The Constitution of 1787 – Moving Toward an Anti-slavery America

ellen373
Jan 6, 2024
26 min read

TCCF

11/16/2023 06:08 PM

Should the US Constitution be regarded as an anti-slavery or pro-slavery document?

William Lloyd Garrison, the famous abolitionist, once expressed his feelings about the slavery provisions in the Constitution by denouncing it as a covenant with death and an agreement with hell.[1] Very few accepted that verdict at the time, many more agreeing with Abraham Lincoln that the Constitution looked forward to the final abolition of American slavery.[2] More recently, however, the Constitution has come under greater criticism as a document that was too favorable to slavery. Paul Finkelman has written that a careful reading of the Constitution reveals that the Garrisonians were right to believe that the national compact favored slavery.[3]

Advocates of Critical Race Theory have also taken a negative view of how the Constitution handled slavery and race. Michelle Alexander insists that the structure and content of the original Constitution was based largely on the effort to preserve a racial caste system slavery while at the same time affording political and economic rights to whites . . [4] Ibram X. Kendi claims that the writers of the Constitution . . . seemingly all embraced Black inferiority . . . . through the three-fifths clause.[5] Elsewhere, while seeing the Constitution as in fact colorblind, he perceives that colorblindness as a fault a color-blind Constitution for a White-supremacist America.[6] The founding father of Critical Race Theory, Derrick Bell, wrote a fantasy in which his fictional alter ego, Geneva Crenshaw, goes back in time to the Constitutional Convention and rebukes the delegates for making concessions on slavery, instead of abolishing it. Bell also wrote of the Dred Scott decision as if it accurately represented the intentions and opinions of the Framers.[7]

All of these criticisms of the Constitution are based on the assumption that the Framers had options available in 1787 that would have done more to end slavery quickly, certainly earlier than 1865. They are accused of making unnecessary concessions (see especially Finkleman on this point), creating a document which protected and propped up slavery.

Such a point of view is not surprising in our own time, but it fails to look realistically at the events of 1787 in the context of their own time and the facts that were obvious to them but overlooked or ignored by critics of our own day. The question we must ask is, knowing what they knew and having only the power they actually had, did they make decisions to promote or hinder the causes of abolition and racial equality? A more careful examination shows that the Framers should be given much more credit than their critics allow. In fact, the Constitution may have been as much an antislavery document as was possible in forming a national government at that time, while keeping the door open for further abolition and the development of racial equality.

The first thing we must understand is the status of American slavery in 1787. Massachusetts was the only state that had completed full abolition. Pennsylvania, New Hampshire, Rhode Island, and Connecticut had recently begun the process of gradual emancipation that would not end slavery, in most cases, for decades. Slavery was still fully legal in the remaining eight states, with gradual emancipation not coming to New York until 1799 and New Jersey until 1804.[8] And wherever they looked beyond their borders, they saw slavery. It was still legal in the nearby British, French, Spanish, Dutch and Portuguese colonies in the Americas,[9] and of course was a common practice among the Indian tribes within the United States.[10]

With slavery fully legal in almost two-thirds of the states (states that would have 40 of the 65 members in the first House of Representatives), one might expect a constitution that was thoroughly and openly supportive of slavery, yet someone unfamiliar with American history could read the Constitution without realizing that slavery existed. Why did it not more closely resemble the Constitution adopted by the Confederate States of America in 1861? That constitution unhesitatingly used the word slavery, explicitly prohibited Congress from passing any law denying or impairing the right of property in negro slaves . . . , or keeping slavery out of the territories, and even guaranteed the right of slaveowners to travel with their slaves (see Paul Finkleman's An Imperfect Union: Slavery, Federalism, and Comity to understand what a sore point this became as Northern states abolished slavery).[11] With legal slavery so widespread in the United States, one would expect a similar willingness to protect it. Instead, the Constitution never clearly mentions slavery and instead looks toward a future in which slavery would not exist in the United States. What was the cause of this contrast between the realities of the present and the vision of a different future?

