Founders' Slavery Treatment: A Constitutional Conundrum

The treatment of slavery in the US Constitution was a highly contested issue among the Founding Fathers. The Constitution did not include the word slave, but it implicitly recognised slavery through provisions such as the Three-Fifths Compromise, which counted three-fifths of each state's enslaved population as part of its free population for representation and taxation purposes, and the Fugitive Slave Clause, which stated that slaves who escaped to another state remained slaves. While some Founding Fathers, such as Thomas Jefferson, acknowledged that slavery violated the core American Revolutionary ideal of liberty, they also prioritised private property rights and limited government. Many of the Founding Fathers, including George Washington, Thomas Jefferson, and James Madison, owned slaves, and nearly half of the delegates to the Constitutional Convention did as well. Despite this, there were also prominent Founding Fathers who were members of societies for ending slavery, such as Richard Bassett, James Madison, and Benjamin Franklin, and some states had begun the process of abolishing slavery. The treatment of slavery in the Constitution laid the foundation for future conflicts and controversies, with some arguing that it demonstrated the Founders considered Black people to be less than white people.

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The Three-Fifths Compromise

The delegates from the small and large states were divided on the issue of the apportionment of legislative representation. The Virginia, or large state, plan provided for a bicameral legislature with representation of each state based on its population or wealth. The New Jersey, or small state, plan proposed equal representation for each state in Congress. Neither the large nor the small states would yield, but the deadlock was resolved by the Connecticut, or Great, Compromise, which resulted in the establishment of a bicameral legislature with proportional representation in the lower house and equal representation of the states in the upper house.

Fugitive Slave Clause

The Fugitive Slave Clause, also known as the Slave Clause or the Fugitives From Labour Clause, is Article IV, Section 2, Clause 3 of the United States Constitution. The clause requires that a "Person held to Service or Labour" who escapes to another state must be returned to their master in the state from which they fled. The 13th Amendment, which abolished slavery, has since rendered the clause mostly irrelevant.

The exact wording of the Fugitive Slave Clause is as follows:

> 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.

It is important to note that the words "slave" and "slavery" are not used in this clause, nor anywhere else in the Constitution. This was a conscious decision by the framers of the Constitution, who recognised that the inclusion of these words would sully the document.

The Fugitive Slave Clause was unanimously approved by the Convention without further debate, despite objections from James Wilson and Roger Sherman. The clause was also included in the Constitution of the Confederate States, which mentioned slavery by name and specified African Americans as the subject.

The enforcement provisions of the Fugitive Slave Act of 1793 were strengthened as part of the Compromise of 1850. Under the Supreme Court's interpretation of the Fugitive Slave Clause, the owner of an enslaved person had the right to seize and repossess them in another state, and state laws that penalised such a seizure were deemed unconstitutional.

The issue of slavery proved difficult for the Founding Fathers to navigate. They had all been born into a slaveholding society where the morality of owning slaves was rarely questioned. While some colonies were for slavery and others against it, the institution had deep roots in the colonies. Many of the Founding Fathers owned slaves themselves, and all expressed a wish to see the institution gradually abolished. However, their commitment to private property rights, principles of limited government, and intersectional harmony prevented them from taking bold action against slavery.

The framers of the Constitution believed that concessions on slavery were necessary to gain the support of southern delegates for a strong central government. They were convinced that if the Constitution restricted the slave trade, states like South Carolina and Georgia would refuse to join the Union. By sidestepping the issue of slavery, the framers laid the groundwork for future conflict. The notorious three-fifths clause, which counted three-fifths of a state's slave population when apportioning representation, gave the South extra representation in the House of Representatives and the Electoral College.

The historian Donald Fehrenbacher believes that the Constitution intended to make it clear that slavery existed only under state law, not federal law. He points to a last-minute change in the fugitive-clause as evidence of this, where the phrase "legally held to service or labor in one state" was changed to "held to service or labor in one state, under the laws thereof." This revision made it impossible to infer that the Constitution legally sanctioned slavery.

The Founding Fathers' views

During the era of the Articles of Confederation (1781-1789), the Founders, except those from South Carolina and Georgia, exhibited aversion to slavery by prohibiting the importation of foreign slaves to individual states and supporting a proposal to ban slavery in the Northwest Territory. Despite these efforts, their compromise-seeking often served the interests of slaveholders and expanded slavery in other regions. For example, the ban on foreign slave imports allowed Virginia and Maryland slaveholders to sell their surplus slaves at higher prices, and the ban in the Northwest tacitly legitimized slavery in the Southwest.

