Slavery Clauses in the U.S. Constitution

Explanation and Analysis of the Document

The word slavery does not appear in the U.S. Constitution as written in Philadelphia in 1787. The first mention of slavery is in the Thirteenth Amendment, ratified in 1865, which ended slavery throughout the United States after the Civil War. Throughout the Constitutional Convention the delegates talked frankly about slaves and slavery, but in the final document they did not use the term. The reason is clear. Some delegates were embarrassed by it, while others, especially in the North, feared that the direct mention of slavery would harm chances for ratification, as some northerners would vote against a Constitution that directly endorsed the practice. The records of the convention make this clear. During the debate over the slave trade, Gouvernor Morris, who hated slavery, suggested that the clause declare that the importation of slaves into North Carolina, South Carolina, and Georgia not be prohibited before a certain date. Other delegates rejected this idea, both because it would single out three states and because it would alert their constituents to the proslavery aspects of the Constitution. Connecticut’s Roger Sherman, who voted with the Deep South to allow the trade, declared that he “liked a description better than the terms proposed,” which had been declined by the old Congress and “were not pleasing to some people.” George Clymer of Pennsylvania concurred with Sherman. In the North Carolina ratifying convention, James Iredell, who had been a delegate in Philadelphia, explained that the “word slave is not mentioned” because “the northern delegates, owing to their particular scruples on the subject of slavery, did not choose the word slave to be mentioned.”

But even without the word’s appearance in the Constitution, slavery is found in a number of places and is more indirectly connected to the Constitution in many other places. The delegates used descriptions of slaves, calling them “other persons,” “such persons,” and “persons owing service or labour.” In other ways there were recognitions of slavery. Thus, in discussing apportionment in the three-fifths clause, the Constitution authorizes counting the “whole Number of free Persons,” in each state and then added “three-fifths of all other Persons.” The use of the term “free Persons” naturally implied that the “other Persons” were not free but were slaves. Thus, even as the Framers avoided the word slave, they acknowledged the importance of slaves to the nation and the constitutional structure.

Preamble

The Constitution begins with a preamble asserting that it had been formed by “We the People.” The preamble states that the Constitution was written to “form a more perfect Union” and to “establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty” for the American people. Each of these issues raised questions about slavery and race.

“The people” who formed the more perfect Union were, of course, the “people” of the United States. Presumably that did not include slaves, since they were not allowed to participate in the political process. But it must have included free blacks in those states—Massachusetts, New Hampshire, New York, Pennsylvania, New Jersey, and North Carolina—where they could vote and even hold office. In Dred Scott v. Sandford (1857) the Supreme Court would declare that blacks could never be citizens of the United States, even if free. But this was surely problematic, since free blacks in at least six states participated in the ratification of the Constitution, just as blacks from a majority of the states had served in the Revolutionary armies that won independence from Great Britain.

The rest of the preamble spoke to other questions of slavery and liberty. The Constitution was designed to “establish Justice.” Did this include justice for those born to slavery or just justice for their masters? The Constitution guaranteed that the national government would suppress insurrections, which would “insure domestic Tranquility.” This in part meant suppressing slave rebellions, which the national government helped do on a handful of occasions before the Civil War. But when the master class revolted to set up a new nation—the Confederate States of America—based on slavery, the national government would suppress this insurrection as well. Meanwhile, “the common defense” was undermined, as many opponents of slavery pointed out, by the very presence of slaves, who might side with an enemy in time of war. The Deep South would discover the truth of this during the Civil War as more than two hundred thousand black men—the vast majority slaves before the war—fought to preserve the Union and end slavery. Did slavery help or hinder “the general Welfare” of the nation? Obviously slave owners thought bondage served their welfare. But how could slavery be protected by a Constitution designed to “secure the Blessing of Liberty”? The answer depended on how one viewed slavery. For the South, one of the “blessings” of the new nation was the liberty to own other people and hold them in perpetual servitude. Slaves, and those who opposed their bondage, believed that the Constitution and the government it created failed to live up to the goal of securing “liberty.”