The answer is to be found in the American Revolution. Slavery had existed all over the world throughout human history, and had been taken for granted in seventeenth and early eighteenth-century America. It took a remarkable change in viewpoint to explain, in the words of Don Fehrenbacher, why Negro slavery, after several hundred years of respectable existence, suddenly came under fierce moral attack.[12]

American independence, with its declaration that all men are created equal, had brought about a dramatic change in attitudes toward slavery. As the distinguished historian Gordon Wood put it, The revolution unleashed antislavery sentiments that led to the first abolition movements in the history of the world.[13] William Freehling puts it similarly when he says that The American Revolution, by focusing American Enlightenment thought on the problem of tyranny and liberty, raised to a higher consciousness the new awareness of slavery as an evil.[14] Even three decades later, during Congressional debate over the Missouri Compromise, southern congressmen were still willing to say that slavery was evil a curse, a cancer. [15]

This new attitude was the inspiration behind Luther Martin's comment on August 21 in the Convention that slavery was inconsistent with the principles of the revolution and dishonorable to the American character . . . [16] and Gouverneur Morris warning that slavery was the curse of heaven on the States, where it prevailed. Slaverys effect, he declared, could be seen as soon as a traveler left New England (with very few slaves) and entered New York, New Jersey, and Pennsylvania.[17]

The post-Revolution expectation among many Americans was that slavery was on the road to eventual elimination within the boundaries of the United States. The process that had begun in five states, and was being debated in others, would continue until slavery finally disappeared.[18] That assumption can also be found in the debates inside the Convention. Oliver Ellsworth assured his fellow delegates that population increases poor laborers will be so plenty as to render slaves useless. Slavery in time will not be a speck in our Country.[19]

The challenge facing the Convention in 1787 was how they could move the nation toward a future without slavery, even though slavery was a thriving and entrenched institution. The abolition of slavery through a new constitution was never a possibility, since the current government (the Articles of Confederation) had no such power, and few if any of the eight slaveholding states would have been willing to join a new government with that power.

Nor would allowing the Confederation to fall apart have achieved the goal of abolition. The common expectation was that such a collapse would be followed by the formation of three new nations (roughly New England, the Middle States, and the South). Even New England, to judge by its gradual emancipation laws, would not have been in any hurry for abolition.

Despite these obstacles, a majority of the Framers were able to draft a Constitution which at least preserved the vision and hope of a nation freed from slavery. We can see this more clearly by examining those parts of the Constitution that have been attacked as pro-slavery

The Three-Fifths Clause

Among the most frequently criticized parts of the Constitution is that portion of Article I, Section 2, which allocates by state the membership in the House of Representatives. Rather than basing it on actual population, the Constitution counts the whole number of free persons, plus three fifths of all other Persons. The only people falling into that category of other Persons were the slaves.

Criticism of the three-fifths clause has come from two directions. Some have claimed that, by not counting slaves fully, it dehumanized the slaves and all other blacks (even though free blacks were treated equally with whites). This is the position of Kendi, who sees the three-fifths clause as the mark of being subhuman.[20] This idea quickly falls apart when one looks at the Convention debates and sees that it was slaveowners who demanded that the slaves be counted as the equals of whites, while the most fervently anti-slavery delegates would have refused to count slaves at all. The debate was about the morality of slavery (and power in the House of Representatives), not the humanity of the slaves, and the three-fifths clause was a pragmatic compromise in which states with many slaves gave up a portion of what was rightfully theirs on any grounds except morality.

Reading the actual debates, we see that it was Elbridge Gerry of Massachusetts (the only state to have no slaves) who objected to including slaves at all for purposes of representation.[21] Likewise, Gouverneur Morris of Pennsylvania opposed counting slaves as three-fifths, citing slavery ™s injustice to human nature as his reason.[22] The slaveholding Charles Pinkney of South Carolina, by contrast, insisted that the blacks ought to stand on an equality with whites for representation.[23] When there was an attempt to replace the three-fifths clause with equal representation for slaves, only some of the states where slavery was still fully legal voted in favor. All those states which had acted to abolish slavery (however gradual that abolition might be) opposed the change (joined by four states where slavery was still fully legal.).[24]

More typical has been the opposite criticism, which says that slaves should not have been counted at all, as a rebuke to slavery. This was a position that had much support in the Convention, and might well have prevailed if some delegates had not realized that compromise was necessary if enough states were to be persuaded to secede from the Articles of Confederation and create a new union.

In this context, the three-fifths compromise should be seen as a victory for anti-slavery (though only a partial one), since on any other grounds the slaves should have been fully represented. After all, for what other reason could they be deprived of full representation? Surely not race, since free blacks were counted equally with whites. Nor could it be that they were not allowed to vote, since women and children (and some men) were counted yet also disfranchised. Lack of citizenship was no reason, since resident aliens were to be counted. These considerations were enough to convince William Samuel Johnson, a delegate from Connecticut, to break with the rest of his state ™s delegation and vote for fully counting the slaves.[25] Decades later, the abolitionist Wendell Phillips would be likewise persuaded that the South had deserved full representation for the slaves.[26]

The only reason for the three-fifths clause (other than sectional politics) was to punish slavery. The three-fifths clause was a mark of Cain on slaveholders and the states that allowed legal slavery, and no reflection on the slaves themselves. Given the reality of slavery ™s existence, and the need to persuade states with large slave populations to leave the Articles of Confederation and join this new union under the Constitution, some compromise was unavoidable. The three-fifths clause, which had been worked out four years earlier by the Confederation Congress to deal with determining how much each state should pay toward the expenses of the national government, was probably the best that could be obtained.

