The Constitution contains only three provisions that directly relate to slavery: 1) that the slave population would be counted as three-fifths of its total for the purposes of representation and taxation (and this rule would also be factored into the number of presidential electors each state had); 2) that Congress could not interfere with the slave trade for twenty years, though it could levy a $10 tax on each slave imported (and this clause was further exempted from the possibility of amendment); and 3) that fugitive slaves would have to be given up to their masters when they fled to other states. Nonetheless, in spite of the minimal references to the institution in the Constitution, the subject of slavery loomed large in the debates that shaped the Constitution and it would loom even larger in the constitutional history that would shape the country. The first two slavery clauses occasioned some of the bitterest disputes within the Convention, and all of the provisions have subsequently been criticized for being significant concessions to the slave-holding interests in the South. The rationales, development, and meaning of these clauses are complex. They arose out of a clash of diverse interests and conflicting principles that were held by the men who attended the Convention and, indeed, by the people who lived throughout the states at this time. In order to understand why the slavery compromises were forged, it is necessary to understand the economic, political, and philosophical context of the time.
The parts of the Constitution that deal with slavery are the most disturbing for Americans to confront, because the nation’s founding document—a document which we wish to revere—includes some provisions which compromise with an odious institution. The moral outrage which these compromises provoke is no doubt one of the reasons why, in many of the accounts of the Constitutional Convention, the Framers are portrayed as being more heartless and morally indifferent toward slavery than in fact they were. For instance, it is not uncommon to read that the Framers expressed little or no moral qualms about slavery during these debates. This characterization, however, is far from the truth, as a review of the Convention debates related to slavery reveals. The language used by many of the Framers to describe slavery and the slave trade expressed the strongest moral condemnation; they employed such words as: evil, unjust, wrong, oppressive, dishonorable, ashamed, horror, cruel, unhappy, miserable, wretched, nefarious, infernal, and iniquitous. Language both moral and religious was used to inveigh against slavery. Domestic slavery “was the curse of heaven on the states where it prevailed,” and slaveholders “bring the judgment of Heaven on a country…. By an inevitable chain of causes and effects, Providence punishes national sins by national calamities.” The Framers did not mince words when they spoke about their opposition to slavery. In some cases, the Constitution’s Framers had no choice but to confront the existence of slavery within the states, but many were careful when crafting the Constitution’s wording to try to minimize the suggestion that there was any legitimacy in the institution.
The Framers were deliberately trying to avoid using the word, “slave” itself. This was done to satisfy “those who were scrupulous of acknowledging expressly a property in human beings” in the Constitution. Instead, the Framers resorted to such noncommittal circumlocutions as, “other Persons,” “such Persons as any of the States now existing shall think proper to admit,” and a “Person held to Service or Labour in one State, under the Laws thereof.”
Similar verbal scruples informed the wording the last clause, which became known as the fugitive slave clause. The original wording stated that fugitive slaves “shall be delivered up to the person justly claiming their service or labor” (emphasis added). Some members must have objected to the notion that slaveholders had a “just” claim to their slaves, because this formulation was changed in the Committee of Style. The word justly was dropped, and the phrase, “No person legally held to service or labour . . .” was added. But even that wording seemed to some members to endorse the slaveowners’ claims too much. Finally, on September 15: “the term ‘legally’ was struck out; and the words ‘under the laws thereof,’ inserted . . . in compliance with the wish of some who thought the term legal equivocal, and favoring the idea that slavery was legal in a moral view.”
These noble sentiments and carefully-chosen words should not obscure the reality that the Convention’s members did not speak with one voice on the subject of slavery. Although there were some delegates who held strong anti-slavery views, others, even some from the Northeast, spoke with indifference about the evils of slavery. The members from Virginia were strongly opposed to slavery in principle, but they also acknowledged that they—as representatives of their state and the South as a whole—must demand protections for the institution in the Constitution. And finally, there were also members from the Deep South who could fairly be described as unabashedly pro-slavery. The simple truth was that the United States was a deeply divided people on this subject at this time. The real question underlying modern criticisms of the Framers, then, is not, “why is it that the Framers did not express the strongest moral outrage over slavery?” (some did), but rather, “why did their outrage accomplish so little toward righting the country’s deepest wrongs?” Phraseology is all well and good, but it is poor consolation to any person who is enslaved and treated like property.
Today’s critics of the Constitution, like critics in the nineteenth century, are apt to fault the Framers because they failed to find a solution to the country’s problem of slavery. It is revealing, then, to contrast today’s critics of the Constitution to the attacks launched by the Constitution’s first detractors. During the ratification debates, many Antifederalists criticized the Constitution because it allowed the continuance of the slave trade for 20 more years, or because slaves were counted in the representation for Congress, or because of the sly wording used to describe slavery in the Constitution. One Antifederalist, writing under the name Brutus, objected: “What a strange and unnecessary accumulation of words are here used to conceal from the public eye” the persons who were being described by the three-fifths clause. There were numerous critics of the Constitution when it emerged from the Convention, but few at the time faulted the Framers for failing to place slavery on the road to extinction, even though there was a growing abolitionist movement in several states. (Two of the Constitution’s Framers, Benjamin Franklin and Alexander Hamilton, were active members in their own state’s abolitionist societies.) These anti-slavery societies, however, had hoped at most that the new Constitution would put an immediate end to further importation of slaves from Africa. They did not expect that the Constitutional Convention would be able to find a solution to the problem of slavery as a whole. Consequently, the way that people judge the Framers’ successes or failures with regards to slavery can depend very much on the level of expectations that they bring to the question. Critics today are more likely to believe that the Framers could have found a solution to the slavery problem, if only they had exerted more political will. Abolitionist critics in 1787 and 1788 had generally not believed that such an outcome was possible.