Philadelphia – When the Convention began their work in earnest in the spring of 1787, its delegates must have known that the complex issue of slavery would be a “make-or-break” matter for the new republic.  Indeed, the volatile issue would wait a full three months into the Convention before being tackled with any level of depth, culminating in a series of compromises over the course of a week in late August 1787.

As there was little presumption amongst the delegates that slavery could, or would, be prohibited outright, the first and easiest element of “the slavery question” was how slaves might be counted within a state’s population for purposes of representation and direct taxation.  On Monday, August 21st, the Convention took up a piece of the Virginia Plan (introduced in late May) that would set proportional representation of slaves at three-fifths.  The three-fifths proposal, known as the “federal ratio,” was not novel to most in attendance as it had been proposed as an amendment to the Articles of Confederation as early as 1783.  Even though it failed to be ratified due to the near-impossible requirement of that document that any changes acquire unanimous consent, the three-fifths principle nevertheless garnered enough acceptance during the 1780s so as to provide a ready solution to the question at the Convention.  On August 21st, 1787 the Convention adopted the “Three-Fifths Compromise” with relatively little debate, save an objection by Luther Martin of Maryland who suggested it would serve as federal encouragement of the continued importation of slaves.

In Martin’s objection lay the real heart of the matter, and provided the most explosive debate.  Would Congress have the power to mediate the slavery question at all?  Would the institution be allowed to expand or merely tolerated until it died out?  Could its existence and continuation even be discouraged by the federal government?

On August 21st the Convention took up debate on language put forth by the Committee of Detail’s August 6th report.  Driven largely by the demands of North Carolina, South Carolina and Georgia, the language read:  “No tax or duty shall be laid by the Legislature…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.”  This proposal was a both a blanket prohibition on the power of Congress to ever determine the ultimate fate of the institution, and a denial of power to simply frustrate it through taxation of the slave trade enterprise.

The recorded comments of August 22nd are enlightening, and even a bit surprising.  Roger Sherman of Connecticut – an opponent of slavery from a “free” state – proposed the language be adopted as-is, suggesting that slavery was on the decline in some southern states and would continue towards its natural death if left alone to do so.  George Mason – himself a slave owner from the southern state of Virginia – conversely argued that it was essential for the national government to have the power to prevent the increase and spread of slavery, observing that “[e]very master of slaves is a petty tyrant…[bringing] the judgment of heaven on a Country.”  Oliver Ellsworth of Connecticut stated that if the immorality of slavery were considered the Convention should go further and free all slaves, but then ultimately suggested that compromise would be best.  Charles Coatsworth Pinckney of South Carolina gave a passionate defense of the economic necessity of slavery to the union, to which John Dickinson of Delaware stated it was “inadmissible on every principle of honor and safety that the importation of slaves should be authorized to the States by the Constitution.”  John Rutledge of South Carolina observed that his state, along with North Carolina and Georgia, might never agree to the Constitution if the language were changed, but Edmund Randolph of Virginia stated that he “could never agree to the clause as it stands.”  Randolph suggested the matter be referred back to the Committee of Detail for compromise language to be drafted, as an impasse on the current language loomed large.  The Convention agreed to Randolph’s suggestion by a vote of 7-3.

The Committee reported back on August 24th with language that would permit Congress to tax the slave trade, but prohibited outright interference in it until 1800.  The next day Pinckney suggested changing the 1800 proposal to 1808, to which James Madison derisively commented “[t]wenty years will produce all the mischief that can be apprehended from the liberty to import slaves…[s]o long a term will be more dishonorable to the National character than to say nothing about it in the Constitution.”  Madison also “thought it wrong to admit into the Constitution the idea that there could be property in men.” The 1808 language nevertheless passed by a vote of 7-4.  Interestingly, all four noes – New Jersey, Pennsylvania, Delaware and Virginia – voted as such because they thought the language too forgiving of slavery.  No slave-holding state, save Virginia who seemingly expressed an anti-slavery position, voted against giving the new federal government a future power to interfere with the institution.

Far from our current popular interpretation of the Founders as moral and political failures on this most important question, the details of the Convention bear out a very different story: that of fallible men grappling with the moral, social, political and economic intricacies of that horrible institution within its – and their – context.  In reality, they had to choose between a union that allowed for slavery in some form, and no union at all.  While they very clearly chose union AND slavery, they did so in a way that, it was hoped, would loosen the institution’s stranglehold on the union and provided powerful avenues to encourage its eventual demise.

- Written by Jay Shackett, guest author.

For more detailed information on the Constitutional Convention, please visit Prof. Gordon Lloyd’s web companion to the Philadelphia Convention.

Posted in Countdown to the Constitution


2 Responses to “Countdown to the Constitution – Slavery”

  1. Gennie Westbrook says:

    Great article, Jay! The passages you quoted provide an excellent window into the Founders’ thinking on this most difficult issue. Stuart Leibiger points out in his talks with our teachers that the “three-fifths tradition” was based on the assumption that a slave, with no incentive or possibility to work for his own profit, could be expected to do about three-fifths of the amount of labor that a free man would do.

  2. Dina says:

    I was really cnoefusd, and this answered all my questions.

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