Slavery, the Constitution, and a Lasting Legacy

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The U.S. Constitution opens with a message of inclusivity, establishing "justice" and ensuring "domestic tranquility" for the people. However, it’s what the famous preamble—and, indeed, the rest of the document—doesn’t address that’s more telling. The Constitution’s authors leave out their vital distinction between person and property, and in doing so, they ultimately protect one of history’s most oppressive institutions.

The absence of slavery in the Constitution is one of the great paradoxes of our Founding Era. The framers were revolutionary thinkers who created what would become the first successfully functioning government by the people. Their ideas of fairness, justice, and individual rights are what many world leaders emulate today. Why, then, did so many brilliant minds pledge to be champions of individual rights on one hand, then, on another, allow human beings to be reduced to chattel?

We have seen the mere distinction of colour made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man.

James Madison (Constitutional Convention, June 6, 1787)

The answer lies in the idea of compromise: the founders compromised their morals (many were recorded as being opposed to slavery), and power (in some cases, states bowed to slaveholding counterparts in order to ensure the Constitution would be ratified), in the name of economics. Slavery, when all was said and done, was both profitable and convenient for many white Americans—and not just in the South.

American Slavery and the Rise of Profitable Racism

Colloquially, the term "slavery" conjures images of one race enslaving another. In fact, white colonists bought and sold the labor of both white and black servants in the 17th-century Americas. Race-based slavery is a younger phenomenon with a long-lasting legacy that America grapples with today.

As lifelong bondage of enslaved African Americans became more financially viable, the indentured servitude of whites (their terms only lasted five to seven years), was phased out. The system proved itself so lucrative that law and legal precedent began to leave future governments leeway for prioritizing economy over morality.

Morality did nag at the consciences of some white Americans—the Enlightenment philosophies of natural rights and growing religious convictions were a nuisance for those profiting from the institution of slavery. The contradiction couldn’t be denied: philosophies that recognized the rights of the individual were juxtaposed against the fact that America had become a place where an entire subset of people were commoditized and dehumanized.

The answer was pretty simple: clarify who gets to be a person and who doesn’t. Fabricating a subservient order for those with darker skin allowed our founding generation (and generations after) to define "all men" and "the people" as "white men." As a result, they guaranteed white men the rights and liberties promised by the Constitution while preserving a thriving economy based on racial oppression.

Not everyone agreed with this caste system. Colonial independence was almost underway when abolitionist groups started to point out the moral contradictions of slavery. As America spread into new territories, regional blocs began to form on both sides of the issue. The North was making progress on the abolition front, and state laws began to change regarding slavery. Vermont abolished slavery in 1777, with Pennsylvania following suit in 1780, and other states coming up close behind. Even Virginia made it legal in 1782 for slaveholders to manumit their own slaves without first obtaining permission from the state. But further South, where enslaved African Americans made up a vast workforce, the ruling whites insisted on racial hierarchy.

Constitutional Compromises on Slavery Set Tone for the Future

The framers went to great lengths to avoid overtly mentioning "slavery" or "slave." In 1840, more than 50 years after the Constitution was ratified, John Quincy Adams would refer to this careful omission as " the fig-leaves under which the parts of the body politic are decently concealed."

Though there were significant pro-slavery voices, there were also forward-thinking framers, like Oliver Ellsworth, a Senator from Connecticut, who was optimistic that "slavery, in time, will not be a speck in our country." Though some thought the Constitution’s power to prohibit the slave trade would lay "the foundation for banishing slavery out of this country," as James Wilson said in the Pennsylvania Ratifying Convention in 1787, many weren’t keen on having their names attached to a document that mentioned slavery outright.

Three clauses relating to slavery did make it into the final draft of the Constitution, all after varied amounts of debate and compromise during the Constitutional Convention in 1787.

Article I, Sec. II, Paragraph III: The Three-Fifths Clause (1787)

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three-fifths of all other Persons.

What it says: When a state’s population is counted for purposes of representation in government , and for direct taxation , the enslaved population will be counted as three-fifths of its overall number. Untaxed Native Americans would not figure into this number.

