alleged
crime was their thirst for freedom.” (Amar, America’s Constitution,
257)
• The need to have a fugitive slave clause was made necessary by
the fact that by May, 1787, five states - Massachusetts, New
Hampshire, Pennsylvania, Connecticut, and Rhode Island – had
either abolished slavery or were in the process of doing so. At the
Convention, southern delegates – especially delegates from South
Carolina – worried that slaves would escape to these states and find
a safe haven there. This clause – the fugitive slave clause - was
added without much debate to address this problem.
Fugitive Slave Clause (continued)
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This clause imposed a duty on non-slave-holders to retrieve escaping slaves.
Specifically, it created two obligations on free states. First, no free state could declare
that a slave who escaped to its free territory was free as a result of his or her
residence in a free state. Second, it required the free state to cooperate with the
slave-owner when he came to claim his slave. The clause itself, however, was murky
and unclear about several questions about implementation. How would a fugitive
slave be recovered? The fugitive slave is to be delivered up to the slaveowner, but
who is to deliver them up? What would separate a legitimate from an illegitimate
claim? How do we prevent a slave catcher from falsely accusing a free black of being
a fugitive slave and putting him or her into bondage? What degree of autonomy
would a state have in determining whether the alleged fugitive slave was indeed a
fugitive slave and not a free citizen of that state? Should a slave master or (more
likely) a slave catcher acting in the name of the slave master be forced to go through
the judicial apparatus of the free state to reclaim his slave or would control of that
process be lodged in the hands of the federal government?
Congress clarified these issues in 1793 in the Fugitive Slave Law. This law was
upheld as constitutional in Prigg v. Pennsylvania (1842). In 1850, Congress passed
another fugitive slave law that was part of the compromise of 1850. Consider each of
these in turn. See Paul Finkelman, “Fugitive Slave Law of 1793” @
http://www.americanforeignrelations.com/Fl-Ga/Fugitive-Slave-Law-of-1793.html
Article V prohibition of amendment
to the 1808 slave trade provision
“The Congress, whenever two thirds of both Houses shall deem it
necessary, shall propose Amendments to this Constitution, or, on the
Application of the Legislatures of two thirds of the several States,
shall call a Convention for proposing Amendments, which, in either
Case, shall be valid to all Intents and Purposes, as Part of this
Constitution, when ratified by the Legislatures of three fourths of the
several States, or by Conventions in three fourths thereof, as the
one or the other Mode of Ratification may be proposed by the
Congress; Provided that no Amendment which may be made prior to
the Year One thousand eight hundred and eight shall in any Manner
affect the first and fourth Clauses in the Ninth Section of the first
Article; and that no State, without its Consent, shall be deprived of
its equal Suffrage in the Senate.”
The italicized language prohibited any amendment that abolished
the African slave trade before 1808 or that abolished the provision
provided that any direct tax could only tax slaves at three-fifths the
rate of free men.
Was the
Constitution
a Pro-Slavery
Document?
A Pro-Slavery Document?
• What clauses in the Constitution affected slavery
and how should they be interpreted? Should
they be interpreted as giving immediate
protection to an institution whose existence
could not be denied or ultimate elimination was
envisioned or as giving protection to an
institution that is intended to be perpetuated?
Cumulatively, how substantial were the
concessions made to slavery?
Neo-Garrisonians
vs. NeoLincolnians
Neo-Garrisonians
• Neo –Garrsions look at numerous clauses in the
Constitution, not just the four enumerated above.
They point for example to provisions for quelling
insurrections and suggest that these clauses
related to slave insurrections and also that
prohibitions against exports were meant to
protect the products of slave labor.
• Suggest that the absence of the word slavery in
the Constitution is no big deal.
The Neo-Garrisonian Interpretation
of the Constitution
• The Neo-Garrisons argue that the concessions made to slavery in
the Constitution were extremely extensive and unnecessary to its
ratification. They point particularly to the easy and unanimous
passage of the fugitive slave clause.
• The Neo-Garrisonians also impugn the motives of the Framers. The
Framers, they argue, supported slavery because they were racists
and served to profit from the labors of the slaves. Slavery was
integral to their lavish lifestyles and hence had to be perpetuated.
• Finally, Neo-Garrisionians also observe that no Framers argued at
the Convention for the prohibition of slavery altogether, to keep it
from being spreading western and becoming implanted in new
states that joined the union, or to require the end of the slave trade
(even by fixing a date in the future).
The Neo-Lincolnian Interpretation
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The Neo-Lincolnians do not deny that slavery was given some protection and some
legal status in the Constitution. The suggest that that protection was minimal.
They also repeatedly emphasize that the Constitution never uses the word “slavery.”
The Framers circumlocutions illustrate that they were embarrassed by the institution.
Again, they suggest that this is extremely important in interpretation since law gains
its meaning primarily from the language of the text, not the purposes of the drafters.
Unlike the Neo-Garrisonians, the Neo-Lincolnians suggest that the Constitution was
meant to eradicate slavery in the not too distant future. The most sophisticated
articulations of this thesis were given by an historian named Don Fehrenbacher and
by Lincoln himself. Fehrenbacher says that the Framers were bifocal. Within their
immediate sight, slavery was embedded in the republic. It was a slave-holding
republic. Some immediate concessions or accommodations – such as those made in
the Constitution - were necessary to the “peculiar institution at that time. But as they
looked out across the future, the Framers hoped to eradicate this institution because
they viewed it as illegitimate in a republic and as immoral.
Lincoln’s version of this argument was of course very eloquent. He said that the
Framers absorbed the doctrines of equality and consent in the Declaration into the
Constitution. These principles of political right were fundamentally opposed to slavery
and the Framers recognized this. The Framers created a union, Lincoln continued,
and union was the only chance for the eradication of slavery.
Slavery and the Question of Moral
Responsibility of the Founders
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In this period of culture wars, teaching about the Founders, slavery, and the
Constitution requires a great deal of thought and care. Our goal, I would argue, ought
to be to strive for some kind of balanced, complex, historically accurate judgments
that follow from develop mature and complex frameworks for evaluating the moral
responsibility of the elite Framers for slavery. A complex and balanced approach to
this question must also distinguish between word and deed and intention and effect.
Simply because the Framers or some particular Framers said that slavery is wrong
cannot be enough, but we should also observe that few of the Founding generation
positively defended slavery but rather suggested that it could not yet be fully
eradicated. We then need to examine the reasons that they gave for why it could not
be eradicated immediately. We also need to examine what they did to eliminate
slavery and ask if more could have been done. Considering counterfactual histories is
always problematic but such a heuristic is helpful in addressing moral responsibility.
Could a constitution have been ratified that did not include concessions to slavery?
Was union necessary for the eradication of slavery? Separating intention from effect:
how much of the strength of slavery was caused by subsequent events that the
Framers could not have foreseen? What did the Framers do to eradicate slavery and
could more have been done? Could slavery have been banned from any western
territories by the Constitution and could the slave trade have been ended?