slavery in the constitution essay

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Slavery, the Constitution, and a Lasting Legacy

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

CONSTITUTION

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The U.S. Constitution opens with a message of inclusivity, establishing “justice” and ensuring “domestic tranquility” for the people. However, it’s what the famous preamble—and, indeed, the rest of the document— doesn’t  address that’s more telling. The Constitution’s authors leave out their vital distinction between person and property, and in doing so, they ultimately protect one of history’s most oppressive institutions. 

The absence of slavery in the Constitution is one of the great paradoxes of our Founding Era. The framers were revolutionary thinkers who created what would become the first successfully functioning government by the people. Their ideas of fairness, justice, and individual rights are what many world leaders emulate today. Why, then, did so many brilliant minds pledge to be champions of individual rights on one hand, then, on another, allow human beings to be reduced to chattel?

We have seen the mere distinction of colour made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man. JAMES MADISON (CONSTITUTIONAL CONVENTION, JUNE 6, 1787)

American Slavery and the Rise of Profitable Racism

Colloquially, the term “slavery” conjures images of one race enslaving another. In fact, white colonists bought and sold the labor of both white and black servants in the 17th-century Americas. Race-based slavery is a younger phenomenon with a long-lasting legacy that America grapples with today. “Landing Negroes at Jamestown from Dutch man-of-war, 1619.” Reproduction of painting. From the National Archives and Records Administration Prints and Photographs Division: Illus. in Harper’s Monthly Mag., v. 102, 1901 Jan., p. 172.   As lifelong bondage of enslaved African Americans became more financially viable, the indentured servitude of whites (their terms only lasted five to seven years), was phased out. The system proved itself so lucrative that law and legal precedent began to leave future governments leeway for prioritizing economy over morality. 

Morality did nag at the consciences of some white Americans—the Enlightenment philosophies of natural rights and growing religious convictions were a nuisance for those profiting from the institution of slavery. The contradiction couldn’t be denied: philosophies that recognized the rights of the individual were juxtaposed against the fact that America had become a place where an entire subset of people were commoditized and dehumanized. 

The answer was pretty simple: clarify who gets to be a person and who doesn’t. Fabricating a subservient order for those with darker skin allowed our founding generation (and generations after) to define “all men” and “the people” as “white men.” As a result, they guaranteed white men the rights and liberties promised by the Constitution while preserving a thriving economy based on racial oppression.

Not everyone agreed with this caste system. Colonial independence was almost underway when abolitionist groups started to point out the moral contradictions of slavery. As America spread into new territories, regional blocs began to form on both sides of the issue. The North was making progress on the abolition front, and state laws began to change regarding slavery. Vermont abolished slavery in 1777, with Pennsylvania following suit in 1780, and other states coming up close behind. Even Virginia made it legal in 1782 for slaveholders to manumit their own slaves without first obtaining permission from the state. But further South, where enslaved African Americans made up a vast workforce, the ruling whites insisted on racial hierarchy. 

Constitution

Constitutional compromises on slavery set tone for the future.

The framers went to great lengths to avoid overtly mentioning “slavery” or “slave.” In 1840, more than 50 years after the Constitution was ratified, John Quincy Adams would refer to this careful omission as “the fig-leaves under which the parts of the body politic are decently concealed.”

Though there were significant pro-slavery voices, there were also forward-thinking framers, like Oliver Ellsworth, a Senator from Connecticut, who was optimistic that “slavery, in time, will not be a speck in our country.” Though some thought the Constitution’s power to prohibit the slave trade would lay “the foundation for banishing slavery out of this country,” as James Wilson said in the Pennsylvania Ratifying Convention in 1787, many weren’t keen on having their names attached to a document that mentioned slavery outright. 

Three clauses relating to slavery did make it into the final draft of the Constitution, all after varied amounts of debate and compromise during the Constitutional Convention in 1787.

"The fig-leaves under which the parts of the body politic are decently concealed."

With this quote, John Quincy Adams held the framers of the Constitution accountable for what he perceives as hypocrisy during his argument in defense of the Amistad captives before the Supreme Court in 1840.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three-fifths of all other Persons. Article I, Sec. II, Paragraph III: The Three-Fifths Clause (1787)

What it says:  When a state’s population is counted for purposes of representation in government , and for direct taxation , the enslaved population will be counted as three-fifths of its overall number. Untaxed Native Americans would not figure into this number.

What it means:  Slaveholding states get to count their slaves to boost their population numbers. This affects electors and representation in Congress, and therefore will have more impact on future legislation, the election of the president, and, by extension, Supreme Court appointments. Slaveholding states will also, in theory, have to ante up more direct tax for this privilege.

It’s a common misconception that this clause represents the amount of humanity the framers were willing to assign to African Americans. In fact, the South was pushing for their enslaved individuals to be counted fully, so as to have more impact in Congress. 

What happened as a result: States with large slave populations ended up with more power both in Congress and in the Supreme Court, which undercut the power of abolition states. Historians differ as to whether or not the South would have made good on their promise to refuse to join the union without the inclusion of this clause. If it had, would the United States have been able to survive without it? 

The federal tax benefits that the Three-Fifths Clause was supposed to have generated never came to fruition—the Southern-led government worked out a tariff-based tax system instead of a direct (“head”) tax. 

Representation in Government

The number of seats a state has in the House of Representatives.

Direct Taxation

The amount of money the state has to give the federal government.

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. Article I, Section IX, Clause I: The Importation Clause (1787)

What it says:  If states want to import slaves internationally, the federal government won’t interfere for at least another 20 years. However, this importation will be taxed at a rate of no more than $10 per slave.

What it means:  The framers were aware that the international slave trade would eventually be abolished, if for no other reason than the economy would require it, in order to increase demand of domestic trade. The states received 20 years of autonomy to import slaves as they saw fit before Congress could (and did) abolish the international trade.

This is more complicated than a clear-cut morality issue. Virginia pushed hard to abolish the international slave trade because it had the largest enslaved population of any state, and the value of their domestic trade was suffering as the market was being flooded by the arrival of new enslaved Africans. Massachusetts, through which many slaves were distributed, was profiting from the international trade and so supported the grace period. The Importation Clause was passed, despite Virginia’s efforts, with the 20-year compromise in place.

What happened as a result:  The $10 tax on each head was never collected. Some argued that the federal government would be removing that fragile “fig leaf” if they acknowledged slaves as property, much less made money off of the slave trade by collecting the tax. Others saw the tax as anti-slavery because it could be construed as penalizing importation. All in all, the federal government avoided the issue until there was no longer an international slave trade.

By 1809, when the international trade was officially abolished, all of the states had already banned it on their own.

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. Article IV, Sec. II, Clause III: The Fugitive Slave Clause (1787)

What it says:  If an enslaved person crosses state lines into a state where slavery has been abolished, citizens of that state are obligated to return the slave to their owner. 

What it means: States who abolish slavery have to respect the fact that other states have not. This puts legal slavery as the default scenario, and abolition as the outlier. 

What happened as a result: At the time, only two states—Massachusetts and Vermont—had banned slavery. The Fugitive Slave Clause, then, passed with little debate.

Individual states reacted swiftly. Pennsylvania, for example, passed laws making it more difficult for slaveholders to enforce the law, requiring a certificate to prove ownership of the individual in question, and prohibiting the use of force. The Supreme Court responded with their ruling in Prigg V. Pennsylvania, making it easier for the Fugitive Slave Clause to be enforced. A century of workarounds by more and more states, and the federal government’s tightening responses, eventually erupted into the Civil War.

Many scholars agree that, among all three of the slavery clauses in the Constitution, the Fugitive Slave Clause was the most abhorrent. It implicates and involves the federal government and its officers in the active protection of people as property.

Slavery’s Legacies Continue Through Reconstruction and Civil Rights

Fast forward to the mid-19th Century, and we see what some of the founders predicted: a country no longer able to ignore the moral bankruptcy of slavery despite its continued profitability. As new states enter the union as either slaveholding or free states, the conflict between the two blocs intensifies. Federal law favors the South, due to increased representation in Congress, and the Fugitive Slave Act is tightened for Northern states in exchange for California’s admission as a free state.

All boils over in 1860 when South Carolina secedes, followed quickly by more Southern states, and the Civil War begins. On New Year’s Day, 1863, Abraham Lincoln issues an executive order changing the status of all slaves in the Southern territory to “free.” On April 9, 1865, General Robert E. Lee surrenders to General Ulysses S. Grant, and the South becomes part of the United States once again.

Lawmakers turned back to the Constitution for clarification, drafting and approving three “Reconstruction amendments,” XIII, XIV, and XV. It’s important to note that while these amendments became law in the five years following the Civil War, the Constitution at this time was still outpacing culture. Today, many will argue that culture is still struggling to catch up.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. 13th Amendment: December 1865, officially abolished slavery in all states.

What it means:  Race-based slavery is illegal unless the minority is found guilty of a crime. The inclusion of “except” laid the foundation for a deeply entrenched system of African American incarceration, and other systemic, long-standing, racially biased policies.

The Fugitive Slave Clause was superseded by the 13th Amendment. By abolishing slavery, the Fugitive Slave Clause had no purpose.

Prigg V. Pennsylvania

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. 14th Amendment: July 1868, guaranteed the same rights to all male citizens and counted every citizen as one when determining representation in Congress.

What it means:  All states must accept every human born or naturalized in their state as a full citizen of both the U.S. and that state. That is, the definition of African American as a commodity is no longer legal. 

The second section eliminates the Three-Fifths Clause and establishes a state’s population as consisting of all (male) citizens over 21, unless they’ve taken part in a rebellion or have committed a crime (as with the 13th, the definition and extent of “crime” is undetermined and dangerously subjective).

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. 15th Amendment: February 1870, made it illegal to deprive any eligible citizen (already established as a male over the age of 21) the right to vote, regardless of color.

What this amendment means:  States may not refuse any male over the age of 21 the right to vote. The amendment, however, doesn’t provide any protection for voters, and many states looked to covert processes, like gerrymandering, poll taxes, literacy tests, and other requirements to restrict access for black voters.

