Slavery and the U.S. Constitution
Monica R. Gisolfi
Time period: 1787
James Madison (1751–1836), who is considered one of the main figures behind the U.S. Constitution, maintained that slavery formed the "line of discrimination" at the Constitutional Convention in 1787. To ensure ratification of a U.S. constitution, northern and southern delegates reached a number of compromises that, according to Professor Eric Foner, "left the institution [of slavery] more deeply embedded than ever in American life." The slave-trade clause permitted the continued importation of slaves until at least 1808, a provision that many condemned. The fugitive-slave clause protected slavery even in free states: If a slave escaped to a free state, his status remained that of a slave. In 1850, the Fugitive Slave Law even required the capture and return of runaway slaves by citizens of the North.
In addition, under the three-fifths clause of the Constitution, each slave—who had no legal rights as a person—counted as three-fifths of a free person when determining the basis for congressional representation and direct taxation. As a result, the South gained an advantage in the House of Representatives and the Electoral College. Professor Foner concludes his lecture by noting, "The contradiction between American freedom and American slavery survived the Revolution and became increasingly intense as the nineteenth century progressed." The Constitution failed to resolve this contradiction; indeed, it protected the liberty and property rights of slaveholders while ambiguously regarding slaves as both property and persons.
Suggested Teaching Activity
This exercise serves two purposes. First, it familiarizes your students with the clauses in the Constitution that pertain to slavery. Second, it asks the students to wrestle with the contradiction between American slavery and American freedom. In the process of debating the meaning of several constitutional clauses, the students will understand who "we the people" included and excluded, and whose civil liberties the Constitution protected.
Divide your students into groups of three to four each. Ask them to read the three slavery clauses and the preamble to the Constitution. They may consult their textbook for added information on the Constitutional Convention. In their groups, the students should answer the questions that follow. Ask one student in each group to take notes on the group's discussion and to record the answers of the students in that group.
1. How did the three-fifths clause increase the political power of the South? Ask students to give a scenario or to visually represent what exactly the three-fifths clause meant and how it increased the political power of the South.
2. How did the slave-trade clause indirectly increase the political power of the South?
3. How did the fugitive-slave clause make slavery a national institution, one that was recognized and protected even in non-slave states?
4. How did each of the slavery clauses strengthen the institution of slavery?
5. Who did "we the people" include and exclude? In what sense did the Constitution protect slaveholders' right to property in slaves?
6. Why is the word "slavery" not used in the Constitution? What does this indicate about the way the framers viewed slavery?
After your students have considered the clauses in their groups, bring the class back together to draw some conclusions. Ask them to consider the meaning of "we the people" and to consider what definition of freedom the Constitution espoused at ratification. Professor Foner returns to the definition of freedom in the conclusion of his lecture. He notes that "the era of the American Revolution bequeathed a divided legacy to nineteenth-century America. Contradictory concepts of freedom emerged from the Revolution—freedom as the right to enjoy the possession of property, including slave property, unmolested by government, and freedom as a universal entitlement that applied to all mankind, including slaves." Which concept of freedom did the Constitution provide for?
Readings from the U.S. Constitution
The three constitutional clauses dealing with slavery in the original U.S. Constitution are as follows. Note that the italicized text is no longer in effect.
Article I, Section 2, Clause 3, of the original U.S. Constitution contained the three-fifths clause.
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three-fifths of all other Persons. . . .
Article I, Section 9, Clause 1, of the original U.S. Constitution prohibited Congress from ending the slave trade before 1808.
The migration or importation of such persons as any of the States now existing shall think proper to admit shall not be prohibited by the Congress prior to the year 1808; but a tax or duty may be imposed on such importation, not exceeding $10 for each person. .
Article IV, Section 2, Clause 3, of the original U.S. Constitution contained the fugitive-slave clause. It is no longer in effect:
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 Labor may be due. . . .