Introduction Sections 4, 5, and 6, of Article VII of the Committee of Detail Report, August 6, 1787, restrained the 18 powers granted to Congress. Included in that list of powers was the power to regulate international commerce. Five delegates wrote this first draft of the Constitution: Nathaniel Gorham from Massachusetts, Edmund Randolph from Virginia, James Wilson from Pennsylvania, Oliver Ellsworth from Connecticut, and John Rutledge from South Carolina. Article VII, Sections 4, 5, and 6 Section 4. No tax or duty shall be laid by the Legislature on articles exported from any State; nor on the migration or importation of such persons as the several States shall think proper to admit; nor shall such migration or importation be prohibited. Section 5. No capitation tax shall be laid, unless in proportion to the census herein before directed to be taken. Section 6. No navigation act shall be passed without the assent of two-thirds of the members present in each House. According to Section 4, what we now call the slave trade is completely 1) in the hands of each state and 2) out of the reach of Congress forever. Note that the word “slavery” is not mentioned. The Three Sides Three sides emerged in late August: principle, interest, and politics. 1. John Langdon “was strenuous for giving the power to the general government. He could not, with a good conscience, leave it with the States, who could then go on with the traffic.” John Dickinson, Luther Martin, George Mason, James Madison, Gouverneur Morris, James Wilson, and Edmund Randolph also opposed the slave trade on the grounds of principle. Martin argued that the slave trade was “inconsistent with the principles of the Revolution, and dishonorable to the American character, to have such a feature in the Constitution.” Mason stated that “every master of slaves is born a petty tyrant. They bring the judgment of Heaven on a country.”
This essay is part of a discussion about the Slave Trade Clause with Jenny S. Martinez, Professor of Law and Warren Christopher Professor in the Practice of International Law and Diplomacy, Stanford Law School. Read the full discussion here. 2. Hugh Williamson, from North Carolina, reminded the delegates of political reality. “The Southern States could not be members of the Union, if the clause should be rejected.” He added: “both in opinion and practice he was against slavery; but thought it more in favor of humanity, from a view of all circumstances, to let in South Carolina and Georgia on those terms, than to exclude them from the Union.” Rutledge, chairman of the Committee of Detail, proclaimed: “Religion and humanity had nothing to do with this question. Interest alone is the governing principle with nations. The true question at present is, whether the Southern States shall or shall not be parties to the Union. . . . If the Convention thinks that North Carolina, South Carolina, and Georgia, will ever agree to the plan, unless their right to import slaves be untouched, the expectation is vain. The people of those States will never be such fools as to give up so important an interest.” Charles Pinckney agreed: “If slavery be wrong, it is justified by the example of all the world.” 3. Roger Sherman from Connecticut thought “it was better to let the Southern States import slaves than to part with them, if they made that a sine qua non.” He observed that the abolition of slavery seemed to be going on in the United States, and that the good sense of the several States would probably by degrees complete it. Mr. Ellsworth, also a member of the Committee of Detail, articulated the political position: the morality or wisdom of slavery are considerations belonging to the States themselves. Moreover, “slavery in time, will not be a speck in our country.” Massachusetts also sought accommodation. King said the whole “subject should be considered in a political light only.” What is to be Done? Mr. G. Morris “wished the whole subject to be committed, including the clauses relating to taxes on exports and to a navigation act. These things may form a bargain among the Northern and Southern States.” The delegates appointed to a Committee of Eleven were Langdon, King, Johnson, Livingston, Clymer, Dickinson, L. Martin, Madison, Williamson, C.C. Pinckney, and Baldwin. What sort of “bargain” would this Committee recommend? Langdon, King, Dickinson, Martin, and Madison opposed the Slave Clause provision on principle. Williamson, Pinckney, and Baldwin supported the Clause on the ground of interest. Perhaps Livingston, Johnson, and Clymer could help create an accommodation. Governor Livingston from the Committee delivered the Report: “Strike out so much of the fourth Section as was referred to the Committee, and insert, ‘The migration or importation of such persons as the several States, now existing, shall think proper to admit, shall not be prohibited by the Legislature prior to the year 1800; but a tax or duty may be imposed on such migration or importation, at a rate not exceeding the average of the duties laid on imports.’ The fifth section to remain as in the Report. The sixth Section to be stricken out. . . . ” Conclusion The Committee permitted Congress to regulate the slave trade after 1800 and impose a tax on such importation. Moreover, the Clause was confined to “the several states, now existing” that considered it “proper.” Congress was free to regulate the slave trade in the territories and impose restrictions on new states that entered the Union. General Pinckney moved to strike out the words, “the year eighteen hundred,” and to insert the words “the year eighteen hundred and eight.” It passed 7-4. The delegates had moved a long way from never permitting Congress to regulate the slave trade to permitting Congress to regulate the trade after 1808. Madison considered 1800—the birth of a new century—to be the more principled compromise. New Jersey, Pennsylvania, Delaware, and Virginia voted “no.” They wanted 1800 instead of 1808. Thus Article 1, Section 9 of the Constitution: “The migration or importation of such persons as the several states now existing shall think proper to admit, shall not be prohibited by the legislature prior to the year 1808.” One hundred and fifty years ago this month, the 13th Amendment officially was ratified, and with it, slavery finally was abolished in America. The New York World hailed it as “one of