For the first time, the Constitution was directly addressing the idea of equality and finally mentions the word “slave.”

The lack of clarity around such concepts as “equal protection” left interpretation up to the states, opening the door for much of the systemic racism we are still faced with. After Reconstruction, Jim Crow laws protected segregation in Southern states. Education case law would bear the brunt of a still-divided nation attempting to address issues the Constitution’s framers never outlined explicitly.

The Constitution didn’t provide answers to these questions, but it did pose them.

Jim Crow Laws

Jim Crow laws were named after a racist caricature in blackface and refer to the system of laws in Southern states that upheld the “separate but equal” philosophy. They would continue until the Civil Rights movement in the 1960s.

Education Tests the Constitution

Slavery and its constitutional history continue to impact issues we still face today. The journey to providing an equal education for all Americans is an example of how constitutional law is interpreted by courts, who have set precedents for future generations with rulings on educational equality.

In 1896, Plessy v. Ferguson made the South’s Jim Crow laws constitutional, with a seven-to-one Supreme Court ruling that a state has a right to provide separate but equal facilities for whites and African Americans, as long as it wasn’t depriving anyone of their constitutional rights. 

21st-century perspective makes state-supported separation of race clearly unethical, but it was the equality piece that was controversial. “Separate but equal” never really meant “equal.” “Colored” facilities were famously inferior, and minorities had no recourse, as they were under-represented in positions of power and influence such as law enforcement, legislature, and the justice system. 

Plessy V. Ferguson

A mixed-race man named Homer Plessy, backed by a committee of concerned citizens determined to fight Louisiana’s Jim Crow laws, boarded a Louisiana "whites only" railway car. He was arrested when he refused to move to the "colored" car. He appealed and, ultimately, the U.S. Supreme Court ruled in favor of Louisiana (i.e. the case’s original judge, John Howard Ferguson), and in doing so, legitimized the Southern states' "separate but equal" laws.

It took more than 60 years of African Americans suffering unfair and often hostile treatment for Brown v. Board of Education to rule in 1954 that segregation in schools is unconstitutional. Some areas of the country took drastic measures to resist the ruling, like the closing of public schools in Virginia (and other localities, like Little Rock, Arkansas), rather than integrate them. In others, white parents who weren’t willing to send their children to desegregated schools moved en masse to the suburbs, contributing to a phenomenon known as “white flight.” 

The Civil Rights Act of 1964 outlawed school segregation for good, but in some areas, resistance continued. Many areas of the United States struggle to this day with disparities between schools in majority-white neighborhoods and schools in majority-African American neighborhoods.

Brown V. Board of Education

1954 Supreme Court case that, effectively, overturned Plessy v. Ferguson by determining that segregation perpetuates inferior treatment along racial lines. The plaintiffs were 13 parents on behalf of 20 children in Topeka, Kansas, who were suing the state to reverse its segregation policy.

Resistance Continued

Green v. County School Board of New Kent County overturned New Kent, Virginia’s "pupil placement" practice that kept its segregated schools intact.

Scherman, Roland, photographer. “Civil Rights March on Washington, D.C. [Leaders marching from the Washington Monument to the Lincoln Memorial.]” Photograph. Washington, DC. August 1963. From the National Archives and Records Administration: Miscellaneous Subjects, Staff and Stringer Photographs, 1961 – 1974.

Questions Remain

The Constitution leaves us unanswered questions. How do we dismantle the legacies of slavery that the framers of the Constitution allowed to be built around them? In a time when we urge our Congress to reach across the aisle and make compromise, how can we avoid the kind of moral compromises that can cause damage that takes centuries to undo?

We can see echoes of slavery in more than just education. The ripples touch voting rights, fair housing, public transportation access, public safety and incarceration, employment, predatory lending practices, and more. 

Tracing slavery’s fiery path through the Constitution, its amendments, and both law and culture, is a reminder that our discussions on current constitutional issues may have similar effects in the future. Where there’s ambiguity, there’s a test to the Constitution that will shape our nation’s path forward, from gun rights to the expansion of ambiguous executive powers. 

Where else do we see the Constitution lagging behind culture, and where does it come out ahead? It’s by asking these questions that we can best understand the role that the Constitution has in our lives and the lives of generations to come. 

Read more about  the seminars and programs at the Robert H. Smith Center for the Constitution at James Madison’s Montpelier.

Participate in our accredited course on  Slavery & The Constitution .

Photo References:

• James Hopkinson’s Plantation . Edisto Island, South Carolina. – 1862-1863 Library of Congress. (accessed February 28, 2017).
• “Landing Negroes at Jamestown from Dutch man-of-war, 1619.”  Reproduction of painting. From the National Archives and Records Administration Prints and Photographs Division: Illus. in Harper’s Monthly Mag., v. 102, 1901 Jan., p. 172. (accessed February 28, 2017).
• A man kidnapped!   Boston Public Library (accessed March 7, 2017).
• Lee, Russell, photographer.  “Negro drinking at ‘Colored’  water cooler in streetcar terminal, Oklahoma City, Oklahoma.” Photograph. Oklahoma City, OK. July 1939. From Library of Congress Prints and Photographs Division. (accessed February 28, 2017).
• Leffler, Warren K., photographer.  “Integrated classroom at Anacostia High School, Washington, D.C.”  Negative, film. Washington, DC. September 10, 1957. From the Library of Congress: U.S. News & World Report Magazine Photograph Collection. (accessed February 28, 2017).
• Scherman, Roland, photographer.  “Civil Rights March on Washington, D.C.”  Photograph. Washington, DC. August 1963. From the National Archives and Records Administration: Miscellaneous Subjects, Staff and Stringer Photographs, 1961 – 1974. (accessed February 28, 2017).

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History Resources

Historical Context: The Constitution and Slavery

By steven mintz.

On the 200th anniversary of the ratification of the US Constitution, Thurgood Marshall, the first African American to sit on the Supreme Court, said that the Constitution was "defective from the start." He pointed out that the framers had left out a majority of Americans when they wrote the phrase, "We the People." While some members of the Constitutional Convention voiced "eloquent objections" to slavery, Marshall said they "consented to a document which laid a foundation for the tragic events which were to follow."

The word "slave" does not appear in the Constitution. The framers consciously avoided the word, recognizing that it would sully the document. Nevertheless, slavery received important protections in the Constitution. The notorious three-fifths clause—which counted three-fifths of a state’s slave population in apportioning representation—gave the South extra representation in the House of Representatives and extra votes in the Electoral College. Thomas Jefferson would have lost the election of 1800 if not for the Three-fifths Compromise. The Constitution also prohibited Congress from outlawing the Atlantic slave trade for twenty years. A fugitive slave clause required the return of runaway slaves to their owners. The Constitution gave the federal government the power to put down domestic rebellions, including slave insurrections.

The framers of the Constitution believed that concessions on slavery were the price for the support of southern delegates for a strong central government. They were convinced that if the Constitution restricted the slave trade, South Carolina and Georgia would refuse to join the Union. But by sidestepping the slavery issue, the framers left the seeds for future conflict. After the convention approved the great compromise, Madison wrote: "It seems now to be pretty well understood that the real difference of interests lies not between the large and small but between the northern and southern states. The institution of slavery and its consequences form the line of discrimination."

Of the 55 delegates to the Constitutional Convention, about 25 owned slaves. Many of the framers harbored moral qualms about slavery. Some, including Benjamin Franklin (a former slaveholder) and Alexander Hamilton (who was born in a slave colony in the British West Indies) became members of anti-slavery societies.

On August 21, 1787, a bitter debate broke out over a South Carolina proposal to prohibit the federal government from regulating the Atlantic slave trade. Luther Martin of Maryland, a slaveholder, said that the slave trade should be subject to federal regulation since the entire nation would be responsible for suppressing slave revolts. He also considered the slave trade contrary to America’s republican ideals. "It is inconsistent with the principles of the Revolution," he said, "and dishonorable to the American character to have such a feature in the constitution."

John Rutledge of South Carolina responded forcefully. "Religion and humanity have nothing to do with this question," he insisted. Unless regulation of the slave trade was left to the states, the southern-most states "shall not be parties to the union." A Virginia delegate, George Mason, who owned hundreds of slaves, spoke out against slavery in ringing terms. "Slavery," he said, "discourages arts and manufactures. The poor despise labor when performed by slaves." Slavery also corrupted slaveholders and threatened the country with divine punishment, he believed: "Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a country."

Oliver Ellsworth of Connecticut accused slaveholders from Maryland and Virginia of hypocrisy. They could afford to oppose the slave trade, he claimed, because "slaves multiply so fast in Virginia and Maryland that it is cheaper to raise than import them, whilst in the sickly rice swamps [of South Carolina and Georgia] foreign supplies are necessary." Ellsworth suggested that ending the slave trade would benefit slaveholders in the Chesapeake region, since the demand for slaves in other parts of the South would increase the price of slaves once the external supply was cut off.

The controversy over the Atlantic slave trade was ultimately settled by compromise. In exchange for a 20-year ban on any restrictions on the Atlantic slave trade, southern delegates agreed to remove a clause restricting the national government’s power to enact laws requiring goods to be shipped on American vessels (benefiting northeastern shipbuilders and sailors). The same day this agreement was reached, the convention also adopted the fugitive slave clause, requiring the return of runaway slaves to their owners.

Was the Constitution a proslavery document, as abolitionist William Lloyd Garrison claimed when he burned the document in 1854 and called it "a covenant with death and an agreement with Hell"? This question still provokes controversy. If the Constitution temporarily strengthened slavery, it also created a central government powerful enough to eventually abolish the institution.

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How the Constitution Was Indeed Pro-Slavery

Unlike Sean Wilentz suggests in The New York Times , the Constitution was not originally anti-slavery.

On Monday, Senator Bernie Sanders told his audience at Liberty University that the United States “in many ways was created” as a nation “from way back on racist principles.” Not everyone agreed. The historian Sean Wilentz took to The New York Times to write that Bernie Sanders—and a lot of his colleagues—have it all wrong about the founding of the United States. The Constitution that protected slavery for three generations, until a devastating war and a constitutional amendment changed the game, was actually anti-slavery because it didn’t explicitly recognize “property in humans.”

