Part 1: What’s So Great About Our Constitution, Anyway?
Essay 20 – More On Slavery
There are four places in the Constitution that refer to slavery, but the terms “slave” or “slavery” were never used. James Madison explains that they (or at least most of them) did not want the Constitution to give the impression that it explicitly authorized slavery or that it considered slaves to be “property”.
Instead of using the terms “slave” or “property” when referring to them, they chose to use the term “Person(s)” in order to be able to make future arguments that they are indeed persons and not property and, therefore, should have the same natural rights as all other persons.
The four references in the Constitution are as follows:
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 [emphasis mine].” – Article I, Section 2, Clause 3 U.S. Constitution
When most people hear the mention of the three-fifths clause in the Constitution, they erroneously believe that the Constitution, and thus those who wrote it, were stating that slaves were not fully human…that they were only three-fifths of a person. Actually, the three-fifths clause was a compromise concerning the number of representatives each state would have in the legislature.
The number of representatives would be determined by the number of people in the state…the more people, the more representatives for the state. The southern states (most of the slave-holders) wanted slaves to be counted for that purpose, which would give them more representatives. The northern states did not want the slaves counted, since they did not have the same rights as citizens and had no say in the representation. This was a major impasse.
A compromise was made that the slaves would be counted for representation at a three-fifths ratio (for every 5 slaves, 3 would be counted for representation purposes) and at the same time, they would also be counted in the three-fifths ratio for the taxes that the state would owe to the federal government.
If the slaves were counted at a full rate, that would have given the southern states more representation and more power. This would have reduced the ability to pass legislation that stopped the importation of slaves and the expansion into new territories or any other anti-slavery efforts.
The Slave Trade Clause –
“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.” – Article I, Section 9, Clause 1 U.S. Constitution
One of the main efforts of anti-slavery activists during the time of the founding was to stop the importation of slaves. They focused on this effort as a first step to abolishing slavery, seeking to first limit the increase. This issue became another contentious Constitutional debate. On the one side, they wanted to include the prohibition of the slave trade in the Constitution. On the other side, they did not want any restrictions on it.
In order to move forward with the union, another compromise was deemed necessary. In this compromise, those who wanted to abolish the slave trade agreed to not have the federal government prohibit it for at least 20 years (1808). In exchange for that, an import tax could be imposed on each slave in order to help discourage it during those 20 years. This clause in the Constitution did not prevent individual states from banning the slave trade prior to 1808, and some did.
President Thomas Jefferson signed legislation that finally prohibited the importation of slaves, effective on January 1, 1808…at the first opportunity to do so in accordance with the Constitution as described above.
The 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.” – Article IV, Section 2, Clause 3 U.S. Constitution
This clause in the Constitution was particularly troublesome, but again deemed necessary in order to get all states on board with the Constitution and the Union it creates. While the wording was carefully crafted to avoid having the Constitution specifically condone slavery and make it clear that this was based on individual state laws and not federal, it effectively required states to return fugitive slaves to their owners even though it, again, never mentions slaves directly.
This wording was important in the future so that it could not be used to claim that the Constitution authorized slavery. It is difficult to make an argument that it doesn’t come close, however, and it was used a number of times to make such a claim.
Amendment to the Constitution Exception –
“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 [emphasis mine]; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” – Article V U.S. Constitution
Article V in the Constitution describes the methods to amend the Constitution. The proponents of slavery were concerned that the slave trade clause (Article I, Section 9, Clause 1) would be amended after the ratification of the Constitution so the provision that Congress could not prohibit the importation of slaves for 20 years (until 1808) would be altered. To prevent that from happening, they insisted on specifying this exception in the amendment article.
At the completion of the Civil War, the Thirteenth Amendment to the Constitution deemed all of these clauses obsolete:
“Neither 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.” – Thirteenth Amendment, U.S. Constitution
Ratification of the Thirteenth Amendment was complete on Dec. 6, 1865, ending America’s long, sordid, reprehensible involvement with slavery.
Where we’ve gone wrong…
We have too many people who are being taught that since the founders who created the Constitution and formed our republic were slave owners, then all of it is tainted and not worth adhering to.
We need to recognize that even though some of these men were deeply flawed in that regard, the principles of natural rights for all and the Constitution that was based on that philosophy is not only sound, but is actually the best, most common sense system devised in the history of mankind.
Is it perfect? Of course not, but nothing ever will be. Where it needs improvement, we have mechanisms to make changes. I believe that the more people learn about these things and the reasoning behind them, the more they will realize the wisdom of it.
About this series:
The People Are Sovereign! is a series of 30 essays that will be posted on a daily basis. The series will continue tomorrow with Essay 21 – Equality
To view the previous essay in the series, click this link: Essay 19- Slavery
To view the next essay in the series, click this link: Essay 21 – Equality