(There have also been claims that the Electoral College was devised as a way of including the three-fifths clause in the election of a president, giving the slaveholding states an advantage they would have lacked in direct election. However, direct election never had much support among the delegates. Throughout most of the Convention a majority backed having Congress elect the president. When the Electoral College was adopted during the final days of the Convention, it replaced election by a joint session of Congress[27], which would have given each state exactly the same vote it has in the Electoral College. Therefore, the change had no effect at all on the electoral strength of the slaveholding states.)

Prohibiting the Slave Trade.

In 1787 the laws of South Carolina and Georgia allowed merchants to purchase slaves in Africa and bring them into those two states. All of the other states had prohibited such trade, except that North Carolina had used an import duty to the same effect.[28]

Congress under the Articles of Confederation had no power to regulate the international slave trade, and the question of whether the Constitution should grant that power to Congress was hotly debated. Indeed, the delegates from South Carolina and Georgia were more combative and threatening on this issue than on the question of including slaves for Congressional representation. However, they found themselves forced to compromise by the unyielding determination of the other delegates to bring an end to the international slave trade.

Advocates of the slave trade won a temporary victory when the Committee of Detail, in its August 6 report, incorporated a prohibition on congressional interference in the slave trade.[29] This sparked heated debate over two days, with delegates from South Carolina and Georgia warning that prohibition would guarantee their states would refuse to ratify. Just as determined were the opponents of the slave trade, saying that allowing it to continue would be dishonorable to the American character, would amount to approval of slavery, and would be detrimental to the interests of the nation. Rufus King of Massachusetts matched the southern threat by declaring that there were states which would refuse to ratify if the slave trade were not prohibited.[30]

None of the delegates wanted to see the entire Constitution fail because of deadlock over the slave trade. As they had done so many times before, they assigned a committee to work out a compromise. The Committee recommended delaying the congressional power to abolish the slave trade until 1800, while allowing a small import duty.[31] This was part of a larger compromise in which some southern delegates gave up their demand that laws regulating international commerce require a two-thirds vote in Congress, a protection which many southerners believed essential to avoid being exploited by northern shipping interests.[32] This North-South alliance even held together on an amendment to extend the slave trade from 1800 to 1808, as the New England states joined with Maryland and the southernmost states to outvote Virginia, Delaware, New Jersey and Pennsylvania.[33]

Had no compromise been reached, it is very unlikely that the Constitution would have been approved, and South Carolina and Georgia would have been able to continue their slave importations far beyond 1808. While allowing imports for another two decades was a lamentable outcome, it must be seen as what it was “ primarily a concession on the part of South Carolina and Georgia. The African slave trade would be ended, however tardily.

Furthermore, ending the importation of slaves may have been the most effective anti-slavery result of the Constitution. William Freehling, in his two-volume study of the progress of secession and slavery from 1776 to 1861, concluded that the closure of the African slave trade was probably the most important slavery legislation Congress ever passed and among the most important American laws on any subject. [34] Had importations continued, as they did in such places as Cuba and Brazil, slavery would have been much better able to expand its numbers in one state without reducing slavery in another. Since a willingness to envision the eventual end of slavery was almost entirely confined to states with a smaller and declining number of slaves, it meant that The end of the African slave trade institutionalized the thought, southern and northern, that slavery should be conditionally terminated, not perpetually consolidated. The end of the slave trade also constrained the growth of southern representation in the House of Representatives and the Electoral College, drawing nearer the day when the South could no longer be assured of blocking any laws that weakened slavery.[35] The strongest advocates for slavery realized how much had been surrendered in this compromise, and began agitating in the 1850 ™s for the renewal of the African slave trade, insisting that it was the only way to keep slavery from disappearing in Delaware and Maryland, Virginia, Kentucky and Missouri.[36] The compromise had been a fatal defeat for the slaveholding South.