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Lincoln certainly said so, and cited the same passage from Madison’s notes that Wilentz used. But does that make it so? And does it gainsay Sanders’s inelegant but apparently necessary voicing of what ought to be obvious, what David Brion Davis, Wilentz’s scholarly mentor and my own, wrote back in 1966 —that the nation was “in many ways” founded on racial slavery?

If the absence of an ironclad guarantee of a right to property in men really “quashed” the slaveholders, it should be apparent in the rest of the document, by which the nation was actually governed. But of the 11 clauses in the Constitution that deal with or have policy implications for slavery, 10 protect slave property and the powers of masters. Only one, the international slave-trade clause, points to a possible future power by which, after 20 years, slavery might be curtailed—and it didn’t work out that way at all.

The three-fifths clause, which states that three-fifths of “all other persons” (i.e., slaves) will be counted for both taxation and representation, was a major boon to the slave states. This is well known; it’s astounding to see Wilentz try to pooh-pooh it. No, it wasn’t counting five-fifths, but counting 60 percent of slaves added enormously to slave-state power in the formative years of the republic. By 1800, northern critics called this phenomenon “the slave power” and called for its repeal. With the aid of the second article of the Constitution, which numbered presidential electors by adding the number of representatives in the House to the number of senators, the three-fifths clause enabled the elections of plantation masters Jefferson in 1800 and Polk in 1844.

Just as importantly, the tax liability for three-fifths of the slaves turned out to mean nothing. Sure the federal government could pass a head tax, but it almost never did. It hardly could when the taxes had to emerge from the House, where the South was 60 percent overrepresented. So the South gained political power, without having to surrender much of anything in exchange.

Indeed, all the powers delegated to the House—that is, the most democratic aspects of the Constitution—were disproportionately affected by what critics quickly came to call “slave representation.” These included the commerce clause—a compromise measure that gave the federal government power to regulate commerce, but only at the price of giving disproportionate power to slave states. And as if that wasn’t enough, Congress was forbidden from passing export duties—at a time when most of the value of what the U.S. exported lay in slave-grown commodities. This was one of the few things (in addition to regulating the slave trade for 20 years) that Congress was forbidden to do. Slavery and democracy in the U.S. were joined at the 60-percent-replaced hip.

Another clause in Article I allowed Congress to mobilize “the Militia” to “suppress insurrections”—again, the House with its disproportionate votes would decide whether a slave rebellion counted as an insurrection. Wilentz repeats the old saw that with the rise of the northwest, the slave power’s real bastion was the Senate. Hence the battles over the admission of slave and free states that punctuated the path to Civil War. But this reads history backwards from the 1850s, not forward from 1787. The shaping policies of the early republic were proslavery because the federal government was controlled by southern expansionists like Jefferson and Jackson, who saw Africans as a captive nation, a fifth column just waiting to be liberated (again) by the British.

The refusal to mention slavery as property or anything else in the Constitution means something. But what it meant was embarrassment—and damage control. Domestic and foreign critics had lambasted Americans for their hypocrisy in calling themselves a beacon to human freedom while only a few states moved on the slavery question. The planters didn’t need or even want an explicit statement that slaves were property; it would have stated the obvious while opening up the United States to international ridicule in an era when slavery was coming into question.

On balance, the Constitution was deliberately ambiguous—but operationally proslavery. Perhaps more so than Madison wanted, as Wilentz maintains. But Madison’s putative intentions are all that matters to Wilentz. He’s outdone original-intent jurisprudence in reducing history to a morality play of good founders, bad critics. He loses sight of what actually happened when the ambiguously worded but slavery-suffused Constitution was finally released to an anxious public.

What happened was that anti-federalists in the North understood that that the federal government had been strengthened, but that slavery in particular had been shielded from an otherwise-powerful Congress. Ratification ran into trouble in the states where the antislavery criticisms of the Constitution were most articulate and widely publicized: Pennsylvania, Massachusetts, and New York. Some southern anti-federalists such as Patrick Henry, most concerned about local control, tried to argue that any stronger government would eventually threaten slavery, but the more persuasive people in the South were those such as Charles Pinckney, who testified upon returning to South Carolina that he couldn’t imagine a better bargain could have been made for the planters.

Was Madison outraged? Hardly. He went down to the Virginia ratifying convention to assure delegates that Henry was dead wrong: The original intent was indeed to protect slave property. Much of what we know of the Constitutional Convention comes from his notes—which, recent scholarship suggests, he carefully edited for a posthumous audience. He made sure, for example, that posterity would know that he objected to the slave trade being guaranteed for another 20 years—but this was a common Virginia position at the time, since Virginians were already net sellers of slavers rather than importers by 1787.

But there’s more. When it came time to deal with the matter of slave representation in Federalist 54, Madison obliquely distanced himself from the three-fifths clause by saying that one had to admit that slaves were, irrefutably, both people and property. He actually argued that the three-fifths clause was a good example of how the Constitution would lead to good government—by protecting property. He looked forward to the honest census that would result from slaves and other people being both taxed and represented. He put the defense of the proslavery clauses in the voice of a Virginian and then called them “a little strained,” but just.

When we see things like this in today’s politics, we call it damage control. I give Madison credit for a kind of honesty about his ambivalence, at least for those who could read between the lines—but this is far from the bold antislavery stand Wilentz would have us see in Madison’s words. Wilentz is an astute student of politics, and has often praised pragmatism in the figures he admires. Why his Madison has to be an antislavery truth teller when there are other candidates for that historical role—even in 1787—is beyond puzzling.

Americans and their leading historians still find it hard to account for how their Revolution, considered as a quarter-century of resistance, war, and state-making, both strengthened slavery and provided enough countercurrents to keep the struggle against it going. Tougher still is understanding how the work of 1787 constitutionalized slavery—hardwired it into the branches, the very workings, of the federal government. Given the subsequent history of disfranchisement and policing in this country, it’s not a stretch to say that it is hardwired there still.

If Sean Wilentz prefers to celebrate what the Founders did not do—that is, write something like the Confederate Constitution—that’s the beginning of a potentially interesting conversation, even if it takes a counterfactual as its starting point. But the fact that it took a civil war to settle the debate about the Founders’ intentions for slavery’s future shows that, as John Quincy Adams came to understand and assert during the 1830s, there was no constitutional way except the exercise of war powers to end slavery in the United States. You can call that the founders’ design, but it seems more a design flaw than something to celebrate. When it takes a war to resolve something, humane persons call it a failure or a tragedy. They don’t blame the people who point out the roots of the problem, unless their agenda is less historical than political. When Wilentz raps the knuckles of Bernie Sanders for saying what his teachers said 50 years ago, he isn’t doing his favorite any favors.

About the Author

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The 1619 Project and the 400-Year American Legacy of Slavery

Civics learning project has specially curated these resources to accompany the 1619 project, an ongoing exploration of how the legacy of slavery has impacted every facet of american life., in this resource collection:.

• Multimedia Resources
• The 1619 Project Essays
• Supporting News Articles about the 1619 Project
• Adjustable lexile level articles from Newsela
• Editorials about the 1619 Project
• Geography Resources
• Timeline Resources
• Artifact Resources
• Primary Document Resources
• Lesson Plan Resources
• CLP’s Special Constitutional Lesson Resource

See the downloadable worksheets, tools, and resources in the sidebar for ways to use this information in an exploration of the history and legacy of slavery in the US and a Constitutional critique of that legacy.

In August 1619, a ship arrived at the Jamestown colony in Virginia, and the first slaves transported from Africa were forced onto the shores of what would become the United States of America. Thus began a 400-year legacy of slavery, oppression, institutionalized racism, a corrupted Constitution, a traumatizing and bloody civil war, the assassination of a president, a culture embedded with inequality and injustice, and a struggle to understand our own history and what our future can be as a country.

To acknowledge and more deeply examine this legacy, The New York Times Magazine published The 1619 Project in August 2019. There are many avenues to investigate in this important topic, and Civics Learning Project has curated a variety of resources for you to explore. In addition, the sidebar to this page has handouts you can download to think through different aspects of America’s legacy of Slavery. Civics Learning Project has created a resource that examines the constitutional consequences of slavery and the foundational decisions that set our country on a path of inequality from the moment of its ratification, and what that path has led to along the way.

The 1619 Project Video:

The Podcast of the 1619 Project

The poetry of the 1619 project, the essays of the 1619 project.

• Our democracy’s founding ideals were false when they were written. Black Americans have fought to make them true. – Nikole Hannah-Jones, August 14, 2019
• America holds onto an undemocratic assumption from its founding: that some people deserve more power than others. – Jamelle Bouie, August 14, 2019
• What does a traffic jam in Atlanta have to do with segregation? Quite a lot. – Kevin Kruse, August 14, 2019
• In order to understand the brutality of American capitalism, you have to start on the plantation. – Matthew Desmond, August 14, 2019
• For centuries, black music, forged in bondage, has been the sound of complete artistic freedom. No wonder everybody is always stealing it . – Wesley Morris, August 14, 2019
• Why doesn’t the United States have universal health care? The answer has everything to do with race. – Jeneen Interlandi, August 14, 2019
• Slavery gave America a fear of black people and a taste for violent punishment. Both still define our criminal-justice system. – Bryan Stevenson, August 14, 2019
• The sugar that saturates the American diet has a barbaric history as the ‘white gold’ that fueled slavery . – Khalil Gibran Muhammad, August 14, 2019
•   A vast wealth gap, driven by segregation, redlining, evictions and exclusion, separates black and white America . – Trymaine Lee, August 14, 2019
• A Gallery: Their ancestors were enslaved by law. Today, they are graduates of the nation’s preeminent historically black law school. – Photographs by Djeneba Aduayom, August 14, 2019
• Is Slavery’s Legacy in the Power Dynamics of Sports? – Kurt Streeter, August 16, 2019
• How the 1619 Project Came Together – Lovia Gyarkye, August 18, 2019

