excerpted from: Paul Finkelman, THE ROOT OF THE
PROBLEM: HOW THE PROSLAVERY CONSTITUTION SHAPED AMERICAN RACE RELATIONS
, 4 Barry Law Review 1 (Fall 2003)
This symposium asks important questions about the relationship
between race and the American constitutional order. Lawyers and legal
scholars usually focus their attention on the present. What are the
issues that we must address today? How can we solve current problems?
What are the legal policies and litigation strategies that will move us
towards greater racial justice in the next year or the
next decade? These are the questions that lawyers ask. They are good
questions and questions that must be considered. However, in seeking
answers to these questions, a long historical perspective may also be
helpful. The race problem in America did not begin recently. A century
ago the great black scholar W.E.B. DuBois predicted, "the problem
of the Twentieth Century is the problem of the color line."
But, well before 1903, when DuBois was writing, the problem of race was
already highly visible. It stemmed of course, from the existence of
racially based slavery. The problems created by slavery-the moral and
political legacies of slavery-were further complicated by the fact that
the national constitution protected slavery in a myriad of ways.
We should not be shocked or surprised that the Constitution protected
slavery. Slavery, after all, was a
powerful economic institution. In 1787 the value of all the slaves in
the United States exceeded that of any other form of property except
real estate. In 1787 slavery was legal
in all but two states, and in five southern states slavery was the
central economic institution. Almost all
the leaders in five states-including the largest state, Virginia-were
slaveowners. While a form of property
found almost everywhere, slavery was also clearly a special, even
peculiar, kind of property. Slaves were also people. They could resist
their enslavement and try to escape from it; they were thinking beings
who could challenge, in a variety ways, their condition. Furthermore,
many Americans and Europeans had begun
to question both the morality and wisdom of slaveholding.
Given its economic importance and its vulnerabilities, it is not
surprising that the southerners at the Constitutional Convention
demanded, and won, huge concessions to protect their "peculiar
institution," as even they called it.
Slavery was the key to economic prosperity in the South, and southerners
could not imagine how their society would work without it. Thus, on
purely economic grounds, we should not be surprised to discover that an
important and clearly unusual form of property received special
protection in a Constitution. But, slavery in the United States was more
than simply an economic system designed to extract labor, at a
relatively low cost, from those who were enslaved.
Slavery was also a system of racial control. In a society predicated
on the assumption that all people were "created equal,"
slaveholders and their white non-slaveholding neighbors were certain
they knew better; they were convinced, that blacks were fundamentally
inferior to whites. Illustrative of this position were the arguments set
out by Thomas Jefferson in his book, Notes on the State of Virginia.
Jefferson claimed he had never found a black who "had uttered a
thought above the level of plain narration; never seen an elementary
trait of painting or sculpture." He found "no poetry"
among blacks. Jefferson argued that blacks' ability to
"reason" was "much inferior" to whites, while
"in imagination they are dull, tasteless, and anomalous," and
"inferior to the whites in the
endowments of body and mind." Jefferson conceded blacks were brave,
but this was due to "a want of fore-thought, which prevents their
seeing a danger till it be present."
In general, their existence appears to participate more of sensation
than reflection. To this must be ascribed their disposition to sleep
when abstracted from their diversions, and unemployed in labour. An
animal whose body is at rest, and who does not reflect, must be disposed
to sleep of course. Comparing them by their faculties of memory, reason,
and imagination, it appears to me, that in memory they are equal to the
whites; in reason much inferior, as I think one could scarcely be found
capable of tracing and comprehending the investigations of Euclid; and
that in imagination they are dull, tasteless, and anomalous.
He speculated that blackness might come "from the colour of the
blood." Absurdly, he suggested that blacks might breed with the
Jefferson may have been the first southerner to set out these ideas
in such a careful analysis, and he
surely articulated them with a greater sense of style and careful
thought than most southern slaveowners. But his ideas were clearly
acceptable to most southern whites. Throughout the Revolutionary period
most southern leaders made it clear that the only role they saw for
blacks was as slaves. A few enlightened
southern leaders of the Revolution--General George Washington and
Colonel John Laurens for example-- were
willing to accept blacks as free people and comrades in arms.
But most were not. Thus, at the Constitutional Convention
southerners-especially the delegates from South Carolina-jealously
protected their interest in slavery.
By the time of the Constitutional Convention slavery had begun to
evolve into a sectional institution.
Slavery was still legal in most states. Only two, Massachusetts and New
Hampshire, had actually abolished it.
But three others, Pennsylvania, Connecticut, and Rhode Island, had
passed gradual abolition acts, which meant they would eventually become
free states. The putative state of
Vermont, which would become the fourteenth state shortly after the
ratification of the Constitution, incorporated a gradual abolition
provision in its two prestatehood Constitutions.
Thus, it was clear to the southern delegates that they were entering a
union that would be part slave and part free. Even though most
southerners at the Convention were convinced of the morality, justice,
and necessity of slavery, they understood that many Americans,
especially in the North, did not agree with them on this issue.
Thus, at the Convention the delegates from the South, especially the
Deep South, fought tenaciously to protect slavery in a variety of ways.