The Fugitive Slave Clause

Article IV of the Constitution, in Sections 1 and 2, deals with relationships among the states and the citizens of different states. Section 1 is the Full Faith and Credit section, providing that the laws, records, and judicial proceedings of one state shall be recognized in another. The first part of Section 2 guarantees that a citizen of one state shall be entitled to all the Privileges and Immunities of Citizens in the several States. This is followed by a requirement that a criminal who flees from one state into another shall be extradited to the state in which his crime was committed. All of these are similar to Article IV of the Articles of Confederation.

It was the last part of Section 2 which had no counterpart in the Articles of Confederation, and which was to cause increasing friction between states during the ensuing decades. This was the fugitive slave clause, which required that an indentured servant or slave who escaped to another state must be delivered up to the Party to whom such Service or Labour may be due. (It did have a precedent in the Northwest Ordinance of 1787, whose section prohibiting slavery also provided that such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service . . . .

The fact that the South Carolina delegates believed it necessary to ask for a separate fugitive slave clause makes it clear that they lacked full confidence in being able to use the preceding sentence (regarding the extradition of criminals) to reclaim slaves from states that had abolished or were in the process of abolishing slavery. However, they may have misread the short-term prospects. The only objections raised to their request in the Convention had to do with the possible cost to the state governments. When a formal motion was made with more specific language the next day, it passed without objection. [37] Nor was it controversial in the states that had already acted to abolish slavery. In Massachusetts, probably the most anti-slavery of the states, the debates in the ratification convention appear to have jumped from Article III to the latter part of Article IV with little or no debate of the first two sections.[38] In New Hampshire, the few surviving records indicate that their convention dealt with Articles IV, V, and VI in a single day, and spent most of that time debating the religious test clause of Article VI.[39] There is no record of any objection in the conventions of either Connecticut or Pennsylvania, two other states that had enacted gradual abolition, nor in Rhode Island (which did not hold a ratifying convention until 1790).[40]

Some states, while ratifying, also recommended amendments to the Constitution. Not one of those states called for removal of or a change in the Fugitive Slave clause.[41] It was simply a non-issue in 1787-88.

The Fugitive Slave Clause was accepted as a logical extension to that part of the Constitution which made clear that the states had become a single nation, and must respect each other ™s laws. Just as a criminal must be sent back to his own state, so would an escaped slave be returned. No one foresaw the practical difficulties that would arise in enforcing such a law and which led some states to pass personal liberty laws for the protection of free blacks wrongly accused of being fugitives. No one foresaw how deeply angered many in the North would eventually become when, having freed the slaves in their own states, they saw black men and women being taken away in chains.

The failure to have a full debate in the Convention on the Fugitive Slave clause, which might have brought some of these problems to light, is certainly one of the disappointing blind spots of the delegates. Whether the Constitution could have been ratified without the clause, or whether it could have been adapted to serve its purpose in a less offensive way, will never be known.

Taxation

Two limitations on the taxing power of Congress have been criticized as pro-slavery.

Article I, Section 9, Clause 5 states that No Tax or Duty shall be laid on Articles exported from any state. Since the nations largest exports were southern crops whose cultivation included much slave labor (e.g. tobacco), this is sometimes seen as providing support for slavery. While a few delegates mentioned taxing exports on August 8 in the midst of complaints about the slave trade, the three-fifths clause, and the domestic violence clause,[42] slavery disappeared from the debate when taxing exports came up for serious discussion on August 16 and 21. New England delegates such as Gerry, Ellsworth and Sherman expressed their opposition to taxing imports. Fitzsimmons of Pennsylvania thought any such tax should be applied only to manufactured goods, not agricultural products. The debate focused on questions of practicality and equity. Morris no longer tied the question to slavery, but argued that exports were a vitally necessary source of government revenue. Madison supported him. He, James Wilson and John Langdon also assumed (wrongly) that if Congress did not tax exports it would allow the states to do so, putting states without good ports at a disadvantage. Arguments against taxation were that it would discourage production of exported goods and would be difficult to arrange fairly, inevitably causing some states to feel that they were carrying an unreasonably heavy burden. Threats of imposing a heavy tax on exports might even be used to force the states into giving the Federal government greater and dangerous powers. When it came up for a vote, Massachusetts and Connecticut joined the five southernmost states to approve the prohibition by a vote of 7 to 4. (It is worth noting that three of the four states voting no “ New Hampshire, New Jersey, and Delaware “ may well have been influenced by the question of whether neighboring states would still be allowed to tax their exports, something which was later rectified by the state prohibition in Article I, Section 10.). [43]

Slavery was not a factor in the debates over export taxation, which focused more on each state's concern over how its own exports might be affected in both the short and long term. Nor would a tax on tobacco, rice, cotton, etc. have brought about the end of slavery. Indeed, had such a tax produced the revenue expected by Morris, Congress would have been careful to keep the rate at a level which would have which ensured continuing large exports of those goods so as not to choke off the revenue. It is significant that even such a critic as Finkelman barely mentions the export controversy.[44]

The other controversial taxing clause comes just before the prohibition on exports, and requires that direct taxes be allocated among the states according to population, but using the three-fifths calculation to determine population. Therefore the slaveholding states, having given up some representation, would also receive a limited tax benefit. Four years earlier, when the Confederation Congress had debated having states pay according to population, states with fewer slaves had wanted to count them fully, while states with more slaves wanted to count only the free population. The three-fifths clause had been the resulting compromise.