What it means: Slaveholding states get to count their slaves to boost their population numbers. This affects electors and representation in Congress, and therefore will have more impact on future legislation, the election of the president, and, by extension, Supreme Court appointments. Slaveholding states will also, in theory, have to ante up more direct tax for this privilege.

It’s a common misconception that this clause represents the amount of humanity the framers were willing to assign to African Americans. In fact, the South was pushing for their enslaved individuals to be counted fully, so as to have more impact in Congress.

What happened as a result: States with large slave populations ended up with more power both in Congress and in the Supreme Court, which undercut the power of abolition states. Historians differ as to whether or not the South would have made good on their promise to refuse to join the union without the inclusion of this clause. If it had, would the United States have been able to survive without it?

The federal tax benefits that the Three-Fifths Clause was supposed to have generated never came to fruition—the Southern-led government worked out a tariff-based tax system instead of a direct ("head") tax.

Article I, Section IX, Clause I: The Importation Clause (1787)

The Migration or Importation of such Persons as any of the States now existing shall think proper 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.

What it says: If states want to import slaves internationally, the federal government won’t interfere for at least another 20 years. However, this importation will be taxed at a rate of no more than $10 per slave.

What it means: The framers were aware that the international slave trade would eventually be abolished, if for no other reason than the economy would require it, in order to increase demand of domestic trade. The states received 20 years of autonomy to import slaves as they saw fit before Congress could (and did) abolish the international trade.

This is more complicated than a clear-cut morality issue. Virginia pushed hard to abolish the international slave trade because it had the largest enslaved population of any state, and the value of their domestic trade was suffering as the market was being flooded by the arrival of new enslaved Africans. Massachusetts, through which many slaves were distributed, was profiting from the international trade and so supported the grace period. The Importation Clause was passed, despite Virginia’s efforts, with the 20-year compromise in place.

What happened as a result: The $10 tax on each head was never collected. Some argued that the federal government would be removing that fragile “fig leaf” if they acknowledged slaves as property, much less made money off of the slave trade by collecting the tax. Others saw the tax as anti-slavery because it could be construed as penalizing importation. All in all, the federal government avoided the issue until there was no longer an international slave trade.

By 1809, when the international trade was officially abolished, all of the states had already banned it on their own.

Article IV, Sec. II, Clause III: The Fugitive Slave Clause (1787)

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

What it says: If an enslaved person crosses state lines into a state where slavery has been abolished, citizens of that state are obligated to return the slave to their owner.

What it means: States who abolish slavery have to respect the fact that other states have not. This puts legal slavery as the default scenario, and abolition as the outlier.

What happened as a result: At the time, only two states—Massachusetts and Vermont—had banned slavery. The Fugitive Slave Clause, then, passed with little debate.

Individual states reacted swiftly. Pennsylvania, for example, passed laws making it more difficult for slaveholders to enforce the law, requiring a certificate to prove ownership of the individual in question, and prohibiting the use of force. The Supreme Court responded with their ruling in Prigg v. Pennsylvania

Prigg v. Pennsylvania

A free woman named Margaret Morgan had been owned by a family named Ashmore in Maryland but had since moved to Pennsylvania without being formally emancipated. A slavecatcher named Edward Prigg, hired by an heir of Ashmore who wished to claim Morgan for the family, was arrested after abducting Margaret Morgan along with her children, and he appealed to the U.S. Supreme Court that Pennsylvania was violating Constitutional law in preventing him from returning a slave to its owner. The Supreme Court ruled Pennsylvania’s laws unconstitutional.

, making it easier for the Fugitive Slave Clause to be enforced. A century of workarounds by more and more states, and the federal government’s tightening responses, eventually erupted into the Civil War.

This broadside publicizes the arrest of the fugitive slave Anthony Burns, who escaped from Richmond, Virginia and made his way to Boston where, on May 24th, 1854, he was arrested. While he was awaiting trial for extradition to Virginia, a large crowd of abolitionists and anti-slavery sympathizers stormed the jail in which he was held in an attempt to free him. Federal troops were eventually sent to Boston to support the extradition, and Burns was ultimately returned to Virginia. He was later ransomed from slavery, eventually obtaining an education at Oberlin College and becoming a Baptist minister. Boston Public Library.

