Slavery's Omission: The Constitution's Unspoken Truth

The US Constitution, drafted in 1787, did not directly address slavery, despite it being a significant aspect of the country's economy and society. The word slave is notably absent from the document, and while certain provisions implicitly recognised slavery, such as the Three-Fifths Compromise and the Fugitive Slave Clause, the issue itself was sidestepped. This compromise, found in Article I, Section 2, Clause 3, allocated Congressional representation based on three-fifths of each state's enslaved population, giving extra representation to slave-holding states. The Fugitive Slave Clause, on the other hand, ensured that slaves who escaped to non-slavery states remained slaves and were to be returned to their owners. The framers of the Constitution believed that these concessions were necessary to gain the support of southern delegates, but their avoidance of directly addressing slavery laid the groundwork for future conflicts. It wasn't until the 13th Amendment, passed in 1865, that slavery was officially abolished in the United States, marking a pivotal moment in the country's history and a step towards addressing the crack in the foundation of the nation.

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The Three-Fifths Compromise

Slaveholding states wanted their entire population to be counted to determine the number of Representatives they could send to Congress. Free states, on the other hand, wanted to exclude the counting of slave populations in slave states, as 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. This gave slaveholding states disproportionate representation in the House of Representatives and the Electoral College.

The three-fifths ratio was proposed by James Madison and was first proposed to the Articles of Confederation on April 18, 1783. This amendment changed the basis for determining the wealth of each state, and hence its tax obligations, from real estate to population, as a measure of ability to produce wealth.

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. This clause requires a "Person held to Service or Labour" who flees to another state to be returned to their master in the state from which they escaped. The clause was created to address the issue of fugitive slaves and to ensure that slaveholders could reclaim their enslaved persons.

The Fugitive Slave Clause states:

> "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 explicitly mentioned in this clause, similar to other references in the Constitution that dealt with slavery. The clause instead refers to "Persons held to Service or Labour", which could include slaves, apprentices, or indentured servants.

The Fugitive Slave Clause was enacted to address the issue of fugitive slaves and to establish a process for returning them to their owners. It gave slave owners the right to retrieve their enslaved persons who had escaped and brought them to another state. The Supreme Court interpreted this clause as granting slave owners the same rights to seize and repossess their enslaved persons in another state as they had under the local laws of their own state. This interpretation also rendered state laws that penalised such seizures as unconstitutional.

The Fugitive Slave Clause was a highly controversial aspect of the Constitution, and its enforcement was met with increasing resistance, particularly in the Northern states. The broad language of the clause and its enforcement mechanisms enabled the kidnapping and illegal enslavement of free African Americans, as illustrated in the case of Solomon Northup, who was abducted in Washington, D.C., and enslaved in Louisiana for twelve years. This highlighted the systemic abuse enabled by the clause. Despite its constitutional authority, Northern states enacted "personal liberty laws" to protect their Black residents from kidnapping and provide procedural safeguards for accused fugitives. This resistance further polarised public opinion and led to legal challenges, such as in the case of Ableman v. Booth (1859), where the Supreme Court reinforced federal supremacy over state laws regarding fugitive slaves.

The Constitution's avoidance of the word 'slavery'

The Constitution of the United States of America, drafted in 1787, did not contain the words "slave" or "slavery". The document's framers consciously avoided using the word "slave", as they recognised that it would sully the document.

However, the Constitution did include several provisions that implicitly recognised slavery and protected the institution. One such provision was the Three-Fifths Compromise, which counted three-fifths of each state's slave population when apportioning representation. This gave Southern states, where slavery was a major component of the economy, extra representation in the House of Representatives and extra votes in the Electoral College. The Fugitive Slave Clause was another provision that protected slavery; it required the return of runaway slaves to their owners and asserted that slaves remained the property of their owners even if they fled to a non-slavery state.

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. By avoiding the issue of slavery, the framers sowed the seeds for future conflict.

The Constitution also included a provision that prohibited Congress from outlawing the Atlantic slave trade for 20 years after the Constitution took effect. This was a compromise between the Southern states, where slavery was pivotal to the economy, and the Northern states, where abolition had been accomplished or was contemplated. This provision, known as the Slave Trade Clause or the Importation of Persons Clause, did not explicitly mention slavery and referred to enslaved people as "persons".

The avoidance of the word "slavery" in the Constitution has been criticised. On the 200th anniversary of the ratification of the Constitution, Thurgood Marshall, the first African American to sit on the Supreme Court, said that the document was "defective from the start". He pointed out that the framers had left out a majority of Americans when they wrote the phrase, "We the People".

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The influence of Southern delegates

The founding fathers of the United States Constitution were aware of the immorality of slavery and the need for action. However, they were also conscious of the fact that slavery was a major component of the economy and society in the United States at the time. The Southern states, in particular, relied heavily on slavery as pivotal to their economy. As a result, the framers of the Constitution believed that concessions on slavery were necessary to gain the support of Southern delegates for a strong central government.

The Three-Fifths Compromise, also known as the Three-Fifths Clause, was one such concession. It provided that three-fifths of each state's enslaved population would be added to its free population for the purposes of representation in the House of Representatives and the Electoral College. This gave the South extra representation and votes, which they would not have had if the full population of slaves was counted. The Fugitive Slave Clause was another provision that protected slavery. It required the return of runaway slaves to their owners and asserted that slaves remained slaves even if they fled to a non-slavery state.

The framers of the Constitution also avoided using the words "slave" or "slavery" in the document, recognising that it would sully the document. Instead, they used terms like persons and importation of persons. This careful language continued in the Thirteenth Amendment, which abolished slavery but referred to "involuntary servitude" rather than using the word "slavery".

The influence of the Southern delegates can be seen in the Constitution's protection of slavery and the power it gave to the Southern states. The framers knew that slavery contradicted the natural rights and liberties promised in the Declaration of Independence, but they chose to prioritise the formation of a strong central government, even if it meant compromising on the issue of slavery. This left the seeds for future conflict, as the issue of slavery would continue to divide the nation and eventually lead to the Civil War.

The role of the Founding Fathers

The Founding Fathers' role in the US Constitution and slavery is a complex and contentious issue. On one hand, many of the Founding Fathers, including Thomas Jefferson, were slave owners themselves, and the Constitution did not explicitly abolish slavery or use the words "slave" or "slavery". Instead, it included provisions that implicitly recognised and protected slavery, such as the Three-Fifths Compromise and the Fugitive Slave Clause. The Founding Fathers also consciously avoided using the word "slave" in the Constitution, recognising that it would sully the document.

However, it is important to note that there were differing views among the Founding Fathers regarding slavery. Some, including Benjamin Franklin and Alexander Hamilton, became members of anti-slavery societies. During the Constitutional Convention, some Founding Fathers, such as James Madison, George Mason, and Gouverneur Morris, criticised slavery and expressed a desire for its eventual abolition. They recognised that slavery contradicted the natural rights and liberties promised in the Declaration of Independence. John Adams, for example, wrote that he had "through [his] whole life, held the practice of slavery in ... abhorrence."

The Founding Fathers were faced with a difficult task of balancing the ideals of liberty and equality with the economic and political realities of the time. Slavery was a major component of the economy and society in the United States, particularly in the Southern states. The Founding Fathers 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.

By sidestepping the issue of slavery and making compromises, the Founding Fathers hoped to maintain unity and stability in the young nation. However, their failure to directly address slavery in the Constitution laid the foundation for future conflicts, including the Civil War. It was not until the Thirteenth Amendment in 1865 that slavery was officially abolished in the United States.

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