In the end, they were enormously successful. When General Charles
Cotesworth Pinckney returned to South Carolina after serving as a
delegate to the Convention, he told
the state legislature, "In short, considering all circumstances, we
have made the best terms for the security of this species of property it
was in our power to make. We would have made better if we could; but on
the whole, I do not think them bad."
General Pinckney had good reason to be proud of his role in
Philadelphia. Throughout the Convention Pinckney and other delegates
from the Deep South tenaciously fought to protect the interests of
slaveholders. In these struggles they were usually successful.
The clauses that Pinckney and other southerners worked hard to create
set the stage for a government that both protected slavery and was
deeply influenced by it. This in turn shaped American race relations,
not only in the antebellum period, but during Reconstruction and beyond.
In addition, the jurisprudence of slavery had long-term implications for
American constitutional law. To this day, inequities associated with
race, racism, and racial separation trouble our society and our legal
system. Race remains America's greatest
social problem, as it has been since before the founding of the nation.
Since 1776 Americans have repeatedly failed to implement our national
credo, that all people "are created equal, that they endowed by
their Creator with certain unalienable Rights, that among these are
Life, Liberty, and the Pursuit of Happiness."
I. Slavery in the Constitutional Structure
The word "slavery" appears in only one place in the
Constitution--the Thirteenth Amendment, where the institution is
abolished. In the main body of the Constitution, slaves are referred to
as "other persons,"
"such persons," or in the
singular as a "person held to Service or Labour."
Why is this the case?
Throughout the Constitutional Convention the delegates talked about
"blacks," "Negroes," and "slaves."
But the final document avoided these terms. The final language was
designed to make the Constitution more palatable to the North. In a
debate over representation, William Paterson of New Jersey pointed out
that the Congress under the Articles of Confederation "had been
ashamed to use the term 'Slaves' & had substituted a
This argument was more than a little disingenuous. It is hard to
imagine that the many slaveholders in the Continental Congress were
truly "ashamed" over owning slaves. For example, during one
debate in the Continental Congress over taxation, Thomas Lynch of South
Carolina asserted: "If it is debated whether (our) slaves are (our)
property, there is an end of the confederation."
Indeed, throughout the Confederation period slaveholders protected
slavery in a number of ways in the Congress.
Similarly, in the treaty ending the Revolutionary War, the southerners
in Congress were careful that their interest in slaves was made clear,
demanding that the departing British Army
refrain from "carrying away any negroes or other property of the
American inhabitants." Britain
failed to comply with this provision and also refused the return slaves
taken when the Army left America. Thus " (f)rom 1783 onward,
Congress repeatedly instructed its diplomatic emissaries abroad to seek
satisfaction for the thousands of slaves carried off in disregard of the
treaty." Clearly, the members of
the Continental Congress were not embarrassed by slavery or afraid to
use the term--or simply to use the racial term Negroes--when it suited
their purpose. However, when the Congress did avoid a direct use of the
term it was because the delegates in Congress understood that some
people in America found slavery distasteful, and that in Europe many who
were naturally sympathetic to the revolutionary movement were also
opposed to slavery. Not a few Englishmen read the Declaration of
Independence and wondered, as did Samuel Johnson, "How is it that
we hear the loudest yelps for liberty among the drivers of negroes?"
Thus, during the Revolution and immediately after it, the politicians of
the new nation understood that it made sense to sometimes avoid the word
" slave" and substitute a description for it.
Delegates to the Constitutional Convention understood that the word
"slave" made some people uncomfortable, even though they were
not ashamed to use it. Similarly, many used the terms "Negro,"
"black," and "slave" interchangeably, illustrating
the extent to which race was tied to slavery. Few made
any apology for the institution. James
Madison, for example, in discussing how the president should be elected,
told the Convention that "the people at large" were "the
fittest" to choose the president.
But he rejected this idea because the "right of suffrage was much
more diffusive in the Northern than the Southern States; and the latter
could have no influence in the election on the score of the
Negroes." Madison, who was as
humane a slaveowner as one might find, was hardly embarrassed by arguing
that Virginia should get political power for its slaves. Indeed, almost
none of the slaveholders at the Convention felt any great shame over
their human property. South Carolina's Charles Pinckney, the cousin of
the more famous General Charles Cotesworth Pinckney, declared that,
"(I)f slavery be wrong, it is justified by the example of all the
world." He then "cited the case of Greece Rome & other
ancient States; the sanction given by France England, Holland &
other modern States." Pinckney reminded the Convention that
"In all ages one half of mankind have been slaves."
Nor were a number of leading non-slaveowners at the Convention
embarrassed by slavery. Indeed, some of the northerners were clearly
uninterested in raising any questions about the morality of
slaveholding. During a debate over the slave trade, for example, Oliver
Ellsworth of Connecticut refused to even consider the"morality or
wisdom of slavery," simply asserting that " (w)hat enriches a
part enriches the whole."
Ellsworth asserted that because he
"had never owned a slave," he "could not judge of the
effects of slavery on character."
