Slavery and the Constitution

Michael P. Zuckert

Spring 2023

The topic of slavery and the founding is a controversial one these days, as anyone who is awake — or "woke" — will realize. The controversy erupted about three and a half years ago, when the New York Times published the 1619 Project — a series of essays claiming that 1619, the year the first slaves arrived in America, was the defining year in American history.

The project's authors asserted that our history has hinged on the fact and experience of American slavery, and that the nation has been chiefly characterized by racism. This claim was by no means universally accepted: Many voices rose to claim 1776, the year of the American Revolution and the signing of the Declaration of Independence, as the date that truly points to the meaning of America as a nation committed to rights, liberty, and equality.

The debate thus set into motion was not a new one, but rather a continuation of an ongoing dispute between two groups of historians: neo-Garrisonians, named for the famous 19th-century abolitionist William Lloyd Garrison; and neo-Lincolnians, named for the great 19th-century president Abraham Lincoln. Near the core of that ongoing clash lay the U.S. Constitution. Garrison, the abolitionist, called the Constitution a "covenant with death" and an "agreement with hell" because he believed it supported the institution of slavery. Lincoln, on the other hand, cautioned that the Constitution "must be maintained, for it is the only safeguard of our liberties."

Each of these two divergent perspectives on the Constitution perceives something important, but each misses something, too. The Constitution did in fact lend legal support to slavery in the states; it was not, as some neo-Lincolnians would have it, an unambiguously anti-slavery document. But, contra neo-Garrisonians, the Constitution did not grant national legitimacy to slavery, for this peculiar institution could not be reconciled with the republic's rights-based political theory.


It is not possible to rehearse here in detail the many debates between the followers of Lincoln and Garrison, but a brief summary will be useful. Two disputed issues stand out. First, how favorable was the Constitution toward slavery? And second, on what motives did the founding generation act?

Neo-Garrisonians answer the first question rather straightforwardly: The Constitution was favorable to the institution of slavery and gave it a great deal of life-sustaining aid. Neo-Lincolnians, while conceding that the Constitution did make some accommodations to slavery, deny that these were nearly as substantial as the neo-Garrisonians claim.

As to the second question, neo-Garrisonians assert that the founders were governed by the same complex of motives that led to the establishment and flourishing of slavery in the first place: greed, racism, Christian triumphalism, and moral indifference, among others. The neo-Lincolnians, by contrast, argue that the place of slavery in the constitutional order was due primarily to the press of necessity: Without concessions to slavery, they contend, the Union would not have been possible. The neo-Lincolnians frequently point to the expectation — the hope, even — among the founders that the process of abolition in the states, begun during the Revolution, would continue until the blight of slavery had been purged from the land. As Lincoln himself put it, the founders lived in anticipation of the "ultimate extinction" of slavery.

These scholarly debates on slavery can become heated; partisans of the different positions can't even agree on how many parts of the Constitution are relevant to slavery. One neo-Garrisonian found in the Constitution 18 clauses supportive of slavery. Neo-Lincolnians find only three: the Three-fifths Clause, the Slave Trade Clause, and the Fugitive Slave Clause. Given the importance of these three clauses for the question of slavery in the Constitution, a quick look at each is in order.

The Three-fifths Clause was part of the Constitution's formula for determining representation and direct taxes. The provision stated that each state would have seats in the House of Representatives in proportion to the number of "free Persons" in the state and three-fifths of "all other Persons" — an indirect way of referring to slaves. All free persons would count for one, and all enslaved persons would count for three-fifths. So far as there would be "direct Taxes," these would be apportioned according to the same formula.

As a result, the slave states would receive bonus representation in Congress for their slaves, but they would also be liable for more taxes for that same reason. As it turned out, direct taxes were not levied, so this formula proved to be an unmitigated advantage for the slave states — though of course, those states would rather have counted slaves fully and not partially for the purpose of representation, and thus would have benefitted even more from the men and women they were holding as slaves. In that sense, the clause was something of a concession on their part.

