I invite you to come with me, using the Smith’s Castle time machine, back to the summer of 1787. To a hot and humid Philadelphia as 55 male representatives of 12 of the 13 former colonies gathered in constitutional convention to create a document that would ultimately describe the functions of a new government. A unique form of government at that time in world history. But why were they gathering?
During and after the Revolutionary War, it had become obvious to many that the Articles of Confederation were inadequate. Adopted by the Continental Congress in 1777 it became official in 1781 and operated until the new Constitution was ratified in 1789. But, the Articles were too much a collection of separate sovereign powers and had little to no method of enforcing it’s will on the states. It was considered by many incapable of creating a single, unified country from 13 states jealous of their newly acquired independence. Some of the men coming to Philadelphia wanted to simply tweak the Articles but most wanted to throw them out entirely and start fresh. And ultimately, that’s what happened.
Historian Robert Darton wrote in his book The Revolutionary Temper :
“Events do not come naked into the world. They come clothed ~ in attitudes, assumptions, values, memories of the past, anticipations of the future, hopes and fears, and many other emotions.” (End quote)
We could say the men involved in this constitutional project brought with them their own baggage. Looking at that “baggage” can help us understand what they wrote and why they wrote it.
Slide #2. “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity….”
Here, in the first sentence we find some of those hopes expressed. But I want to focus on the first three words ~ “We the People”. Who were “the People" in 1787 who were to be included in that expression: “We the People”? That is a question that this country has been trying to answer for the past 237 years, and is still trying to answer.
As we take a closer look at who was involved in this constitutional convention, we will see that some of the “baggage” these men brought with them, involved two institutions: Slavery and the International Slave Trade.
It is important to understand that in their minds Slavery and the International Slave Trade were two very different issues. It may seem counter-intuitive to us today, but for them it was possible to be against one and not the other.
There was a much broader consensus in 1787 against the International Slave Trade itself. The actual mechanics of that trade, while profitable to many, clearly required a system that inflicted unspeakable horrors on millions of enslaved people. And was becoming increasingly objectionable to many living in the 8 northernmost states.
But as to the question of abolishing slavery totally, that was a complete deal breaker for at least 5 of the 13 states: Maryland, Virginia, the Carolinas and Georgia. It is absolutely clear from southern state arguments in the summer of 1787 that the issue of the existence of slavery itself could not be threatened. And they would never participate in a new Union if that were proposed.
The type of slavery we are discussing called Chattel Slavery. Here is a 21st century definition by Michael Harriot:
“…[A] perpetual, race-based, constitutional, human trafficking enterprise that legally reduces human beings to chattel [things or objects] through the means of violence or the threat thereof.”
Many of us were taught, myself included, to consider the US Constitution to be a near sacred document. I can assure you that George Washington, who presided at this convention, did not bring it down from the top of Mount Vernon inscribed by God on sheets of vellum in beautiful 18th century cursive. At times its provisions were remarkable and farsighted and have stood the test of time very well. But, it should not be sacrilegious to suggest that the Founding Fathers were human beings with clay feet, like the rest of us.
A close examination of the process creating our Constitution, shows it to be, one that involved a great deal of “horse-trading”. But of course, it wasn’t “horses” that were being traded was it? It was the lives and fortunes and futures of human beings. I am not the only person to have suggested the Constitution is not perfect in all respects.
Of the 55 men involved in this convention, only 39 actually signed the Constitution in the Fall of 1787. Only one that we know of, George Mason of Virginia, did so because it codified and protected slavery and the slave trade. Others, including Mason were also upset it did not originally contain a Bill of Rights.
Here are two other well known critics.
Many of you are familiar with William Lloyd Garrison, who famously advocated for the abolition of slavery in the years leading up to our Civil War. Obviously, he was not a fan of the US Constitution.