Similarly, in the same debate, Roger Sherman of Connecticut declared his
personal disapproval of slavery and his desire to see it eradicated in
his home state, but he refused to condemn it in other parts of the
nation. In opposing a prohibition of the African slave trade he asserted
that "the public good did not require" an end to the trade.
Noting that the states already had the right to import slaves, Sherman
saw no point in taking a right away from the states unnecessarily
because "it was expedient to have as few objections as
possible" to the new Constitution.
Indeed, in the end it was "expedient" behavior, not
ideology or shame that led framers to avoid using the word
"slave" in the Constitution. This was made clear during the
debates over the African slave trade. Under the proposed Constitution,
Congress would have had the power to regulate all foreign commerce,
which meant that Congress could have banned the African slave trade if
it had chosen to do so. The delegates from the Carolinas and Georgia
vigorously demanded that the African trade remain open under the new
Constitution. They wanted a specific exemption for the trade from the
normal operation of what became the Commerce Clause. Gouverneur Morris
of Pennsylvania, furious at what he considered an immoral compromise,
suggested that the proposed clause read: the "Importation of slaves
into N. Carolina, S. Carolina
& Georgia" shall not be prohibited.
Connecticut's Roger Sherman, who voted with the deep South to allow the
trade, objected, not only to the singling out of specific states, but
also to the term "slave." He declared that he "liked a
description better than the terms proposed, which had been declined by
the old Congs & were not pleasing to some people."
George Clymer of Pennsylvania "concurred with Mr. Sherman" on
this issue. When he returned from the
Philadelphia Convention, James Iredell explained to the North Carolina
ratifying convention that "(T)he word 'slave' is not
mentioned" because "(t)he northern delegates, owing to their
particular scruples on the subject of slavery, did not choose the word
'slave' to be mentioned."
In the end the Convention avoided using the term "slave" or
"Negro" because it was expedient to do so. Northern delegates
wanted to avoid antagonizing their own constituents, who might support a
stronger Union but were hostile to slavery; southerners were ready to
acquiesce on this point because the description was clear and
unmistakable. But, despite the circumlocution, the Constitution directly
sanctioned slavery in five provisions:
Art. I, Sec. 2. Cl. 3. The "three fifths clause" provided
for counting three-fifths of all slaves for purposes of representation
in Congress. This clause also provided that, if any "direct
tax" was levied on the states, it could
be imposed only proportionately, according to population, and that only
three-fifths of all slaves would be counted in assessing what each
state's contribution would be.
Art. I, Sec. 9, Cl. 1. The "slave trade clause" prohibited
Congress from banning the "(M)igration or Importation of such
Persons as any of the States now existing shall think proper to
admit" before the year 1808. Awkwardly phrased and designed to
confuse readers, this clause prevented Congress from ending the African
slave trade before 1808, but did not require Congress to ban the trade
after that date. The clause was a significant exception to the general
power granted to Congress to regulate all international commerce.
Art. I, Sec. 9, Cl. 4. The "capitation tax clause" insured
that any "capitation" or other "direct tax" had to
take into account the three-fifths clause. It ensured that, if a head
tax were ever levied, slaves would be taxed at three-fifths the rate of
free people. The "direct tax" portion of this clause was
redundant, because that was provided for in the three-fifths clause.
Art. IV, Sec. 2, Cl. 3. The "fugitive slave clause"
prohibited the states from emancipating fugitive slaves and required
that runaways be returned to their owners "on demand."
Art. V. The amendment provisions prohibited any amendment of the
slave importation or capitation clauses before 1808.
Taken together, these five provisions gave the South a strong claim
to "special treatment" for its peculiar institution. The
three-fifths clause also gave the South extra political muscle--in the
House of Representatives and in the electoral college--to support that
Numerous other clauses of the Constitution supplemented the five
clauses that directly protected slavery. Some provisions that indirectly
guarded slavery, such as the prohibition on taxing exports, were
included primarily to protect the interests of slaveholders. Others,
such as the guarantee of federal support to "suppress
Insurrections" and the creation of the electoral college, were
written with slavery in mind, although delegates also supported them for
reasons having nothing to do with slavery. The most prominent indirect
protections of slavery were:
Art. I, Sec. 8, Cl. 15, empowered Congress to call "forth the
Militia" to "suppress Insurrections," including slave
rebellions. This clause would be implemented to help suppress Garbiels'
rebellion, the Nat Turner Rebellion, and John Brown's attempts to make
war on slavery in Virginia.
Art. I, Sec. 9, Cl. 5, prohibited federal taxes on exports and thus
prevented an indirect tax on slavery by taxing the staple products of
slave labor, such as tobacco, rice, and eventually cotton.
Art. I, Sec. 10, Cl. 2, prohibited the states from taxing exports or
imports, thus preventing an indirect tax on the products of slave labor
by a nonslaveholding state. This
was especially important to the slave states because almost all slave
states produced export products--tobacco, rice, and eventually cotton
which were shipped out of Northern ports.