The second provision, the Slave Trade Clause, denied Congress the power to prohibit the slave trade until 1808 — 20 years from the ratification of the Constitution. And the third — the Fugitive Slave Clause — provided (again, in roundabout language) that a slave escaping from one state into another would not become free by virtue of having crossed the border, but instead "shall be delivered up on Claim of the Party to whom such Service or Labour may be due."

One leading neo-Garrisonian, law professor Paul Finkelman, distinguishes between direct and indirect aids to slavery in the Constitution. In the former group he would include, among others, the Fugitive Slave Clause's protection of slave owners from losing runaway slaves who made it to free states. In the latter, he would include the Insurrection Clause, which empowered the federal government to come to the aid of any state facing an insurrection.

This classification is helpful. However, a distinction must be made between constitutional clauses specifically tailored to accommodate the presence of slavery and those that most likely would have appeared in the Constitution even if there were no enslaved persons in North America. The Insurrection Clause is an instance of the latter, since taking advantage of the central government's greater capacity to quell uprisings was a staple of federal theory in the founding era. Many, if not all, of the indirect aids to slavery are of this kind.

Addressing the preliminary question of how many parts of the Constitution bear on slavery requires more refinement than the neo-Garrisonians often display. To say that various provisions of the Constitution might indirectly aid slavery does not establish that aiding slavery was the aim, or even the expected long-term consequence, of the constitutional order; it would be perfectly compatible with the neo-Garrisonian idea of "indirect aids" for the founders to have aimed at and expected to see slavery undone in the medium-range future.

Many generally neutral provisions in the Constitution may functionally protect slavery, but this observation proves too much. The Constitution as a whole, if successful in providing peace, security, stability, and prosperity, would tend to provide support for any and all practices and institutions that were part of the established status quo within the states. If we used the test of aid and support as our standard for defining indirect aids, we could theoretically increase the neo-Garrisonian tally to include everything in the Constitution.


As a first step toward understanding the meaning of the slavery provisions, we must ascend to a more general level and take our bearings from two central facts about the Constitution: first, that the words "slave" and "slavery" appeared nowhere in the text as of ratification, but were instead replaced with awkward workarounds; and second, that the text fails to even contemplate a federal power to deal with slavery in the states.

The existence of slavery was accepted by the delegates, but it was not endorsed. The most obvious evidence of this fact was the drafters' conscious refusal to include the words "slavery" and "slave" in the text. This decision bespeaks a view of slavery as a blemish that many of the framers hoped could be removed. (James Madison said as much at the Constitutional Convention when declaring he "thought it wrong to admit in the Constitution the idea that there could be property in men.") In order to avoid this admission, the constitutional text deploys clumsy circumlocutions. The Fugitive Slave Clause, for instance, deliberately described slaves as "Person[s] held to Service or Labour in one State, under the Laws thereof." Tellingly, the first appearance of the word "slavery" in the document comes in the 13th Amendment's prohibition of the institution in the United States.

Instead, the Constitution's text accepted slavery as an institution of the states that chose to have it. In a speech in 1859, Stephen Douglas explained the Fugitive Slave Clause in a way that highlights the relationship between slavery and the Constitution:

[A] slave, within the meaning of the Constitution, is a "person held to service or labor in one State, under the laws thereof" — not under the Constitution of the United States, nor by the laws thereof, nor by virtue of any Federal authority whatsoever, but under the laws of the particular State where such service or labor may be due.

Likewise, the Slave Trade Clause spoke of the trade as involving "such Persons as any of the States now existing shall think proper to admit." In both clauses, the Constitution takes care not to endorse or make the institution its own. This undermines Chief Justice Roger Taney's view in the infamous Dred Scott case that the Constitution explicitly recognizes and affirms slavery, as well as the neo-Garrisonian view that the Constitution was a "proslavery compact." But it does not declare war on slavery or commit to ending the practice, either. To understand this settlement, one must look at it with the eyes not of 1857 or 2027, but of 1787.