Shareable:   a collection of the above essay links

Supporting Articles:

• 5 Things people still get wrong about slavery – Vox, August 22, 2019
• 1619: The Year that Shaped America – American Heritage , winter 2019
• The missing pieces of America’s education (an exploration of what is not commonly taught about slavery) – The Washington Post , August 28, 2019
• A dark legacy comes to light (a gallery of interviews with students about what they learn about slavery) – The Washington Post, August 28, 2019

Shareable: a collection of the above article links

Adjustable Lexile Level Articles from Newsela :

• Slavery in the New England Colonies – May 20, 2019  (adapted from National Geographic)
• Southern Plantation Owners Used “King Cotton” to Justify Slavery – May 15, 2019 (adapted from USHistory.org)
• Analysis: Schools fail to tell full story of America’s history of slavery – February 12, 2018 (adapted from the Washington Post )
• American Slavery: Separating Fact from Myth – October 1, 2017 (adapted from The Conversation)
• Historical Article from 1846: A slave auction in New Orleans – (adapted from the originally published January 26, 1846 in the New York Tribune)

Shareable: a collection of the above Newsela article links

Editorials about the 1619 Project:

• The ‘1619 Project’ Isn’t Anti-American — It’s Anti-White Identity Politics – Eric Levitz, New York Magazine, August 23, 2019
• We are committing educational malpractice: Why slavery is mistaught — and worse — in American schools – Nikita Stewart, New York Times editorials, August 19, 2019
• How Slavery Hurt the U.S. Economy – Karl W. Smith,  Bloomberg Opinion , August 25, 2019
• Why Aug. 20, 1619, is a date we should all add to the history books – Tampa Bay Times Editorial Board, August 19, 2019
• Let Everyone’s Light Shine – The Creators Daily Editorial, August 22, 2019
• Commentary: Reframing American history — New York Times series on slavery should become required reading – Darcell Rocket, The Chicago Tribune , August 19, 2019
• The impact of 400 years since slavery arrived on U.S. soil – The Cleveland Plain Dealer Editorial Board, August 29, 2019
• The New York Times surrenders to the left on race – Damon Linker, The Week , August 20, 2019

Shareable: a collection of the above editorial links

A Geographic Exploration of the American Legacy of Slavery:

• How slavery flourished in the United States – National Geographic , August 23, 2019
• Most slave shipwrecks have been overlooked – until now – National Geographic , August 23, 2019
• Diving into the unfolding history of wrecked slave ships – National Geographic , August 23, 2019
• 400 years ago, enslaved Africans first arrived in Virginia – National Geographic , August 13, 2019
• These maps reveal how slavery expanded across the United States – Smithsonian Magazine , May 15, 2014
• An interactive map of slavery – Mapping the Nation , May 12, 2014

Shareable: a collection of the above geography links

Slavery and the making of America – Thirteen , PBS,

A timeline of global slavery – Free the Slaves

The 1619 Project Artifacts – Curated by Mary Elliott, All text by Mary Elliott and Jazmine Hughes, August 19, 2019

The Mere Distinction of Colour – James Madison’s Montpelier

Transatlantic slave trade artifacts – The National Museum of African American History & Culture

Slavery and Remembrance – United Nations Educational, Scientific, and Cultural Organization (UNESCO)

Primary Documents:

• American Slavery Documents – a collection from Duke University
• The Slave Trade – National Archives
• Slavery and the making of America – Primary Sources – Thirteen , PBS
• History Now – Primary Sources on Slavery – Gilder Lehrman
• The Abolition Seminar – 50 Essential Documents – National Endowment for the Humanities
• Resistance to Slavery, Abolition, and Anti-Abolition: Primary Sources Online – Michigan State University Library

Shareable: a collection of the above research links – Timelines, Artifacts, and Primary Documents

Lesson Plans & Ideas:

Official Curriculum of The 1619 Project: Pulitzer Center Lesson Plans

Teaching Tolerance’s Teaching Hard History: A Framework for Teaching Slavery

Rethinking how we teach about slavery

A Closer Examination of the

Constitution and slavery.

From Civics Learning Project, in the sidebar you can download the full lesson packet that provides texts and guidance on creating an inquiry-based project for students to investigate the lasting consequences of slavery and institutionalized racism and how those consequences might be mitigated in a new constitutional convention. The simulated convention as the culminating activity gives students an opportunity to engage in civil discourse in a time where that skill is essential to civic engagement and participation.

The words “slave” or “slavery” are not written in the United States Constitution. But in two sections of Article I, the framers inserted language that secured the institution of slavery and the slave trade as part of the institutions and culture of the new nation. the Framers of the Constitution chose to make compromises that would later trace directly to a terrible Civil War and centuries of institutionalized inequality.

Despite the declaration that “all men are created equal,” and the introduction to the Constitution that states “we the people… in order to …promote the general welfare and secure the blessings of liberty…” the Constitution’s second paragraph seals slavery as an institution acceptable for states counting representation in Congress. This contradiction proved not to be an easy compromise but inserted a moral conflict at the heart of the founding of the United States. Several of the most revered founders of the nation (George Washington, Thomas Jefferson, James Madison, George Mason) debated and lamented slavery, but yet owned slaves themselves and chose not to stand against it in the writing of the Constitution or establishment of the nation.

Article 1, Section 2:

“Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons , including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons .”

Known as the Three-Fifths Compromise, this language decided that not only was slavery an acceptable institution but that slaves were not to be counted as whole human beings for purposes of a state’s representation in Congress. The reason for this was that slaveholding states in the south knew their representative numbers would be low if only non-slaves were counted as their population, but they also could not count slaves as “persons’ or that would contradict the states’ policies that slaves were property, not people. Thus the Three-Fifths Compromise was made at the very start of the Constitution.

Article 1, Section 9:

The migration or  importation of such persons  as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person .

This section of the first article of the Constitution allows for the continuation of the international slave trade for twenty more years after the founding of the country. It lays down import fees for slaves, and it does not end the slave trade within the United States. The “1808 Compromise” further sealed slavery and the inhuman trade of slaves as an acceptable practice at the start of the nation.

Both sections of the Constitution were further embedded into United States law by the Fugitive Slave Act of 1793 , passed by Congress and signed into law by George Washington. This law required states, no matter their own slave laws, to return escaped slaves to bondage and participate in their ongoing subjugation. Those who established underground railroads to help slaves escape, such as the Quakers, were subjected to fines and even imprisonment for assisting in the liberty of slaves from the south. The law was enhanced by the Fugitive Slave Act of 1850 , confirming the United States’ government complicity in protecting slavery.

It wasn’t until a terrible Civil War and the post-war Amendments to the Constitution – the 13th, 14th, and 15th Amendments – that the 2 sections in the Constitution and the other slavery-protecting laws were effectively made void. But even after slavery itself was made illegal, laws put in place by former slave states after the Civil War ensured that African Americans (and other Americans of color, including Native Americans and Hispanic Americans) faced severe segregation, lack of rights, and oppression at the hands of the government and society. That means that the history of the United States, its culture, and its politics and economy has been built on:

• 246 years of legalized slavery and slave trade (1619 – 1865)
• 100 more years of legalized segregation, deprivation of rights, and institutionalized racism for African Americans  (1865-1965)

To put that in perspective, the cultural, economic, and political DNA of this country is embedded with 350 years of discrimination and institutionalized racism and only a little over 50 years of legalized equality (but not equality in practice). That is what the 1619 Project is all about. It gives perspective on that history from those who don’t often have the voice of telling it. In honor of 400 years since the first slaves were forced onto North American soil, below is a lesson plan that gives students the opportunity to consider the effects of that legacy and what a new constitutional convention language might say that could make more of an impact in setting the course of our nation towards more equality and liberty.

Primary Documents regarding Slavery & the Constitution:

Frederick Douglass on the Constitution and Slavery , March 16, 1849

“What do the Slave is the Fourth of July?” – Frederick Douglass , July 5, 1852

Supreme Court Justice Thurgood Marshall on the Bicentennial of the Constitution , May 6, 1987

Secession Declaration of Mississippi , January 1861

Argument of John Quincy Adams before the Supreme Court regarding the slave ship Amistad , March 1841

Petitions to End Slavery in the states , 1773-1777

Background & History:

Framers of the Constitution & their contradictions around slavery: “George Mason the Reluctant Founder” – Center for Civic Education

Slavery, the Constitution, and a Lasting Legacy – James Madison’s Montpelier

Historical Context: The Constitution and Slavery – Gilder Lehrman Institute of American History

The Constitution and Slavery – the Constitutional Rights Foundation

The Thirteenth Amendment: The Abolition of Slavery – University of Missouri

The History of the Three-Fifths Compromise – Nadra Kareem Nittle, June 2019

The Thirteenth Amendment: History and Impact – Robert Longly, August 2019

Dred Scott: The Case and its Impact – Robert Longly, August 2019

The Civil Rights Cases of 1883 – Robert Longly, August 2019

Slavery & the Constitution: A New Constitutional Convention

An important part of investigating the issue of slavery and its legacy in the United States is to critique the Constitution and its treatment of slavery and enslaved people. A solid critique of the Constitution uses the Preamble itself to measure whether the contents (or lack thereof) comply with the intent and purpose of the Constitution and of the American government. Asking students to understand and analyze the six goals of the Preamble creates a foundation from which a true critique can happen beyond simply discovering where the Constitution address slavery.  Extending from that, might students use common texts from The 1619 Project as evidence to form proposals which they might testify to in a mock constitutional convention about a new way for the Constitution to address the legacy of slavery.

The entire packet of lesson ideas connecting The 1619 Project to a Constitutional critique can be found in the sidebar.

U.S. Constitution.net

Constitutional topic: slavery – the u.s. constitution online – usconstitution.net, constitutional topic: slavery.

The Constitutional Topics pages at the USConstitution.net site are presented to delve deeper into topics than can be provided on the Glossary Page or in the FAQ pages . This Topic Page concerns Slavery. Slavery is mentioned in two main places in the Constitution; in Article 1, Section 2 Clause 3, and the 13th Amendment . Also see the Not in the Constitution entry .