In 1987, during the 200th anniversary of the creation of the US Constitution, Supreme Court Justice Thurgood Marshall, the first Black American to sit on that court said that the US Constitution was “defective from the start”. He noted the majority of Americans were not a part of that document, despite the famous opening of “We the People”. Because of the accommodations made for the institution of slavery, he accused the initial framers of “consent[ing] to a document which laid a foundation for the tragic events which were to follow.” He was referring to the Civil War, the Jim Crow laws, the rise of the KKK and the Civil Rights struggle of which he played a major part in the 1950’s and 1960’s.
Historian Ari Herman noted in his book, Minority Rule, who didn’t vote for this Constitution.
“Not a single woman voted for or against the Constitution. Nor did any African Americans or Native Americans, or a large number of poorer white [males]. Three quarters of adult males did not vote in [the] elections to choose the state delegates that would debate [ratifying] the Constitution…. The final text was approved by less than one sixth of the country’s [white] adult male population.”
Let me introduce one of our Founding Fathers. “Gouverneur” was his first name not his actual title. He was 35 in 1787 and present on behalf of the state of Pennsylvania. And, because most of the language used in the final version of the Constitution is his, he is often referred to as the “Penman of the Constitution”. And it was he who wrote that famous first line, beginning “We the People…” Mr. Morris was born to a prominent New York family, he attended what would later be called Columbia University and was known for his very active romantic life with many women some of them married, his clever wit, and his good looks despite having a “peg leg” as the result of an accident when he was 28. Mr. Morris was definitely one of “the people” referred to in “We the People”.
He was an eloquent speaker and gave more speeches during the convention than anyone else, 173 in totaL He was also one of the loudest voices against the issues of slavery and the slave trade at the convention.
However, Mr. Morris felt, and many present that summer of 1787 agreed with him that government, and therefore any document creating that government, is about power, politics and property: who has the power, how will that power be used, and how will this new government protect that property. And as we know, property in 1787 included enslaved human beings.
The original US Constitution contains a total of 84 separate clauses. 6 are directly concerned with slavery or the slave trade, and at least 5 others had important implications for slavery.
We will look at two of the most important clauses directly involving slavery and one indirectly involving slavery. Of the 11 slavery clauses only 1 pointed towards a future time when the international slave trade by Americans might, not would be, but might be stopped in 1808. The other 10 clauses served to protect the institution of slavery. Remember, in their minds, these were two separate issues.
Philadelphia, circa 1787 Courtesy of Wikipedia Commons
The delegates meeting in Philadelphia had varied backgrounds. Most had served in some official capacity in local colonial or wartime governments or in the military during the Revolution. They were all well educated and well off financially. There were 2 farmers; 13 businessmen, merchants or shippers; 6 major land speculators; 11 large scale securities speculators; and 12 owned or managed slave-operated plantations or large farms. They all certainly considered themselves, and those like them, “the people”included In the phrase “We the People.”
You’ll remember that I said 12 of the 13 states sent representative’s to the convention in Philadelphia. Rhode Island sent no one to this convention and was the last state to ratify the Constitution ~ not until 1790. In fact, when George Washington was sworn in as our first president on April 30, 1789, neither North Carolina (November 1789) nor Rhode Island (May 1790) were officially a part of the United States. They had not yet accepted the terms of the Constitution. George Washington was not amused.
Why that attitude? Many Rhode Islander’s were rabidly anti-federalist, in other words, concerned that the Constitution gave too much power to a central government at the expense of the states. An argument that has often surfaced throughout the subsequent history of the United States. They were not alone in that fear.
An example pf paper money issued by Rhode Island through the 1780’s Courtesy of Wikipedia Commons
Slavery was also an issue. Many RI voters were rural farmers whose economic interests didn’t include the slave trade, Quakers in RI were against slavery at this time, however many of the leading merchants and shippers in RI were still heavily invested in it. Rhode Islander's also feared the state’s lucrative practice of printing paper money would be made illegal and heavily mortgaged farmer’s money would become worthless. And, they were right, many went bankrupt as a result of the Constitution’s giving that power to create currency solely to the new federal government.
