For an analysis of how slavery was debated at the Convention and how the Constitution protected it, this chapter turns to the work of Paul Finkelman, one of the leading authorities on the topic. This material is adapted from his essay, “The Founders and Slavery: Little Ventured, Little Gained,” Yale Journal of Law and the Humanities 13 (2001): 413-39.

In the introduction here, Finkelman presents his argument that the founders protected slavery in the Constitution, while doing little to constrict it. He goes on to review evidence showing that at the time of the founding slavery was widespread and very profitable, rather than declining as many scholars have claimed.

Throughout this chapter references to the Constitution’s clauses are given using Arabic numerals, e.g. so that for the three-fifths clause, the simpler citation C1.2.3 is provided along with or instead of the longer “U.S. Constit., Article I, Section 2, clause 3.”

Although the Founders were successful in creating a republic based on democratic principles, in Lincoln’s words, “conceived in liberty and dedicated to the proposition that all men are created equal,” they failed to come to terms with the fundamental contradiction of slavery. Instead, in 1787, while remaking the national compact, the Southern delegates at Philadelphia demanded special political protection for slavery in the Constitution. Some Framers from the North–what would become the free states–were uncomfortable with slavery, and a few protested a bit at the demands of the friends of slavery. But in the end they gave the slave owners at the Convention virtually everything they asked for.

The success of the slave owners at the Convention was sweeping. Under the new Constitution, slaves would be counted for representation in Congress because of the three-fifths clause (C1.2.3), thus augmenting the South’s power in both the House of Representatives and the electoral college. The Constitution prohibited the free states from liberating fugitive slaves and instead, in the fugitive slave clause (C4.2.3), required that runaway slaves be “delivered up” on demand of the owner. The new national government promised to suppress slave rebellions or insurrections (C.4.4.). Although it empowered Congress to regulate international and domestic commerce in the commerce clause (C1.8.3), in the slave trade clause (C1.9.1) the Constitution prevented the national government from stopping the African slave trade or the domestic slave trade for at least twenty years. Most important of all, the Constitution created a government of limited powers and precluded the national government from ending slavery in the states where it existed. Rarely in American political history have the advocates of a special interest been so successful. Never has the cost of placating a special interest been so high.

Could the Framers have ended slavery while creating a unified, “more perfect Union”? Certainly not. No one at the Convention envisioned a national government with the power to regulate social institutions at the local level. Moreover, any suggestion that the national government might end slavery in the states where it existed would have been promptly voted down.

With the possible exceptions of a few Virginians, no Southerners at the Constitutional Convention would have supported an attack on slavery. Had the Northern majority at the Convention attempted to end slavery at the national level, most of the delegates from south of the Mason-Dixon line would have walked out. Rather than asking if the Framers should have tried to end slavery, we might ask the more practical question: could the Framers have done more than they did to constrict slavery, to slow down its growth, and to weaken its hold on America? The answer here is surely yes.

In at least two areas of the Constitution–the slave trade clause (C1.9.1) and the fugitive slave clause (C4.2.3)–the Framers protected slavery in ways that were unnecessary to create the national compact. In other parts of the Constitution too, the Framers protected slavery and missed opportunities to constrict slavery. That the Framers did not do more than they did–that they did in fact virtually nothing about slavery–is part of the tragedy of American history.

The Myth of a Dying Institution

We first must sweep away one of the persistent myths of U.S. history: that slavery was a dying institution at the time of the American Revolution. According to this myth, only after the invention of the cotton gin in 1793 by Eli Whitney was slavery once again profitable and able to survive as a viable economic institution.

Upon close examination, this thesis falls apart. Slavery was profitable throughout the colonial period and in the wake of the Revolution. Even in places we do not normally associate with slave labor, there was a great demand for slaves in this period. Slavery was still legal in New York at this time, and in New York City most middle-class families, especially among the Dutch, owned a few slaves who were used as domestic servants. In addition, slaves in New York were valuable as stevedores, porters, cartmen, and all manner of unskilled workers. Such demand was obviously not based on cotton.