Primary source material for this essay include The Origins of American Slavery by Betty Wood (Hill and Wang, New York, 1997), Jim Crow Guide – The Way It Was by Stetson Kennedy (Florida Atlantic University Press, Boca Raton, 1990), and The History of Jim Crow . Population figures from census data were found at The University of Virginia . Quotes from the Founding Fathers concerning slavery were taken from FoundingFathers.info . George Washington’s will can be found at The University of Virginia .

Introduction

The Origin of Slavery

The Founding Fathers and the Constitution

Slavery is a prominent part of United States history. Slavery has existed for thousands of years in many cultures, but in the United States, the institution seemed to have been perfected. It also came at a time of enlightenment, when many began to see slavery not as the necessity that many felt it was, but as an evil exploitation of men.

From the time that Christopher Columbus arrived in the New World, slaves were as much a part of the settlement and economy as the settlers and the crops. But this was the normal state of affairs for much of the Western world. The African slave trade, which started in the 15th century, was begun by the Portuguese, but slavery among African tribes was common, as it was among the Native Americans that Columbus encountered in Hispaniola. The biggest difference between native slavery and the slavery brought by Europeans to Africa and the Caribbean was the scope and scale.

Going further back, ancient Rome is said to have been more dependent upon its slave labor than any society before or since. Some estimates place the slave population in Rome in the 1st century to be about a third. Slaves came mostly from conquered peoples. To a lesser degree, the children of slaves were also slaves. Kidnapping and piracy, as well as cross-culture purchase are also seen as likely sources. Finally, self-sale, slavery for debt, and slavery as punishment for crimes were also in place.

Lastly, as was often mentioned by American supporters of slavery, slavery is mentioned in the Bible. Therein, while it is not encouraged, it is acknowledged, and it is regulated.

Slavery, then, has a long, if ugly, history. In 21st century America, it is easy for us to look at our past and be disappointed, even disgusted, by slavery. In fact, it is right to do so. However, it must be understood in the historical context

When examining the American slave trade, a “why” must first be determined. Why were the slaves brought from Africa, and not from, say, the Caribbean or South America? There are two schools of thought on this topic. The first is purely racial – that the color of skin of the African made him a target for the European traders. The other is that race had little to do with the beginning of the trade, but that pure economics dictated the source. Race, when it eventually did become a factor, came afterwards.

Initial colonization of the New World by England came in the Caribbean, such as on St. Kitts, and in Virginia. The primary concern of the English in the use of these lands was as a source of income. Tobacco was discovered and became wildly popular, and its cultivation became a priority. Tobacco agriculture requires lots and lots of land, and, in turn, lots of labor to work the land. The first workers were recruited servants from England itself. Lured by the promise of land at the end of their term of service, many indentured servants came. In the islands of the Caribbean, however, land was not limitless, as it seemed to be in Virginia to the north.

Settlers branched out from one island colony to another, with some inhabitants and workers moving from other islands and some coming from Britain. Similar colonization was happening with the French, whose laws did not permit indentured servitude to fill labor needs. The Dutch slave traders stepped in with a ready source – enslaved Africans. The English were quick to adopt this model for labor, and by the 1650s, the source of labor had switched from voluntary to involuntary. On Barbados, where tobacco failed as a crop, but where sugar cane and cotton grew well. Based on the Portuguese model in Brazil, Africans were brought in to work the crops such that by 1660, the slave-to-free ratio was about 50-50.

The Africans were slaves in fact and, eventually, in law. They did not have an end to their term of service as indentured servants did. There was no loss in profit when a number of years ran out. In addition, the wage levels for indentured servants had a strong upturn in the 1640s. The economics of slavery were obvious to the plantation owners.

This plays into slavery into America because by the mid-1660s, proprietors of the North American lands, from Virginia on south, were looking to profit from their lands just as had been done in the Caribbean. They wanted to attract settlers from England, but more so, they wanted to attract settlers from the Caribbean, who had already worked successful crops and were used to the climate. Certainly, they promoted the religious freedoms of the colonies, and the extension of English rights and liberties, but they also guaranteed property rights. And by this time, African slaves were property. As planters moved from Barbados to the Carolinas, they brought their slaves with them.

In Virginia, in the meantime, the cultivation of tobacco became of paramount importance. Over objections of the King to smoking, and over warnings concerning single-crop agriculture, the lure of profit fixated the settlers. Once they were able to take all the land they wished from the native Indian tribes, they were left with vast amounts of land to work. Indians proved too scattered and resistant to enslave in large numbers. Indentured servants were brought over from England, and they formed the backbone of Virginia labor until the 1680s. The thinking is that indentured servitude continued to be the more profitable way of acquiring labor – an African slave was simply more expensive. Some of the same forces that influenced the shift to African labor in the Caribbean came to Virginia. Though it came later, by 1710 the slavery system was so firmly established that it was a fully developed area of the law.

In 17th century Massachusetts, slavery was much less an important part of the economic structure, but it was, nonetheless, an important part of the social structure. The Puritans saw slavery as authorized by the Bible, and a natural part of society. However, the Puritans were also governed by a code of biblical conduct whereby slaves had some rights, and whereby the masters were presumed to be responsible not only for a slave’s physical but also spiritual well-being. These factors made the life of a slave only slightly less onerous that those in Southern states. But the form of agriculture used in Massachusetts is probably more responsible for the relative lack of slaves in the North. Small farms, not large plantations, were the norm, and it was common to find the farmer working the fields alongside slaves. The tide would eventually turn, however, and by the time of the Constitutional Convention, Massachusetts had outlawed slavery.

By the time of the Constitutional Convention in 1787, slavery in the United States was a grim reality. In the census of 1790, there were slaves counted in nearly every state, with only Massachusetts and the “districts” of Vermont and Maine, being the only exceptions. In the entire country 3.8 million people were counted, 700,000 of them, or 18 percent, were slaves. In South Carolina, 43 percent of the population was slave. In Maryland 32 percent, and in North Carolina 26 percent. Virginia, with the largest slave population of almost 300,000, had 39 percent of its population made up of slaves.

In the Articles of Confederation , the nation’s first constitution, there is not mention of slavery. The states were represented in Congress by state, with each state picking its own representatives, so population, which became critical in the future House of Representatives, was not relevant. Also, because fugitive slaves, and the abolition movement, were almost unheard of as late as the 1780s, there is no mention of this issue in the Articles. The closest thing to be found is the Fugitive Clause in Article 4, but even that is more geared toward convicts.

There was no great movement in America to abolish slavery in the 1780’s, when the Constitutional Convention met. To be sure, there were opponents of slavery, on a philosophical level, but the abolition movement did not appear until the 1830’s, when the American Anti-Slavery Society was founded with William Lloyd Garrison writing the organization’s nascent statement of principles. Prior to the Convention in 1787, many “Founding Fathers” expressed opinions that condemned slavery.

John Jay, great supporter of the Constitution after its creation and an author of The Federalist wrote in 1786, “It is much to be wished that slavery may be abolished. The honour of the States, as well as justice and humanity, in my opinion, loudly call upon them to emancipate these unhappy people. To contend for our own liberty, and to deny that blessing to others, involves an inconsistency not to be excused.”

Oliver Ellsworth, one of the signers of the Constitution wrote, a few months after the Convention adjourned, “All good men wish the entire abolition of slavery, as soon as it can take place with safety to the public, and for the lasting good of the present wretched race of slaves.”

Patrick Henry, the great Virginian patriot, refused to attend the Convention because he “smelt a rat,” was outspoken on the issue, despite his citizenship in a slave state. In 1773, he wrote, “I believe a time will come when an opportunity will be offered to abolish this lamentable evil. Everything we do is to improve it, if it happens in our day; if not, let us transmit to our descendants, together with our slaves, a pity for their unhappy lot and an abhorrence of slavery.”

Thomas Jefferson, author of the Declaration of Independence , which, famously, declares that “all men are created equal,” wrote, “There must doubtless be an unhappy influence on the manners of our people produced by the existence of slavery among us. The whole commerce between master and slave is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submissions on the other. Our children see this, and learn to imitate it; for man is an imitative animal. This quality is the germ of all education in him.” Alas, like many Southerners, Jefferson held slaves, as many as 223 at some points in his life. His family sold his slaves after his death, in an effort to relieve the debt he left his estate in.

In a letter to the Marquis de Lafayette, George Washington wrote, “[Y]our late purchase of an estate in the colony of Cayenne, with a view to emancipating the slaves on it, is a generous and noble proof of your humanity. Would to God a like spirit would diffuse itself generally into the minds of the people of this country; but I despair of seeing it.” Washington and his wife held over 300 slaves. He wrote in his will that he’d wished to free his slaves, but that because of intermarriage between his and Martha’s slaves, he feared the break-up of families should only his slaves be freed. He directed that his slaves be freed upon her death. His will provided for the continued care of all slaves, paid for from his estate.

The great American scientist and publisher Benjamin Franklin held several slaves during his lifetime. He willed one of them be freed upon his death, but Franklin outlived him. In 1789, he said, “Slavery is such an atrocious debasement of human nature, that its very extirpation, if not performed with solicitous care, may sometimes open a source of serious evils.”

Other examples of anti-slavery messages abound from the late 1700’s. They illustrate the feelings of some, but those feelings cannot be seen in the product of their works at creating a government. Despite the freedoms demanded in the Declaration and the freedoms reserved in the Constitution and the Bill of Rights , slavery was not only tolerated in the Constitution, but it was codified.

The Constitution has often been called a living tribute to the art of compromise. In the slavery question, this can be seen most clearly. The Convention had representatives from every corner of the United States, including, of course, the South, where slavery was most pronounced. Slavery, in fact, was the backbone of the primary industry of the South, and it was accepted as a given that agriculture in the South without slave labor was not possible. Though slaves were not cheap by any measure, they were cheaper than hiring someone to do the same work. The cultivation of rice, cotton, and tobacco required slaves to work the fields from dawn to dusk. If the nation did not guarantee the continuation of slavery to the South, it was questioned whether they would form their own nation.