Representation

Article I, Section 2 of the Constitution set out how seats would be allocated in the new House of Representatives. A census would count everyone in the nation, except Indians living outside American jurisdictions (called “Indians not taxed”). Slaves would be counted separately from whites. Sixty percent of the slave population would be added to the whole free population to determine the state’s population, and representatives would be based on that number. This was the “three-fifths clause.” It did not designate blacks to be three-fifths of a person, as many people incorrectly believe. On the contrary, free blacks were counted in the same way as whites. What the clause did was to add to the power of the southern states in Congress by giving them extra representation for their slaves.

The importance of this clause is made clear when we look at the slave populations in the South in the 1790 census. Slaves constituted more than a third of the population in the five states from Maryland to Georgia. South Carolina was 43 percent slave. Virginia was the largest state in the nation, with 692,000 people, but Virginia’s free population of just over 400,000 was second to Pennsylvania’s and not much bigger than that of Massachusetts. North Carolina, with about 394,000 people, was the third-largest state, but only 288,000 of those people were free. If slaves had not been counted for representation, Virginia would have had the second-largest delegation in Congress, and North Carolina would have fallen from third to fifth. Similarly, Maryland, the sixth-largest state, would fall behind Connecticut if its 103,000 slaves were not counted for representation. Most dramatically of all, South Carolina, with 249,000 people, was the seventh-largest state in the Union. But if 107,000 slaves were not counted, the state would fall to eleventh place, behind Connecticut, New Jersey, and New Hampshire. By counting slaves for representation, the southern states gained a number of seats in the Congress that they would not have had if only free people had been counted.

In the Constitutional Convention, William Paterson of New Jersey had complained bitterly about the injustice of counting slaves to determine representation in a government designed for free people. Paterson argued that slaves were not “free agents, have no personal liberty, no faculty of acquiring property, but on the contrary are themselves property, and like other property entirely at the will of the Master.” Paterson pointedly asked whether a man in Virginia had a number of votes in proportion to the number of his slaves. He noted that slaves were not counted in allocating representation in southern state legislatures and asked why they should be represented in the general government. Similarly, Elbridge Gerry of Massachusetts sarcastically asked if slaves were “property,” in the South, why should their “representation be increased to the southward on account of the number of slaves, than horses or oxen to the north?” He wondered “Are we to enter into a Compact with Slaves?” In the end the Convention accepted the demand of the South that slaves be counted for representation, but on a three-fifths ratio.

In the long run this clause would give the South extra muscle in Congress, helping to provide the margin of victory for allowing slavery in Missouri, annexing Texas, and passing the Fugitive Slave Act of 1850. Because the Electoral College, which elects the president—set out in Article II—was based on representation in Congress, the three-fifths clause also helped elect slaveholding presidents. In 1800 the slaveholding Thomas Jefferson defeated the non-slaveholder John Adams because of electoral votes created by counting slaves for representation.

The clause also provided that if direct taxes were ever levied on the states, the states would pay according to a population including three-fifths of the slaves. Had the national government ever imposed direct taxes on the states—such as a tax on every person in the state—before the Civil War, this clause would have added to the tax burden of the slave states. But no one expected such taxes, and at the Convention a number of delegates said so. In fact, none was imposed. Thus, while it was apparently a compromise over taxation and representation, it was a clause that affected only representation and the election of the president.

Slave Trade

Article I, Section 9 of the Constitution provides that the “Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by Congress” before 1808. This was awkwardly phrased, perhaps in the hope that opponents of the slave trade would miss the point. Under this provision Congress could not end the African slave trade before 1808, even though Congress had the power to regulate all other forms of international commerce. A divided convention adopted this clause after a touchy, three-day debate. The clause generated significant opposition to the Constitution throughout the North but also in Virginia. At the convention the South Carolina delegates said they could not support the Constitution without some protection for the African trade, but in 1787 none of the states was actually importing slaves. During the Revolution all the states voluntarily stopped the African trade because Great Britain dominated the trade and buying slaves from Africa would be a form of trading with the enemy. South Carolina did not reopen the African trade until 1803. In the next five years about seventy thousand new slaves would be brought into South Carolina and Georgia—the largest importations in any similar period in American history. On January 1, 1808, the United States would ban the trade. In the next half century there would be some smuggling—probably no more than ten thousand slaves were brought into the country illegally. In 1821 the United States would declare that slave trading was piracy, punishable by death, but no trader would be executed until the Lincoln administration.