the most important reforms ever accomplished by voluntary human agency.” The newspaper said the amendment “takes out of politics, and consigns to history, an institution incongruous to our political system, inconsistent with justice and repugnant to the humane sentiments fostered by Christian civilization.” With the passage of the 13th Amendment—which states that “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction”—the central contradiction at the heart of the Founding was resolved. Eighty-nine years after the Declaration of Independence had proclaimed all men to be free and equal, race-based chattel slavery would be no more in the United States. While all today recognize this momentous accomplishment, many remain confused about the status of slavery under the original Constitution. Textbooks and history books routinely dismiss the Constitution as racist and pro-slavery. The New York Times, among others, continues to casually assert that the Constitution affirmed African-Americans to be worth only three-fifths of a human being. Ironically, many Americans who are resolutely opposed to racism unwittingly agree with Chief Justice Roger Taney’s claim in Dred Scott v. Sandford (1857) that the Founders’ Constitution regarded blacks as “so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.” In this view, the worst Supreme Court case decision in American history was actually correctly decided. The argument that the Constitution is racist suffers from one fatal flaw: the concept of race does not exist in the Constitution. Such arguments have unsettling implications for the health of our republic. They teach citizens to despise their founding charter and to be ashamed of their country’s origins. They make the Constitution an object of contempt rather than reverence. And they foster alienation and resentment among African-American citizens by excluding them from our Constitution. The received wisdom in this case is wrong. If we turn to the actual text of the Constitution and the debates that gave rise to it, a different picture emerges. The case for a racist, pro-slavery Constitution collapses under closer scrutiny. Race and the Constitution The argument that the Constitution is racist suffers from one fatal flaw: the concept of race does not exist in the Constitution. Nowhere in the Constitution—or in the Declaration of Independence, for that matter—are human beings classified according to race, skin color, or ethnicity (nor, one should add, sex, religion, or any other of the left’s favored groupings). Our founding principles are colorblind (although our history, regrettably, has not been). The Constitution speaks of people, citizens, persons, other persons (a euphemism for slaves) and Indians not taxed (in which case, it is their tax-exempt status, and not their skin color, that matters). The first references to “race” and “color” occur in the 15th Amendment’s guarantee of the right to vote, ratified in 1870. The infamous three-fifths clause, which more nonsense has been written than any other clause, does not declare that a black person is worth 60 percent of a white person. It says that for purposes of determining the number of representatives for each state in the House (and direct taxes), the government would count only three-fifths of the slaves, and not all of them, as the Southern states, who wanted to gain more seats, had insisted. The 60,000 or so free blacks in the North and the South were counted on par with whites. Contrary to a popular misconception, the Constitution also does not say that only white males who owned property could vote. The Constitution defers to the states to determine who shall be eligible to vote (Article I, Section 2, Clause 1). It is a little known fact of American history that black citizens were voting in perhaps as many as 10 states at the time of the founding (the precise number is unclear, but only Georgia, South Carolina, and Virginia explicitly restricted suffrage to whites). Slavery and the Constitution Not only does the Constitution not mention blacks or whites, but it also doesn’t mention slaves or slavery. Throughout the document, slaves are referred to as persons to underscore their humanity. As James Madison remarked during the constitutional convention, it was “wrong to admit in the Constitution the idea that there could be property in men.” The Constitution refers to slaves using three different formulations: “other persons” (Article I, Section 2, Clause 3), “such persons as any of the states now existing shall think proper to admit” (Article I, Section 9, Clause 1), and a “person held to service or labor in one state, under the laws thereof” (Article IV, Section 2, Clause 3). Although these circumlocutions may not have done much to improve the lot of slaves, they are important, as they denied constitutional legitimacy to the institution of slavery. The practice remained legal, but slaveholders could not invoke the supreme law of the land to defend its legitimacy. These formulations make clear that slavery is a state institution that is tolerated—but not sanctioned—by the national government and the Constitution. Reading the original Constitution, a visitor from a foreign land would simply have no way of knowing that race-based slavery existed in America. As Abraham Lincoln would later explain:
One could go even further and argue, as Frederick Douglass did in the lead-up to the Civil War, that none of the clauses of the Constitution should be interpreted as applying to slaves. The “language of the law must be construed strictly in favor of justice and liberty,” he argued. Because the Constitution does not explicitly recognize slavery and does not therefore admit that slaves were property, all the protections it affords to persons could be applied to slaves. “Anyone of these provisions in the hands of abolition statesmen, and backed up by a right moral sentiment, would put an end to slavery in America,” Douglass concluded. Those who want to see what a racist and pro-slavery Constitution would look like should turn to the Confederate Constitution of 1861. Though it largely mimics the Constitution, it is replete with references to “the institution of negro slavery,” “negroes of the African race,” and “negro slaves.” It specifically forbids the Confederate Congress from passing any “law denying or impairing the right of property in negro slaves.”