Since direct taxes (narrowly defined by the Supreme Court in 1796 as being only taxes on real property and capitation taxes) were only levied in 1798 and during the War of 1812, this turned out to be almost irrelevant. While this lack of use had been predicted by Morris[45], it was not foreseen by very many others. In fact, fear of direct taxation was one of the greatest factors strengthening the Antifederalists. Five of the eleven states ratifying the Constitution in 1787-88 recommended amendments to the Constitution, and all five included a recommendation that the power to levy direct taxes be curtailed.[46] Sherman and Ellsworth, in their report to Connecticut's governor after the Convention, took it for granted that tariffs would not produce enough money to fund the government and that direct taxes would be necessary.[47]

The slaveholding states surrendered some representation in return for a break on direct taxes. They and most others expected direct taxation to be a part of the Federal government's revenue. From their point of view, they were deprived of the benefit of that compromise when direct taxation was almost entirely unused.

Protection Against Domestic Violence

Article IV, Section 4, guarantees every state a republican form of government as well as protection against invasion and domestic Violence. This is sometimes seen as an important concession to the slaveholding states, guaranteeing them that the armed forces of the United States would come to their rescue in case of a slave rebellion.

However, when we look at the Convention debates, this opinion finds no support. The delegates in the North (where slaves were not sufficiently numerous to be a serious threat) do sometimes complain that they might have to call out their militia to help the states further south suppress the slaves, but this appears only as part of a standard litany of complaints used to demand concessions in return.[48] There seems to be no concern about slave rebellion on the part of the southern delegates. Most telling is that the specific debate on this clause d s not mention slave rebellions at all.

We must remember that the convention met under the shadow of Shays Rebellion, a taxpayer revolt in Massachusetts in 1786, which had been an important factor in calling the convention. [49] Indeed, this was specifically brought up as a reason for a national guarantee against rebellion.[50] By contrast, the only major slave rebellion had been almost 50 years earlier in Stono, South Carolina.[51] On July 18, when the delegates took up the question of whether the domestic violence guarantee should be added to the guarantee of republican government, the discussion focused on the danger of rebellions in favor of monarchy or some other anti-republican government.[52] Later discussions spoke of the possibility that the rebellion might be led by a state governor or might result from conflict between the two houses of the legislature.[53] The danger of a slave rebellion is not mentioned, and the most controversial part of the debate has to do with whether US assistance should be provided only if formally requested by the legislature or governor.[54] The southern delegates never demanded assistance against slave rebellion, as they did insist on the Fugitive Slave Clause and partial representation for slaves. Indeed, there was even an offer to exempt slave rebellions from this clause, which brought no response from those who claimed to have such great concern.[55] When the final vote came, it was supported by every state except Delaware and Maryland. The rhetoric about having to march south to put down slave rebellions had been replaced by support from every state that had acted to abolish slavery, while the only opposition came from states where slavery would survive until the Civil War.[56] If this was a significant concession to the slaveholding states, it seems to have escaped the delegates of both sections.

Powers Reserved to the States

The Constitution creates a Federal government of limited, delegated powers, a point which was confirmed by ratification of the Tenth Amendment in 1791. There was no chance for the creation of a more thoroughly national government, supreme over the states, no matter how much a few delegates such as James Madison, Alexander Hamilton and James Wilson sought that achievement.[57] The people of the states were much too suspicious of any power outside their own state, and it was difficult even to win approval of the limited powers granted in 1787.

This limitation of power made it impossible for the Federal government to abolish slavery except by Constitutional amendment, something which greatly frustrated abolitionists. However, it is very unlikely that a majority of Congress would have voted to abolish slavery at any time prior to the Civil War, making abolition a moot point. What is significant is that the Constitution protected the progress of antislavery within individual states. There was no way that the few states which had abolished slavery could be forced by the majority to reinstate it. There was no way for Congress to overrule those states which chose to make blacks citizens. Furthermore, since Article I, Section 2 gave the states full authority to decide who could vote for members of the House of Representatives, Congress could not even invoke the Article I, Section 4 power to make or alter voting regulations so as to take the vote away from free blacks (such as those in North Carolina[58]) whose states had granted them to right to vote.

