I came across this article by Dr. Allen C. Guelzo of Gettysburg College in National Review responding to a number of scholars who made the claim the Constitution was a pro-slavery document prior to Reconstruction. He uses Professor Paul Finkelman as a prime example. “Paul Finkelman, president of Gratz College in Philadelphia, argues that the Constitution deliberately intended to protect slavery, principally through its provisions for interstate extradition of fugitives from “service” (Art. 4 IV, Sec. 2), through the notorious three-fifths clause in Article I, Section 2, which allowed states to count three-fifths of their slave populations toward representation in Congress, and through the 20-year free pass given to the slave trade (Art. I, Sec. 9). In fact, for Finkelman, that’s only the beginning of the Constitution’s love affair with slavery. Other offenses include the ban on export taxes in Article I, Section 9 (written to give the products of slave labor an open trade door); the limitation of ‘privileges and immunities’ to ‘citizens’ in Article IV, Section 2 (since slaves could not be ‘citizens’); the ‘full faith and credit’ requirement between states in Article IV, Section 1 (this required recognition of legalized slavery everywhere in the nation); the power of ‘calling forth the Militia’ to ‘supress insurrections’ in Article I, Section 8 (these ‘insurrections’ could naturally refer only to slave insurrections); and, of course, the Electoral College, since its formula for determining electors was swollen by the numbers of ‘three-fifths’ slaves who would be counted and thus granted slave states an extra advantage in electing presidents.”
After discussing the case for the Constitution being pro-slavery, Dr. Guelzo writes, “The accusing finger that links slavery and the Constitution would have surprised no one more than the delegates to the Constitutional Convention. At the outbreak of the Revolution, every one of the newly independent states had legalized slavery. (The numbers varied widely from place to place: Georgia had 18,000 slaves, Pennsylvania 6,000, Virginia 200,000, Massachusetts 5,200, and New York 17,000.) But opinion about the moral legitimacy of slavery was shifting. Benjamin Franklin bought and sold slaves in colonial Philadelphia, but by 1772 he had begun denouncing slavery as ‘a constant butchery of the human species’ and the slave trade as a ‘pestilential, detestable traffic in the bodies and souls of men.’ New York founded a Manumission Society in 1785, while the Virginia Gazette in 1782 asked the Revolution’s most logical question: ‘Whilst we are spilling our blood and exhausting our treasure in defence of our own liberty, it would not perhaps be amiss, to turn our eyes towards those of our fellow men now in bondage under us. We say, ‘all men are equally entitled to liberty and the pursuit of happiness’ but are we willing to grant this liberty to all men?’ That question was also being asked among the members of the Constitutional Convention when it assembled in Philadelphia in May 1787. Of the Convention’s 55 delegates, 26 were slaveowners, most of them from southern states — Maryland, Virginia, South Carolina, Georgia — but a smattering from New York, New Jersey, and Delaware. Still, many were uneasy with the thought of giving slavery a continued lease on life in the new republic. James Madison, who was the prime mover behind the Convention, had long wondered whether emancipation ‘would certainly be more consonant to the principles of liberty,’ and, though the Madison family depended on slave labor, he hoped ‘to depend as little as possible on the labour of slaves.’ When a slave who accompanied him to Congress in Philadelphia in 1783 refused to return with Madison to Virginia, Madison simply apprenticed him to a Philadelphia Quaker, since he ‘cannot think of punishing him . . . merely for coveting that liberty for which we have paid the price of so much blood, and have proclaimed so often to be the right, & worthy the pursuit, of every human being.’ ”
Dr. Guelzo provides us direct quotes from framers during the Federal Convention, especially during the August 8 session. “In the midst of the ongoing debate over representation in the new Congress, the Convention was ready to agree to the formula used for Congress in the Articles of Confederation (the three-fifths ratio) when Rufus King of New York objected. ‘The admission of slaves’ into a formula for representation ‘was a most grating circumstance to his mind’ and would only encourage slaveowners to import more slaves, according to the Convention’s minutes. He was seconded by the raffish Gouverneur Morris, who attacked slavery wholesale as ‘a nefarious institution’ that had ‘the curse of heaven on the States where it prevailed.’ Slavery was ‘a sacrifice of every principle of right, of every impulse of humanity,’ and Morris ringingly declared that ‘he would sooner submit himself to a tax for paying for all the negroes in the U. States, than saddle posterity with such a Constitution.’ Morris drew an immediate response from South Carolina’s John Rutledge, who warned that ‘religion & humanity had nothing to do with this question.’ If the Convention wanted to meddle with slavery, then the ‘question’ would become ‘whether the Southn. States shall or shall not be parties to the Union.’ Anxiously, other members sought to seal the breach. Connecticut’s Roger Sherman hastily assured Rutledge that ‘he disapproved of the slave trade; yet as the States were now possessed of the right to import slaves, . . . he thought it best to leave the matter as we find it.’ But this concession was worth making because it actually offered so little. Slavery, Sherman insisted, was dying out on its own: ‘The abolition of Slavery seemed to be going on in the U.S.’ and ‘the good sense of the several States would probably by degrees compleat it.’ Oliver Ellsworth agreed. ‘As population increases poor laborers will be so plenty as to render slaves useless,’ so that ‘slavery in time will not be a speck in our Country.’
