How the Constitution Ended Slavery

By KrisAnne Hall, JD

 

While defending the Constitution I am met often with two questions:  1) If the founders were so great and the Constitution such a great document, why did it preserve slavery?  2) Why did the Constitution treat black people as 3/5^th a person?  To understand the truth, we start with some basics…

Slavery was an imposition placed upon the colonists by Great Britain.  Col. George Mason describes this source and its problem during the Federal Convention (22 Aug. 1787):

“This infernal traffic originated in the avarice of British Merchants.  The British Govt. constantly checked the attempts of Virginia to put a stop to it.”

This created an addiction to this labor in many States.  Judge Pendleton observed during the Debate in South Carolina House of Representatives (1788) “that only three States, Georgia, South Carolina, and North Carolina, allowed the importation of negroes.  Virginia had a clause in her Constitution for this purpose, and Maryland, he believed, even before the war, prohibited them.”

However, James Madison also pointed out during the Debate in the Virginia Ratifying Convention (15 June 1788) that there were even “a few slaves in New York, New Jersey, and Connecticut: these states would, probably, oppose any attempts to annihilate” slavery.

How could the States overcome their differences on this subject and agree on enough to form a Union? The drafters of the Constitution had an advantage, they knew a few things to be absolutely true and these things would provide the solution to their dilemma.

The drafters of the Constitution knew their history, they had studied governments and how people interact in society throughout history and they knew the principles of Liberty.  They KNEW that they could not plow new fields overnight; they understood that they could not reform society with one move.  But they KNEW they were forming a REPUBLIC and NOT a democracy.

A democracy is mob rule; it is tyranny in public form.  Jefferson said, “173 despots would surely be as oppressive as one.”  With a democracy, the majority of the people would always oppress the minority.  Liberty would never prosper and grow.  The force of the majority would always keep the minority in servitude.  By creating a republican government, they were able to provide minorities with a society-changing voice.  This voice would ensure not only the survival of Liberty but also its expansion.

In order for a Republic to function properly, there must be proper representation.  If there is a way to manipulate the number of representatives allotted to a State, then that would be another avenue for one party to seize the power of another.  Representation was to be established through population and controlled through the popular vote.  Incorporating the slave population in order to determine the number of representatives was causing some states to cry foul.

The slave owners wanted to classify slaves as “property” to avoid the application of rights to them as “persons,” but wanted to also classify them as “persons” for establishing representative power in Congress.  The objection was, the States with greater slave populations would get greater representation, but since only “freemen” could vote, greater representation would be consolidated into fewer people. The large slave owners would almost assuredly control the vote in the State and have greater representation and control in Congress. This skewed representation could delay the desired end to slavery significantly.

The drafters’ solution to this dilemma was the 3/5^th Compromise which, along with article 1 section 9, would help to further the of end slavery.  The 3/5^th Compromise did not, as popular education teaches, count each slave as 3/5^th of a person, it deprived Slave States 2/5^th of their representation in Congress!  This created a powerful incentive to end of slavery legislatively.  Slave States would have a reduced representative power in Congress and the Free States would have an increased representative power.  This would not only ensure that the Slave States could not over power the Free States in Congress, but also would act as an incentive for the people of the Slave States to demand their government free the slaves to obtain the full potential of their representative power.  The 3/5^th Compromise did not make “black men 3/5^th of person,” but ensured that the true power to end slavery would come through the will of the people over their government.  Former slave and famous abolitionist Frederick Douglass made this very point in 1860 in a speech in Glasgow, Scotland:

“I answer — It is a downright disability laid upon the slaveholding States; one which deprives those States of two-fifths of their natural basis of representation. A black man in a free State is worth just two-fifths more than a black man in a slave State, as a basis of political power under the Constitution. Therefore, instead of encouraging slavery, the Constitution encourages freedom by giving an increase of “two-fifths” of political power to free over slave States. So much for the three-fifths clause; taking it at is worst, it still leans to freedom, not slavery; for, be it remembered that the Constitution nowhere forbids a coloured man to vote.”

The second constitutional mechanism to end slavery was the sunset provision incorporated into the Constitution, Article 1 Section 9, a provision that would provide the means to end slavery in 1808 by putting an end to the importation of slaves once and for all.

“The migration or importation of such persons as any of the States now existing shall think fit 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 framers understood that the end of the slave trade would bring about the end of slavery.  Stop the flow of slaves and the trade that George Mason called “diabolical” and “disgraceful” and Patrick Henry called “a lamentable evil” would be extirpated.  They believed the abolition of the slave trade equaled the abolition of slavery as a whole.

“Men, at that time, both in England and in America, looked upon the slave trade as the life of slavery. The abolition of the slave trade was supposed to be the certain death of slavery. Cut off the stream, and the pond will dry up, was the common notion at the time.” – Frederick Doglass

The final guarantee to the end of slavery our drafters secured came through the ratification of the Constitution. If these Slave States refused to join the Union, the trade of slaves on the American Continent, and by the very neighbors of the Union could go on forever.  However, if the Slave States wanted to be part of the Union, if they wanted to participate in the benefits of the Union, they would have to agree to all the provisions that would disadvantage the use of slaves and ultimately destroy the trade altogether.