The limited powers of the Federal government never prevented abolition, but operated as a potential gateway to freedom and citizenship in the states.

The Dred Scott Decision

The Supreme Court's 1857 ruling in the Dred Scott case (Scott v. Sandford) is among the best known and most notorious of its decisions. The most famous phrase from that decision was Chief Justice Taney''s assertion that, at the time the Constitution was written, blacks were regarded as beings of an inferior order; and altogether unfit to associate with the white race, either in social or political relations; and so far inferior that they had no rights which the white man was bound to respect . . . . [59] On that basis, Taney's decision denied that any black person, in any state, could be a citizen of that state.

Historian Alan Taylor seems to agree with Taney's judgment concerning the position of blacks in eighteenth-century America. His American Revolutions: A Continental History, 1750-1804, closes with sixteen pages reciting the inferior treatment of American blacks, including those who were free.[60]

Derrick Bell, the leading Critical Race Theorist, also backs up Taney, declaring that the treatment accorded black people by the country during the first half century of existence amply justified Chief Justice Taney's conclusions. [61]

Are Taney, Taylor, and Bell correct? Should we read the Constitution as a document which leaves no room for a free black American citizen, enjoying the full benefits of American life?

There is another side to the argument, one recognized even by Ibram Kinde, who breaks on this point from his Critical Race Theory colleagues. Kinde point out that Taney was absolutely wrong that Black men had been excluded from the original political community. In fact, as he notes, the rebuttal to Taney was in the dissent written by Justice Benjamin Curtis, and has been there for anyone to read ever since 1857.[62]

Historian Don Fehrenbacher has written an admirable analysis of the faults in Taney's argument.[63] He finds that Taney suffers from a chronic inability to get the facts straight. [64] Taney found it necessary to misrepresent the citizenship status of free blacks in some states. He carefully ignored the implications of the three-fifths clause, which puts free blacks in the same category as whites. At one point in his argument, he refused to recognize that the privileges and immunities clause in the Constitution had its counterpart in the Articles of Confederation, since that would have undermined his reasoning. He even cites Federal law under the Constitution in such a way as to mislead his readers.

Fehrenbacher corrects Taney by pointing out that the list of the [free] Negro''s legal rights at that time would be at least as long as a list of his legal disabilities. In some respects, such as property rights, a black man's status was superior to that of a married white woman, and it was certainly far above that of a slave. He could marry, enter into contracts, purchase real estate, bequeathe property, and, most pertinently, seek redress in the courts. The effect of Taney''s statement was to place Negros of the 1780's “ even free Negros “ on the same level, legally, as domestic animals. As historical narrative, it was a gross perversion of the facts. [65]

Taney could reach his conclusion of an anti-black Constitution only by that perversion of the facts, overlooking fundamental truths about the status of free blacks. We should not repeat his errors, nor be silent when others repeat them.

Conclusion

Although slavery was fully legal in eight of the twelve states participating in the Convention (Rhode Island refused to send a delegation), and although slavery was still legal for many years to come in three of the other four states, the Constitution was clearly not written with the protection of slavery as a consensus goal. Instead, those who wanted concessions in favor of slavery were forced to fight for them, making concessions of their own and often accepting half a loaf (or less). The three-fifths clause forced the southern states to give up a substantial portion of the representation to which they were reasonably entitled. The prohibition of the African slave trade, while delayed, could not be prevented. The Fugitive Slave clause, a logical extension of other comity provisions among the states, passed easily because no one realized the future problems it would create.

Only South Carolina and Georgia were totally committed to maximum protection of slavery. Indeed, they were so often abandoned by other states with large slave populations that they could win partial success only by threatening to refuse the ratify the Constitution. Given that ratification would require nine states, that Rhode Island and New York seemed sure to render a negative verdict (most of the New York delegation had walked out in protest in early July) and that delegates from other states were expressing serious reservations, the Convention had very little margin left. The deep South could therefore use this leverage to gain the minimum necessary to keep them from abandoning the proposed new government, but no more.

While making a few unavoidable concessions, the Constitution looked forward to a day when slavery would be gone. There is no explicit mention of slaves or slavery, something which Madison confirmed as a deliberate choice.[66] The minority of states which were in the process of abolishing it could face no hindrance from the Federal government, nor could it prevent more from following that example. For those blacks who were free, the states could grant them citizenship, the right to vote, and whatever other rights they might choose, no matter what a majority of Congress or a President might think of that.

