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Race in Constitutional Convention


For decades, scholars have debated whether the U.S. Constitution was not only a compromise on the institution of bondage, but actually a pro-slavery document. Ironically, both nineteenth-century abolitionists and their southern opponents argued that it was, though of course they made diametrically opposed conclusions from that consensus. The Constitution did ensure continuation of the African slave trade for at least another twenty years, it included a fugitive clause to return escaped slaves to their masters if they fled to free states, and notoriously ensured southern influence and power in national government with the three-fifths compromise.

Historian Don Fehrenbacher, among others, countered this interpretation by contending that the framers had not intended to make slavery a national institution supported by the Union's fundamental law. These supporters of the Constitution-as-anti-slavery argument usually interpret slavery as a necessary evil that had to be compromised upon in order for the Convention to succeed and the Constitution to be adopted. They point to the text of the Constitution, in which the Founders avoided the contentious terms "slave" or "slavery" altogether by euphemistically referring to slaves as "all other persons." Over time, Fehrenbacher said, the federal government adopted the position that slavery was a national institution fully protected by the Constitution, but many contemporary Americans disagreed and their dissent fueled the sectionalism that led, in the end, to Civil War.

The Dehumanizing Fraction: Three-Fifths

The three-fifths compromise of Article I, Section 2 was the Constitution's most controversial slavery-related clause. It read that "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." In other words, the number of representatives from each state would be determined by its total white (and assimilated Indian) population, plus three-fifths of its total slave population. When a slaveowner's property was assessed for taxes, the government counted three-fifths of his slaves in calculating his total assets.

Many northerners thought slaves who couldn't vote shouldn't count at all; southerners wanted them to count as whole people, although that was a pretty bold argument for them to make, since they simultaneously contended that their slaves were their property, equivalent to a plow, a mule, or a house. How could a human being be property at all, let alone the dual embodiment of property and population? Then again, white women could not vote either, but they too were counted for purposes of establishing representation—even if they did not have to undergo the horrors and violations of being considered "property." The delegates never really dwelled on such questions. Instead they struck a bargain between the northern desire to tax the slaveowners for their property, and the southern demand for increased representation since slaves composed such a substantial portion of their population. The basic structure of the three-fifths compromise had already been proposed in the Confederation Congress in an amendment that would make population the basis for fiscal requisitions, instead of land values. The three-fifths ratio was thus adopted into the Constitution as the means of apportioning representatives and direct taxes.

At the time, the three-fifths formula was not very controversial. A few brave delegates, such as Gouverneur Morris of Pennsylvania, George Mason of Virginia, and Rufus King of Massachusetts all attempted to condemn the "nefarious institution" as a glaring anomaly within a republic. Prominent delegates Benjamin Franklin and Benjamin Rush, members of the Pennsylvania convention that ratified the U.S. Constitution, were both members of the Pennsylvania Abolition Society. But most others attempted to avoid the issue and thwart any debate over it.

Most founding fathers believed that slavery would eventually die out. Thomas Jefferson claimed that in Virginia, "nearly the whole of the young men" were won over to the emancipation cause "as fast as they come into public life."12 Tragically, the founders failed to anticipate the advent of the cotton gin in 1793, which rapidly revolutionized the industry and made it more efficient, lucrative, and widespread. Even as the founders assembled in Philadelphia in 1787, historian David Brion Davis has found evidence that demand for slaves and the number of slaveholders was actually increasing steadily, "even in Virginia."13

Perhaps even more tragically, the founders left what they admitted to be a deplorable institution for another generation to deal with, rather than taking the albeit difficult but feasible action against slavery when they had the chance. Jefferson openly deplored slavery "as the most unremitting despotism" and warned that "Our children see this, and learn to imitate it"; and yet continued to profit from his own slaves all his life.14 As historian David Brion Davis has noted, Jefferson "gave no public sanction or moral encouragement" to the young generation of emancipators whom he claimed would resolve the slavery contradiction for America one day. "Instead," Davis writes, Jefferson's "icy caution provided a precedent and model for the younger generation of politicians both from both North and South who would attack every effort to discuss the slavery question as a reckless tampering with the 'seals' which Jefferson and the other Founders had 'wisely placed' on the nation's most incendiary issue."15 Such men conveniently convinced themselves that the problem would solve itself in time, but they seldom if ever considered the alternative scenario: Civil War.16

This compromise was devastating for the slaves it addressed, though not by name. Some have argued that the compromise implicitly recognized the humanity of slaves that set them apart from other forms of property. Others have countered that the clause only recognized a fraction of their humanity, thereby dehumanizing them all the more, and that the fraction it did recognize not only gave them no rights or liberties but actually worked to further their masters' political influence, the stability of the institution, and therefore their status as chattel. Clearly this posed a central contradiction, but it remained unresolved until ratification of the Thirteenth Amendment in 1865, which nullified the three-fifths clause.

At its core, the Constitution was a series of compromises, and while this would normally constitute a somewhat bland observation, Northern willingness to compromise on the issue of slavery became the subject of considerable controversy in the decades that followed. This controversy has extended through to the present day, as when historian Gary Nash (in the book Race and Revolution) laid equal blame on the North for having compromised on slavery in 1787 and-by extension-for sharing an equal share of culpability in bringing about the Civil War less than a century later. Other colonial historians like Jack Greene might argue that slavery was integral to American life, rather than a great anomaly. This interpretation depends on your point of view, and some might frame it as the difference between reading early America through its ideals (a representative government, a meritocracy free from hereditary rank or privilege, and a country couched in liberty whose founders recognized slavery's immoral nature and its contradiction with their principles) and its realities (the country began with its own rank of elites, times were just as tough if not tougher for the poor and middling farmers, not everyone could vote and even those who could only directly elected their delegates to the House of Representatives, and slavery was a growing and extremely lucrative institution throughout much of the country).


Historians have noted that these compromises on slavery had serious effects on the nation. The fugitive slave clause (enforced through legislation passed in 1793 and 1850) allowed slaves that escaped into the North to be chased down and returned to their masters, even inside states that themselves had banned slavery. The fugitive slave clause also became the excuse for the illegal kidnapping and return to slavery of thousands of free blacks. The three-fifths compromise increased the South's representation in Congress and the electoral college but barely cost the South anything in direct taxes, since the federal government only levied them four times between 1789 and 1860.

As historian Leonard Richards has explained, as a result of the three-fifths compromise, the Deep South was rewarded for enslaving "even more Africans" and "the slave states always had one-third more seats in Congress than their free population warranted-forty-seven seats instead of thirty-three in 1793, seventy-six instead of fifty-nine in 1812, and ninety-eight instead of seventy-three in 1833—and that in turn affected the number of electoral votes they could cast."17 In 12 of the first 16 presidential elections, a Southern slaveowner won. Extending the slave trade (in order to bring Georgia and South Carolina into the union) past 1800 brought many more slaves to America. The Deep South imported more slaves from Africa in the 1788-1808 time period than in any other twenty-year period. South Carolina alone imported 40,000 slaves between 1803 and 1808 (when Congress overwhelmingly voted to end the trade).

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