Slavery and the Founders’ Constitution

1. Slavery and the Founders’ Constitution Teaching American History Corning, New York

2. The S word is not in the Constitution. Does this matter? • 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.

3. 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).

4. The Three Fifths Clause (continued) • 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 • 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.

5. 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.

6. The Three Fifths Clause (continued) • “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.

7. The Three Fifths Clause (continued) • 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.

8. The Three Fifths Clause (continued) • 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 seventy-three 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] • [1] Richards, The Slave Power, 56-57. • [2] Amar, America’s Constitution, 91

9. 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.

10. The Three Fifths Clause (continued) • 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.

11. 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).

12. 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.

13. 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.

14. 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.

15. 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).

16. 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.

17. Fugitive Slave Clause (continued) • 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

18. 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.

19. Was the Constitution a Pro-Slavery Document?

20. 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?

21. Neo-Garrisonians vs. Neo-Lincolnians

22. 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.

23. 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).

24. The Neo-Lincolnian Interpretation • 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.

25. Slavery and the Question of Moral Responsibility of the Founders • 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?