Many scholars agree that, among all three of the slavery clauses in the Constitution, the Fugitive Slave Clause was the most abhorrent. It implicates and involves the federal government and its officers in the active protection of people as property.

Slavery’s Legacies Continue Through Reconstruction and Civil Rights

Fast forward to the mid-19th Century, and we see what some of the founders predicted: a country no longer able to ignore the moral bankruptcy of slavery despite its continued profitability. As new states enter the union as either slaveholding or free states, the conflict between the two blocs intensifies. Federal law favors the South, due to increased representation in Congress, and the Fugitive Slave Act is tightened for Northern states in exchange for California’s admission as a free state.

All boils over in 1860 when South Carolina secedes, followed quickly by more Southern states, and the Civil War begins. On New Year’s Day, 1863, Abraham Lincoln issues an executive order changing the status of all slaves in the Southern territory to "free." On April 9, 1865, General Robert E. Lee surrenders to General Ulysses S. Grant, and the South becomes part of the United States once again.

Lawmakers turned back to the Constitution for clarification, drafting and approving three "Reconstruction amendments," XIII, XIV, and XV. It’s important to note that while these amendments became law in the five years following the Civil War, the Constitution at this time was still outpacing culture. Today, many will argue that culture is still struggling to catch up.

13th Amendment: December 1865, officially abolished slavery in all states.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

What it means: Race-based slavery is illegal unless the minority is found guilty of a crime. The inclusion of "except" laid the foundation for a deeply entrenched system of African American incarceration, and other systemic, long-standing, racially biased policies.

The Fugitive Slave Clause was superseded by the 13th Amendment. By abolishing slavery, the Fugitive Slave Clause had no purpose.

14th Amendment: July 1868, guaranteed the same rights to all male citizens and counted every citizen as one when determining representation in Congress.

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

What it means: All states must accept every human born or naturalized in their state as a full citizen of both the U.S. and that state. That is, the definition of African American as a commodity is no longer legal.

The second section eliminates the Three-Fifths Clause and establishes a state’s population as consisting of all (male) citizens over 21, unless they’ve taken part in a rebellion or have committed a crime (as with the 13th, the definition and extent of “crime” is undetermined and dangerously subjective).

15th Amendment: February 1870, made it illegal to deprive any eligible citizen (already established as a male over the age of 21) the right to vote, regardless of color.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

What this amendment means: States may not refuse any male over the age of 21 the right to vote. The amendment, however, doesn’t provide any protection for voters, and many states looked to covert processes, like gerrymandering, poll taxes, literacy tests, and other requirements to restrict access for black voters.

For the first time, the Constitution was directly addressing the idea of equality and finally mentions the word "slave."

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Lee, Russell, photographer. "Negro drinking at 'Colored' water cooler in streetcar terminal, Oklahoma City, Oklahoma." Photograph. Oklahoma City, OK. July 1939. From Library of Congress Prints and Photographs Division.

The lack of clarity around such concepts as "equal protection" left interpretation up to the states, opening the door for much of the systemic racism we are still faced with. After Reconstruction, Jim Crow laws protected segregation in Southern states. Education case law would bear the brunt of a still-divided nation attempting to address issues the Constitution’s framers never outlined explicitly.

The Constitution didn’t provide answers to these questions, but it did pose them.

Education Tests the Constitution

Slavery and its constitutional history continue to impact issues we still face today. The journey to providing an equal education for all Americans is an example of how constitutional law is interpreted by courts, who have set precedents for future generations with rulings on educational equality.

In 1896, Plessy v. Ferguson

Plessy v. Ferguson

A mixed-race man named Homer Plessy, backed by a committee of concerned citizens determined to fight Louisiana’s Jim Crow laws, boarded a Louisiana "whites only" railway car. He was arrested when he refused to move to the "colored" car. He appealed and, ultimately, the U.S. Supreme Court ruled in favor of Louisiana (i.e. the case’s original judge, John Howard Ferguson), and in doing so, legitimized the Southern states' "separate but equal" laws.

made the South’s Jim Crow laws constitutional, with a seven-to-one Supreme Court ruling that a state has a right to provide separate but equal facilities for whites and African Americans, as long as it wasn’t depriving anyone of their constitutional rights.