Next, Dr. Guelzo considers the so-called “Fugitive Slave Clause,” though the word “slave” never appears in the Constitution: “An additional provision made the extradition of fugitive slaves a state obligation — although again gingerly applying it to all ‘those held to service’ rather than to slaves. On the surface, a great compromise appeared to have been struck, and southerners went home congratulating themselves that they had ‘a security that the general government can never emancipate [slaves], . . . for no such authority is granted.’ But they missed the big picture. As Roger Sherman insisted, the Constitution might contain concessions to the states regarding the existence of slavery, but nothing in it acknowledged ‘men to be property.’ As ‘dishonorable to the National character’ as the concessions were, added James Madison, it would be intolerable ‘to admit in the Constitution the idea that there could be property in men.’ And so the fundamental basis on which the entire notion of slavery rested was barred at the Constitution’s door, even while its practical existence slipped through.”
The key concept here is that the Constitution did not recognize there could be property in people. “When truculent slaveowners tried to insist that ‘slaves are property . . . by the Constitution guaranteed,’ John Quincy Adams just as truculently replied that ‘the Constitution does not recognize slavery — it contains no such word.’ In fact, ‘a great circumlocution of words is used merely to avoid the term slaves.’ Any argument that would make the Constitution a pro-slavery document has, on the evidence of the Framers’ generation, quite a boulder to roll up the hill.” Something the framers didn’t foresee, though, was the rise of “King Cotton.” “As late as 1809, cotton was only a secondary crop for southern agriculture; on the eve of the Civil War, it accounted for 27.5 percent of all United States exports and 57.7 percent of agricultural exports. The South now saw slavery ‘in its true light,’ Calhoun said, and regarded it as ‘the most safe and stable basis for free institutions in the world.’ In the kingdom of cotton, the Constitution was a relic. Guarantees of free speech and a free press were disregarded in the South. Anyone who proposed a discussion of slavery, wrote Alvan Stewart, an anti-slavery lawyer, ‘may then provoke a syllogism of feathers, or a deduction of tar.’ Missouri senator Thomas Hart Benton congratulated mobs that attacked abolitionists for exerting ‘a vigor beyond all law,’ saying that ‘they had obeyed the enactments not of the statutebook, but of the heart.’ And so long as he agreed with their spirit, ‘he cared nothing for laws written in a book.’ In 1836, the Virginia legislature adopted a statute decreeing the imprisonment of any member of anti-slavery society so unwary as to enter the Old Dominion. That same year, Calhoun proposed a post-office bill that would have allowed postmasters to destroy abolitionist publications — only to have it fail, narrowly, by a vote of 19 to 25 in the Senate. They were more successful in passing a ‘gag rule’ to prevent the reading of anti-slavery petitions in the House of Representatives. The resolution stayed in force until 1844.”
Antislavery advocates, though, used the Constitution just as assiduously and opposed the idea the Constitution recognized slavery. “But slavery’s opponents just as vigorously demanded recognition of the Constitution’s anti-slavery import. Senator William Henry Seward of New York defended the Constitution as the shrine of ‘perpetual, organic, universal’ freedom; slavery had only a ‘temporary, accidental, partial and incongruous’ presence in it, and only because slavery had the protection of state, not federal law. The Constitution devotes ‘the national domain’ to ‘union, to justice, to defense, to welfare and liberty’ — not to slavery. Ohio governor Salmon Chase (who was known as the ‘attorney general for fugitive slaves’) declared that ‘the founders of the Republic in framing our institutions, were careful to give no national sanction’ to slavery; ‘all recognition of the rightfulness of slaveholding, and all national sanction of the practice, was carefully excluded from the instrument.’ Above all, Abraham Lincoln, in his great Cooper Union speech in February 1860, appealed to the Framers as proof that the Constitution ‘marked’ 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.’ Far from justifying slaveholding as a right, ‘the Constitution . . . is literally silent about any such right,’ and any impartial inspection of the Constitution ‘will show that the right of property in a slave is not ‘distinctly and expressly affirmed’ in it.’ Like Madison, Lincoln resisted the ‘idea’ that ‘the Constitution’ sanctioned the pretense ‘that there could be property in man.’ And when push came to shove, the slaveholders conceded the point. They seceded from the Union and wrote the kind of constitution the Framers had not written, one declaring at last that ‘no . . . law denying or impairing the right of property in negro slaves shall be passed.’ ” That is a huge deal. The U.S. Constitution did not recognize there could be property in people. The confederate constitution specifically stated people held as slaves were property. That had ramifications beyond what we’re talking about now.
Dr. Guelzo tells us while the Constitution did indeed have a three-fifths clause where the population of enslaved people in a state were only counted as 3/5 of their number, “that was to keep slaveholders from claiming them for five-fifths in determining representation, which would have increased the power of the slaveholding states. Yes, the Constitution permitted the slave trade to continue; but it also permitted Congress to shut it off, which it did in 1808. Yes, the Constitution banned export taxes, required ‘full faith and credit,’ and limited ‘privileges and immunities’ to citizens. But the debates over those provisions betrayed no inkling that the hidden subject was slavery. And the accusation that the militia clause was meant to suppress slave insurrections was actually only a speculation tossed off at one moment of energetic accusation by Gouverneur Morris, not a deliberately conceived strategy by scheming slaveholders.”
Dr. Guelzo makes several strong points, and I think his argument is spot on. The Framers were not trying to craft a pro-slavery document, and the document they crafted allowed for eventual abolition of slavery, though unamended it would be a state-by-state process. Their shortcoming was in not seeing the future, not seeing how cotton would explode in value and in production, leading the institution of slavery to expand beyond what they could imagine. Through it all, though, the Constitution never admitted people could be property, unlike the confederate constitution which boldly proclaimed people were property. That proclamation, combined with the protections on property in that constitution, meant slavery could never be abolished in the confederacy unless that constitution were amended to remove that claim. It would even prevent a single state in the confederacy from abolishing slavery within its borders.