The Constitution and Slavery

We the people… whenever we see it, we ask ourselves who they were. We ask ourselves about slavery. Just like the Founders did.


For people who are often accused of “not caring” about slavery, the Founders spilled a lot of ink arguing about it. Just as the Declaration of Independence dealt with slavery, so did the Constitution. People still thought and hoped slavery was just about to die on its own. But since it hadn’t died, yet, the same problem arose as had arisen in 1776: how do we deal with slavery when founding a nation on natural rights?


Well, the answer is to get rid of slavery. So why didn’t they?


Because the slaveholding states threatened to break up the Union if slavery was abolished. The question at the time was, do you want an imperfect United States or no United States at all? The states in which slavery was protected, where slavery was crucial to the state economy and social structure (almost all southern states), were serious in their answer. They were not about to remain part of a union that abolished slavery.


When you look at all the demands slave states made at the Constitutional Convention, you see both how radically they would have changed the United States, and how hard antislavery delegates had to fight to control them. Slaveholding states wanted to maintain or expand the slave trade (keep slave ships going to and from Africa) and hopefully take it over and run it themselves, supplying the world with enslaved people. They wanted no federal restrictions on slavery in the western territories, and a specific section of the Constitution prohibiting any federal restriction of the rights of slaveholders—that is, a guaranty that slavery would not just be allowed, but allowed to flourish. It was clear that the southern states would leave the union if a national emancipation policy was ever attempted. See Joseph Ellis’ fantastic book Founding Brothers: The Revolutionary Generation for a full examination of this.


So we see that it wasn’t so much “the Founders” or “uncaring northerners” or even “the Constitution” that allowed slavery to exist. It was a concrete group of southern slaveholding delegates and politicians, led by James Madison, who threatened to leave the Union and destroy it if slavery was not protected.


We know that organizing representation to Congress was the biggest headache facing the delegates, and slavery was part of it. The solution of the three-fifths clause, which counted three-fifths of the number of enslaved Americans as population, is shameful. But antislavery delegates accepted it, relying on the imminent death of slavery to make the question moot, and again, unwilling to sacrifice the entire experiment of America over slavery. Their feeling was, get the nation stabilized, and then we can perfect it. We see that as a cop-out, but at least it came after 12 years of constant churn and effort. We often lose our collective will today after much less time and almost no effort at all.


While slavery was protected from abolition by the Constitution, and the slave trade could not be abolished for 20 years after ratification (1808), the document itself never uses the word slavery. Why? Because people were embarrassed and ashamed to put that word into the Constitution. Because they knew it was wrong. Just as the Declaration put in Happiness instead of Property, the Constitution put in interests instead of slavery.


The Constitution was written; now it had to be ratified by popularly elected state legislatures. And here’s where we see that it wasn’t a small group of rich white wig-wearers who dictated the course of American history.


The American public was utterly passionate about the Constitution. They weren’t going to just ratify whatever they were given. And they weren’t going to let the issue get strangled in red-tape and delay. In short, they didn’t leave it to the politicians. In Pennsylvania, when the state assembly fell short of a quorum to call a state ratifying convention, a mob dragged two assemblymen from their homes to the State house, forcing them to stay while the assembly voted.


Americans also clamored for a Bill of Rights. Why? Because they wanted those original natural rights to be explicitly protected by the new government. Americans were not pretending to carry the revolution from the battlefield to the legislature; they were really doing it.


With human rights on their minds, Americans faced the compromises over slavery. Most were not happy with them. But in the end, most Americans agreed that the experiment was not worth abandoning over slavery. Again, we recognize this as a failure today, knowing that it would take a civil war to end slavery, but it is actually true that in 1787, many antislavery (and some proslavery) Americans believed slavery would die out within a generation. And what would guarantee that process more firmly than establishing a democratic union? What good would it do to insist on abolishing slavery now, thought people in 1787, thus driving the southern states out of the union? That way, slavery was guaranteed to go on in the south, in whatever nation was created there. But if those southern states were coaxed into the democratic union, slavery would end. Northern states were passing gradual emancipation acts; so would the south.


The Constitution was ratified, but it was close. The nation was established. It was a remarkable achievement. We’ve seen that the nation really was founded on revolutionary ideals, and that all those ideals were not betrayed by the Founders. The inclusion of slavery in the new nation was a problem and a mistake, but it was not the result of apathy or complacence. Slavery was protected because the Founders, and most Americans, could not bear to destroy the nation by abolishing slavery and losing the southern states of the union.


Today, we think that would have been preferable. Why not just lose the south and create a free union with the states that were left? It would have been better. But in reality, if the southern states had seceded in 1787, the likelihood of the remaining states banding together was small. We’ve seen that the states had only the loosest ties with each other, and almost no loyalty to each other. If some left, others would go, too, unable to resist the lure of individual sovereignty. Americans at the time knew this.


The Constitution sums up the achievements of the Founding Generation, both the men in the paintings and the people at large. No people had ever formed a working government based on natural rights before. Hammering out ways to guaranty fair representation to the government, prevent government tyranny, and protect individual rights was blood, sweat, and tears difficult. Ending slavery, so insidiously entwined in southern American life and northern American commerce, “was a challenge on the same gigantic scale as these achievements.” [Ellis 108] It was not done in one generation, not even a generation so remarkable as the Founding Generation. But the wheels were set in motion. A person born in 1787 could live to see the Civil War fought, and slavery ended; the span of one long life was all it took to finally make good on the Constitution’s promise of liberty and equality.


So. Can you be proud of the Founders of your nation? Yes. Absolutely. They did the impossible. And by Founders I mean all Americans, not just the men in the paintings. The Founding Generation. The challenge of creating the United States was mind-boggling. We take it for granted today. We take the intelligence and creativity and passion and struggle of the Founding generation for granted. As if the rules were clear and they just had to write them down.


But America is exceptional. An exception to all rules. We were the first people to found a long-term working government dedicated to the preservation of natural rights. Today as I write, nations with this form of government are still in the minority. It’s very hard to live up to the principles of natural rights. We fail at it all the time. But we do also succeed at it. And we have a responsibility to do so.

5 thoughts on “The Constitution and Slavery

    1. Hello SamFox; thanks for writing. No one appreciates the niceties—and real importance—of language more than the HP, so I appreciate you pointing this out. It’s true that it’s not that an enslaved person was 3/5 of a person. I think it’s become common to see it that way because saying “he was 3/5 of a person” gets across the terror of slavery much more fully; slavery takes away your humanity, and makes you less than a person.

      But for the record, yes, the actual wording was that 3/5 of the entire enslaved population would be counted for states’ representation. And that’s what you see in this post: “…the three-fifths clause, which counted three-fifths of the number of enslaved Americans as population…”


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