Slavery is seen in the Constitution in a few key places. The first is in the Enumeration Clause, where representatives are apportioned. Each state is given a number of representatives based on its population – in that population, slaves, called “other persons,” are counted as three-fifths of a whole person. This compromise was hard-fought, with Northerners wishing that slaves, legally property, be uncounted, much as mules and horses are uncounted. Southerners, however, well aware of the high proportion of slaves to the total population in their states, wanted them counted as whole persons despite their legal status. The three-fifths number was a ratio used by the Congress in contemporary legislation and was agreed upon with little debate.

In Article 1, Section 9, Congress is limited, expressly, from prohibiting the “Importation” of slaves, before 1808. The slave trade was a bone of contention for many, with some who supported slavery abhorring the slave trade. The 1808 date, a compromise of 20 years, allowed the slave trade to continue, but placed a date-certain on its survival. Congress eventually passed a law outlawing the slave trade that became effective on January 1, 1808.

The Fugitive Slave Clause is the last mention. In it, a problem that slave states had with extradition of escaped slaves was resolved. The laws of one state, the clause says, cannot excuse a person from “Service or Labour” in another state. The clause expressly requires that the state in which an escapee is found deliver the slave to the state he escaped from “on Claim of the Party.”

It has been said that the seeds of the Civil War, which was fought, despite revisionist theory to the contrary, over the issue of slavery, were sown in the compromises of the Constitution on the issue. This is probably true. Slavery, which was started in violence in the kidnapping, shipment, and commerce of human chattel, needed violence to bring it to an end. After the devastation of the Revolutionary War and the unrest in the U.S. under the Articles, a time of peace and recovery was needed to strengthen the nation to a point where it could survive a civil war. The greatest tragedy is that in the nearly 100 years between the start of the Revolutionary War and the end of the Civil War, millions of slaves served, suffered, and died so that the nation could prosper.

With the demise of the institution of slavery, it was the hope of many that blacks would quickly rise in their citizen status. However, there were several problems with this hope. The first was the bitterness the South felt about the Civil War, the Emancipation Proclamation , the 13th , 14th , and 15th Amendments, and the Radical Republicans. The second was basic prejudice. For centuries, most blacks had been relegated to a sub-human status, and that feeling, even among many Northerners, was not going to go away with slavery. Once the Southern states regained control of their own governments again, following Reconstruction, the Black Codes were quickly enacted.

The 14th and 15th Amendments were actually national reactions to Black Codes enacted in the South just after the Civil War. Legally, constitutionally, blacks were equal. Many of the Black Code provisions were illegal under the new amendments, and black voters, and even legislators, gained power in the immediate aftermath. But to counter the freedoms gained, eventually new Black Codes were enacted, most of which aimed to deny blacks the vote by means that did not rely on race on their face, but which relied on race at their root. Organizations such as the Ku Klux Klan also rose, intimidating black voters from exercising their new suffrage rights. Poll taxes, literacy tests, and other tactics, both legal and extra-legal, were used to deny blacks the vote. With no voice in the government, the rate of black voters, and any sign of black legislators, quickly disappeared.

Following the Plessy v Ferguson decision in 1896, where the Supreme Court ruled that while blacks had equal right under the law, but that separation of the races was legal as long as facilities were equal, throughout the South, and elsewhere, more laws were enacted to keep blacks on one side and whites on the other. These laws, known as Jim Crow laws, affected every aspect of the lives of blacks.

The term “Jim Crow” comes from popular minstrel shows around the time of the Civil War. The Jim Crow character was a stereotypical black man. The term was picked up to describe laws which segregated whites and blacks in everyday personal life, and to describe laws aimed at denying blacks the vote. By 1910, each state that had been a part of the Confederacy had a complex and complete system of Jim Crow laws in place. This legal separation continued to be buttressed by extra-legal acts, such as widespread lynchings and other terrorist acts committed upon any one who spoke out, or, often, on random blacks for the sake of pure terror.

The unfairness of the “separate but equal” doctrine seems obvious to us today, and the effects of the Plessy case on the lives of ordinary blacks seems to be very direct and incontrovertible. But it took 60 years before the courts were ready to part with the Plessy case. In that time, numerous people were killed, millions were denied the right to vote, some blacks being born and dying without even having voted, and segregation dug its claws ever deeper into American society.

For example, a 1958 Alabama law stated that “It shall be unlawful for white and colored persons to play together … in any game of cards, dice, dominoes, checkers, pool, billiards, softball, basketball, football, golf, track, and at swimming pools or in any athletic conference.” Prejudice extended past the law into the jury box, too. According to the Jim Crow Guide , “three white youths who confessed to a Christmas Eve rape of a 17-year-old Negro girl at Decatur, Georgia, were nevertheless acquitted by the DeKalb County jury.”

In the end, as prejudices were seen to be as arbitrary as they are, the tide began to turn, especially in higher legal circles. In the North, organizations like the NAACP were formed to better the lives of blacks, and in doing so, they brought more and more legal challenges to segregation. When black soldiers returned from Europe after World War One, they were shocked to return to segregation, which did not exist across the Atlantic. These men were the first large group to agitate against segregation. In World War Two, threats of unrest in the military industry and within the ranks forced President Roosevelt to equalize, though not desegregate, jobs and ranks. Blacks were enticed away from the South by the promise of jobs in the Mid-West and Northeast, where they enjoyed much more freedom.

Eventually, the federal courts, the Supreme Court in particular, began to see cases of segregation and discrimination as counter to the 14th Amendment and one by one, entire categories of Jim Crow laws began to fall. White opposition in the South to many of the rulings, such as those integrating schools and universities, was strong and militant. In several cases, U.S. Marshals or National Guardsmen had to be called out to protect pioneering black students.

Finally, the Civil Rights Act and Voting Rights Act were passed, in 1964 and 1965 respectively, ending legalized segregation and disenfranchisement. Jim Crow was dead, at least in the law. The last vestiges of legalized slavery were removed from the American legal system, for good. Jim Crow does live on, however, in the continuing, but seemingly dwindling, personal prejudice. America will not be able to say that the legacy of slavery has truly been eradicated until race is as irrelevant as eye color. In this, we still have work to do.

In February 2007, almost 150 years after the end of the Civil War and 400 years after the introduction of slavery to the lands of the United States, the Virginia legislature anonymously adopted a resolution expressing “profound regret” for the state’s history of slavery. The apology was the first made by any of the former states of the Confederacy or any other state. Meeting in the former capital of the CSA, the resolution passed both the Virginia House and Senate by unanimous vote. The measure marks a high-point in the turn around of the state from that having the largest slave population to that electing the first black governor.

On March 27, 2007, the Maryland legislature passed a bill that expressed “profound regret” for its role in slavery. On April 8, the North Carolina Senate issued an apology for its state’s role in slavery, and three days later, the North Carolina House did the same.

On April 24, 2007, the House and Senate of Alabama each separately passed apology resolutions, though they differed – the governor of Alabama said that if either body signed the others’ resolution, he would sign it. Similar efforts in Georgia at the same time failed – one black Georgia lawmaker said that it was insulting to think that an apology would make up for slavery.

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The first amendment, interpretation & debate, the slave trade clause, matters of debate, common interpretation, the invisible past: relics of slavery in the constitution, bona libertas.

by Gordon Lloyd

Professor of Public Policy at Pepperdine University's School of Public Policy; Senior Fellow at the Ashbrook Institute

by Jenny S. Martinez

Richard E. Lang Professor of Law and Dean of Stanford Law School

Article 1, Section 9, Clause 1, is one of a handful of provisions in the original Constitution related to slavery, though it does not use the word “slave.” This Clause prohibited the federal government from limiting the importation of “persons” (understood at the time to mean primarily enslaved African persons) where the existing state governments saw fit to allow it, until some twenty years after the Constitution took effect. It was a compromise between Southern states, where slavery was pivotal to the economy, and states where the abolition of slavery had been accomplished or was contemplated. 

There is a sense in which the Clause is no longer constitutionally relevant since it expired in 1808. At the time the Constitution was adopted, there was no guarantee whether or when the federal Congress would act to prohibit the importation of slaves. So there is a legitimate inquiry about what took place in the political realm over the 20-year period between the adoption of the Constitution and 1808. During that time period, popular support for the abolition of the slave trade and slavery itself increased both in the United States and in other countries. There was more support for restricting the slave trade initially than slavery itself in this time period. In the 1790s, Congress passed statutes regulating the trade in slaves by U.S. ships on the high seas. The United Kingdom and other countries also passed legislation restricting the slave trade, increasing international pressure on the United States to likewise curb the practice.

In December 1806, President Thomas Jefferson’s annual message to Congress anticipated the upcoming expiration of Article 1, Section 9, Clause 1. His message said, “I congratulate you, fellow-citizens, on the approach of the period at which you may interpose your authority constitutionally to withdraw the citizens of the United States from all further participation in those violations of human rights which have been so long continued on the unoffending inhabitants of Africa, and which the morality, the reputation, and the best interests of our country have long been eager to proscribe.” Does it seem odd that a slave owner was supporting this legislation?

In 1807, the U.S. Congress passed a statute prohibiting the importation of slaves as of the first constitutionally-allowable moment of January 1, 1808. This act was signed by President Jefferson and entered into force in 1808, rendering this part of the Constitution irrelevant except as a historical curiosity. 

This in itself is a fascinating exception to constitutional change, in which a provision came with a built-in expiration date, after which the powers of the federal government would no longer be restricted. Note also that the Clause itself does not grant Congress the power to restrict the slave trade, but Congress presumably used the foreign and interstate commerce powers it had been given in Article 1, Section 8, to do so. 

In an important sense, there is a settled meaning of the Clause: it is no longer relevant in the same sense, for example, that the First Amendment is still constitutionally relevant. But the Clause, although constitutionally inoperative for over 200 years, still remains there for all to see and read. It is in the Constitution. And so the Clause, in a larger sense, has a continuing cultural and political constitutional relevance in the discourse of the morality and profitability of the international trade in human beings. People rightfully wonder today, and earlier, why is such a Clause there in the first place and to whom does it refer? We do know the Framers are talking about the slave trade, right? How attentive should we be to the specific language of the Clause or does the language actually inform us about what is trying to be conveyed? And why is this Clause the opening clause of Article 1, Section 9 of the Constitution?