Art. II, Sec. 1, Cl. 2, provided for the indirect election of the
president through an electoral college based on congressional
representation. This provision incorporated the three-fifths clause into
the electoral college and gave whites in slave states a disproportionate
influence in the election of the president. This clause had a major
impact on the politics of slavery as well as American history in
general. Thomas Jefferson's victory in the election of 1800 would be
possible only because of the electoral votes the southern states gained
on account of their slaves. Thus Jefferson, who spent most of his career
quietly and privately protecting slavery while publicly trying to avoid
any conflict over slavery, was elevated to the presidency in part
because of slavery.
Art. IV, Sec. 3, Cl. 1, allowed for the admission of new states. The
delegates to the Convention anticipated the admission of new slave
states to the Union.
Art. IV, Sec. 4, through this provision, known as the "guarantee
clause," the United States government promised to protect states
from "domestic Violence," including slave rebellions.
Art. V required a three-fourths majority of the states to ratify any amendment
to the Constitution. This Article ensured that the slaveholding states
would have a perpetual veto over any constitutional changes. The power
of this provision in protecting slavery was profound. It effectively
prevented any normal constitutional end to slavery. Had all 15 slave
states that existed in 1860 remained in the Union, they would to this
day be able to prevent an amendment on any subject. In a 50-state union,
it takes only 13 states to block any amendment.
Besides specific clauses of the Constitution, the structure of the
entire document ensured against emancipation of slaves by the new
federal government. Because the Constitution created a government of
limited powers, Congress lacked the power to interfere in the domestic
institutions of the states. Thus, during the ratification debates only
the most fearful southern antifederalists opposed the Constitution on
the grounds that it threatened slavery. Most southerners, even those who
opposed the Constitution for other reasons, agreed with General Charles
Cotesworth Pinckney of South Carolina, who crowed to his state's house
of representatives: "We have a security that the general government
can never emancipate them, for no such authority is granted and it is
admitted, on all hands, that the general government has no powers but
what are expressly granted by the Constitution, and that all rights not
expressed were reserved by the several states."
From the perspective of modern constitutional analysis, it is of
course possible to imagine
numerous ways in which Congress or the President might have undermined
slavery. Under modern law Congress could have limited the interstate
movement or sale of slaves, or even the products of their labor. This
would certainly have ended the institution, just as Congress was able to
end child labor or establish a minimum
wage. But, modern commerce clause
jurisprudence did not emerge until the 1930s.
In the Nineteenth Century it was impossible to imagine Congress using
its powers in this way and it is equally impossible to image the Supreme
Court allowing it. Congress might also have abolished slavery in the
nation's capital, using its power to govern the District of Columbia.
Indeed, during the Civil War Congress would do this. It is of course
doubtful that the Supreme Court under Chief Justice Taney would have
upheld an emancipation act for the District of Columbia, given the
Court's position in Dred Scott. But,
even if Congress had ended slavery in the District of Columbia, and the
Court had allowed this to go forward, this would have been just a minor
victory affecting only a small number of slaves. Thus, when we consider
how the Constitution protected slavery, it is vital to understand the
Constitution within the context of the late eighteenth century and the
period up to the Civil War. In that context it is clear that the
Constitution created in 1787 gave enormous protection to slavery and
made it impossible to end slavery within the existing constitutional
Southerners understood this. At the Virginia ratifying convention,
Edmund Randolph denied that the Constitution posed any threat at all to
slavery. He challenged opponents of the Constitution to show,
"Where is the part that has a tendency to the abolition of
slavery?" He answered his own
question asserting, "Were it right here to mention what passed in
(the Philadelphia) convention... I might tell you that the Southern
States, even South Carolina herself, conceived this property to be
secure" and that "there was not a member of the Virginia
delegation who had the smallest suspicion of the abolition of
slavery." South Carolinians, who
had already ratified the Constitution, would have agreed with Randolph.
As I noted earlier, in summing up the entire Constitution, General
Charles Cotesworth Pinckney, who had been one of the ablest defenders of
slavery at the Convention, proudly told the South Carolina House of
Representatives: "In short, considering all circumstances, we have
made the best terms for the security of this species of property it was
in our power to make. We would have made better if we could; but on the
whole, I do not think them bad."
On this point he was truly correct.
II. The Constitutional Legacy of Slavery
The protections about which Pinckney bragged set the stage for a
proslavery national government and a proslavery jurisprudence in the
nineteenth century. The United
States still lives with some of the legacy of these political decisions
and jurisprudential developments.
The three-fifths clause is the most obvious example of how
Constitutional arrangements protected slavery. Starting with the debate
over the Missouri Compromise the South won a series of close
Congressional votes on issues involving slavery. Supporters of slavery
were usually able to muster a majority in the Senate. Until 1850 there
was almost always an equal number of slave and free states. For a brief
time in the 1840s there were actually more slave states than free
states, as Texas and Florida achieved statehood before Iowa and
Wisconsin were admitted to the Union. Representation in the House,
however, was based on population. The free population of the South was
vastly smaller than that of the North. From the first census on the
South was in the minority in the House of Representatives. Without the
three-fifths clause the South would have been overwhelmingly outvoted in
the House. But, with its representation augmented by the three-fifths
clause, the South was often able to hold its own in the House with the
help of a few allies from the North.
