The Constitution and Slavery

by Steven Mintz

On the 200th anniversary of the ratification of the US Constitution, Thurgood Marshall, the first African American to sit on the Supreme Court, said that the Constitution was “defective from the start.” He pointed out that the framers had left out a majority of Americans when they wrote the phrase, “We the People.” While some members of the Constitutional Convention voiced “eloquent objections” to slavery, Marshall said they “consented to a document which laid a foundation for the tragic events which were to follow.”

The word “slave” does not appear in the Constitution. The framers consciously avoided the word, recognizing that it would sully the document. Nevertheless, slavery received important protections in the Constitution. The notorious three-fifths clause—which counted three-fifths of a state’s slave population in apportioning representation—gave the South extra representation in the House of Representatives and extra votes in the Electoral College. Thomas Jefferson would have lost the election of 1800 if not for the Three-fifths Compromise. The Constitution also prohibited Congress from outlawing the Atlantic slave trade for twenty years. A fugitive slave clause required the return of runaway slaves to their owners. The Constitution gave the federal government the power to put down domestic rebellions, including slave insurrections.

The framers of the Constitution believed that concessions on slavery were the price for the support of southern delegates for a strong central government. They were convinced that if the Constitution restricted the slave trade, South Carolina and Georgia would refuse to join the Union. But by sidestepping the slavery issue, the framers left the seeds for future conflict. After the convention approved the great compromise, Madison wrote: “It seems now to be pretty well understood that the real difference of interests lies not between the large and small but between the northern and southern states. The institution of slavery and its consequences form the line of discrimination.”

Of the 55 delegates to the Constitutional Convention, about 25 owned slaves. Many of the framers harbored moral qualms about slavery. Some, including Benjamin Franklin (a former slaveholder) and Alexander Hamilton (who was born in a slave colony in the British West Indies) became members of anti-slavery societies.

On August 21, 1787, a bitter debate broke out over a South Carolina proposal to prohibit the federal government from regulating the Atlantic slave trade. Luther Martin of Maryland, a slaveholder, said that the slave trade should be subject to federal regulation since the entire nation would be responsible for suppressing slave revolts. He also considered the slave trade contrary to America’s republican ideals. “It is inconsistent with the principles of the Revolution,” he said, “and dishonorable to the American character to have such a feature in the constitution.”

John Rutledge of South Carolina responded forcefully. “Religion and humanity have nothing to do with this question,” he insisted. Unless regulation of the slave trade was left to the states, the southern-most states “shall not be parties to the union.” A Virginia delegate, George Mason, who owned hundreds of slaves, spoke out against slavery in ringing terms. “Slavery,” he said, “discourages arts and manufactures. The poor despise labor when performed by slaves.” Slavery also corrupted slaveholders and threatened the country with divine punishment, he believed: “Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a country.”

Oliver Ellsworth of Connecticut accused slaveholders from Maryland and Virginia of hypocrisy. They could afford to oppose the slave trade, he claimed, because “slaves multiply so fast in Virginia and Maryland that it is cheaper to raise than import them, whilst in the sickly rice swamps [of South Carolina and Georgia] foreign supplies are necessary.” Ellsworth suggested that ending the slave trade would benefit slaveholders in the Chesapeake region, since the demand for slaves in other parts of the South would increase the price of slaves once the external supply was cut off.

The controversy over the Atlantic slave trade was ultimately settled by compromise. In exchange for a 20-year ban on any restrictions on the Atlantic slave trade, southern delegates agreed to remove a clause restricting the national government’s power to enact laws requiring goods to be shipped on American vessels (benefiting northeastern shipbuilders and sailors). The same day this agreement was reached, the convention also adopted the fugitive slave clause, requiring the return of runaway slaves to their owners.

Was the Constitution a proslavery document, as abolitionist William Lloyd Garrison claimed when he burned the document in 1854 and called it “a covenant with death and an agreement with Hell”? This question still provokes controversy. If the Constitution temporarily strengthened slavery, it also created a central government powerful enough to eventually abolish the institution.

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