Fugitive Slave Clause

Article IV, Section 2 provides that “persons held to Service or Labour” and escaping into another state be “delivered up on Claim of the Party to whom such Service or Labour may be due.” There was almost debate over this clause at the convention, and there is little sense of how people expected the clause to operate. Pierce Butler, who introduced it, was a wealthy planter from South Carolina and probably assumed that runaway slaves would be stopped by local sheriffs and held until someone claimed them. This is how it worked in the South, where any black—even if free—was subject to investigation if he or she was found without a master or was unknown to local officials. In the North, where slavery was ending, blacks were not presumed to be slaves. In 1793 Congress passed a fugitive slave law to implement this clause. The Supreme Court would uphold this law in Prigg v. Pennsvylvaia in 1842. In 1850 Congress passed a stronger law. The clause never worked well and led to enormous hostility in the North and great frustration in the South. Rather than creating a “more perfect Union,” the clause dramatically undermined the Union. Southern states cited failure to enforce the clause as a reason for secession; northerners viewed the clause as legalizing kidnapping and a symbol of southern oppression.

Amendment Process

The Constitution provided for a complicated and difficult amendment process. Two-thirds of each house of Congress had to approve an amendment, which then had to be ratified by three-fourths of the states. This gave the South what amounted to a perpetual veto over any amendments. In 1861 there were fifteen slave states. If all fifteen were still slave states in the modern era, it would still be impossible to amend the Constitution to end slavery. If fifteen slave states voted against an amendment it would take forty-five free states to outvote them, necessitating a sixty-state Union. Only secession allowed for the Civil War Amendments, which ended slavery, made all people born in the nation citizens without regard to race, and prohibited discrimination in voting on the basis of race.

Other Clauses Affecting Slavery

In addition to the clauses specifically designed to protect slavery, others also affected the system. The two insurrection clauses (Article I, Section 8, and Article IV, Section 4) created a guarantee that the U.S. government would suppress slave rebellions, as it did on a number of occasions. The Electoral College folded the three-fifths clause into the Electoral College so that slaves would help elect the president. The delegates were very specific about this. At the convention James Madison said that “the people at large” were “the fittest” to choose the president. But “one difficulty … of a serious nature” made election by the people impossible: “The Southern States … could have no influence in the election on the score of the Negroes.” In other words, slaves would not help elect presidents. More openly, Hugh Williamson of North Carolina observed that if there were a direct election of the president, Virginia would not be able to elect “her” leaders president because “her slaves will have no suffrage.” The slave states also insisted—and obtained—prohibitions on export taxes (in Article I, Sections 9 and 10) so that the products of slave labor might not be indirectly taxed.

Other parts of the Constitution put the national government in the position of having to regulate slavery. Article I, Section 8 gave Congress power to create and govern a national capital—which became Washington, D.C. Eventually located between Maryland and Virginia, it would be a slaveholding city until Congress exercised its power to end slavery there in 1862. Similarly, the power to admit new states and regulate the territories (Article IV, Section 3) gave Congress the power to ban slavery in the territories. From 1791 until 1857 Congress regulated slavery in the territories and debated the admission of new states on the basis of slavery. This led to enormous political conflict and, in Kansas, a civil war known as Bleeding Kansas. In Dred Scott v. Sandford (1857), Supreme Court Chief Justice Roger Taney ruled that Congress could not ban slavery in the territories. This attempt to solve the problem backfired and helped elect Lincoln, which in turn led to secession by slave-state politicians who could not imagine a Union led by an actual opponent of slavery. In 1862 Congress ignored Taney’s decision and banned slavery in the territories.

The ultimate protection of slavery in the Constitution was the creation of a limited government. Under the pre–Civil War Constitution neither the president nor Congress had the power to touch slavery in the states. Since slavery was an institution created by state law, this meant that Congress could never end slavery. In that sense, the Constitution created a slaveholders’ republic that lacked the internal structure to change itself. At the ratifying Convention in South Carolina, Charles Cotesworth Pinckney proudly noted,

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. Only secession and the Civil War could change that.