Continued from Finkelman. In this section he begins by explaining why, although the Constitution strongly protected the institution of slavery, it does not use the words “slave” or “slavery.” He then goes on to analyze the five main clauses of the Constitution that directly protected slavery.

The Terms Used Instead of “Slaves” and “Slavery”

The word “slavery” does not appear anywhere in the Constitution until the Thirteenth Amendment (in 1865), which declares that slavery is abolished. Someone unfamiliar with our history reading the Constitution for the first time might wonder why the Constitution abolished an institution that is, at first reading, not present in the Constitution. A careful reading, however, reveals that slavery was deeply rooted in the document. Similarly, a careful examination of the Convention debates shows that the delegates fully understood they were protecting slavery.

Throughout the Convention the delegates talked about slavery. Usually they used the term “slave,” but sometimes they talked about “Negroes” or “blacks.” They made no distinction between the growing free black population of the United States and the slave population. Indeed, they were usually oblivious to the fact that there were free blacks in the country. But when the Constitution was written, the delegates used euphemistic language referring to slaves as “other Persons,” “such Persons,” or “Person[s] held to Service or Labor.”

Why did the Framers use such obscure language? During the debates, William Paterson of New Jersey pointed out that the Congress under the Articles of Confederation “had been ashamed to use the term ‘slaves’ and had substituted a description.” This shame over the word “slave” came up at the Convention during the debate over the international slave trade. The delegates from the Carolinas and Georgia vigorously demanded that the trade remain open under the new Constitution. Gouverneur Morris of Pennsylvania, unable to contain his anger over this immoral compromise, suggested that the proposed clause read as follows: the “Importation of slaves into N. Carolina, S. Carolina & Georgia” shall not be prohibited. Connecticut’s Roger Sherman, who voted with the deep South to allow the trade, objected not only to the singling out of specific states but also to the term “slave.” He declared he “liked a description better than the terms proposed, which had been declined by the old Congress and were not pleasing to some people.”

In the North Carolina ratifying convention, James Iredell, who had been a delegate in Philadelphia, explained that “the word slave is not mentioned” because “the northern delegates, owing to their particular scruples on the subject of slavery, did not choose the word slave to be mentioned.” Thus, Southerners avoided the term because they did not want to antagonize their colleagues from the North. As long as they were assured of protection for their institution, the Southerners at the Convention were content to do without the word “slave.”

Delegates from Connecticut and Massachusetts were especially afraid that if slavery were explicitly mentioned in the Constitution it would not be ratified in the North. Members of the Connecticut delegation in particular made this point. While we do not have the full text of Roger Sherman’s speech on this question, it is clear that his goal was to fool his constituents, to prevent them from seeing words that “were not pleasing to some people.”

The Five Clauses that Directly Protected Slavery

Despite the Framer’s obfuscation, the Constitution explicitly recognizes slavery in five places and contains numerous other clauses that were mostly or partially designed with slavery in mind. The five explicit recognitions of slavery were the following: 1) the three-fifths clause (C1.2.3); 2) the slave trade clause (C1.9.1); 3) the capitation tax clause (C1.9.4); 4) the fugitive slave clause (C4.2.3); 5) and Article V, which prevented any amendment of the slave trade provision.

The Three-Fifths Compromise

The most obvious slavery-related provision is the three-fifths clause (C1.2.3), which provides for seats in the House of Representatives to be allocated among the states by adding to the entire population of free people (excluding tribal Indians) “three-fifths of all other persons.” The “other persons” are slaves. Everyone at the time understood this, as the debates at the Convention and over ratification make clear.

At the onset it is worth noting that the three-fifths clause was based on status, not race. A persistent myth of American Constitutional history is that the Constitution declared all blacks to be three-fifths of a person. Whatever else the Framers can be blamed for, this was not a position they took. Under the Constitution free blacks counted as whole persons for purposes of representation.

The extra representatives that the South gained by counting slaves mattered a good deal. Throughout the period from 1789 until the Civil War, the three-fifths clause gave the South important political leverage in Congress. The three-fifths clause also affected the make-up of the Electoral College (C2.1.2), and thus gave the South a disproportionate power in electing the President.

The three-fifths clause also provided that if the national government ever levied “direct taxes,” they too would be “apportioned among the several states” according to population, using the three-fifths rule for allocating these taxes to the slave states. But in fact direct taxes were unlikely ever to be levied, as Gouverneur Morris, for example, recognized. Thus, he complained that the South would get extra representation in Congress for its slaves and have to pay nothing in return. The South would not have accepted population-based representation without somehow counting slaves. Northerners understood this.

The history of the Convention shows that the three-fifths clause was applied to representation on June 11, but the Convention did not apply it to taxation until July 12. James Wilson suggested this connection, not as a fair bargain over competing regional interests, but more as a subterfuge, to placate Northerners who opposed any representatives for slaves. Thus, Wilson observed that,

less umbrage would perhaps be taken against an admission of slaves into the rule of representation, if it should be so expressed as to make them indirectly only an ingredient in the rule, by saying that they should enter into the rule of taxation: and as representation was to be according to taxation, the end would be equally attained.

The North conceded representation based on slaves without any demand for some concession from the South. The application of the three-fifths clause to taxation came later, as a “selling point” for gaining Northern support for the Constitution.

