Slavery In The Constitution: A Historical Perspective

The original US Constitution, which came into effect in 1776, did not expressly mention slavery or slave. However, it included several provisions that implicitly recognised and protected the institution of slavery. One of the most notable examples is the Three-Fifths Compromise, which counted three-fifths of each state's enslaved population for the purposes of allocating taxes and representation in the House of Representatives. This gave Southern states, where slavery was prevalent, extra representation in Congress and more votes in the Electoral College. While some members of the Constitutional Convention objected to slavery on moral grounds, others believed that concessions on slavery were necessary to secure support for a strong central government. This compromise laid the foundation for future conflicts over slavery, which would eventually lead to the Civil War and the passage of the 13th Amendment in 1865, which formally abolished slavery in the United States.

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The Three-Fifths Compromise

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, given that 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 North.

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 required that a "Person held to Service or Labour" who flees to another state be returned to their master in the state from which they escaped. The clause was the outcome of discussions and negotiations between Northern and Southern delegates in the late 18th century, when many Northern states did not allow slavery, while it was commonplace in the American South.

The clause was first proposed by Pierce Butler and Charles Pinckney of South Carolina, who moved to require "fugitive slaves and servants to be delivered up like criminals". James Wilson and Roger Sherman objected, with Sherman arguing that there was no more propriety in the public seizing and surrendering a slave or servant than a horse. The proposal was withdrawn, and a separate fugitive clause was created and placed under the original extradition clause in the Committee of Style Report. This clause, which did not mention the word "slave", formed the basis for the Fugitive Slave Act of 1793, which gave slaveholders the right to capture enslaved persons who ran away.

The Fugitive Slave Clause has been the subject of much debate among legal scholars, who argue that its vague wording was either a political compromise that avoided overtly validating slavery at the federal level, or that it functionally entrenched slaveholder power. Historian Donald Fehrenbacher believes that the Constitution intended to make it clear that slavery existed only under state law, not federal law. This is reflected in the last-minute change from "legally held to service or labour in one state" to "held to service or labour in one state, under the laws thereof".

The Fugitive Slave Clause was effectively nullified by the Thirteenth Amendment to the United States Constitution, which abolished slavery "except as a punishment for crime". However, it is worth noting that even after the Civil War and the ratification of the Thirteenth Amendment, people could still be held to service or labour under limited circumstances.

Abolitionist criticism

The original US Constitution, written in 1787, did not expressly use the words "slave" or "slavery". However, it included several provisions that protected the institution of slavery. The Three-Fifths Compromise, for instance, allocated congressional representation based on the number of "free Persons" and "three-fifths of all other Persons". This clause gave southern states with large enslaved populations greater representation in the House of Representatives and the Electoral College. The Fugitive Slave Clause, meanwhile, stated that slaves who escaped to another state remained slaves and were not freed by their escape.

The Constitution's protection of slavery has been a source of criticism, with some arguing that it was a pro-slavery document. Abolitionist William Lloyd Garrison, for example, burned the document in 1854, calling it "a covenant with death and an agreement with Hell". Thurgood Marshall, the first African American to sit on the Supreme Court, also criticised the Constitution, stating that it was "defective from the start" as it left out a majority of Americans with the phrase "We the People".

While the Constitution did include protections for slavery, it is important to note that there were also those who criticised the institution during the Constitutional Convention. James Madison, often referred to as the "Father of the Constitution", attacked slavery early in the Convention, stating that it was a form of "oppressive dominion ever exercised by man over man". Another Virginian, George Mason, who owned hundreds of slaves, also spoke out against slavery, fearing that it would bring "the judgment of heaven on a country".

The Constitution's failure to address slavery directly and its inclusion of protections for the institution have been criticised as a moral failing and a contradiction of the natural rights and liberties it claimed to protect. The compromise on slavery also set the stage for future conflict between the northern and southern states, as the issue of slavery became a dividing line. Ultimately, it took a Civil War and constitutional amendments, namely the 13th Amendment, to abolish slavery in the United States.

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The Civil War

The original US Constitution, written in 1787, did not expressly use the words "slave" or "slavery". However, it included several provisions that implicitly recognised and protected the institution of slavery. The Three-Fifths Compromise, for instance, allocated Congressional representation based on the number of free persons and "three-fifths of all other persons", thereby giving southern states with large slave populations greater political power. The Fugitive Slave Clause, meanwhile, stated that slaves who escaped to another state remained slaves and were to be returned to their owners.

The Constitution's protection of slavery was a compromise to gain the support of southern delegates for a strong central government. Many of the framers of the Constitution had moral qualms about slavery, but they believed that if the Constitution restricted the slave trade, some states would refuse to join the Union. This compromise, however, laid the foundation for future conflict. As Thurgood Marshall, the first African American to sit on the Supreme Court, said on the 200th anniversary of the ratification of the US Constitution: "The framers [...] consented to a document which laid a foundation for the tragic events which were to follow."

The issue of slavery was a significant factor in the growing sectionalism between the northern and southern states, which eventually led to the Civil War. In the midst of the war, on September 22, 1862, President Abraham Lincoln issued the Emancipation Proclamation, which declared that all persons held as slaves in the secessionist Southern states were free. However, the proclamation did not end slavery across the nation as it only applied to areas of the Confederacy in rebellion. Lincoln recognised that a constitutional amendment was needed to guarantee the abolishment of slavery.

The 13th Amendment, passed at the end of the Civil War, abolished slavery in the United States and its territories. It stated that "neither slavery nor involuntary servitude, except as a punishment for crime [...] shall exist within the United States, or any place subject to their jurisdiction." The amendment was passed by Congress on January 31, 1865, and ratified on December 6, 1865. With this amendment, the United States found a final constitutional solution to the issue of slavery.

The 13th Amendment

From its inception in 1776, the United States was divided into states that allowed slavery and states that prohibited it. Slavery was implicitly recognised in the original Constitution in provisions such as the Three-Fifths Compromise (Article I, Section 2, Clause 3), which provided that three-fifths of each state's enslaved population ("other persons") was to be added to its free population for the purposes of apportioning seats in the United States House of Representatives, its number of Electoral votes, and direct taxes among the states. The Fugitive Slave Clause (Article IV, Section 2, Clause 3) provided that slaves held under the laws of one state who escaped to another state did not become free, but remained slaves.

> "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."

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