According to Sean Wilentz’s opinion piece in the September 16 New York Times, the Constitution of 1787 did not make slavery a national institution. The noted American historian cites the anxiety of some of the founding fathers over slavery to counter “one of the most destructive falsehoods in all of American history,” the claim that our national government was established on “racist principles.”
Wilentz is wrong. The Constitution incorporated slavery into our national system of governance. If slavery was not legal in every state, it was nonetheless “national law,” protected and upheld by the Constitution.
Wilentz badly misinterprets the antislavery sentiment evident at the constitutional convention of 1787. In his version of history, if most of the Framers did not explicitly defend slavery, they must have stood against it. And if the slaveholders did not get everything they wished, they must have lost. In other words, if the glass was not empty, it must have been full. But for the first eight decades of our country’s life, the devil’s bargain struck in 1787 warped almost every aspect of national politics and national life.
American Revolutionaries constantly invoked a freedom-bondage binary they knew well. “We must assert our rights,” George Washington declared in 1774, “or Submit to every Imposition that can be heap’d upon us; till custom and use, will make us as tame, & abject Slaves, as the Blacks we Rule over with such arbitrary Sway.” As they envisioned themselves as slaves to tyrannical Britain, the founders also understood that their own practice of slavery badly undermined their justification for revolutionary violence in defense of freedom. Wrote New York’s John Jay, “To contend for our own liberty and to deny that blessing to others involves an inconsistency not to be excused.”
But when delegates met in Philadelphia to draft a new constitution in 1787, they never considered ending the right of property in man. And once slavery entered the new nation by default, the institution could not simply be ignored – it had to be actively protected. How did this apparent contradiction come to pass?
James Madison’s record of the constitutional convention reveals how delegates from slaveholding states held the Union for ransom, repeatedly demanding that unless they received constitutional guarantees for slavery, they “would never confederate” and that “the business [of the convention] was at an end.” Non-slaveholding delegates capitulated, declaring that while they might personally oppose servitude, they “thought it more in favor of humanity” to concede to the slave states rather than exclude them from the Union.
As a result, the new national government explicitly upheld the peculiar institution.
The “three-fifths clause” of the Constitution disproportionately empowered the slave states by permitting them to count 60 percent of their slave populations for apportionment in the House of Representatives and the Electoral College. For the next seventy-three years, the slave states enjoyed an artificial boost of 10 to 12 percent in these bodies – hardly the “consolation prize” Wilentz terms it. The margin of advantage they gained permitted the election of Thomas Jefferson to the presidency in 1800, and the passage of key pieces of pro-southern legislation such as the Indian Removal Act of 1830.
Another section of the Constitution prohibited Congress from outlawing the trade in slaves to American shores for two decades. This constraint on national lawmakers heavily favored the slave states by protecting their right to import humans – a notable victory given the strength of sentiment in Congress against the trans-Atlantic traffic in human flesh. James Madison was correct in predicting that “twenty years will produce all the mischief that can be apprehended from the liberty to import slaves.” The period from 1787 to 1808, when Congress did in fact end the trade, brought some 75,000 Africans to American shores, more than 20 percent of the entire volume of the trade to mainland British North America.
Yet another gift to slaveholders appeared in a clause in the Constitution guaranteeing that enslaved people who fled from a slave state to a free one would be “delivered up” to their claimants. More than any other, this provision required the federal government not simply to condone slavery but actively uphold it. Whereas in Great Britain merely stepping foot on free soil rendered an enslaved person free, this was not so in the United States. Here, the federal government acted decisively to protect slavery in the nation even where it had been outlawed.
In 1793 Congress enacted a law to enforce the fugitive slave provision of the Constitution, guaranteeing slaveholders the right to claim their human property on free-state soil. When in later decades northern consciences resisted the measure, Congress passed the notorious Fugitive Slave Law of 1850, which historian Eric Foner has labeled “the most powerful exercise of federal authority within the United States in the whole era before the Civil War.”
Seven years later, the Supreme Court’s ruling in the Dred Scott case prohibited Congress from outlawing slavery in federal Territories. Antislavery politicians worried that more looming cases – such as that of the Lemmon slaves of Virginia, who sought their freedom upon landing on New York soil – might have nationalized slavery had not the Civil War intervened. If the right to enjoy human property could not be denied in the Territories, why should it be in the free states? In the wake of the Dred Scott decision, Abraham Lincoln worried that “what Dred Scott’s master might lawfully do with Dred Scott, in the free State of Illinois, every other master may lawfully do with any other one, or one thousand slaves, in Illinois, or in any other free State.”
What did opponents of slavery at the Constitutional Convention get in exchange for these enormous concessions to slaveholders? Not much, other than the absence of literal references to “slavery” or “slaves” in the document. Instead, it features euphemistic phrases such as “persons held to Service or Labour” or “all other Persons.” This was as much antislavery as the Framers could muster. Northern delegates such as Elbridge Gerry of Massachusetts thought the convention “ought to be careful not to give any sanction” to slavery. Madison, the Virginia slaveholder, declared that he “thought it wrong to admit in the Constitution the idea that there could be property in men.”
This absence was not nothing, for it at least permitted following generations to argue endlessly about how the Constitution promoted or censured slavery. If in the 1830s the abolitionist editor William Lloyd Garrison could label the Constitution “a Covenant with Death, an Agreement with Hell,” others could claim something else. That debate was even possible suggested that the political system itself might provide an avenue for change. The Liberty, Free Soil, and then Republican parties arose, all of which claimed that the Constitution protected slavery only in the states where it existed, and not in the western Territories. As Abraham Lincoln would put it in 1860, the Framers viewed slavery “as an evil not to be extended, but to be tolerated and protected only because of and so far as its actual presence among us makes that toleration and protection a necessity.” When this argument placed Lincoln in the White House, the slaveholding states sundered the Union, and brought on the war that destroyed the very institution they seceded to protect.
In 1787, when nearly 300,000 people of African descent populated every state in the new nation, many leaders hoped that slavery would decline by, as George Washington put it, “slow, sure, and imperceptible degrees.” The hope was vain. Eventually, of course, slavery did end. But the cost of the delay was horrific. The document the founding fathers created consigned millions of human beings to chattel bondage. In the seventy-eight years between the drafting of the Constitution and the end of the Civil War, the United States became the pre-eminent slaveholding nation in the world, with a larger bound population at the moment of emancipation – 3.9 million – than any other in history. The founding fathers’ temporizing also cost the lives of hundreds of thousands who died in the war that finally destroyed slavery in the United States. And it created a legacy of racism and discrimination that continues to haunt our national life today.
We can laud a Constitution that has proven itself to be, in Franklin Delano Roosevelt’s words, “flexible enough to meet any new problem of democracy.” But if we can we agree that slavery was a racist institution, and that the Constitution created the United States, then the United States was indeed created on “racist principles.” Bernie Sanders may be sorry to say it, and Sean Wilentz might not like hearing it. But rather than turn from it, we might embrace the opportunity to confront that terrible truth with rectitude.
A version of this article originally appeared at We’re History.