21st-century perspective makes state-supported separation of race clearly unethical, but it was the equality piece that was controversial. "Separate but equal" never really meant "equal." "Colored" facilities were famously inferior, and minorities had no recourse, as they were under-represented in positions of power and influence such as law enforcement, legislature, and the justice system.

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Leffler, Warren K., photographer. "Integrated classroom at Anacostia High School, Washington, D.C." Negative, film. Washington, DC. September 10, 1957. From the Library of Congress: U.S. News & World Report Magazine Photograph Collection.

It took more than 60 years of African Americans suffering unfair and often hostile treatment for Brown v. Board of Education to rule in 1954 that segregation in schools is unconstitutional. Some areas of the country took drastic measures to resist the ruling, like the closing of public schools in Virginia (and other localities, like Little Rock, Arkansas), rather than integrate them. In others, white parents who weren’t willing to send their children to desegregated schools moved en masse to the suburbs, contributing to a phenomenon known as "white flight."

The Civil Rights Act of 1964 outlawed school segregation for good, but in some areas, resistance continued . Many areas of the United States struggle to this day with disparities between schools in majority-white neighborhoods and schools in majority-African American neighborhoods.

Scherman, Roland, photographer. "Civil Rights March on Washington, D.C. [Leaders marching from the Washington Monument to the Lincoln Memorial.]" Photograph. Washington, DC. August 1963. From the National Archives and Records Administration: Miscellaneous Subjects, Staff and Stringer Photographs, 1961 - 1974.

Questions Remain

The Constitution leaves us unanswered questions. How do we dismantle the legacies of slavery that the framers of the Constitution allowed to be built around them? In a time when we urge our Congress to reach across the aisle and make compromise, how can we avoid the kind of moral compromises that can cause damage that takes centuries to undo?

We can see echoes of slavery in more than just education. The ripples touch voting rights, fair housing, public transportation access, public safety and incarceration, employment, predatory lending practices, and more.

Tracing slavery’s fiery path through the Constitution, its amendments, and both law and culture, is a reminder that our discussions on current constitutional issues may have similar effects in the future. Where there’s ambiguity, there’s a test to the Constitution that will shape our nation’s path forward, from gun rights to the expansion of ambiguous executive powers.

Where else do we see the Constitution lagging behind culture, and where does it come out ahead? It’s by asking these questions that we can best understand the role that the Constitution has in our lives and the lives of generations to come.

We’d like to thank Michael Higginbotham of the University of Baltimore, Nicholas Wood of Yale University, and former United States Deputy Secretary of Education and the 14th Pennsylvania Secretary of Education, Eugene Hickok, who also serves as Vice Chairman of the Montpelier Board of Directors.

Read more about the seminars and programs at the Robert H. Smith Center for the Constitution at James Madison’s Montpelier.

Participate in our accredited course on Slavery & The Constitution.

Photo References:

James Hopkinson's Plantation. Edisto Island, South Carolina. - 1862-1863 Library of Congress. (accessed February 28, 2017).
"Landing Negroes at Jamestown from Dutch man-of-war, 1619." Reproduction of painting. From the National Archives and Records Administration Prints and Photographs Division: Illus. in Harper's Monthly Mag., v. 102, 1901 Jan., p. 172. (accessed February 28, 2017).
A man kidnapped! Boston Public Library (accessed March 7, 2017).
Lee, Russell, photographer. "Negro drinking at 'Colored' water cooler in streetcar terminal, Oklahoma City, Oklahoma." Photograph. Oklahoma City, OK. July 1939. From Library of Congress Prints and Photographs Division. (accessed February 28, 2017).
Leffler, Warren K., photographer. "Integrated classroom at Anacostia High School, Washington, D.C." Negative, film. Washington, DC. September 10, 1957. From the Library of Congress: U.S. News & World Report Magazine Photograph Collection. (accessed February 28, 2017).
Scherman, Roland, photographer. "Civil Rights March on Washington, D.C." Photograph. Washington, DC. August 1963. From the National Archives and Records Administration: Miscellaneous Subjects, Staff and Stringer Photographs, 1961 - 1974. (accessed February 28, 2017).