If the South had not had its extra representation based on the
three-fifths clause the outcome of many of these votes would have been
different. The South simply would not have been able to muster enough
northern support to get its way. Counterfactuals are of course
impossible to prove, but possible scenarios seem plausible. In 1820
Missouri might have come into the Union as a free state,
or with a gradual emancipation scheme built into its new Constitution.
This might very well have altered the whole trajectory of national
politics. The debate over slavery in the West might have been stopped
before it could begin. The annexation of Texas as a vast territory for
the expansion of slavery might similarly have been thwarted, either by
not annexing the Republic or by forcing some gradual end to slavery. It
is similarly difficult to imagine the passage of the draconian fugitive
slave law of 1850 if the three-fifths clause had not provided so many
members of Congress for the slave states. That law squeaked through the
House only because the master politician, Stephen A. Douglas, was able
to persuade a number of northern representatives to stay away from
Congress on the day of the vote. With fewer southerners in the House, it
would probably have been impossible for Douglas to accomplish this
victory. Other votes, not directly
related to slavery, might also have been changed. Southerners generally
opposed internal improvements, federal support for railroad development,
protective tariffs, the national bank, and a uniform bankruptcy law. A
substantially smaller southern delegation in the House of
Representatives might have led to quite different policies in these
areas. From the late 1820s until the Civil War the South dominated the
Democratic Party. With fewer southerners in the House, northern
Democrats would have had more power within their own party. At the same
time, the total number of Democrats in the House might have been
reduced, thus making the Whig Party more
Perhaps the most obvious example of southern power in the House of
Representative concerns the "gag rule," first adopted by the
House in 1836. In the early 1830's the
emerging abolitionist movement embarked on a strategy of flooding
Congress with antislavery petitions.
These were designed to both express the petitioners' disgust with
slavery and to stimulate public debate on the institution. In 1836 the
House adopted a "gag rule," requiring that all petitions over
slavery be tabled without being read or debated. The rule remained in
effect until 1844, when southerners could no longer muster enough
northern support to push it through the House. Without the three-fifths
clause it is unlikely such a rule could ever have been adopted.
The gag rule symbolized the danger of slavery to the body politic.
Many northerners found the rule oppressive because it so blatantly and
directly denied their constituents the constitutional right "to
petition the government for a redress of grievances."
The policy ultimately backfired, by allowing opponents of slavery to
link their cause to fundamental constitutional rights and to
simultaneously make the obviously correct claim that slavery threatened
the civil liberties of whites as well as blacks. The rule also closed
off opportunities to debate slavery and prevented southerners from
hearing how deeply many northerners felt about slavery. Most of all, the
rule encouraged southern arrogance in Congress that damaged sectional
It is unlikely-indeed it seems impossible to imagine-that it would
have ever been possible to achieve a peaceful political solution to the
problem of slavery. But, it is possible to imagine a government that was
less protective of the institution.
Another example of the importance of the southern power in House and
the Democratic Party concerns the suppression of the African slave
trade. In 1807 Congress passed legislation prohibiting the importation
of foreign slaves. Many southerners,
including almost all Virginia politicians, agreed with this legislation.
The Virginian support for this legislation is complicated. Collectively,
Virginia had more slaves than it needed, and had become a net exporter
of slaves. It would remain so until the Civil War. Thus, unlike their
counterparts in Georgia and South Carolina, few, if any, Virginians had
a personal interest in importing slaves from Africa. Those Virginians
who did own more slaves than they needed understood that closing the
African trade would increase the value of their own surplus slaves.
Thus, narrow economic self-interest put Virginians and Marylanders (who
also had excess slaves) firmly in the camp of those wished to end the
trade. Many Virginians, including Thomas Jefferson, believed that blacks
were inherently dangerous, and thus ending the trade would help the
nation by setting the stage for a reduction in the percentage of blacks
in the society. Others believed that
people recently enslaved and freshly imported from Africa were more
likely to rebel than those raised as slaves in the United States. Thus,
stopping the trade was a wise move. Finally, some Virginians and other
southerners undoubtedly believed that the African trade was truly
immoral. They could make a moral distinction between owning people who
were born into slavery, and enslaving those who were captured in Africa
and brought here. Thus, for a variety
of reasons, Members of Congress from Virginia and other slave states
joined their northern counterparts in voting to end the African slave
trade. The Three-Fifths Clause had no effect on this outcome.
However, banning the slave trade did not end it. Slaves were still
available in Africa and were being brought to the New World. They
remained a valuable commodity and demand for them was high, especially
as the cotton kingdom expanded west from the Carolinas into Georgia,
Alabama, the Mississippi Delta and beyond. There was always market for
illegally imported slaves, and incentives for smuggling them were high.
While southerners had voted to ban the trade in 1808, they were never
fully committed to actually suppressing it. Thus, from 1808 until the
Civil War the illegal trade continued. Under its own statutes as well as
international agreements, the United States was obligated to help
suppress the trade. But, Congress never properly funded the Africa
Squadron, and thus smugglers were rarely intercepted. Had the South not
had its extra muscle from the three-fifths clause, it is likely that
Congress would have provided sufficient resources to suppress the trade.
As already noted, the three-fifths clause affected presidential
elections through the electoral college. The electors created by slaves
provided Jefferson's margin of victory over Adams in 1800.