In establishing the Constitution, the framers were making a federation — that is, a partial union of otherwise independent political units, or what the French political philosopher Montesquieu called a "society of societies." Establishing the internal ordering of the constituent units was not one of the purposes of such a union. As historian William Wiecek observed:

[N]early all the fifty-five delegates [who] arrived at Philadelphia [in 1787 shared] the common assumption that slavery as such had no place in the deliberations there because it was a "domestic institution" of the states, no different than such things as marriage or ecclesiastical governance, something...exclusively within the responsibility of the states.

That in itself made the central fact about the constitutional settlement regarding slavery — the failure of the Constitution to say or do anything about slavery in the states — nearly inevitable.

Yet the new Constitution was not a mere reprise of traditional federalism. The convention, under the leadership of Madison, revolutionized the principles of federal design by relating the government of the Union not to its member governments, as had been federal practice in the past, but directly to its individual citizens. This meant that the government of the Union intruded far more deeply into the internal life of the member states than any federation ever had.

A precondition for that unprecedented degree of Union intrusion, however, was a clear line of demarcation between matters of concern to the government of the Union and matters of concern to the states. The vehicle by which this was accomplished was the enumeration of powers. Behind this enumeration lay an idea characteristic of traditional federalism: Matters of governance internal to the member states are, with a few exceptions, not matters of concern for the government of the Union. And that included slavery.

The American order was innovative, too, in featuring a republicanism committed to the internal semi-autonomy of the states. Republicanism means, at a minimum, self-government. Each unit of the Union, the founders believed, should be a self-governing entity, meaning that other political units should not interfere with its internal concerns. Thus the commitments to federal unification and republicanism converged to guarantee that matters like slavery would be regarded as state institutions, largely outside the purview of the government and the Constitution of the Union.


Nevertheless, slavery was not left wholly as an internal matter for the member states. Slavery may have been a state institution, but in some matters it necessarily spilled over into the Union, demanding constitutional provision. That provision was more readily forthcoming than the neo-Lincolnians admit, but less pro-slavery than the neo-Garrisonians assert.

The Constitution took national account of the institution in at least three places. The first was the Fugitive Slave Clause, which provided that a slave escaping into another state would not become free by virtue of being in free territory, but would be returned to his owner as established by the laws of the slave's state of origin.

To have the kind of union the Americans sought — a huge nation of free trade among the people of each state — meant having open borders between the states, and therefore a porousness that made escape for slaves much easier than it would otherwise have been. If slaves could flee with relative ease into free states across open borders, friction between states was bound to mount. A federation should, so far as possible, steer away from obvious sources of friction between member states. For this reason, the convention accommodated the slave states on the matter of fugitives.

The Fugitive Slave Clause was not, then, a constitutional endorsement of slavery beyond the already noted constitutional principle that the existing state republics within the Union were to order themselves internally, which included keeping the slavery they already had if they so wished. The clause's drafters went out of their way to emphasize that slavery was a state institution that existed under state law, and that accommodating it was a matter of comity among the states. To repeat, the clause was not a constitutional "endorsement" of slavery. But, contrary to the thrust of neo-Lincolnian thinking, it did represent a degree of toleration of the institution.

In fact, the delegates accepted the Fugitive Slave Clause more easily than was necessary; nobody threatened to leave the Union if that clause was not included. The Slave Trade Clause, on the other hand, was a different matter.

Under the proposed Constitution, Congress would be given the power to regulate commerce with foreign nations, and that power would naturally include the power to regulate the slave trade. This delegation of a certain power to Congress placed an aspect of the institution of slavery squarely into the hands of the general government — the Union government — meaning the Constitution would have to say something about that policy.

On this matter, some states threatened to refuse to join the Union if they didn't get their way. The delegates of both South Carolina and Georgia demanded that some provision be made to keep the slave trade open. General Charles Cotesworth Pinckney of South Carolina insisted that "South Carolina and Georgia cannot do without slaves." Another South Carolinian was even more pointed: "South Carolina can never receive the plan [for a constitution] if it prohibits the slave trade."

Neo-Garrisonians concede that this was an area where the pro-slavery faction made threats of disunion. However, they believe these states were bluffing.

