Slavery in the Constitution

If Founders believed in the Founding Principles, then they knew in their heart that slavery was the epitome of oppression. Slavery denied other humans the exercise of their liberty, which the Founders understood to be precious. Yet it was a slaveholder who wrote, “All men are created equal, that they are endowed by their Creator with certain unalienable rights.”

Slavery is a difficult issue in our nation’s history. The Founders, especially the Constitutional Framers, have received censure for not taking greater action against slavery. Some of the more prominent Founders are denigrated because they owned slaves. How can the Founders comments be reconciled with their actions? The answer is not simple.

Slavery at the Founding

At the time of the Constitutional Convention, slavery was illegal only in Massachusetts; more than two hundred slave ships regularly sailed out of New England; and over half of the wealth in the South comprised slaves. Both England and the North held a large amount of loans collateralized by slaves. In 1787, slavery was widespread, and a major element of the economy in both the South and the North.

Despite the position of slavery in 1787, many of the Founders believed slavery was already on its way to extinction. The slave trade had been made illegal in ten of the thirteen states. All thirteen states were seeing an increase in free blacks, especially in the North and the frontier areas of the South. Between 1775 and 1800, the number of free blacks in the nation increased from fourteen thousand to one hundred thousand. Virginia had passed legislation that freed slaves who served in the army or navy. In 1780, Quakers in Pennsylvania pressured the state legislature to pass a law declaring all children of slaves free. With the importation of additional slaves prohibited in most of the country, declining slave labor economics, and growing pressure to declare the newborn of slaves free, most of the Founders didn’t want to jeopardize the union over an institution that was already dying. For this reason, even staunch abolitionists like Benjamin Franklin only made peripheral swipes at slavery during the Constitutional Convention.

The Founders did not anticipate King Cotton. Eli Whitney’s new technology to process the fiber made slaveholding so lucrative that only war could eventually end the travesty. (Cotton production expanded 1,000-fold from 1790 to 1860.) The trail of blood and money from cotton was not restricted to the South. It was a worldwide phenomenon, where New York bankers financed both slaveholdings and the cotton trade, New England shipping depended on cotton cargos, and cotton provided the essential raw material for the huge textile industries of England and France. By the mid-nineteenth century, instead of gradual extinction, slavery had come to be viewed as indispensable to the paramount special interests of the day, and the South had powerful allies with a common cause to perpetuate slavery.

A Hobson ’s Choice in Philadelphia

During the Constitutional Convention, many in the North and a few in the South wanted abolition—or at least severe restrictions on slavery. All the delegates, however, wanted union. The South insisted that if any restrictions were placed on slavery, they would bolt the convention and remain under the Articles of Confederation or form a separate nation. If the Framers wanted a single country with a stronger national system, the South presented them with no choice. The fact that the word slave never appears in the Constitution indicates awareness that slavery was tainting the founding.

Anti-slavery delegates were limited to nibbling around the edges of slavery. The Constitution held a provision that the slave trade could be made illegal in all of the states after 1808. In the meantime, a ten-dollar tax could be imposed on each imported slave. It was hoped that these measures would keep slavery moving toward extinction. 

Slaveholders won a constitutional requirement that fugitive slaves be returned to their owner. The South insisted this clause be inserted in the Constitution and the Northwest Ordinance of 1787. Beyond the fugitive slave clause, there was the infamous 3/5 rule.

Slaves as Less Than a Full Person

Some believe the 3/5 clause so despicable that the founding and the Founders can be dismissed. These detractors claim that the Founders sanctioned slavery in our most precious document. This is untrue. The Founders can be justly criticized for not ending slavery, but there is nothing in the Constitution that sanctions slavery, especially not the 3/5 rule.

The South wanted their slaves counted as full persons for the purpose of determining the number of representatives they would get for their state. The North knew they would use the added clout in the House of Representatives to protect slavery, so they didn’t want slaves counted at all. As a negotiating strategy, the North insisted that if slaves were counted as a full person for representation, then they would also be counted as a full person for taxation purposes. The North didn’t want the South to have their desired representation, and the South didn't want to pay extra taxes, so a compromise was needed.