This outcome had a profound effect on our relationship with Haiti, and
most likely on that nation's subsequent history. On the eve of the
election of 1800 the United States was on the verge of extending full
diplomatic relations to Haiti. The United States was already Haiti's
most important trading partner. Had
Adams been reelected, the United States and Haiti would have remained
close friends. The United States would not only have provided a market
for Haiti's goods, but could also have provided a model for Haiti to
emulate. In the century-and-a-half before Independence the American
colonists had been involved in their own governance, run elections, and
held public office. Thus, the people of the new American nation were
superbly prepared for self-government. They were arguably the best
prepared colonial population in the history of the world. The Haitians,
on the other hand, had been slaves up to the time they threw off their
French masters and French rule. As
slaves they had no experience with voting, holding office, or
government. They were perhaps the most ill-prepared people to ever gain
their independence from an imperial master. The Haitians looked to the
United States for guidance. They wanted to do more than trade with us;
they wanted to learn from us. Had Adams been reelected this might have
occurred. In addition, diplomatic recognition of Haiti
would have brought to the United States a diplomat who was a person of
color-a black or mulatto. This would have been at least a minor blow to
the white supremacy endemic to official Washington in the nineteenth
century. But, the election of Jefferson changed all this.
Haiti was Jefferson's-and the South's-worst nightmare. Immediately
after his election, Jefferson withdrew all American diplomatic personnel
from Haiti. Any chance of diplomatic recognition was over. Then, with
"implacable malice" toward the black republic,
Jefferson did everything in his power to undermine the Haitian
Revolution, including banning trade with the island and offering to aid
the French in re-conquering the island.
In 1806 Congressman John Wayles Eppes, Jefferson's son-in-law, declared
he would "pledge the Treasury of the United States that the Negro
government should be destroyed."
On this issue Eppes was clearly the spokesman for his father-in-law, the
President. Once in office Jefferson
instituted an embargo against Haiti, which was designed to crush the
young nation's economy. While not
wholly successful, Jefferson's actions surely harmed the struggling
Because of Jefferson's hostility to Haiti, and the proslavery tenor
of American politics in the next six decades, the United States did not
grant diplomatic recognition to Haiti until the Lincoln administration.
We can never know how the history of the hemisphere would have turned
out, but it is not hard to imagine
that that half of the world would be a better place if the United States
had developed, early-on, a better relationship with Haiti. Today, when
the United States deports desperate Haitian refugees, seeking an escape
from their dire poverty, we can only wonder what their world, and our
world, would be like if proslavery compromises at the Constitutional
Convention had not sent John Adams into retirement in 1801.
III. Slavery and Constitutional Jurisprudence
From the adoption of the Constitution until 1861 slavery was an
enormously important economic institution. The aggregate value of all
the slaves in the nation exceeded that of any other from of property
except real estate. Not surprisingly, slavery affected constitutional
The jurisprudence of slavery has often been ignored by most legal and
constitutional scholars. In recent years a few constitutional law
casebooks have begun to take note of slavery, but usually it is isolated
into a separate section on slavery or civil rights.
Such an approach misleads students (and professors) because it implies
that slavery is either a dead issue, which is only of historical
interest, or that slavery needs only to be understood in the context of
American race relations. Surely we cannot understand American race
relations without understanding slavery. That alone is enough of a
reason for studying slavery as part of a law school curriculum. How,
we might properly ask, can we possibly imagine what the purpose of the
13 th Amendment was if we do not understand the institution it was
abolishing? How can we understand the 14 th Amendment without
understanding the racism of Dred Scott v. Sandford
that the Amendment overturned.
The jurisprudence of slavery goes well beyond race, however, it shows
up in cases that were not directly about slavery. The development of
American federalism was greatly influenced by slavery. The slave states
insisted on limitations on the national government precisely because
they were afraid (correctly as it turned out) that some day despite all
the proslavery aspects of the Constitution, a national administration
deeply hostile to slavery might take power. As I noted elsewhere in this
article, after the Convention South Carolina's General Charles
Cotesworth Pinckney told his state legislature: "We have a security
that the general government can never emancipate them, for no such
authority is granted and it is admitted, on all hands, that the general
government has no powers but what are expressly granted by the
Constitution, and that all rights not expressed were reserved by the
several states." Pinckney's point
illustrates the importance of slavery to federalism, and federalism to
slavery. No other institution was so vulnerable to hostile legislation
at the national level, and so no other institution needed the
protections that federalism created.
