American Federal Constitution: Specific Slavery Povisions

Figure 1.--Notice how a young African American family is up for auction. They were sold as individuals, not a damily unit. So commonly such auctions would result in the break up of slave families which had no legal standing. This drawing was captioned, "A slave auction ib Virginia -- a sketch by our special artist". It was published in 'The Illustrated London News' (February 16, 1861). This was just before the outbreak of the Civil War. British policy would have a major impact on the outcome of the Civil War. Interestingly, note how the slave-owning men depicted here are older men. They would not be the men who fought in the Condfederate Army. The Rebel Army was made up of younger men, most of whom did not actually own slaves.

The Delegates at the Constitutional Convention fiercely debated slavery. No agreement was possible on the perpetution or bnning of slavery, but there was agrrement on three issues concetning slavery. The Constitution does not use the term slavery, but there are provisions in the Constitution that while not authorizing, did recognize slavery. Some argue that the Constitution was a pro-slavery document. Actually it was an anti-slavery document. The Constitutiin did not abolish slavery. This would have split the country and created an independen South six decades before the Civil War. There are three provisions of the Constitution that deal directly with slavery. And none of them are precisely what the Slave Power--despite the fact that six of the 13 colonies were southern slave states and slavery was legal in the northern states. The anti slavery provisions included: First, an arrangement written in to the Constitution by which for voting purposes slaves would be counted as three-fifths (3/5s) of a person. The Woke Generation see this as insulting and not recognizing the humanity of African Americans. In fact, it limited the voting power of what became the Slave Power in the House of Represenatives. And it would in the House during the Ante Bellum period that slavery would befirdst challenged. Second, The Constitution also included a provision authorizing Congress to end the African slave trade. And this step was taken by Congress as soon as allowed with little opposition. Third, there was a fugative slave provosion--lthough the term slave was not used. This was a provision the Southern delegated demnded and woulf not compromise on. Contrary to the idea that the Constitution was a strident pro-slavery dicument, the Constitution, read right, was neureal on slavery or even somewhat leaning in an antislavery direction. Quite a few scholzrs well versed in Constitutional law, thought that it could be used in just that way. And bekieve that its real meaning and intention had been distorted by proslavery presidents and politicians, both slsve holding southerners nd northeners attempting to pacify the South.

The Three-fifths (3/5s) Clause

The Three-fifths Clause was an arrangement written in to the Constitution by which for voting purposes slaves would be counted as three-fifths (3/5s) of a person. This clause is often labeled as 'infamous'. In fact it actually was an important way of limiting the power of the southern slave aristiocracy. It affected the results of votes in Congress and some presidential elections, includung the Jefferson's election in 1800. Article 1. Section 2. of the U.S. Constitution declared that any person who was not free would be counted as three-fifths of a free individual for the purposes of determining congressional representation. It read, "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." You can tell an authors mindset and bias by how he describes this. For example one author who wabys ti describe the Constitution as a slave document writes, : "The 'Three-Fifths Clause' thus increased the political power of slave-holding states." Of course you can just as reasonbly make the point that by not counting slaves as full persons (as were women), you were sctually limiting the Slave Power. One scholar writes, "As for that 3/5th clause, antislavery advocates argued that the provision actually was a point in their favor, because it quite specifically treats slaves NOT as property, essentially, but as people. This essentially was a legal victory for abolitionists. Still the idea persists that this was a proslavery matter. One African-American voice insists that "The compromise clearly reflected the strength of the pro-slavery forces at the convention. The 'hree-fifths Compromise' allowed a state to count three fifths of each Black person in determining political representation in the House. It was an early American effort to avoid the intersectionality of race, class, nationality and wealth for political control." [AAREG] But no one soubts that that the southern p[ro-slavery group was string, but that is not to say that it was donminant. Those are two separate matters as an assessment of the compromises show. In apportioning representatives, the Constitution didn't count horses, cows, plows, or other items of property as if they were a fraction of a person. Slaves were counted for 3/5ths of a person. What this showed, antislavery writers argued, was that the Founders saw the master's right not in human beings, but in the labor they were expected to do. They owned their labor -- not them. That is a big difference, and by the 1850s absolutely vital, because southerners are arguing that the Constitution requires the national government to protect the right of Americans to carry any kind of property they want into the national territories, and that slaves are property, nothing more and nothing less. But that, Republicans would answer, means property. It does NOT mean human beings, and slaves were human beings. [Summers] The Woke Generation see this as insulting and not recognizing the humanity of African Americans, but of course if a slave were counted as free cutizens, this would have sdigbnificantly increased the power of slave holders. In fact, it limited the voting power of what became the Slave Power in the House of Represenatives. And it would in the House during the Ante Bellum period that slavery would be first challenged. And despite all the super-heated rhetoric, as one author points out, "American slavery was the product of racism (among other causes), but the three fifths rule was not. Rather, it was an acknowledgment that people–of any race–produce more wealth, and therefore more tax revenue, when they operate in free markets rather than under conditions of command and control." Stroup]