When no one will give an inch in a legislative body, the compromise that is struck is often nonsensical. (Actually, this 3/5 rule was borrowed from Congress, who had established the rule as a basis for tax allocations under the Articles of Confederation.) The 3/5 rule may have been an ugly compromise, but it was not a judgment on the worth of an African-American. Not one of the delegates believed that a slave was 3/5 of a person. The North counted a free black as a full person, and the South did not accept a slave as even being a partial person. The 3/5 rule was nothing more than a grab for as much political power as the other side was willing to cede. In the end, the rule was inconsequential because the Senate became the South’s great bastion against any infringement on slavery.

Slavery as an Issue at the Constitutional Convention

Slavery was the most contentious issue at the Constitutional Convention. The proceedings started with quarrels between small and large states and ended with arguments about presidential powers, but slavery not only dominated the middle of the convention, it underscored every other issue. Slavery was omnipresent: a tug of war between those wishing to terminate slavery and those fighting to preserve it.

Most of the Founders did not support slavery, but some fought aggressively to protect slavery. A few would take any action necessary to structure a government that would give them enough power to extend slavery into perpetuity. Many in the North fought for abolition, complete and final. Benjamin Franklin and John Adams are prominent members of this category. Unfortunately, others from the North were ambivalent, accepting slavery as something odd that was generally restricted to the South.

The word slavery may never appear in the Constitution, but in Madison’s convention notes, the words slave, slavery, Negro, blacks, and bondage were used fifty-three times during the debates, meaning delegates brought the subject up in debate numerous times. Antonyms, like free white inhabitants were used countless times, and euphemisms would increase the count multifold. So if the delegates talked and argued about slavery, who won—those who wanted to accelerate the supposed demise of slavery or those committed to its preservation?

At the close of the proceedings, most the delegates probably thought that slavery had been put on a road to extinction, especially when Congress simultaneously passed the Northwest Ordinance, which excluded slavery from any state carved out of the Northwest Territories. The exclusion of slavery from the Northwest Territories would eventually cause the Senate to tip toward emancipation and the demise of slavery would be certain. At least that would have been the majority thinking on September 17, 1787.

Nearly all the delegates left Philadelphia convinced that they got as much as they could. It had been hard and bitter bargaining. Oliver Ellsworth wrote, “The only possible step that could be taken towards it by the convention was to fix a period after which they should not be imported.” Another delegate, James Wilson said, “If there was no other lovely feature in the Constitution but this one, it would diffuse a beauty over its whole countenance. Yet the lapse of a few years, and Congress will have power to exterminate slavery from within our borders.” Sadly, Congress did have the power, but not the will.

Slavery Is Part of Our History

During our nation’s founding, slavery was real, cruel, and pervasive. It was a blemish on the principles of the founding. This doesn’t make the Founding Principles wrong. It means they were not always adhered to. Despite all the bickering and maneuvering during the convention, slavery had no lasting impact on the design of our governmental system—a design thoroughly imbued with principles from the European Enlightenment, where they had resolved or exported their slavery issues.

Benjamin Franklin wrote, “Slavery is such an atrocious debasement of human nature, that its very extirpation, if not performed with solicitous care, may sometimes open a source of serious evils.” Unfortunately, Dr. Franklin was right. After the Civil War, and despite adoption of the 13th, 14th, and 15th amendments, subjugation of blacks continued, assisted by a supreme court that turned a blind eye, as reflected in the Slaughterhouse Cases.

Many slaveholding Founders were conflicted about owning human beings, and they can be criticized for leaving the tough work to their descendants, but the ideals that they so eloquently espoused set a lofty standard for America and Americans. Frederick Douglass said, “Interpreted, as it ought to be interpreted, the Constitution is a glorious liberty document…Take the Constitution according to its plain reading, and I defy the presentation of a single pro-slavery clause in it. On the other hand it will be found to contain principles and purposes, entirely hostile to the existence of slavery.”

The Declaration of Independence’s phrase, “All men are created equal, that they are endowed by their Creator with certain unalienable rights” has resonated with freedom-loving people all over the world. It remains a daily struggle to bring this Founding Principle home to every American.