In large part to protect slavery, the Supreme Court developed the notion
of state police powers. The doctrine was first articulated in Mayor of
New York v. Miln, an 1837 case decided
during Roger B. Taney's first term as Chief Justice. On the surface the
case had nothing to do with slavery. It was about the regulation of
immigrants. A New York law required all vessels docking in the state to
provide a list of passengers and further required that the owners of the
ship post security in the event any of these passengers became public
charges. As such, the statute was aimed at white immigrants, especially
poor Irish immigrants. Miln, the master of a ship bringing immigrants
into New York, had failed to provide a list of passengers and also did
not post a bond. The city then sought to collect the statutory penalty
for his failure to file the report. Miln argued that the state law
violated the Commerce Clause, which vested all powers over interstate
and foreign commerce in the Congress. In upholding New York's law, the
Court carved out an exception to the Commerce Clause argument, invoking,
for the first time, what later came to be called the state police
power--the right of a sovereign to take all necessary steps to protect
the health, safety, and welfare of its citizens. Thus, the Court held
that New York was competent "to provide precautionary measures
against the moral pestilence of paupers, vagabonds, and possibly
convicts, as it is to guard against the physical pestilence, which may
arise from unsound and infectious articles imported."
While not readily apparent to modern readers, Miln was directly tied
to the growing sectional tension
over slavery and the rights of free blacks. In the 1820s South Carolina
and other states adopted laws restricting free blacks from entering
their jurisdictions. Known as "black seamen's laws," the acts
provided for the incarceration of free black sailors who entered the
state. South Carolina's law required that black sailors entering the
state be kept in jail as long as their ship was in port. They would be
released to the custody of their ship captain when the ship was to
depart, but only if the black sailor or his captain paid the cost of the
These laws, and the issue of regulating the interstate movement of
people, first emerged in the United States Circuit Court for South
Carolina as Elkison v. Deliesseline.
Sheriff Francis G. Deliesseline of Charleston, South Carolina had
arrested and jailed Henry Elkison, a British subject, under the state's
1822 "black seamen's act." Elkison turned to the federal
courts for relief. Justice William Johnson, while riding circuit,
declared in dicta that the South Carolina law violated the Commerce
Clause. However, for procedural reasons Johnson did not order Elkison's
freedom. Counsel for South Carolina argued that his state had as much
right to "quarantine" free blacks as New York had to
quarantine immigrants who might enter the country with diseases. The
constitutional questions in this case were about states rights, federal
powers, federalism, the Tenth Amendment, and the meaning of the Commerce
Clause. But the heart of the case was about slavery and race relations.
In essence, Elkison raised the question of whether the states or the
federal government could control the movement of people in and out of
states. Justice Johnson avoided the question in this case and the
Supreme Court never faced it with regard to free blacks. But,
in Miln the Court gave the answer the South wanted: the states were free
to regulate who could enter their domains.
By the time the Court decided Miln almost all legal scholars, jurists,
and politicians understood the value of uniform rules for international
commerce. Better regulation of international and interstate commerce was
one of the main goals of the Constitutional Convention. Any state laws,
which interfered with international or domestic commerce clearly
infringed on the powers of Congress. Statutes like South Carolina's
black seamen's act or the act at issue in Miln threatened such commerce.
Thus, the logical approach of the Court in Miln would have been to
overturn the New York law, holding that Congress had plenary power over
international commerce and that, in the absence of any federal law, the
states could not ban or regulate citizens of one country (or another
state) from entering their ports. Such a decision would have been
consistent with the Court's very popular decision in Gibbons v. Ogden and
would have created a uniform rule for ships entering American harbors.
But, a decision striking down the New York law on Commerce Clause
grounds would also have threatened slavery and the ability of the
southern states to regulate race relations. Therefore, the Court
developed the "police powers
doctrine," which allowed states to regulate commerce at the local
level if it was necessary for what the Court called a "police
power." Preventing poor immigrants or free blacks from entering a
state fit into this analysis.
This result is striking. In the 1830s it was well understood, as it
is today, that the regulation of immigrants is an issue of national
concern as well as a marker of national sovereignty. By ceding this
power to the states in Miln the Court set the stage for vastly different
rules for ships involved in interstate and international commerce. The
Court understood quite well that the issues here were tied to slavery.
In Miln counsel argued that the regulation of immigrants was similar to
state laws banning the African slave trade before the federal ban in
1808. Implicit in these cases was the
Court's recognition that the South had a special interest in protecting
its slaves from the "corruption" of free blacks from other
places. Some of the opinions in these cases refer directly to this
The Court continued this jurisprudence in the License Cases,
which allowed for state bans on liquor. Here again a decision was
affected by slavery, even though issues involving slavery were not
directly before the Court. Northerners and southerners alike recognized
that banning certain commercial products from interstate commerce might
be necessary for both the protection of the slave states and the free
Many other aspects of modern constitutional law are also rooted in
slavery. The preemption doctrine emerged from Prigg v Pennsylvania,
where the Court struck down state laws that protected free blacks from
being kidnapped as fugitive slaves. In that case Justice Story also
articulated the first constitutional principle of unfunded mandates. The
Fugitive Slave Law of 1793 authorized state magistrates to implement the
law. In his opinion, Story concluded that state officials were free to
enforce the law if they wished to do so, and that in fact they had a
moral obligation to do so under the Constitution. He further argued that
the states were equally under a moral obligation to enforce the law.
But, since the federal government did not employ the state judges, Story
also agreed that the states could refuse to enforce the law. That is,
the federal government could not impose an unfunded mandate on state
officials to enforce a federal law. Thus Story suggested "it might
well be deemed an unconstitutional exercise in the power of
interpretation, to insist that the states are bound to provide means to
carry into effect the duties of the national government, nowhere
delegated or intrusted to them by the Constitution."