Rhode Islanders also wanted a Bill of Rights that would protect religious freedom, a core Rhode Island principle introduced by Roger Williams and protected in its Royal Charter. Other states wanted a Bill of Rights as well and extracted a promise that the first Congress established under the new Constitution would immediately propose one. But, Ii wasn’t until the other states, having ratified the Constitution, threatened to treat RI like a foreign country that they eventually voted at their own convention: 34 to 32 in favor of it.
It is occasionally stated that the US Constitution has nothing to do with slavery because nowhere in the document is the word “slave or slavery” written. The delegates to the convention, many of whom were enslavers themselves, were not stupid, they understood public relations and so they found other less offensive words to refer to “slaves” as, for example, persons “held to Service or Labour”.
As delegate John Dickinson representing Pennsylvania noted in his diary in July of 1787, “The omitting [of] the Word [slavery] will be regarded as an Endeavor to conceal a principle of which we are ashamed.”
The constitutional convention was held in secret. No formal record was kept of the proceedings except for notes of what was voted on and what the votes were. We only know some of the “original thinking” behind the creation of this document because a few men, notably James Madison, but several others as well, kept detailed notes of the proceedings. A word of caution about those notes. We know that James Madison was still editing them many decades after the events.
But, the delegates felt they needed secrecy to keep outside pressure to a minimum, and to enable all the participants to argue freely. So, all formal hearings were held behind locked doors.
As you can see from this quote, Mr. Madison recognized right away that the big divide between the states involved slavery. James Madison was the 4th President of the US (1809 to 1817) and is often referred to as the “Father of the Constitution” because of his influence on both the structure and the general philosophy underlying the document. Though he often argued that enslavement was not compatible with Revolutionary principles of freedom and liberty, he nevertheless enslaved over 100 people on his Virginia plantation and actually brought some of them with him when he was President.
The divide Mr. Madison referred to grew out of the two very different economies of these two regions. An economy is the growth and acquisition of property. Property was wealth. And in the 1780’s the economies of the 5 southernmost states were based on the production of agricultural products that could be exported. Things like tobacco, rice, and indigo .. and soon, cotton. It had very little manufacturing. A very small merchant marine industry and had to import most of its manufactured goods. So their economies required labor and lots of it. It’s labor was enslaved which is what made their economies profitable. Hence, their belief that they would be committing economic suicide by agreeing to limit or abolish enslaved labor.
The 8 northernmost states had more diversified economies. They relied more on shippers and merchants and manufacturing industries. They did not require enslaved labor to grow their economies and create wealth. But ironically, it was their own close ties providing their goods and services to the Southern states that helped bind their economies to slavery. You could say both regions had a love/hate relationship when it came to slavery. That is why the southern states would discuss ending the international slave trade but NOT the ending of slavery itself. And why not representatives from the northern states were sent to the convention with instructions to abolish slavery.
And now, finally, the clauses themselves. The Direct Protections of Slavery from Article One, Section 2 - Now referred to as the 3/5’s Clause. There was more debate over this issue than any other at that convention.
“Representatives [of the House of Representatives] … shall be apportioned among the several States … according to their respective Numbers [I.e. population] which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years [indentured servants], and excluding Indians not taxed, three-fifths of all other Persons [well who else is left? Only enslaved persons].”
This clause laid bare for all concerned the importance of the institution of slavery to the Southern states. The argument over the influence of property/wealth on who would run the government had been intense.
Mr. Morris had spoken against this decision along with a number of other northern representatives. He said:
“Are they [meaning the enslaved] men? [If so] then make them citizens and let them vote. Are they property? Why then is no other property included? The houses in this city are worth more than all the wretched slaves which cover the rice swamps of South Carolina.”
It was approved on July 12, 1787 and in response John Dickson of Pennsylvania wrote in his diary about the supreme irony of this clause, and I quote:
“What will be said of this new principle of founding a right to govern Freemen on a power derived from Slaves … themselves incapable of governing yet giving to others what they have not,”
So, for every 5 enslaved people the enslavers would get credit for 3 additional voters. Of course, none of those 3 “voters” could actually cast a vote. Only their enslavers could do that.
