Slavery's Dark Legacy In The Constitution

The U.S. Constitution, drafted in 1787, never explicitly mentions slavery, but it does contain several clauses that refer to it indirectly and protect the institution. The issue of slavery was highly divisive during the drafting of the Constitution, with some delegates owning slaves and others voicing objections to the practice. The specific clauses related to slavery include the Three-Fifths Clause, the ban on Congress ending the slave trade for twenty years (also known as the Importation Clause), the Fugitive Slave Clause, and the Slave Insurrection Clause. These clauses reflect the compromises made between the northern and southern states, with the former seeking to abolish slavery and the latter relying on it as a pivotal component of their economy.

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The Three-Fifths Clause

The Three-Fifths Compromise, also known as the Constitutional Compromise of 1787, was an agreement reached during the 1787 United States Constitutional Convention over the inclusion of slaves in counting a state's total population. This count would determine the number of seats in the House of Representatives, the number of electoral votes each state would be allocated, and how much money the states would pay in taxes.

Slaveholding states wanted their entire population to be counted to determine the number of Representatives those states could elect and send to Congress. Free states wanted to exclude the counting of slave populations in slave states, since those slaves had no voting rights. A compromise was struck to resolve this impasse. The compromise counted three-fifths of each state's slave population toward that state's total population for the purpose of apportioning the House of Representatives, effectively giving the Southern states more power in the House relative to the Northern states.

The Three-Fifths Compromise is part of Article 1, Section 2, Clause 3 of the U.S. Constitution. This clause states: "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." The “other Persons” referred to in this clause were slaves.

The Three-Fifths Compromise was repealed in 1868 with the passage of the Fourteenth Amendment, which superseded Article 1, Section 2, Clause 3 and explicitly ended the compromise.

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. It requires a "person held to service or labour" in one state, who escapes to another, to be returned to their master in the original state. The 13th Amendment, which abolished slavery, has made the clause mostly irrelevant.

The Fugitive Slave Clause was implemented by the Fugitive Slave Act of 1793 and the Fugitive Slave Act of 1850. These acts provided that a slave did not become free by entering a free state and must be returned to their owner. The enforcement provisions of the 1793 Act were strengthened in 1850.

The exact wording of the Fugitive Slave Clause is:

> 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 words "slave" and "slavery" are not used in this clause, similarly to other references to slavery in the Constitution. The framers consciously avoided the word, recognising that it would sully the document.

The Fugitive Slave Clause was controversial. Black communities in the North were directly affected, as the broad language of the clause enabled the kidnapping of free African Americans, who were then illegally enslaved. For example, Solomon Northup, a free man, was abducted in Washington, D.C., and enslaved in Louisiana for 12 years. This highlighted how the clause enabled systemic abuse.

In the 19th century, Northern resistance to the enforcement of the Fugitive Slave Clause increased, especially after the Fugitive Slave Act of 1850. Several Northern states enacted "personal liberty laws" to circumvent the clause and protect free Black residents from kidnapping.

Slave Trade Clause

The Slave Trade Clause, also known as the Importation of Persons Clause, is outlined in Article 1, Section 9, Clause 1 of the US Constitution. This clause is one of a handful of provisions in the original Constitution related to slavery, although it does not use the word "slave". Instead, it refers to the importation of persons.

The Slave Trade Clause prohibited the federal government from limiting the importation of "persons" (understood to mean primarily enslaved African persons) where existing state governments allowed it, for twenty years after the Constitution took effect. This was a compromise between Southern states, where slavery was pivotal to the economy, and states that had already abolished slavery or were contemplating doing so.

The clause was included because 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, Southern states like South Carolina and Georgia would refuse to join the Union.

The Slave Trade Clause was set to expire in 1808, and in 1800, an act of Congress made it illegal for Americans to engage in the slave trade between nations. The Act Prohibiting Importation of Slaves was passed in 1807 and took effect on January 1, 1808. This act imposed heavy penalties on international slave traders, but it did not end slavery or the domestic sale of slaves.