The delegates from Pennsylvania, Massachusetts, and New Jersey, who were most unhappy about counting slaves for representation, might have pushed for a fifty-percent ratio as a compromise. Such a change might have made a huge difference in the nation’s subsequent political development. Moving from three-fifths to fifty percent, or even two-fifths, might have been possible.

Even the Southerners knew there was something odd about counting slaves to determine representation in a nation of free people. After all, no Southern state counted slaves for purposes of representation in its legislature. As William Paterson, himself the owner of a few slaves in New Jersey, noted in one debate: “Slaves [are seen] in no light but as property. They are no free agents, have no personal liberty…, but on the contrary are themselves property.” Paterson pointedly noted that slaves were not counted in allocating representation in Southern state legislatures, and asked, “Why should they be represented in the general government?” Similarly, in opposing the clause, Gouverneur Morris of Pennsylvania argued that counting slaves for representation,

when fairly explained comes to this: that the inhabitant of Georgia and South Carolina who goes to the coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections and damns them to the most cruel bondages, shall have more votes in a government instituted for protection of the rights of mankind, than the citizen of Pennsylvania or New Jersey who views with a laudable horror so nefarious a practice.

Given such sentiments, the Northern delegates might have argued for a better ratio. They did not.

The Capitation Tax

Since before the Revolution, the terms “direct taxes” and “indirect taxes” had been in the American lexicon, yet no one seemed to have a precise definition of what they meant. In the Convention debates, Mr. King asked, “what was the precise meaning of direct taxation?” No one answered. Perhaps because of this imprecision, the delegates added a second clause, tied to taxation (C1.9.4). Known as the “capitation tax clause,” its meaning is at least somewhat more precise: “No Capitation, or other direct tax shall be laid, unless in proportion to the Census or enumeration herein before directed to be taken.” This clause gives us one concrete example of what a direct tax was. Such a tax, of course, would never be implemented. At least until the Civil War changed everything about American constitutionalism, Gouverneur Morris was correct when observed that it was “idle to suppose that the General Government can stretch its hand directly into the pockets of the people scattered over so vast a Country.”

The Slave Trade Compromise

The second clause obviously dealing with slavery was the “migration and importation,” or slave trade clause, which prevented Congress from prohibiting the African slave trade before 1808 (C1.9.1). Most modern scholars have assumed that this regulation was a foregone conclusion. But such an assumption is unwarranted, because almost everyone at the Convention believed that the South was growing faster than the North and would continue to do so. Charles Cotesworth Pinckney made a strong economic argument in support of the slave trade, asserting that continuing it “would be for the interest of the whole Union.” At the Convention, sharp “Yankee traders,” like Oliver Ellsworth of Connecticut, had concurred, asserting that “what enriches a part enriches the whole.” He had refused to debate the “morality or wisdom of slavery.”

The passage of the law in 1807 that banned the slave trade in 1808 was not in fact the fulfillment of the expectations of the Framers. On the contrary, it happened because almost all of South Carolina’s calculations and the other delegates’ expectations turned out to be wrong: The North grew faster than the South; the agrarian West (on both sides of the Ohio River) did not support the slave trade; and the New England states discovered that their enrichment did not depend on greater importations of slaves. Thus, contrary to all expectations held in 1787, by 1808 the deep South was too weak to prevent an abolition of the trade.

The South Carolina delegates were the most adamant supporters of slavery at the Convention, and some of the largest slaveowners in the nation. Shrewdly, the South Carolina delegates equated a general commerce power, i.e., the commerce clause (C1.8.3), with an attack on the slave trade, and managed to get the Convention to protect the trade explicitly, rather than simply not to ban it.

The Fugitive Slave Provision

On August 29, after the adoption of the commerce clause (C1.8.3), Pierce Butler (SC) introduced what became the fugitive slave clause (C4.2.3), which prohibited the free states from emancipating any fugitive slaves who reached their borders. Instead, fugitive slaves were to be “delivered up” on the claim of an owner. The Convention adopted this provision without debate or recorded vote.

This might be called the “stealth” provision of the Constitution. Late in the Convention the South Carolina delegation asked for the provision, and, with no quid pro quo from the North, they gained it. I have been unable to find any discussion of this clause in the North during the ratification struggle. Northern Anti-Federalists attacked the slave trade clause and the three-fifths clause, and they complained about the militia provisions (C1.8.15; C4.4), which would require them to suppress slave rebellions. But the Fugitive Slave Clause, buried in Article IV with obscure, complicated language, fooled the North, and thus Northerners ignored it throughout the ratification process.

Southern Federalists, on the other hand, were thrilled with the clause. As General Charles Cotesworth Pinckney (SC) told his state legislature, “We have obtained a right to recover our slaves in whatever part of America they may take refuge, which is a right we had not before.” In Virginia, James Madison bragged:

Another clause secures us that property which we now possess. At present, if any slave elopes to any of those states where slaves are free, he becomes emancipated by their laws; for the laws of the states are uncharitable to one another in this respect. But in this Constitution … [the fugitive slave] clause was expressly inserted, to enable owners of slaves to reclaim them.

As Madison concluded: “This is a better security than any that now exists.” The fugitive slave clause was an unnecessary gift to slavery.