One can readily imagine any number of clauses that could have been added to our Constitution to enshrine slavery. The manumission of slaves could have been prohibited. A national right to bring one’s slaves to any state could have been recognized. Congress could have been barred from interfering in any way with the transatlantic slave trade. It is true that the Constitution of 1787 failed to abolish slavery. The constitutional convention was convened not to free the slaves, but to amend the Articles of Confederation. The slave-holding states would have never consented to a new Constitution that struck a blow at their peculiar institution. The Constitution did, however, empower Congress to prevent its spread and set it on a course of extinction, while leaving the states free to abolish it within their own territory at any time. Regrettably, early Congresses did not pursue a consistent anti-slavery policy. This, however, is not an indictment of the Constitution itself. As Frederick Douglass explained: “A chart is one thing, the course of a vessel is another. The Constitution may be right, the government wrong.” Congress and the Slave Trade In his original draft of the Declaration of Independence, Thomas Jefferson called the African slave trade an “execrable commerce” and an affront “against human nature itself.” Because of a concession to slave-holding interests, the Constitution stipulates that it may not be abolished “prior to the year one thousand eight hundred and eight” (Article I, Section 9, Clause 1). In the meantime, Congress could discourage the importation of slaves from abroad by imposing a duty “not exceeding 10 dollars on each person” (Article I, Section 9, Clause 1). Although early Congresses considered such measures, they were never enacted. Early Congresses did, however, regulate the transatlantic slave trade, pursuant to their power “to regulate commerce with foreign nations” (Article I, Section 8, Clause 3). In 1794, 1800, and 1803, statutes were passed that severely restricted American participation in it. No American shipyard could be used to build ships that would engage in the slave trade, nor could any ship sailing from an American port traffic in slaves abroad. Americans were also prohibited from investing in the slave trade. Finally, on the very first day on which it was constitutionally permissible to do so—Jan. 1, 1808—the slave trade was abolished by law. The law, which President Thomas Jefferson signed, stipulated stiff penalties for any American convicted of participating in the slave trade: up to $10,000 in fines and five to 10 years in prison. In 1823, a new law was passed that punished slave-trading with death. Congress and the Expansion of Slavery Banning the importation of slaves would not by itself put an end to slavery in the United States. Slavery would grow naturally even if no new slaves were brought into the country. Although Congress could not prevent this, it could prevent slavery from spreading geographically to the territories from which new states would eventually be created. Congress has the power “to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States” (Article IV, Section 3, Clause 2), to forbid the migration of slaves into the new territories (Article I, Section 9, Clause 1), and to stipulate conditions for statehood (Article IV, Section 3, Clause 2).
Regrettably, early Congresses did not prevent the spread of slavery. Between 1798 and 1822, Congress enacted 10 territorial acts. Only half excluded slavery. As a result, seven slaveholding states and five free states were admitted into the union. The seeds of what Abraham Lincoln would later call the crisis of the house divided were sown. Slavery in the Existing States As for the existing slaveholding states that had ratified the Constitution, what could Congress do to restrict the growth of slavery within their borders? Here Congress had more limited options. After 1808, “the migration” of slaves across state lines could have been prohibited (Article I, Section 9, Clause 1). This was never done. In principle, slavery could have been taxed out of existence. However, the requirement that direct taxes be apportioned among the states made it impossible to exclusively target slaveholders. A capitation or head tax, for example, even though it would have been more costly for Southerners, would also impose a heavy burden on Northerners. While one could perhaps have circumvented the apportionment requirement by calling for an indirect tax on slaves—as Sen. Charles Sumner, R-Mass., would later do during the Civil War—such arguments were not made in the early republic. There was one clause in the original Constitution that required cooperation with slaveholders and protected the institution of slavery. Slaves who escaped to freedom were to “be delivered up” to their masters (Article IV, Section 2, Clause 3). The motion to include a fugitive slave clause at the constitutional convention passed unanimously and without debate. This would seem to indicate that all knew it would be futile to try to oppose such a measure. The debate instead focused on the wording. Whereas the original draft had referred to a “person legally held to service or labor in one state,” the final version instead refers to a “person held to service or labor in one state, under the laws thereof.” This change, Madison explains in his notes, was to comply “with the wish of some who thought the term legal equivocal,” as it gave the impression “that slavery was legal in a moral view,” rather than merely permissible under the law. This remark by Madison captures the Constitution’s stance vis-à-vis slavery: permissible, but not moral. Legal, but not legitimate. In no way can the Constitution be said to be pro-slavery. The principles of natural right undergirding it are resolutely anti-slavery. Its language conveys disapproval of slavery. And it contains within it several provisions that could have been and were at times used to prevent the spread of slavery. This may not make it an anti-slavery Constitution. But even before the 13th Amendment, it was a Constitution that, if placed in the right hands, could be made to serve the cause of freedom. This piece originally appeared in The Daily Signal |
When the constitution was drafted, slavery was
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