When the Constitution was drafted in 1787, slavery was a major component of the economy and society in the United States. It is odd that the Constitution does not use the word “slavery” in the provisions that most directly respond to the practice. It takes a careful reader to notice the “Importation of Persons Clause” in Article 1, Section 9, Clause 1, which does not mention exactly who are the persons who might be “imported.”

Likewise, the “Three-Fifths Clause” in Article 1, Section 2, Paragraph 3, provides that apportionment of representatives would be based on the population of free persons excluding “Indians not taxed” and “three fifths of all other persons.” Those “other persons” were, of course, the African slaves who made up around a third of the population of the Southern states at that time. The “Fugitive Slave Clause” in Article IV, Section 2, Clause 2, provides that “no person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.” Again, the text studiously avoids the use of the word slavery. Traces of a slave-holding society can be seen in other parts of the early Constitution, from the federal structure of the government including the Senate and limitations on the powers of the federal government, to the protection of property in the Due Process Clause of the Fifth Amendment.

There was obviously deep tension between the practice of slavery and the notion in the Declaration of Independence that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights.” Perhaps the drafters of the Constitution were too embarrassed to use the word “slavery.” Or perhaps, as other historians have argued, the drafters did not want to suggest that slavery was recognized under federal law, but rather existed only as a result of state laws. 

These constitutional provisions related to slavery reflected a compromise between Northern and Southern states that was essential to ratification of the Constitution and formation of the Union, but ultimately a compromise that was unsustainable, as shown finally by the Civil War. 

Political support for banning the slave trade came earlier and was more broadly shared than support for banning slavery itself. The practice of capturing and enslaving free persons in Africa and cruelly transporting them in crowded ships across the Atlantic was viewed by some at that time as more unjust than keeping generations of persons enslaved on plantations in the New World. Indeed, opposition to the slave trade was so strong that the constitution of the Confederacy in the Civil War even prohibited it. There was also international pressure to regulate the slave trade on the high seas, led by the United Kingdom and enforced through a network of international treaties prohibiting the slave trade.

In retrospect, slavery was a crack in the very foundation of the nation, which violently came apart in the constitutional crisis of the Civil War and was only sealed back together with Reconstruction and the Thirteenth , Fourteenth , and Fifteenth Amendments. We can still see the elements of these fissures in law and society today, in the legacy of persistent racial inequality. Just because you don’t mention something and call it by name does not mean it isn’t there.

Introduction

Sections 4, 5, and 6, of Article VII of the Committee of Detail Report, August 6, 1787, restrained the 18 powers granted to Congress. Included in that list of powers was the power to regulate international commerce. Five delegates wrote this first draft of the Constitution: Nathaniel Gorham from Massachusetts, Edmund Randolph from Virginia, James Wilson from Pennsylvania, Oliver Ellsworth from Connecticut, and John Rutledge from South Carolina.                                                                      

Article VII, Sections 4, 5, and 6

Section 4. No tax or duty shall be laid by the Legislature on articles exported from any State; nor on the migration or importation of such persons as the several States shall think proper to admit; nor shall such migration or importation be prohibited.

Section 5. No capitation tax shall be laid, unless in proportion to the census herein before directed to be taken.

Section 6. No navigation act shall be passed without the assent of two-thirds of the members present in each House.

According to Section 4, what we now call the slave trade is completely 1) in the hands of each state and 2) out of the reach of Congress forever. Note that the word “slavery” is not mentioned.

The Three Sides

Three sides emerged in late August: principle, interest, and politics.

1. John Langdon “was strenuous for giving the power to the general government. He could not, with a good conscience, leave it with the States, who could then go on with the traffic.” John Dickinson, Luther Martin, George Mason, James Madison, Gouverneur Morris, James Wilson, and Edmund Randolph also opposed the slave trade on the grounds of principle. Martin argued that the slave trade was “inconsistent with the principles of the Revolution, and dishonorable to the American character, to have such a feature in the Constitution.” Mason stated that “every master of slaves is born a petty tyrant. They bring the judgment of Heaven on a country.”

2. Hugh Williamson, from North Carolina, reminded the delegates of political reality. “The Southern States could not be members of the Union, if the clause should be rejected.” He added: “both in opinion and practice he was against slavery; but thought it more in favor of humanity, from a view of all circumstances, to let in South Carolina and Georgia on those terms, than to exclude them from the Union.” Rutledge, chairman of the Committee of Detail, proclaimed: “Religion and humanity had nothing to do with this question. Interest alone is the governing principle with nations. The true question at present is, whether the Southern States shall or shall not be parties to the Union. . . . If the Convention thinks that North Carolina, South Carolina, and Georgia, will ever agree to the plan, unless their right to import slaves be untouched, the expectation is vain. The people of those States will never be such fools as to give up so important an interest .” Charles Pinckney agreed: “If slavery be wrong, it is justified by the example of all the world.”

3. Roger Sherman from Connecticut thought “it was better to let the Southern States import slaves than to part with them, if they made that a sine qua non .” He observed that the abolition of slavery seemed to be going on in the United States, and that the good sense of the several States would probably by degrees complete it. Mr. Ellsworth, also a member of the Committee of Detail, articulated the political position: the morality or wisdom of slavery are considerations belonging to the States themselves. Moreover, “slavery in time, will not be a speck in our country.” Massachusetts also sought accommodation. King said the whole “subject should be considered in a political light only.”

What is to be Done?

Mr. G. Morris “wished the whole subject to be committed, including the clauses relating to taxes on exports and to a navigation act. These things may form a bargain among the Northern and Southern States.”

The delegates appointed to a Committee of Eleven were Langdon, King, Johnson, Livingston, Clymer, Dickinson, L. Martin, Madison, Williamson, C.C. Pinckney, and Baldwin.

What sort of “bargain” would this Committee recommend? Langdon, King, Dickinson, Martin, and Madison opposed the Slave Clause provision on principle. Williamson, Pinckney, and Baldwin supported the Clause on the ground of interest. Perhaps Livingston, Johnson, and Clymer could help create an accommodation.

Governor Livingston from the Committee delivered the Report:

“Strike out so much of the fourth Section as was referred to the Committee, and insert, ‘The migration or importation of such persons as the several States, now existing, shall think proper to admit, shall not be prohibited by the Legislature prior to the year 1800; but a tax or duty may be imposed on such migration or importation, at a rate not exceeding the average of the duties laid on imports.’ The fifth section to remain as in the Report. The sixth Section to be stricken out. . . . ”

The Committee permitted Congress to regulate the slave trade after 1800 and impose a tax on such importation. Moreover, the Clause was confined to “the several states, now existing” that considered it “proper.” Congress was free to regulate the slave trade in the territories and impose restrictions on new states that entered the Union.

General Pinckney moved to strike out the words, “the year eighteen hundred,” and to insert the words “the year eighteen hundred and eight.” It passed 7-4.

The delegates had moved a long way from never permitting Congress to regulate the slave trade to permitting Congress to regulate the trade after 1808. Madison considered 1800—the birth of a new century—to be the more principled compromise.  New Jersey, Pennsylvania, Delaware, and Virginia voted “no.” They wanted 1800 instead of 1808. 

Thus Article 1, Section 9 of the Constitution: “The migration or importation of such persons as the several states now existing shall think proper to admit, shall not be prohibited by the legislature prior to the year 1808.” 

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Was the Constitution a Pro-Slavery Document?

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By Gordon S. Wood

• Jan. 12, 2021

THE CROOKED PATH TO ABOLITION Abraham Lincoln and the Antislavery Constitution By James Oakes

It was not long after the federal Constitution was created in 1787 that many antislavery Northerners began labeling it a pro-slavery document. Parts of it did support slavery — the clause that counted a slave as three-fifths of a person , which gave the slave states greater representation in Congress and the Electoral College than opponents of slavery believed they deserved; and the fugitive slave clause , which required persons held to service who had escaped to free states to be returned to their owners.

Because these poisonous clauses seemed to enable Southern slaveholders to dominate the national government in the early decades of the 19th century, the rabid abolitionist William Lloyd Garrison eventually concluded that the Constitution was a “covenant with death” and “an agreement with hell.” Oddly this view of the Constitution as a pro-slavery document was what the fervent hard-line apologists for slavery, like Senator John C. Calhoun and Chief Justice Roger B. Taney, believed as well.

We have long known of this pro-slavery view of the Constitution, one that has been much emphasized at the present time. Less well known is an antislavery interpretation of the Constitution mounted by abolitionists and other opponents of slavery to counter the views of the Southern “slave power.” In “The Crooked Path to Abolition,” his very solid, carefully and rigorously argued book, James Oakes , a professor of history at the Graduate Center of the City University of New York, describes and analyzes the antislavery constitutionalism that emerged in a dialectical struggle with pro-slavery constitutionalism in antebellum America.

The Northern opponents of slavery began by emphasizing that the Constitution never mentioned “slaves” or “slavery,” that it never accepted the idea that there could be property in man and that with the ending of the international slave trade in 1808 it promised a future for the nation without the despicable institution. Although the antislavery advocates conceded that the Constitution gave no authority to Congress to interfere with slavery within the states, they stressed that it did grant power to Congress to curb and limit the institution in a variety of other ways.