Justice James Iredell stated during the Debate in North Carolina Ratifying Convention (26 July 1788):

“It was the wish of a great majority of the Convention to put an end [to slavery] immediately; but the states of South Carolina and Georgia would not agree to it. Consider, then, what would be the difference between our present situation in this respect, if we do not agree to the Constitution, and what it will be if we do agree to it. If we do not agree to it, do we remedy the evil? No, sir, we do not. For if the Constitution be not adopted, it will be in the power of every state to continue it forever. They may or may not abolish it, at their discretion. But if we adopt the Constitution, the trade must cease after twenty years, if Congress declare so, whether particular states please so or not; surely, then, we can gain by it. This was the utmost that could be obtained. I heartily wish more could have been done. But as it is, this government is nobly distinguished above others by that very provision. Where is there another country in which such a restriction prevails? We, therefore, sir, set an example of humanity, by providing for the abolition of this inhuman traffic, though at a distant period.”

The framers knew that by creating the union they would ensure the survival of Liberty, without the Union establishing a government on the principles that “all men are created equal and endowed by their Creator with certain unalienable Right” would likely fail.  James Madison spoke of this fear during the 1788 Ratifying Convention:

“Great as the evil is, a dismemberment of the Union would be worse.  If those States should disunite from the other States for not indulging them in the temporary continuance of this traffic, they might solicit and obtain aid from foreign powers.”

The drafters of the Constitution also understood through the establishment of the Republic they would guarantee the minority populations a society changing voice. They believed through compromise they had done everything that they could have possibly done end the institution of slavery and the power of slave owners and still create a union.  They were also persuaded through a study of their own history that if Liberty is given the proper fertile ground, it always prospers and grows.  They were convinced that Liberty was contagious!

Roger Sherman, a delegate from Connecticut to the Federal Convention (22 Aug. 1787) observed

“that the abolition of slavery seemed to be going on in the U.S. & that the good sense of the several States would probably by degrees compleat (sic) it.”

Oliver Elsworth, also a representative from Connecticut very confidently stated, “Slavery in time will not be a speck on our country.  Provision is already made in Connecticut for abolishing it.   And the abolition has already taken place in Massachusetts.”

An additional insurance for the cultivation of Liberty was established through the Amendment process. The framers believed that as society matured in Liberty, the people would be more capable of self-governance and need less government.  They wanted to ensure that as Liberty grew, it could also be protected through peaceful modification of the Constitution.  By offering the Amendment process, the expansions of Liberty could become permanent.  The Amendment process prevents the Constitution’s interpretation to be based upon the whim of the current culture.  Without the process of permanently amending the Constitution, the people of this nation would be subject to temporary interpretations.  The prevailing party or culture would beget a conservative interpretation today, a liberal interpretation tomorrow, a socialist interpretation the next… subjecting the people to an ever-vacillating standard and leaving the people never really knowing the security of their rights.

It is unquestionable that slavery was detested by many at the formation of our Constitution; only revisionists are served by denying this truth.  But the formation of the union was essential to the preservation of Liberty and the end of slavery.   Without the union these independent, sovereign States would be able to continue the practice of slavery without any national consequence.  The Constitution did not preserve slavery, it was crafted to be a weapon wielded for slavery’s demise.

It is to be hoped, that by expressing a national disapprobation of this trade, we may destroy it, and save ourselves from reproaches, and our posterity the imbecility ever attendant on a country filled with slaves.  James Madison, Import Duty on Slaves, House of Representatives  13 May 1789

It is true that members of Congress, Presidents, and Supreme Court Justices have all failed to meet the standards established by the drafters of the Constitution.  But the failings of America are because of the failings of people, and not because the standard set by the Constitution failed America. As Frederick Douglass asked in his defense of the Constitution, “Shall we condemn the righteous law because wicked men twist it to the support of wickedness? 

Frederick Douglass gives a most conclusive summary to the argument. Only by twisting the document’s words and ignoring the truth can we assign a pro-slavery character to the Constitution and miss its role in setting the stage for the abolition of slavery.

 “This, I undertake to say, as the conclusion of the whole matter, that the constitutionality of slavery can be made out only by disregarding the plain and common-sense reading of the Constitution itself; by discrediting and casting away as worthless the most beneficent rules of legal interpretation; by ruling the Negro outside of these beneficent rules; by claiming that the Constitution does not mean what it says, and that it says what it does not mean; by disregarding the written Constitution, and interpreting it in the light of a secret understanding. It is in this mean, contemptible, and underhand method that the American Constitution is pressed into the service of slavery. They go everywhere else for proof that the Constitution declares that no person shall be deprived of life, liberty, or property without due process of law; it secures to every man the right of trial by jury, the privilege of the writ of habeas corpus — the great writ that put an end to slavery and slave-hunting in England — and it secures to every State a republican form of government. 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.”