Abraham Lincoln correctly understood the purpose of the great majority of those delegates when he spoke of slavery in the Constitution by saying the thing is hidden away, in the Constitution, just as an afflicted man hides away a wen or cancer, which he dares not cut out at once, lest he bleed to death; with the promise, nevertheless, that the cutting may begin at the end of a given time. Less than this our fathers COULD not do; and now they WOULD not do. Necessity drove them so far, and farther they would not go. [67]

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[1] Filler, Louis, The Crusade Against Slavery, 1830-1860 (Harper & Row, 1960), pg. 216.

[2] Basler, Roy P., ed., The Collected Works of Abraham Lincoln, Vol. II (Rutgers University Press, 1953), pg. 274.

[3] Finkleman, Paul, Slavery and the Constitutional Convention: Making a Covenant with Death in Beeman, Richard, Stephen Botein and Edward C. Carter II, eds., Beyond Confederation: Origins of the Constitution and American National Identity (Institute of Early American History and Culture, 1987), pg. 189-90,

[4] Alexander, Michelle, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (The New Press, 2010), pg. 31-32.

[5] Kendi, Ibram X., Stamped from the Beginning: The Definitive History of Racist Ideas in America (Bold Type Books, 2016), pg. 116.

[6] Kendi, Ibram X., How to Be an Antiracist (One World, 2019), pg. 10.

[7] Delgado, Richard and Jean Stefancic, eds., The Derrick Bell Reader (New York University Press, 2005), pg. 16-24, 129-30.

[8] Zilversmit, Arthur, The First Emancipation: The Abolition of Slavery in the North (The University of Chicago Press, 1967), pg. 109-200.

[9] Fogel, Robert William, Without Consent or Contract: The Rise and Fall of American Slavery (W. W. Norton & Company, 1989), pg. 206-07.

[10] Josephy, Alvin M. Jr., The Indian Heritage of America (Alfred A. Knopf, 1968), pg. 75-76, 228, 263 and Fagan, Brian M., Ancient North America (Thames & Hudson, 2005), pg. 235, 247, 460, 521 and Thomas, David Hurst et. al., The Native Americans: An Illustrated History (Time Publishing, Inc., 1993), pg. 45, 129, 203, 237,

[11] The Constitution of the Confederate States of America in Commager, ed., Henry Steele, Documents of American History (Appleton-Century-Crofts, 1963), pg. 376-384. See for example, Article I, Section 1, Clause 3 (the three-fifths clause), Article I, Section 9, Clauses 2 and 4, Article IV, Section 1 and 3, Article IV, Section 3, Clause 3.

[12] Fehrenbacher, Don E., Sectional Crisis and Southern Constitutionalism (Louisiana State University Press, 1989), pg. 4.

[13] North, David and Mackaman, Thomas, eds., The New York Times ™ 1619 Project and the Racialist Falsification of History: Essays and Interviews (Mehring Books, 2021), pg. 116.

[14] Freehling, William W., The Road to Disunion: Secessionists at Bay, 1776-1854 (Oxford University Press, 1990), pg. 124. See also the discussion in Zilversmit, First Emancipation, pg. 226-29 on the importance of the American Revolution and the new humanitarian concern in bringing about emancipation north of the Mason-Dixon line.

[15] Fehrenbacher., Sectional Crisis, pg. 23.

[16] Farrand, Max, ed., The Records of the Federal Convention of 1787, Vol. II (Yale University Press, 1937), pg. 364.

[17] Farrand, Records, Vol. II, pg. 221.

[18] Dillon, Merton L., The Abolitionists: The Growth of a Dissenting Minority (W.W. Norton, 1974), pg. 3-7, 10.

[19] Farrand, Records, Vol. II, pg. 371

[20] Kendi, Stamped from the Beginning, pg. 116.

[21] Farrand, Records, Vol. I, pg. 201.

[22] Farrand, Records, Vol. I, pg. 588.

[23] Farrand, Records, Vol. I, pg. 542.

[24] Farrand, Records, Vol. I, pg. 581.

[25] Farrand, Records, Vol. I, pg. 593, 596.

[26] Fogel, Without Consent, pg. 339.

[27] Farrand, Records, Vol. II, pg.402-03.

[28] Farrand, Records, Vol. II, pg. 373.

[29] Farrand, Records, Vol. II, pg. 183.

[30] Farrand, Records, Vol. II, pg. 364-79.