The Slave Trade Clause

The Constitution also included a provision authorizing Congress to end the African slave trade. The Delegates took no step to abolish or perpetuate slvery, but the slave trade was amnother matter. Eleven states had already outlawed the slave trade--this is a littl complicated because some states outlawed cabd rescinced their decision. There was, however, considerable support for baznning it. Three states still permitted it (Georgia and the two Carolinas). They demsnded thst it be continued and threatened to withdraw from the Cnvention if the trade were banned. A special committee was formned to work out a compromise: Congress would have the power to ban the slave trade, but not until 1800. The Southern states held out for a few more years -- 1808. Article 1, Section 9 of the Constitution read, "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." The the southern delegates conceed the power to the Federal Government the power to end the interntional (but mot domestic) slave trade. One scholar tells us, "We are both in agreement about the slave trade provision. The fact that it delayed Congress implementing that ban for twenty years didn't make the Constitution proslavery. It simply made the founders pragmatic. For one thing, they knew that EVERY STATE BUT TWO HAD ALREADY OUTLAWED THE AFRICAN SLAVE TRADE. And that included most of the states we would later call "the South." The only two that hadn't were Georgia and South Carolina. It was possible that they, too, would put through state laws forbidding the trade. After all, as you point out, the cotton gin hadn't been invented, and there seemed to be a natural limit to where slavery could spread and still grow anything profitable in either state. But for the moment (and the representatives from those states emphasized that it WAS only for the moment), those states wanted to keep the trade open. So here's the dilemma. The Founders could have a new nation WITH South Carolina and Georgia at a price of delaying that ban on the trade, or count on both of those states refusing to adopt the Constitution, leaving it almost certain that the required 9 states for the Constitution to go into effect simply wouldn't be met and that, under the Articles of Confederation, no abolition of the slave trade would happen EVER. Which would a determined foe of slavery with a long view of matters have preferred? By the 1850s, proslavery polemicists are arguing that the law forbidding the African slave trade is unconstitutional, because the Constitution, while it says that Congress may not prohibit the slave trade till 1808, it does not specifically say that Congress has the power EVER to forbid it -- that it would take a new constitutional amendment to give Congress that positive power!!!" [Summers] And 20 years later as soon as permitted, Congress acting about the same time as Britain abolished the slave trade (1807). They passed an Act 'to prohibit the importation of slaves in any port or place within the jurisdiction of the United States, from and after the first day of January [1808.]. This made it illegal for Americans to engage in the slave trade between nations, and gave U.S. authorities the right to seize slave ships which were caught transporting slaves and confiscate their cargo. And the U.S.. Navy would join the British Royal Navy in anti-slave patrols off West Africa to seize the slavers. A domestic or 'coastwise' trade in slaves was allowed to continue. This is well documented slave manifests and court records. And this step was taken by Congress as soon as allowed with little opposition, including from the southern states.

Fugitive Slave Clause

The Delegates also addressed the issue of fugitive skves as well as indentured servants. The term slave was not used. This was a provision the Southern delegated demnded and would not compromise on. There was precedence fior such a provision, although the Articles of Confederation included no such guarantee. When Congress passed the Northwest Ordinance, however, they added a clause requiring thatg slaves who escaped to the Northwest Territories would be returned to their owners (1787). The Delegates agrreed to include place a similar fugitive slave clause in the Constitution. Agreement was reached on a deal with the New England states. The Southern states got their fugitive slave provision. The New England states got concessions on shipping and trade. Article IV, Section 2 addressed this as part the movenent of persons. There were three clauses, the third of which is commomly reffered to mas the Fugitive Slave Clause, although the term 'salave is not used. It basically delt with slaves as crininals who needed to be extriduited. The clause read, "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." Importantly, unlike the other clauses of Article IV, the provisions in Section 2 do not provide enforcement power or duty. Rther a passive-voice verb— (shall be entitled)” (in the first clause) and (shall be delivered up) (in the second and third clauses). There is no clear identification as to the authority or authorities who are responsible enforcing the provisions. A scholar tells us, "There's an argument that Republicans could make about the so-called fugitive slave clause being less proslavery than it was applied. That provision is in Article Four, that deals with the powers of states. There is not one word in the article about the power of Congress (Article I) that gives Congress the specific power to enact a fugitive slave law. Surely, Republicans contended, the place where the provision appears wasn't accidental. It was speaking of the obligation of states to return fugitives from labor -- slaves and indentured servants alike. But it is a jump from there to arguing that it IMPLIES a power in the national government to write any such law. Senator Charles Sumner, in a long and well researched speech in 1852, made a strong case that the men who wrote the first national fugitive slave law weren't actually thinking about slaves when they wrote it; and, as he pointed out, the government didn't use that law to go after any fugitive slave for the next 30 years. [Summers]

Sources

African American Registry (AAREG)., "The 'three-fifths compromise" (undated, accessed February 17, 2001).

Stroup, Jane Shaw, "Guest comment: Robert Natelson on Allen Guelzo," Jane Takes on History (May 3, 2019).

Summers, Mark W. Personl communications (February 15, 2011)

Created: 10:25 AM 2/16/2021
Last updated: 2:05 AM 2/17/2021