In making their case that the Constitution favored freedom over slavery, the antislavery Northerners interpreted and parsed every part of it as imaginatively as possible, seeking to whittle away at the pro-slavery arguments while at the same time emphasizing every provision and every clause that could be used on behalf of freedom. Congress, they said, had the sole constitutional authority to prohibit slavery in the territories and, indeed, had an obligation to do so. It could also suppress the coastwise slave trade and abolish slavery in the District of Columbia. They claimed that many parts of the Constitution worked against slavery. The Fifth Amendment, for example, declared that no person could be deprived of liberty without due process of law, which the Northern opponents of slavery could use to stymie enforcement of the Fugitive Slave Acts. They stressed that the preamble of the Constitution granted the federal government the power to “secure the blessings of liberty” and that the Fourth Amendment guaranteed the right of people to be secure from unreasonable seizures. The antislavery Northerners argued that the privileges and immunities of citizens in Article IV, Section 2, were derived from the federal Constitution, not from the constitutions of the states, and thus Black citizens of the Northern states were entitled constitutionally to move freely from one state to another. They even invoked Congress’s war powers and the federal guarantee of a republican form of government to every state in Article IV, Section 4, to threaten slavery in the states. If the slave states ever seceded, the antislavery Northerners warned, they would forfeit their constitutional rights, and the free states would no longer be obliged to enforce the fugitive slave clause.

Gradually the antislavery advocates accumulated a variety of textual protections for freedom and limitations on slavery. Then they began moving beyond the text of the Constitution to invoke its spirit, which, they said, was mainly derived from the Declaration of Independence and its inspiring dedication to equality. By the 1850s the antislavery Northerners had built a powerful case for antislavery constitutionalism. They had created a “Constitution that made freedom the rule and slavery the exception.”

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Milestone Documents

13th Amendment to the U.S. Constitution: Abolition of Slavery (1865)

Citation: The House Joint Resolution Proposing the 13th Amendment to the Constitution, January 31, 1865; Enrolled Acts and Resolutions of Congress, 1789-1999; General Records of the United States Government; Record Group 11; National Archives.

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Passed by Congress on January 31, 1865, and ratified on December 6, 1865, the 13th Amendment abolished slavery in the United States.

In 1863 President Lincoln issued the  Emancipation Proclamation  declaring “all persons held as slaves within any State, or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free.” Nonetheless, the Emancipation Proclamation did not end slavery in the nation since it only applied to areas of the Confederacy currently in a state of rebellion (and not even to the loyal “border states” that remained in the Union). Lincoln recognized that the Emancipation Proclamation would have to be followed by a constitutional amendment in order to guarantee the abolishment of slavery.

The 13th Amendment was passed at the end of the Civil War before the Southern states had been restored to the Union, and should have easily passed in Congress. However, though the Senate passed it in April 1864, the House initially did not. At that point, Lincoln took an active role to ensure passage through Congress. He insisted that passage of the 13th Amendment be added to the Republican Party platform for the upcoming 1864 Presidential election. His efforts met with success when the House passed the bill in January 1865 with a vote of 119–56.

On February 1, 1865, President Abraham Lincoln approved the Joint Resolution of Congress submitting the proposed amendment to the state legislatures. The necessary number of states (three-fourths) ratified it by December 6, 1865. The 13th Amendment to the United States Constitution provides that "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

With the adoption of the 13th Amendment, the United States found a final constitutional solution to the issue of slavery. The 13th Amendment, along with the 14th and 15th , is one of the trio of Civil War amendments that greatly expanded the civil rights of Americans.

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AMENDMENT XIII

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

Passed by Congress January 31, 1865. Ratified December 6, 1865.

Note: A portion of Article IV, section 2, of the Constitution was superseded by the 13th Amendment.

• Jonathan Earle
• Paul Finkelman
• Elizabeth Varon
• Lea VanderVelde
• James Loewen
• Gerry Kohler
• James Percoco
• From the Editor

Slavery, the Constitution, and the Origins of the Civil War by Paul Finkelman

Paul Finkelman’s essay on “Slavery, the Constitution, and the Origins of the Civil War” describes the slow-developing constitutional collision over slavery that began in 1787 and finally erupted into war by 1861. This excerpt, however, focuses on Lincoln’s emancipation policy and argues that the “irony” of southern secession was how it “allowed Lincoln to do what he had always wanted.” Finkelman, a law professor at the University of Albany, considers Lincoln deeply opposed to slavery and yet also committed to upholding the Constitution and political compromises over slavery during the years before war broke out. You can read Finkelman’s full essay inside the print edition of Volume 25 of the OAH Magazine of History (April 2011) or online via Oxford Journals .

1. According to Paul Finkelman, what are some of the key wartime anti-slavery policies that predated the Emancipation Proclamation? What can you find out about them using the House Divided research engine?

2. Read the full-text of Lincoln’s letters to Horace Greeley (August 22, 1862) and to Albert G. Hodges, (April 4, 1864). What did they say? How did they differ? How does Finkelman uses short quotations from these letters to build his argument about Lincoln’s anti-slavery beliefs? What does he leave out?

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Copyright 2011 Dickinson College and Organization of American Historians

number 60 • Summer 2024

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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.

A STATE INSTITUTION

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.

NATIONAL ACCOMMODATION

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.

THE THREE-FIFTHS CLAUSE

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.

LEGAL BUT NOT LEGITIMATE

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.

CLOSING THE GAP

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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Essay: The End of Slavery and the Reconstruction Amendments

The Constitution provided a process for states to enter the union, but had nothing to say about what would happen if a state wanted to leave. The tensions that had been temporarily calmed after the Nullification Crisis continued to rise. As President Jackson had predicted, slavery was put forth as a main cause of the conflict. And it was indeed the main cause. While Lincoln had believed it was “in the course of ultimate extinction”, slavery was not going to just go away.

The interests of Northern and Southern states grew increasingly divergent. As more states joined the United States, tensions about the balance of power between slave states and free states reached a tipping point. Southerners feared that Congress would try to ban slavery where it already existed, while Northerners feared the “slave power” in Congress and resented the injustice of federal laws that required people in free states to return escaped slaves to the their masters.

Upon the election of Abraham Lincoln to the Presidency in January 1861, southern states began withdrawing from the Union. South Carolina, the first state to secede, echoed the language and style of the Declaration of Independence in its Declaration of Secession. Eleven states eventually formed the Confederate States of America (CSA). President Lincoln did not acknowledge the CSA as a separate nation, but rather considered those states to be engaging in an unlawful rebellion.

President Abraham Lincoln reads the Emancipation Proclamation to his Cabinet.

Two years into the Civil War, Lincoln issued the Emancipation Proclamation.

In it, he declared that enslaved people in the rebelling states not under Union control were “forever free” and that suitable persons among them would be “received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service” (Abraham Lincoln, “The Emancipation Proclamation,” 1863)

He saw that northerners opposed slavery but were not generally willing to fight to abolish it; they were willing to fight for the Union, though. This was Lincoln’s strategy: to abolish slavery through defense of the Union.

Lincoln did not declare free the enslaved people in slave states loyal to the Union (Delaware, Kentucky, Maryland and Missouri), or in regions of Confederate states under Union control. The Emancipation Proclamation noted that slavery in those exempted places would be “left precisely as if this proclamation were not issued.”

The Lincoln Memorial

After the Civil War, Congress required that the southern states approve the Thirteenth, Fourteenth, and Fifteenth Amendments as a condition of their re-entry into the union.

The Thirteenth Amendment (1865) ended slavery throughout the U.S. and banned it forever. It reads: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States.” It was this amendment, not Lincoln’s Emancipation Proclamation, that put an end to slavery in the entire Union.

Congress hoped to make protection of blacks’ civil rights permanent through the Fourteenth Amendment (1868) to the Constitution. The Fourteenth Amendment was a significant alteration of the practice of federalism. It dramatically limited the powers of states.

Section I of the Fourteenth Amendment reads: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Its clauses are known respectively as the Privileges and Immunities Clause; the Due Process Clause; and the Equal Protection Clause. The meaning of each of these clauses has been debated since the amendment’s ratification.

The Fifteenth Amendment (1870) protected the rights of blacks to vote, stating: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

For a time after the passage of these amendments, African-Americans voted in large numbers despite coercion, fraud, and intimidation. Beginning in the 1890s, attempts to disenfranchise African-American voters became formalized through the adoption of voting requirements such as literacy tests, property qualifications, and, later, poll taxes. These measures deprived large numbers of black citizens of their right to vote.

The Supreme Court initially interpreted the Fourteenth Amendment narrowly. It held in the  Slaughterhouse Cases  that the amendment’s Due Process Clause applied the same limits to state governments that the Fifth Amendment’s Due Process Clause imposed on the national government. The “privileges and immunities” of citizens, the Court also held, were limited to matters involving national citizenship.

Like all constitutional provisions and amendments, the significance of the Reconstruction amendments has not been limited to the time of their ratification.

During World War I, anti-war protestors used the Thirteenth Amendment to argue against the military draft. It has been invoked by some in contemporary times to argue against state laws that require individuals and small business to work against their will. (For example: does a Muslim wedding photographer have the right to refuse to photograph a gay wedding? Or, does a gay couple have the right to force a Muslim photographer to photograph their wedding?)

The significance of the Fourteenth Amendment over the last one hundred years cannot be overstated. The first time the Court was asked to decide if it meant that Bill of Rights protections applied to the states, it said no. Beginning in 1925 with  Gitlow v. New York , the Court decided that it did some of the time. The Court began to use the Fourteenth Amendment to selectively incorporate (or apply) some sections of the Bill of Rights to state governments.

Though the idea may have surprised many people in 1868, over time many began to view the national government, and not state governments, as the primary protector of their rights. Further, as the definition of “rights” began to be changed by those in power during the Progressive Era, this new role for the federal government set the stage for a dramatic increase in its size, scope, and power.

Related Content

The End of Slavery and the Reconstruction Amendments

The interests of Northern and Southern states grew increasingly divergent. Eleven states eventually seceded from the Union and formed the Confederate States of America. After the Civil War, Congress required that the southern states would approve the Thirteenth, Fourteenth, and Fifteenth amendments as a condition of their re-entry into the union. The Thirteenth Amendment banned slavery throughout the United States. The Fourteenth Amendment granted citizenship to formerly enslaved people and banned states from passing laws that denied the privileges and immunities of citizens, due process, or equal protection of the law. The Fifteenth Amendment extended the right to vote to black men. The Fourteenth Amendment in particular was a dramatic departure from the Founders’ Constitution, and set the stage for dramatic increases in the size, scope, and power of the national government decades later.