[31] Farrand, Records, Vol. II, pg. 400,

[32] Farrand, Records, Vol. II, pg. 414, Madison ™s note at the bottom of the page.

[33] Farrand, Records, Vol. II, pg. 415.

[34] Freehling, Road to Disunion, Vol. I, pg. 136.

[35] Freehling, Road to Disunion, Vol. I., pg. 137.

[36] Freehling, Road to Disunion, Vol. II, pg. 177-84, quotation on pg. 178.

[37] Farrand, Records, Vol. II, pg. 443, 453-54.

[38] Kaminksi, John P. and Gaspar J. Saladino, eds., The Documentary History of the Ratification of the Constitution: Vol. VI, Ratification by the States: Massachusetts, Vol. III (State Historical Society of Wisconsin, 2000), pg. 1373.

[39] Kaminksi, John P. and Charles H. Sch nleber, eds., The Documentary History of the Ratification of the Constitution: Vol. XXVIII, Ratification by the States: New Hampshire (State Historical Society of Wisconsin, 2017), pg. 210.

[40] Note that in Pennsylvania, both Thomas McKean and James Wilson gave speeches in rebuttal to the arguments raised against the Constitution, and neither found any need to defend the Fugitive Slave clause. Jensen, Merrill, ed., The Documentary History of the Ratification of the Constitution: Vol. II, Ratification by the States: Pennsylvania (State Historical Society of Wisconsin, 1976), pg.533-547 and 574-585. Note also on page 585 that the Pennsylvania Packet specifically says that Wilson replied to every objection that had been made in the Convention to the new Constitution.

[41] Viet, Helen E., Kenneth R Bowling, and Charlene Bangs Bickford, Creating the Bill of Rights: The Documentary Record from the First Federal Congress (The Johns Hopkins University Press, 1991), pg. 14-28.

[42] Farrand, Records, Vol. II, pg. 220-23. See comments by King and Morris.

[43] Farrand, Records, Vol. II, pg. 305-308, 359-64.

[44] Finkleman, Covenant with Death , pg. 213, 223.

[45] Farrand, Records, Vol. II, pg. 223.

[46] Veit, Creating the Bill of Rights, pg. 14-28.

[47] Jensen, Merrill, ed., The Documentary History of the Ratification of the Constitution: Vol. III, Ratification by the States: Delaware, New Jersey, Georgia, Connecticut (State Historical Society of Wisconsin, 1978), pg. 352.

[48] See for example the rant of Rufus King on August 8, complaining about the slave trade, the three-fifths clause, export taxes, and this clause. Farrand, Records, Vol. II, pg. 220.

[49] Middlekauff, Robert, The Glorious Cause: The American Revolution, 1763-1789 (Oxford University Press, 1982) pg. 600-01.

[50] Farrand, Records, Vol. I, pg. 518

[51] Clark, William Cheek, Black Resistance Before the Civil War (Glenc Press, 1970), pg. 105-07.

[52] Farrand, Records, Vol. II, pg. 47-49.

[53] Farrand, Recorxds, Vol. II, pg. 317, 467.

[54] Farrand, Records, Vol. II, pg. 317-18, 466-67.

[55] Farrand, Records, Vol. II, pg. 364.

[56] Farrand, Records, Vol. II, pg. 467.

[57] See, for example, the repeated failure to give Congress broad authority to overturn state laws. Farrand, Records, Vol. I, pg. 164-68 and Vol. II, pg. 27-28, 390-92.

[58] Franklin, John Hope, The Free Negro in North Carolina, 1790-1860 (W. W. Norton & Company, 1971), pg. 105-16. The right to vote was not taken away until the adoption of a new state constitution in 1835, and the constitutional convention only narrowly approved the disfranchisement provision.

[59] Dred Scott v. Sandford, Commager, Documents, pg. 342.

[60] Taylor, Alan, American Revolutions: A Continental History, 1750-1804 (W. W. Norton & Company, 2016), pg. 462-78.

[61] Delgado and Stefancic, Derrick Bell Reader, pg. 129-30.

[62] Kinde, Stamped from the Beginning, pg. 204.

[63] Fehrenbacher, Don E., The Dred Scott Case: Its Significance in American Law and Politics (Oxford University Press, 1978), pg. 335-64.

[64] Fehrenbacher, Dred Scott Case, pg. 359.

[65] Fehrenbacher, Dred Scott Case, pg. 349.

[66] Meyers, Marvin, ed., The Mind of the Founder: Sources of the Political Thought of James Madison (University Press of New England, 1981), pg. 321.

[67] Basler, Collected Works, Vol. II, pg. 274.

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