Continued from Finkelman. In this section he discusses the Constitution’s three “indirect” protections for slavery. In a brief conclusion he argues that the limited ability of the federal government to intervene in the states’ “domestic” arrangements was the greatest protection of all for slavery.

The Indirect Protections of Slavery

Constitutional provisions dealing with three separate issues–domestic insurrections, export taxes, and the electoral college-stand out as examples of how the Framers protected slavery throughout the Convention.

Domestic Insurrections

The domestic insurrections clause (C1.8.15) empowers Congress to call “forth the militia” to “suppress insurrections,” including slave rebellions. Similarly, the guarantee of republican government clause (C4.4) provides that the United States government should protect states from “domestic violence,” including slave rebellions. These clauses were not solely in the Constitution to protect slavery, but this was certainly one of their purposes. The Southern delegates understood them as such and heartily approved of them. Analogously, some Northern Anti-Federalists were appalled at them.

The domestic insurrections clause was probably among the most important and most reasonable parts of the new Constitution. With the memory of Shays’s Rebellion fresh in their minds, Northerners as well as Southerners thought the national government should protect against domestic violence. Nevertheless, during the ratification debates a few Northerners were uncomfortable about using their military might to protect slavery.

Export Taxes

The Constitution contained two prohibitions on export taxes. The first, C1.9.5, applied to the federal government, and the second, C1.10.2, applied to the states. When looking for examples of how slavery shaped the Constitution, most readers of the Constitution today overlook the prohibition on the taxing of exports. But at the time of the founding most American exports were commodities produced by slave labor, especially tobacco and rice. At the Convention most Southerners made it clear that a prohibition on export taxes was essential to their participation in the stronger union.

Without such a ban Southerners feared the federal government could indirectly tax slavery and in some way harm the institution. On July 23 General Charles Cotesworth Pinckney “reminded the Convention that if the Committee should fail to insert some security to the Southern states against an emancipation of slaves, and taxes on exports, he should be bound by duty to his state to vote against their report.”

The Electoral College

The Electoral College was of course based in part on the three-fifths clause and thus was directly connected with slavery. At first glance this might seem coincidental, and most textbooks, in fact, offer other explanations for the creation of the Electoral College (C2.1.2). But the records of the Convention show that in fact the connection between slavery and the College was deliberate.

Initially, the Convention agreed that the President was to be elected by the Congress and to serve for seven years. Some delegates wanted a single term for the President, but a majority of the delegates ultimately opposed term limits. But there was another problem, identified clearly by Elbridge Gerry: if the legislature were to choose the President, this would destroy the separation of powers that the delegates wanted to build into the new Constitution.

On July 19, 1787, Oliver Ellsworth of Connecticut proposed “electors” appointed by the state legislatures. Under Ellsworth’s plan these would be apportioned on the basis of population. James Madison, a slaveholder from Virginia, argued that although “the people at large” were “the fittest” to choose the President, the “right of suffrage was much more diffusive in the Northern than the Southern states; and the latter could have no influence in the election on the score of the Negroes.” Hugh Williamson of North Carolina was more open about the reasons for Southern opposition to a popular election of the President. He noted that under a direct election of the President, Virginia would not be able to elect her leaders President because “her slaves will have no suffrage.” The same of course would be true for the rest of the South.

The Convention quickly moved to accept the idea of an Electoral College, following the lead of Ellsworth, from the North, and Madison and Williamson, from the South. This sectional balance is revealing. Ellsworth almost always voted with the South on slavery-related matters, and the agreement here seems part of the same New England/deep South coalition that led to the slave trade clause. The Convention decided to tie presidential electors to representation in Congress. By this time the Convention had already agreed to count slaves for representation under the three-fifths compromise. In a presidential election, the political power Southerners gained from owning slaves would be factored into the electoral votes of each state.

The truth of Williamson’s observation about the need of the South to have its slaves counted in choosing the President becomes clear when we examine the election of 1800 between John Adams, who never owned a slave, and Thomas Jefferson, who owned about two hundred at the time. The election was very close, and if Jefferson had received no electoral votes based on counting slaves under the three-fifths clause, John Adams would have won.

The Ultimate Protection of Slavery

The Constitution of 1787 created a government of limited powers. As General Charles Cotesworth Pinckney of South Carolina told his state’s House of Representatives:

We have a security that the general government can never emancipate them, for no such authority is granted and it is admitted, on all hands, that the general government has no powers but what are expressly granted by the Constitution, and that all rights not expressed were reserved by the several states.

Thus the Constitution as written prevented any federal attack on slavery. To change this would require an amendment. But the amendment provision of the Constitution (C5) could never have been used against slavery as long as the South remained in the Union.

A constitutional amendment requires ratification by three-fourths of the states. Thus, had there been no secession in 1861, and had the fifteen slave states existing in 1860 continued to exist today as slave states, we could to this day not abolish slavery through a constitutional amendment. Assuming that the slave states continued to vote as a block to protect their institution, it would take a union of sixty states, with forty-five free states to outvote the fifteen slave states.

The Constitution provided enormous protections for the peculiar institution of the South at very little cost to that region. General Charles Cotesworth Pinckney, who had been one of the most articulate defenders of slavery at the Convention, proudly told the South Carolina House of Representatives: “In short, considering all circumstances, we have made the best terms  for  the security of this species of property it was in our power to make. We would have made better if we could; but on the whole, I do not think them bad.”