The result of this was that these “slave states” had a bonus number of voting representatives in the House of Representatives and therefore votes in the Electoral College. Article Two Section One is one of the indirect clauses where slavery made a big difference.
A number of historians believe that many of the pre-Civil War pro-slavery laws, such as admitting Missouri into the Union as a slave state or enacting the Fugitive Slave Law of 1850 would not have passed without that southern electoral advantage. Thomas Jefferson would have lost his election to John Adams as President in 1800 but for the Electoral College advantage held by the Southern States. Because of that, Jefferson was often referred to as the “Negro President”.
Historian Lawrence Goldstone in his book Dark Bargaiin, Slavery, Profits and the Struggle for the Constitution noted: “…the great irony in ALL the debates that led to the 3/5’s rule [was] southerners, who insisted that blacks were [only] property, had to [agree]…that they were at least partly people, and northerners, who regularly denounced the enslavement of their fellow human beings, [now] had to acknowledge blacks as at least partly property.”
The arguments over this provision were long and very contentious. The southern states continually threatened to “walk” if they didn’t approve anything remotely connected to the institution of slavery. Were they bluffing? Ask the men, women and children who suffered and died during the Civil War. This clause was all about power ~the power of property/wealth. Power for enslaving whites derived from enslaved blacks who would be denied any power themselves.
It was a major compromise, but even after it was approved, northern states still felt it cheated them of power in Congress and the Presidency. In 1804 Massachusetts proposed that the measure be repealed. However, only Connecticut and Delaware voted in favor.
How did this clause operate in the real world. Some results from the first nationwide census of 1790.
This remained the law of the land until the 14th Amendment to the Constitution was adopted on July 9, 1868 ~ 81 years later.
By 1820 this clause was providing 18 additional representatives for the Southern states in Congress. Of the first 12 Presidents of the US, 10 were enslavers. Four of the first five were from Virginia. Did that shape the nation?
Presidents nominate Federal judges and Supreme Court Justices. The Senate confirms or denies them. We know ourselves how important those selections can be for the future of the country. Federal judges are on the bench until they retire voluntarily or die. Their attitudes, their prejudices, their opinions on the law can become controlling for the country. These two Supreme Court Chief Justices controlled the Supreme Court from 1801 to 1864. Their decisions show how hard they worked to make sure that enslavement and its racist justification were and remained the law of the land.
For example, the legendary Chief Justice of the Supreme Court (1801 to 1835), John Marshall - enslaved over 200 people. He wrote the majority of the Supreme Court decisions while in office and never once took the side against enslavement.
The last chief justice of the Supreme Court before the Civil War was Roger B. Taney (1836 to 1864). A former slave owner who had freed his enslaved people in 1818 but as Supreme Court justice never once sided with the enslaved. And even during the Civil War itself was actively working as a southern sympathizer against President Lincoln His attitude can be best summarized in his own words from one of the worst decisions in the history of our Supreme Court, Dred Scott v. Sandford (1857). (And I quote)
Image from Anti-Slavery Almanac Courtesy of Wikipedia Commons
“They [meaning the “black” race] had for more than a century before [the founding of the US] been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit…. It is too clear for dispute that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted [the Declaration of Independence}…”.
He also affirmed in that decision that “The right of property in a slave is distinctly and expressly affirmed in the Constitution.”
Article One, Section 9 Powers Denied Congress Subsection 1 Now referred to as The Slave Trade Clause.
“The Migration or Importation of such Persons [who was being imported into the country, only enslaved Africans] 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.”
By the way, there was never a tax imposed. That was a red herring used to modify critical northern representatives.