Perhaps it was a bluff. But one must consider how the people of 1787 were thinking about America's future if the effort to establish a constitution failed. It was already being suggested that a union of all 13 states was not possible, and that three smaller, partial unions — one, a New England confederacy; another, a middle-states confederacy; and third, a southern-states confederacy — would be preferable, or at least more feasible.

This idea disturbed many delegates, not least of which because it played into fears that Britain and other European powers were looking for a way to regain a toehold in the states. An America consisting of rival confederacies would be easy prey for the European powers, which could set those confederacies against one another and leverage the resulting competition to their advantage.

In confronting the possibility that the Union wouldn't include all 13 states, it becomes easy to see why the delegates did not wait to find out whether South Carolina and Georgia were bluffing — and why they were willing to accept a 20-year extension of the slave trade for those states, and only those states, that wanted to continue it.


Finally, we must take up the Three-fifths Clause, which deals with taxation and representation. Perhaps no other provision in the Constitution has generated more nonsensical commentary than this clause. The usual thrust of these arguments is captured in the title of a book Three-Fifths of a Man, with the point being that counting the slaves as three-fifths of a person was a statement of Americans' estimate of black people's humanity.

At least two facts speak against that interpretation. First, free blacks were counted as full persons for purposes of representation, indicating that this was not a racial matter per se. Second, it was the slave-state delegates at the convention who pressed to count the slaves as full persons. The Northerners, who were in the process of abolishing slavery, were the ones who wanted the slaves to count for nothing. This fact is most inconvenient for the commonly circulated account of the clause's meaning.

The origin of the mysterious "three-fifths" number is also relevant to the debate. The three-fifths formula arose under the Articles of Confederation as part of an attempt to allow Congress to calculate how much each state owed to the U.S. Treasury to offset the cost of the Revolutionary War. The original plan was to assess the total wealth of each state, and then to charge them in proportion to those figures. But after a while, the representatives realized that this method would not work. Calculating states' wealth would be a daunting task at any time, but imagine trying to do it during a war. Instead, they came up with the solution of using population as a surrogate for total wealth — the idea being in part that human labor is the chief source of wealth (the framers of the Articles were good Lockeans). But the question of how to count slave labor soon arose.

Everybody agreed that slave labor was less productive than free labor, since people tend to work harder when they keep the fruits of their labor than when they do not. Given that the amount of taxes each state would have to pay was at stake, the Southerners tried to minimize the productivity of slaves, asserting that a slave was only half as productive as a free laborer, while the Northerners tried to maximize it, deeming slave labor two-thirds as productive as free labor. The three-fifths formula represented a compromise between one-half and two-thirds.

Years later, at the Constitutional Convention, one of the earliest and most important decisions made provided that representation in the lower house of Congress would be proportionate to state population. Here again we encounter a necessary spillover effect of slavery: To count the population, the delegates would have to decide how to count the slaves. The idea behind population-proportional representation was that each state should be represented to a degree that reflected its relative wealth, power, and influence. These factors, of course, were among the considerations that went into the original formulation of the three-fifths rule under the Articles of Confederation. The number thus made it into the Constitution for many of the same reasons it landed in the Articles.


In surveying the provisions of the Constitution that touch directly on slavery, it is striking how few they are in number and the degree to which they share one characteristic: They are the places where the Constitution would inevitably have to build in some power or policy with regard to the institution. Whenever the Constitution dealt with slavery, it was careful to hold it at arm's length as a matter belonging to the states.

The Constitution thus accepts slavery as a fact characterizing some of the member units, and accommodates that fact so far as its effects spill over into the Union. This comprises, at most, a stance of neutrality toward an institution that some members recognized, but others did not.

At the same time, the delegates' unwillingness to state the name of the institution in the Constitution's text bespeaks a distinct lack of neutrality. If the Constitution were truly neutral toward or supportive of slavery, it would show no aversion to naming the institution. Consider the Constitution of the Confederate States of America, which spoke openly of the peculiar institution by its proper name. It also prohibited member states from abolishing slavery: That is what a real pro-slavery constitution looks like.