In the deep South the demand for slaves was high throughout the eighteenth century, both before and after the invention of the cotton gin. The Southern Founders made it clear that they expected slavery to survive for the long term. Virginia planters fully understood that their slaves were more valuable than their land. Rents for slaves ran from seven to ten dollars for a month and from fifty to one hundred dollars per year. Annual rent for a “respectable house” in Virginia ran from $115 to $230 a year. In the 1790s, young, healthy, adult male slaves in Virginia sold for about $400, while average slave prices were about $300, about the same as a town lot in Norfolk. Virginians in the period before the cotton gin invested in slaves because to do so made good economic sense, allowing them to make money from their labor, their rent, or their natural increase. Their investments show they did not expect slavery to end anytime soon.

The delegates from the deep South, especially South Carolina, did not want the national government to have any power over the slave trade. They feared a national commerce power would be used to abolish the trade, which they knew was unpopular in the North. Virginians who generally supported slavery at the Convention were also hostile to the trade, mostly because they had a surplus of slaves at the time, and expected to make great profits selling their excess slaves further south.

Charles Pinckney of South Carolina asserted that “if slavery be wrong, it is justified by the example of all the world.” Citing “the case of Greece Rome & other ancient States,” and “the sanction given by France, England, Holland & other modern States,” Pinckney argued that “in all ages one half of mankind have been slaves.” This was hardly the voice of someone expecting abolition. In the mid-nineteenth century such arguments would form what historians call the “positive good” defense of slavery.

At the time the Americans declared their independence, slavery was legal in all thirteen states. Even in places where slaves were not central to the economy-like Massachusetts-they were valuable property. In New York slavery was an important institution. In 1771 slaves made up over fourteen percent of the population New York City, over twenty percent of the population in Richmond and Queens Counties, and about a third of the population of Kings County (Brooklyn). On the eve of the Revolution, slave populations in New England varied from slightly over one percent in New Hampshire to over six percent in Rhode Island. When the Revolution began, Pennsylvania had about 5500 slaves, New Jersey had about 15,000, and New York had nearly 20,000. Slaves were, of course, far more numerous in the South, making up about forty percent of the Virginia population and about forty-five percent in South Carolina.

During the Revolution some of the Northern states began to end slavery. Massachusetts abolished slavery outright in its constitution of 1780. New Hampshire also ended slavery in its first constitution in 1784. In 1780, Pennsylvania passed a gradual emancipation statute that did not free anyone already in slavery, but provided that the children of all slaves would be born free, subject to an indenture. As the existing slaves in the state died, no new ones would replace them, and the institution itself would soon die. Rhode Island and Connecticut passed similar laws in 1784. This movement toward freedom continued after the adoption of the Constitution as well. In 1799 New York adopted a gradual emancipation statute, as did New Jersey in 1804. Thus, when we look at the Revolutionary era as a whole, we see that some of the Founders did in fact confront slavery and, where it was in their power, destroy it.

South of New Jersey the Founders did little about slavery. As chair of a committee to revise the laws of Virginia, Thomas Jefferson prevented a gradual emancipation proposal from ever reaching the floor. The best Virginians could come up with was a 1782 law permitting masters voluntarily to free their slaves and allowing manumitted adult slaves to remain in the state. Some 20,000 slaves gained their freedom before this law was altered in 1806. This illustrates the discomfort over slavery felt by some Virginians, including George Washington, who took advantage of the law to free his slaves in his will. But these manumissions hardly made a dent in Virginia’s huge slave population.

Thus, the delegates who met in Philadelphia in 1787 represented, for the most part, a slaveholding nation. Only Massachusetts and New Hampshire had banned the institution outright and only Pennsylvania, Connecticut, and Rhode Island (which sent no delegates to the Convention) had passed gradual emancipation statutes. Opposition to slavery was growing in New York and New Jersey, although the institution was still legal in both places. The rest of the nation was committed to slavery.

The Constitution of 1787 was made for a nation that was partially a slaveholder’s republic. Thus, it is not surprising that slavery was protected by the Constitution. But as I will argue below, the Framers could have done a better a job of constricting the institution.