Note that this clause does not require Congress to actually ban the slave trade in 1808, though they ultimately did. As a result of this clause being added to the Constitution, it is estimated at least 40,000 new enslaved persons were imported by American vessel/owners between 1803 and 1808. And another 50,000 between 1808 and 1860. This illegal trade was something a few Rhode Island merchants were intimately involved in. For example, the DeWolf family in Bristol, Rhode Island did the majority of their “slave trading” when it was illegal both under State and Federal law. It made them very wealthy. Of course, laws are only as good as their enforcement.
The slave state delegates to the constitutional convention believed that southern states would grow faster than northern ones and that by 1808 they could prevent the banning of the slave trade. Ironically, by 1808, Thomas Jefferson - then President - and others in the southern states realized that the closing of the slave trade would actually enhance the value of their current enslaved people. They saw a great opportunity in selling some of their enslaved to the southern states now developing cotton as a major exportable crop.
When Congress did outlaw the African slave trade in 1808, the U.S. domestic slave trade grew such that the numbers of enslaved here almost tripled over the next fifty years. Breeding human beings as opposed to trading for them became the new norm. There was what has been called a 2nd Middle Passage - enslaved workers from Virginia and Maryland marched further south and west to meet the fast growing cotton plantations.
Quote from Aaron O’Neill a research expert covering historical data on STATISTA.com as of September 2024
“There were almost 700 thousand slaves in the US in 1790, which equated to approximately 18 percent of the total population, or roughly one in every six people. By 1860, the final census taken before the American Civil War, there were four million slaves in the South, compared with less than 0.5 million free African Americans in all of the US. Of the 4.4 million African Americans in the US before the war, almost four million of these people were held as slaves; meaning that for all African Americans living in the US in 1860, there was an 89 percent* chance that they lived in slavery.”
One other point - as 1808 approached and bills were introduced in Congress to eliminate the US participation in the International Slave Trade, the votes for and against them (you will be surprised to learn) lined up exactly as they did 52 years later with pre-Civil War era pro- and anti-slavery representatives in Congress.
As historian Sean Kelley notes in his book “American Slavers”: And I quote:
“Rhetorical themes of the 1807 debate included states’ rights, natural rights, biblical sanction of slavery, fear of Haitian-style rebellion [which began in August of 1791], and secession and civil war.… the debate exposed the incoherence of maintaining that slavery as an institution might be justified while simultaneously holding that the slave trade was wrong.” End quote.
I will conclude with remarks made by Frederick Douglas in a speech he gave in March of 1860 in Glasgow, Scotland entitled “The Constitution of the United States: Is It Pro-Slavery or Anti-Slavery?”
“[The constitution convention] debates were purposely kept out of view, in order that the people should adopt, not the secrete motives or unexpressed intentions of any body, but the simple text of the paper itself. Those debates form no part of the original agreement… It must stand, or fall, flourish or fade, on its own individual and self-declared character and objects….
What will the people of America a hundred years hence care about the intentions of the scriveners who wrote the Constitution? These men are already gone from us….They were for a generation, but the Constitution is for ages….
If slaveholders have ruled the American Government for the last fifty years,, let the anti-slavery men rule the nation for the next fifty years. If the South has made the Constitution bend to the purposes of slavery,, let the North now make that instrument bend to the cause of freedom and justice….now let the freemen of the North … who can make the American Government just what they think fit, resolve to blot out forever the foul and haggard crime, which is the blight and mildew, the curse and the disgrace of the whole United States.”
I have tried to show in this brief look at the creation of our Constitution, that compromises were made, primarily by northern states, because they believed that time was on their side. That economics and moral suasion would gradually overcome the southern reliance on enslavement as an economic way of life. They were terribly wrong. And by 1860 the economic argument for southerners in favor of enslavement was stronger than ever and the racism that morally justified enslavement had percolated throughout the country and the state and federal governments for another 73 years in ways that would continue to haunt the country until today.
This just scratches the surface of this subject. As a shameless plug, for those of you who want to learn more, I will be teaching a 3 session class on this subject at URI’s OLLI program during the coming Winter term. We’ll look in more detail at the lead up to the 1787 convention, more of the men involved in the creation of the document itself, and further repercussions for the country in its wake.