Despite these conflicting views, many Founding Fathers expressed a desire to see slavery gradually abolished. Some, like John Adams, held slavery in "abhorrence" throughout his life. Others, such as Benjamin Franklin and Alexander Hamilton, became members of anti-slavery societies. The Founding Fathers' efforts to end slavery laid the groundwork for gradual abolition in states like Pennsylvania, Massachusetts, and New York. However, their compromises and inability to take bold action against slavery left a legacy of racial inequality and set the stage for future conflicts over the issue.

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The impact of the American Revolution

The American Revolution had a complex impact on slavery and the treatment of enslaved people. On the one hand, the Revolution was based on the principle of freedom and the ideal of liberty, which many recognised as being contradicted by the existence of slavery. This contradiction was noted by some of the Founding Fathers, such as Patrick Henry, who was a slaveholder himself.

During the American Revolution, there was a shift in attitudes towards slavery, with some Founding Fathers beginning to express their desire to see the institution gradually abolished. For example, George Washington, who owned hundreds of slaves, wrote in 1786 that he wished to get clear of owning slaves and that he sincerely wished to see a plan for the abolition of slavery. Men like Marquis de Lafayette and John Laurens, who adamantly opposed slavery, urged Washington to work towards its abolition.

Following the Revolution, Northern states began passing laws to gradually abolish slavery within their borders. Pennsylvania was the first state to initiate this process in 1780, followed by Massachusetts, New Hampshire, Connecticut, and Rhode Island. This shift was influenced by the beliefs of the Founding Fathers, many of whom, despite owning slaves, expressed a desire to see the institution abolished. Benjamin Franklin, for instance, a former slaveholder, became a member of an anti-slavery society and later the president of the Pennsylvania Abolition Society. Alexander Hamilton, who was born in a slave colony, also became a member of an anti-slavery society and helped found the New York Manumission Society in 1785.

However, it is important to note that the Founding Fathers' commitment to private property rights, principles of limited government, and intersectional harmony prevented them from taking bolder action against slavery. Additionally, the Southern Founders had considerable investments in slave-based staple agriculture, and their deep-seated racial prejudice posed significant obstacles to emancipation.

The Constitution itself, ratified in 1787, did not include the word "slave", as the framers consciously avoided it, recognising that it would sully the document. However, slavery received important protections in the Constitution, such as the Three-Fifths Clause, which gave the South extra representation in the House of Representatives and extra votes in the Electoral College. The Constitution also included a Fugitive Slave Clause, which encouraged the return of runaway slaves who sought refuge in free states.

In summary, while the American Revolution did lead to a shift in attitudes towards slavery and the gradual abolition of slavery in some states, the Founding Fathers' commitment to other ideals and their own economic interests prevented them from taking more decisive action. The Constitution, which was meant to embody the ideals of the Revolution, included protections for slavery and avoided directly addressing the issue.

The role of the Southern states

Firstly, the Southern states successfully lobbied for the inclusion of the Three-Fifths Clause, which counted three-fifths of a state's slave population when apportioning representation. This gave Southern states, with their large slave populations, extra representation in the House of Representatives and additional votes in the Electoral College. This clause enhanced Southern political power at the national level and ensured that slavery was tacitly acknowledged in the Constitution.

Secondly, Southern delegates were adamant that the federal government should not regulate the Atlantic slave trade. On August 21, 1787, a heated debate occurred regarding a South Carolina proposal to prohibit federal interference in the slave trade. John Rutledge of South Carolina took a strong stance, threatening that the southernmost states "shall not be parties to the union" if the regulation of the slave trade was not left to individual states. This stance reflected the Southern states' determination to protect their economic interests and maintain slavery as a state-level matter.

Thirdly, the Southern states secured a moratorium until 1808 on any congressional ban against the importation of slaves. This delay allowed the Southern states to continue importing slaves and expanding their slave-based economy for several decades. During this period, individual states were free to prohibit slave imports if they chose to do so, but the moratorium prevented federal intervention.

Additionally, the Southern states influenced the inclusion of the Fugitive Slave Clause, which required the return of runaway slaves to their owners. This clause further solidified the power of slaveholders and made it more challenging for slaves to escape their enslavement.

While some Southerners, such as John Rutledge, vehemently defended slavery, others grappled with moral qualms. Some Southern Founding Fathers, like George Mason of Virginia, owned slaves yet spoke out against the institution. Overall, the Southern states' commitment to maintaining slavery and protecting their economic interests shaped the Constitution's compromises and concessions on slavery, leaving a complex legacy that would contribute to future conflicts.

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