The constitutional provisions regarding slavery must also be viewed against the backdrop of the political climate of the day. The colonies, acting together to declare their independence, had expressed a theory of legitimacy that nearly all members of that generation understood to be contrary to the institution of slavery. Thus William Wiecek spoke of "the widespread and heart-felt opposition to slavery expressed by so many of the Framers" and endorsed as "doubtless correct" the neo-Lincolnians' tendency to "ascrib[e] some degree of antislavery sentiment to most of them."

Nearly all the states adopted constitutions reaffirming that same theory of legitimacy, and during the founding era, many of the states acted on the perceived incompatibility between those received principles and slavery by moving to abolish the practice. Where slavery was retained, the most common defense was the plea of necessity, not an assertion that slavery was inherently right or legitimate.

Having rehearsed these familiar facts, we may propose a formula for the place of slavery in the Constitution that is neither neo-Garrisonian nor neo-Lincolnian: Within the constitutional order, slavery was legal but not legitimate. It was legal within the member states and, to a degree, within the Constitution itself, gaining carve-outs where it spilled over the borders of the member states and impinged on the Union. It was not, however, legitimate. The delegates to the Constitutional Convention recognized that the political theory embodied by the Declaration of Independence was incompatible with slavery, and took great pains to avoid constitutional recognition of the institution where possible. The point of this observation is a relatively narrow yet important one: The Constitution did indeed give slavery a place in the established legal regime, but the institution remained outside the broader consensus on the basic principles of legitimacy upon which the Constitution rested.

But that principle of legitimacy did not penetrate or inform the entire political system. Ours was in this sense an incomplete Constitution. It cannot truthfully be said that the Constitution gave no aid to slavery as an institution. However, nothing that the framers did was incompatible with the hope — perceived by neo-Lincolnians — that the institution would ultimately fade away.

No political system can maintain the kind of disparity between legality and legitimacy that marked the American order at its outset. A political community featuring such a disparity will experience great pressures to bring legitimacy and legality into greater harmony with one another. As Lincoln put it, "[a] house divided against itself cannot stand." Unsurprisingly, the antebellum period was deeply marked by the tensions resulting from the disparity between legitimacy and legality — tensions that grew ever more difficult to ignore as time passed.


Three kinds of responses to these pressures emerged during the antebellum era. One attempted to remake legality so that it would cohere with legitimacy; such was the approach of various abolitionists. A second response sought to remake legitimacy to match the anomalous legality of slavery; such were the efforts of John Calhoun, Alexander Stephens, and others who deemed slavery a positive good. Finally, some endeavored to creatively maintain the tension so as to preserve the original (defective and incomplete, but established) constitutional order. Supreme Court justices Joseph Story and Benjamin Curtis were two who trod this path.

The strain caused by the diremption between legality and legitimacy ultimately proved too great for the political system to bear. The result was the Civil War, which in theory settled the issue in the 13th, 14th, and 15th amendments to the Constitution.

As mentioned above, the Constitution that left the hands of its framers was drastically incomplete, largely because of its character as a federal constitution. The Reconstruction amendments were understood by their authors to achieve the completion of the Constitution by producing a political arrangement in which legitimacy and legality finally converged. That convergence involved — indeed, required — a much more forceful break with the federal principle than the original constitution made. At the same time, all it took to free the Constitution from its entanglement with slavery was the application of the legitimacy principles expressed in the Declaration of Independence to the states.

The completion of the Constitution was not in itself sufficient to overcome the legacy of slavery, which shows once again that the Constitution was not the main instrument for the establishment or maintenance of slavery in America. The document was thus neither a covenant with death nor a bulwark against slavery. It was admittedly imperfect, but not evil. Given the task of constitution-making as the founders conceived it, and given the mark that history had already made on the continent, it was what it had to be.

Michael P. Zuckert is the Nancy Reeves Dreux Professor Emeritus of Political Science at the University of Notre Dame and clinical professor at Arizona State University.


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