Women Slave Owners: Constitutional Rights?

The United States Constitution, adopted in 1787, prevented Congress from banning the importation of slaves until 1808. While the Constitution did not contain the words slave or slavery, it dealt directly with American slavery in at least five of its provisions and indirectly protected the institution elsewhere in the document. The Three-Fifths Clause, Fugitive Slave Clause, and Slave Trade Clause are among the most contentious issues regarding slavery in the Constitution. Despite coverture laws that gave the property of married women to their husbands, married women exercised their right to own and control human property without their husbands' interference or permission, and they actively participated in the slave trade.

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Women's property rights

However, under coverture laws, which were based on English common law, married women were not allowed to own property, control their wages, enter into contracts, or make decisions about their children's lives. Their husbands were assumed to have sexual access, and there was no concept of marital rape. Despite these restrictions, married women sometimes exercised their right to own and control property, including human property in the form of slaves.

The Married Women's Property Acts, enacted by individual states starting in 1839, gave married women new economic rights. These acts allowed women more control over their wages and property, with New York's law in 1848 becoming a template for other states. By the late 19th and early 20th centuries, various states had passed laws granting married women the right to own and sell real and personal property, control their earnings, sue, and make wills. However, these changes were often motivated by concerns for family integrity and protecting households from economic crisis rather than a liberal conception of women's rights.

It is worth noting that these property rights were primarily granted to white women, and even with these gains, credit access came much later. It was not until the Civil Rights Act of 1964 that women gained legislation granting them equality in the workplace and the legal grounds to enforce such laws in court.

The Three-Fifths Compromise

The compromise that was eventually reached was that slaves would be counted as three-fifths of a person when determining a state's population. This meant that a slave would be counted as 0.6 of a person, or three-fifths, for the purposes of representation and taxation. This compromise was written into the US Constitution in Article 1, Section 2, Clause 3, often referred to as the "Three-Fifths Clause."

While the Three-Fifths Compromise may seem like a victory for the Southern states, it actually had the effect of weakening their position in the long run. By counting slaves as three-fifths of a person, the compromise also reduced the South's representation in Congress and its electoral votes. This compromise also had implications for the distribution of taxes and tariffs, as well as federal funding for things like infrastructure projects.

It is important to note that the Three-Fifths Compromise did not grant any rights or freedoms to enslaved people. They were still considered property and were denied the most basic human rights. The compromise was solely about political power and representation, and it was a reflection of the deep-seated racism and inequality that was endemic in the early United States.

Fugitive Slave Clause

The Fugitive Slave Clause, also known as the Slave Clause or the Fugitives From Labour Clause, was Article IV, Section 2, Clause 3 of the United States Constitution. It was adopted at the Constitutional Convention of 1787 and ratified in 1789. The clause gave slave owners the right to seize and reclaim slaves who had escaped into free states.

The text of the 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.

The Fugitive Slave Clause did not use the words "slave" or "slavery", referring instead to "persons held to service or labour". This was typical of references to slavery in the Constitution. The clause was unanimously approved by the Convention, despite objections from James Wilson and Roger Sherman, who argued that it would oblige state executives to seize fugitive slaves at public expense.

The Fugitive Slave Clause was enforced by the Fugitive Slave Act of 1793, which was strengthened in 1850. Resistance to the Clause increased in the North during the 19th century, particularly after 1850, with several Northern states enacting "personal liberty laws" to protect their Black residents from kidnapping. The Supreme Court's interpretation of the Clause held that states had no power to legislate on the subject, and that state laws that penalised the seizure of fugitive slaves were unconstitutional.

The Fugitive Slave Clause was eventually rendered mostly irrelevant by the Thirteenth Amendment to the United States Constitution, which abolished slavery except as a punishment for criminal acts.

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The Civil War's impact

The US Constitution, ratified in 1787, did not explicitly mention women or slavery, but it did refer to "We the People", which Thurgood Marshall, the first African American Supreme Court Justice, argued was "defective from the start" as it excluded a majority of Americans, including women and slaves. The Constitution's framers avoided using the word "slave", but they included protections for slavery, such as the Three-Fifths Clause, which gave southern states extra representation in the House and Electoral College based on their slave populations. This compromise strengthened the political power of slaveholding southern states and influenced national policies and elections.

The issue of slavery was a significant factor in the Civil War, which began in 1861. In the decades leading up to the war, tensions rose as abolitionists and proponents of slavery clashed over the expansion of slavery into new US territories. The Kansas-Nebraska Act of 1854 allowed territories to decide on slavery, leading to violence between abolitionists and slave proponents in Kansas. The Dred Scott v. Sandford Supreme Court decision in 1857 further exacerbated tensions by declaring that prohibiting slavery in territories was unconstitutional.

During the Civil War, African American women like Sojourner Truth worked alongside white women like Elizabeth Cady Stanton and Susan B. Anthony in the abolitionist movement. They advocated for the emancipation of slaves and women's suffrage, challenging the notion that only white men deserved civil rights. However, as the war ended and slavery was abolished, racial tensions and white supremacy grew, leading to the rise of groups like the Ku Klux Klan.

The Civil War had a significant impact on slavery in the US, leading to its abolition. The 13th Amendment, enacted after the war, abolished slavery and prohibited it within the US and its territories. This marked the end of legal slavery, which had existed since the country's founding in 1776, predominantly in the South. While the Constitution initially sidestepped the issue of slavery to maintain unity, the Civil War brought the moral crusade to end slavery to the forefront, influencing both domestic politics and foreign relations.

The 13th Amendment

The original US Constitution, adopted in 1787, did not contain the words "slave" or "slavery" within its text. However, it directly addressed American slavery in at least five of its provisions and indirectly protected the institution in other parts of the document. For instance, the Three-Fifths Clause (Article I, Section 2, Clause 3) counted three-fifths of each state's slave population towards that state's total population for the purpose of apportioning the House of Representatives. This gave Southern states with large slave populations more power in the House and the Electoral College.

The US Constitution also prevented Congress from prohibiting the importation of slaves until 1808, though Congress did regulate against the trade in the Slave Trade Act of 1794 and in subsequent acts in 1800 and 1803. By 1808, the only state still allowing the importation of slaves was South Carolina. After 1808, the legal importation of slaves ceased, though there was still some smuggling.

Despite coverture laws that gave the property of married women to their husbands, married women exercised their right to own and control human property without their husbands' interference or permission, and they were active participants in the slave trade.

> "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. Congress shall have the power to enforce this article by appropriate legislation."

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