Although the Slave Trade Clause is no longer constitutionally relevant, it remains in the Constitution. Its inclusion has a continuing cultural and political constitutional relevance in the discourse of the morality and profitability of the international trade in human beings.

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Slave Insurrection Clause

The Slave Insurrection Clause, also known as the Slave Trade Clause, is one of the four clauses in the US Constitution that refer to slavery. The clause, found in Article I, Section 8, gives the chief executive the power and duty to suppress "riots or insurrections" to maintain law and order. While it is primarily concerned with slave insurrections, it can also be interpreted as a general statement about the powers of the executive.

The inclusion of this clause in the Constitution was a compromise between the Southern and Northern states, reflecting the divisive nature of slavery in the United States. The Southern states, where slavery was a crucial part of the economy, wanted to ensure that the federal government would not interfere with the slave trade, while the Northern states were moving towards abolition. As a result, the Constitution only obliquely referred to slavery and never used the word "slave" or "slavery". Instead, slaves were referred to as "persons held to Service or Labor" or "Persons".

The Slave Insurrection Clause was part of a larger compromise on slavery during the drafting of the Constitution in 1787. The Three-Fifths Clause in Article I, Section 2, for example, counted only three-fifths of a state's slave population for representation purposes, giving Southern states extra representation in the House of Representatives and the Electoral College. Additionally, Article I, Section 9, Clause 1, known as the Importation Clause, prohibited Congress from banning the importation of slaves for 20 years after the Constitution took effect.

The issue of slavery continued to be a source of tension between the states, leading to political crises and ultimately the American Civil War in 1861. In 1865, the Thirteenth Amendment was ratified, finally abolishing slavery in the United States. While the Slave Insurrection Clause and other slavery-related clauses in the Constitution may no longer be constitutionally relevant, they continue to spark debate and reflection on the moral and political legacy of slavery in the country's founding document.

The Constitution's avoidance of the word 'slave'

The US Constitution, drafted in 1787, was a document that laid the foundation for the world's most powerful democracy. However, it was also a product of its time, and the issue of slavery was a significant stain on its creation. The Constitution avoided using the word "slave", instead referring to slaves as persons. This was a conscious decision by the framers, who recognised that the word "slave" would sully the document and leave a permanent moral stain.

The avoidance of the word "slave" in the Constitution is evident in several key sections. Firstly, in Article 1, Section 9, Clause 1, which is known as the Slave Trade Clause or the Importation Clause, the Constitution prohibited Congress from banning the importation of "persons" for twenty years. This clause did not use the word "slave" but was understood to refer primarily to the importation of enslaved African persons. This was a compromise between the Southern states, where slavery was vital to the economy, and the Northern states, where abolition was gaining momentum.

Secondly, the Fugitive Slave Clause, found in Article 4, Section 2, Clause 3, refers to a "Person held to Service or Labor", again avoiding the use of the word "slave". This clause provided for the return of fugitive slaves from the North back to the South and was a highly controversial issue that contributed to the Civil War.

Thirdly, the Three-Fifths Clause in Article 1, Section 2, which was another compromise, stated that slaves would be counted as three-fifths of a person for representation and taxation purposes. While the word "slave" is not used directly in this clause, it was understood to refer to the slave population and gave extra representation to the Southern states.

The framers of the Constitution, many of whom owned slaves, had differing views on slavery. Some, like Luther Martin of Maryland, believed that the slave trade should be subject to federal regulation and was inconsistent with America's republican ideals. Others, like John Rutledge of South Carolina, forcefully argued that the regulation of the slave trade should be left to the states. While the framers may have had varying degrees of moral qualms about slavery, they ultimately chose to sidestep the issue in the Constitution, leaving the seeds for future conflict.

In conclusion, the US Constitution's avoidance of the word "slave" was a deliberate choice by its framers, who recognised the moral repugnance of slavery but were unable or unwilling to address it directly. This decision had far-reaching consequences and contributed to the divisive nature of slavery in American society, leading up to the Civil War.

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