1787: The Constitutional Convention

Describing the Constitutional Convention in 1787, James Madison noted that slavery fueled conflict between the Northern and Southern delegates.

[T]he real difference of interest lay, not between the large & small but between the N[orthem] & Southn. States. The institution of slavery & its consequences formed the line of discrimination... [hence]the most material [of differentiating interests among the states] resulted partly from climate, but principally from the effects of their having or not having slaves. These two causes concurred in forming the great division of interests in the U. States. (Wiecek, 2018, p. 62)

To appease both sides, delegates agreed upon what has become known as “the Three-Fifths Compromise.” While the “compromise” sought to find middle ground, it assumed the legality of slavery and provided tacit support by mandating that three of every five enslaved persons be used in the formula to determine states’ federal taxes and the number of states’ congressmen elected to the U.S. House of Representatives (p. 63; Van Cleave, 2010, p. 120).

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Washington as Statesman at the Constitutional Convention, 1856. Oil on canvas by Junius Brutus Steams.

Source: Courtesy of the Virginia Museum of Fine Arts

While the three-fifths compromise remains the most well-known example of the tacit acceptance of slavery in the Constitution, the Constitution defended the institution in multiple ways:

• Article 1, Section 2 - Counts slaves as 3/5th of a person;

• Article 1, Sections 2 and 9 - Bases tax formulations on the 3/5ths principle to avoid indirectly encouraging emancipation of enslaved people;

• Article 1, Section 9 - Protects the Atlantic slave trade until 1808;

• Article 4, Section 2 - Forbids the emancipation of fugitives and requires escaped slaves be returned to their masters;

• Article 1, Section 8 - Empowers Congress to call up states’ militias to suppress insurrections, including slave insurrections;

• Article 4, Section 4 - Obligates the federal government to protect states against domestic violence, including violence perpetrated by slave insurrections;

• Article 5 - Provisions outlined in Article 1, section 9, clauses 1 and 4 were not able to be amended (these relate to the abolishment of the slave trade and taxation);

• Article 1, Sections 9 and 10 - Forbids the federal government and states from taxing exports with the goal of exempting goods made by enslaved persons from export duties (Wiecek, 2018, p. 62).

Historian Linda Kerber (1997) noted, “At its founding moments, the United States simultaneously dedicated itself to freedom and strengthened its system of racialized slavery” (p. 841). The foundational legal document of the United States assumed slavery’s legality, reinforced its racial hierarchy, supported the slave owners when it came to fugitive slaves, and put the full military might behind stopping slave insurrections. The Constitution was to reflect ideals of liberty and freedom. In reality, for all non-whites it represented the crowning achievement of white dominance in the New World and embedded a racialized system into the DNA of the United States.