The Declaration of Independence’s stirring references to the equality of all have often been thought to ring hollow given that slavery was legal in the colonies when the Declaration was signed. The Constitution’s underlying commitment to equality suffers from the same limitations. How the Constitution dealt with slavery at the founding and how it addressed slavery over time is a revealing study in pragmatic politics.
The arguments surrounding slavery in the founding era had two broad components: the slave trade and the institution of slavery. The Constitution dealt with these components somewhat differently, though both were given some measure of protections in the original document. Both practices were eventually abolished. The slave trade was abolished legislatively; slavery was abolished constitutionally.
Under the Articles of Confederation, slavery was entirely a state institution, and the Confederation Congress had virtually no control over it. The subject of slavery loomed large in the debates at the Constitutional Convention, and the Constitution would eventually have a huge impact on the future of slavery. But the Constitution of 1787 actually did very little to change the status of slavery in this country; the institution was still largely governed by individual state laws. There were two main exceptions to this general rule: one of these changes was an improvement over the status quo, but one made things worse.
The Constitution addressed the slave trade directly and the institution of slavery indirectly. Under Article I, Congress could not abolish the slave trade until 1808, but it could place a tax on imported slaves. Furthermore, Article V specified that the Constitution could not be amended to change this temporary protection of the slave trade. Under the Articles of Confederation, the power to import slaves had been entirely in the hands of each state. Many delegates had gone to the Constitutional Convention with a firm determination to put an immediate end to the importations. However, South Carolina and Georgia had refused to accept any plan of government that did not protect at least a temporary continuance of the trade. The year 1808 was the resulting compromise. In 1807, Congress passed a law that would abolish the slave trade beginning on January 1, 1808. Without the Constitution’s belated grant of power, the states of the Deep South, including the states that were subsequently adopted, could have continued importations indefinitely.
The institution of slavery was given one protection that it had not had under the Articles. Prior to the adoption of the Constitution, states had been left free to adopt their own policies regarding runaway slaves.
Although most states had comity agreements with other slave states, that interstate comity was nowhere guaranteed. The fugitive slave clause in the Constitution would henceforward make it illegal for states to harbor slaves who had escaped into freedom, though its passive language did not require state authorities to participate in the recapture of runaway slaves. Under the auspices of this clause, however, federal courts even claimed the power to overrule state laws intended to protect free blacks from being kidnaped by slavers (see Prigg v. Pennsylvania).
The most notorious but misunderstood of the slavery clauses in the Constitution actually had no direct effect on the slave trade or the institution of slavery – the three-fifths provision. It is important to understand what the three-fifths clause did not mean. It was never meant to suggest that slaves, much less African-Americans as a race, were three-fifths of a person. The clause is not, strictly speaking, even about slavery. This clause is contained within the larger context of distributing representation and taxation among the several states.
When apportioning representation, the Framers considered three things: the equal sovereignty each state possessed upon entering the new union, the states’ unequal populations, and their unequal wealth. The first of these considerations predominated in the division of power in the Senate, and the second two were factored into the apportionment of representation for the House. Therefore, the census was designed to quantify the political importance of each state relative to the others, in terms of both population and wealth; it was never meant to provide a reckoning of individual personhood. Indeed, the three-fifths ratio had first been proposed many years earlier, as a way to distribute taxation among the states. Twelve states had agreed to that change, which shows that as a measure of wealth it was uncontroversial.
The reason why the three-fifths clause was so offensive to many who opposed slavery was not because it “only” counted a slave as three-fifths of a person. Rather, it was offensive because it would mean that the Southern slave-owners’ influence in the federal government would be augmented in direct proportion to (and on the basis of) their illegitimate dominion over slaves. Considering the practical effects of what a census does, the Constitution would not have been improved if slaves had been counted fully; instead, the offense against representative government would have been made worse. During the Convention, Gouverneur Morris offered the Southern states a simple solution if they really wished for greater political leverage on account of their enslaved population: “make them citizens, and let them vote” (Aug. 8). The Northerners had wanted to exclude slaves altogether from the census, and the Southerners had wanted slaves counted fully. The three-fifths clause was a compromise between them.