The great fear among some people over the power of the central
government and the meaning of the Tenth Amendment is also tied to
slavery. Obviously, states' rights theory, as it developed in the 19th
century and as it has been used ever since, was deeply rooted in debates
over slavery. As early as 1790 southern states
began to articulate claims of states' rights in controversies involving
slavery. By the end of the antebellum
period both southern and northern states had made assertions of states
rights in the context of slavery.
Modern states rights arguments, sometimes framed in 10th Amendment
jurisprudence, are often a recycling of these older arguments about
Finally, of course, the doctrine of substantive due process was first
articulated by the Supreme Court in Dred Scott v. Sandford.
In that case the Court also asserted that blacks had no rights under the
Constitution and could never be citizens of the nation, even if they
were free. The Fourteenth Amendment was adopted in part to reverse that
decision. But, the legacy of racism and pain caused by Chief Justice
Taney's decision remains part of our culture and our legal heritage.
IV. The Founding and Slavery: The Memory of Our Original Sin
Many Americans are uncomfortable with the connection between slavery
and the founding of the nation. Over the years politicians, judges,
lawyers, teachers, and even professional historians offered us a
comfortable myth. The myth asserts that after the Revolution slavery was
dying and that, had it not been for the cotton gin, slavery would have
died out easily and simply. If the Founders truly believed this, then
they were correct in doing nothing about slavery
at the Constitutional Convention. The myth further tells us that the
Founders saw slavery as a potential powder keg--which might explode if
they tried to deal with it. Their strategy was to ignore slavery and
wait for it to collapse under its own economic dead weight. They could
safely secure the Union knowing the evil would just go away. Thus, the
myth tells us, the Framers rightly ignored slavery.
Under this analysis, the Founders did not betray America by failing
to face up to America's greatest problem; instead, history betrayed the
Founders, by allowing the cotton gin to save slavery from economic
collapse. It is not the failure of the framers, or the unwillingness of
all Americans to face the enormity of the problem, that set the stage
for secession and civil war. Rather, in an ironic twist for a society
that has always been driven by invention and "progress," it is
technology that doomed the United States to civil war.
Serious historical scholarship demonstrates that slavery was
profitable throughout the colonial period and that slavery remained
profitable in the wake of the Revolution. Robert McColley, for example,
found that in the 1780s and 1790s, before the invention of the cotton
gin, slave prices in Virginia were high.
Similarly, in Maryland, where cotton could not be grown, the trade in
slaves was brisk both before and after the invention of the gin.
In Baltimore, throughout the early national period, slaves were in high
demand as servants, skilled laborers, and for various jobs in the
maritime industry. The Framers did not
need such analysis however. They had the words of their fellow
delegates. Late in the Convention during a debate over the slave trade,
General Charles Cotesworth Pinckney observed that a prohibition of the
slave trade would be "an exclusion of South Carolina from the
Union." As he had made clear at the beginning of his speech,
"S. Carolina and Georgia cannot do without slaves." John
Rutledge and Pierce Butler of South Carolina added similar sentiments,
as did Abraham Baldwin of Georgia and Hugh Williamson of North Carolina.
In the end we cannot ignore the fact that the Framers in 1787 built a
government that protected slavery at every turn. They left their
children and grandchildren with a proslavery legacy that was not easily
eradicated. During the ratification struggle a number of Antifederalists
complained about the Constitution's concessions to slavery. A New Yorker
complained that the Constitution condoned "drenching the bowels of
Africa in gore, for the sake of enslaving its free-born innocent
inhabitants." A Virginian who was skeptical about slavery thought
the slave trade provision was an "excellent clause" for
"an Algerian constitution: but not so well calculated (I hope) for
the latitude of America." But the
slave trade was only part of the problem. Three opponents of the
Constitution in Massachusetts noted that the Constitution bound the
states together as a "whole" and "the states" were
"under obligation. . .
reciprocally to aid each other in defense and support of every thing to
which they are entitled thereby, right or wrong."
Thus, they might be called to suppress a slave revolt or in some other
way defend the institution. They could not predict how slavery might
entangle them in the future, but they did know that "this lust for
slavery, (was) portentous of much evil in America, for the cry of
innocent blood, . . . hath undoubtedly reached to the Heavens, to which
that cry is always directed, and will draw down upon them vengeance
adequate to the enormity of the crime."
The events of 1861-1865 would prove the three Massachusetts
antifederalists of 1788 correct. Only after a civil war of unparalleled
bloodshed and three constitutional amendments could the Union be made
more perfect, by finally expunging slavery from the Constitution. As we
enter the 21st Century it is clear that the cost of slavery for our
national culture--and our Constitution-- has perhaps not yet been paid.
Perhaps some of the debt must still be paid in the coin of the realm,
with investments in education, cultural institutions like museums and
monuments, and in the creation of real economic opportunity for all
Americans. But, before we contemplate such payments, we must first come
to terms with our history, our culture, and the proslavery origins of
our Constitution and our nation.
[a1]. Chapman Distinguished
Professor of Law, University of Tulsa College of