On Slavery - The Intent of the Framers of the Constitution

The Intent of the Framers – A Call to Freedom
Stephen M. Astrachan

…yet all three sections united in considering it (slavery) a temporary institution, the corner-stone of which was the slave-trade. No one of them had ever seen a system of slavery without an active slave-trade:

W.E.B. DuBois “The Suppression of the African Slave-Trade to the United States of America 1638-1870”

But he (James Madison) contended that the States were divided into different interests not by their differences of size, but by other circumstances; the most material of which resulted partly from climate, but principally from (the effects of) their having or not having slaves. These two causes concurred in forming the great division of interests in the U. States. It did not lie between the large & small States: it lay between the Northern & Southern. James Madison at the Federal Convention, June 30, 1787.

The intent of the Framers of the Constitution, as a body, was to structure that document to lead the country to the ultimate elimination of slavery. The Constitution and the other foundational document, the Declaration of Independence, would later serve to guide the Civil Rights Movement which did so much to complete the work of Emancipation. Thus, the Framers left us a call to freedom.

The quotes above by W.E.B. Dubois and James Madison help us to understand the intent of the Framers. DuBois, one of the nation’s foremost African American historians, described the horror that was slavery. Profoundly a critic of the Federal Convention, he felt that it should have eliminated “the peculiar institution.” Nevertheless he recognized that the Framers did intend slavery’s ultimate end since they allowed for the termination of the slave trade which they considered necessary for its survival. Madison, “the father of the Constitution,” was born into Virginia’s white slave-holding plantation aristocracy. However, like the other Virginians at the Federal Convention, he had come to realize that slavery was immoral and eventually had to be eliminated. Earlier he had chosen the law as a career in order to distance himself from the plantation system. Madison clearly saw the threat to national unity that slavery posed. This and other of his statements clearly show his contempt for the institution of slavery which he had grown up with.

The debate on slavery at the Federal Convention, which met in Philadelphia from late May to mid-September 1787, centered on two issues. The first was how to count slaves in the apportionment of members of the popularly elected House of Representatives. Delegates from the slaveholding South felt that slaves represented real wealth and should be counted toward representation. Many Northern delegates objected maintaining that the degraded legal and human status of the slaves should preclude their contributing to any state’s representation. Gouverneur Morris of Pennsylvania spoke dramatically against the inclusion of slaves:

Upon what principle is it that the slaves shall be computed in the representation? Are they men? Then make them Citizens& let them vote? Are they property? Why then is no other property included?... The admission of slaves into the Representation when fairly explained comes to this: that the inhabitants of Georgia and S. C. who goes to the Coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections & dam(n)s them to most cruel bondage, shall have more votes in a Govt. instituted for the protection of the rights of mankind, than the Citizens of Pa or N. Jersey . . . who views with . . . a laudable horror, so nefarious a practice.

However, Slavery also had its defenders. The most prominent was Charles Pinckney of South Carolina who said:

If slavery be wrong, it is justified by the example of all the world. He cited the case of Greece Rome & other antient States; the sanction given by France England, Holland & other modern States. In all ages one half of mankind have been slaves.

The Virginians stood between these two contending sides. While all of them had been born into a slave-holding society, each had come to recognize that slavery was wrong and should be eliminated at some future time. George Mason of Virginia (the largest slave owner in attendance) made the Convention’s most impassioned condemnation of the institution:

Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a Country. As nations can not be rewarded or punished in the next world they must be in this. By an inevitable chain of cause & effects providence punishes national sins, by national calamities.

The Convention adopted the 3/5th rule as a compromise. Whatever the objections were of the Northern State delegates, William R. Davie of North Carolina explained, “If the Eastern States meant therefore to exclude them altogether the business was at an end.”

The other slavery related issue before the Federal Convention was how long the slave-trade could continue before Congress could prohibit it. This new authority itself represented progress towards slavery’s elimination since the Articles of Confederation had contained no such provision. Again while many delegates were deeply opposed to the slave trade, those of the slave-states were adamant. Charles Pinckney put it simply, “South Carolina can never receive the plan if it prohibits the slave trade.” There had been a general agreement to allow it to continue until 1800. Then the Convention accepted a proposal by Charles Cottesworth Pinckney of South Carolina to extend the period until 1808. James Madison was devastated:

Twenty years will produce all the mischief that can be apprehended from the liberty to import slaves. So long a term will be more dishonorable to the National character than to say nothing about it in the Constitution.

After the Federal Convention the 13 states conducted their own ratification conventions. A good portion of the debate on slavery centered on the contrasting views of a prominent Virginian with those of either another prominent Virginian or a prominent New Yorker, or both.

In New York James Madison, Alexander Hamilton, and John Jay produced the Federalist Papers, a series of 85 articles supporting ratification. The authors remained anonymous at the time signing as “Publius”. The Federalist Papers provide key insight into the intent of the Framers.

In Federalist 54 James Madison or possibly Alexander Hamilton (or both) discussed slavery. It centered on the Constitution’s system for apportioning members of the House of Representatives (and direct taxation) and explains the famous three fifths rule:

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 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. (Italics mine.)
Federalist 54 maintained that the three fifths rule accurately reflected the slaves’ dual legal status as both persons and property. Significantly this property status was a legal creation, not part of the state of nature (as Charles Pinckney had claimed earlier.) Thus “if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants.” Additionally such phrases as “the barbarous policy of considering as property a part of their human brethren” and “in being subject at all times to be restrained in his liberty and chastised in his body, by the capricious will of another” leave little doubt as to the author’s sentiments regarding “the peculiar institution.”

Ironically, the man who best understood the Constitution’s potential impact on slavery was another Virginian who opposed ratification largely on that basis. More ironically his name has always been associated with the struggle for American independence and freedom.

Patrick Henry is best remembered as one of the pre-Revolutionary “radicals” who, along with others like Samuel Adams of Boston, favored independence while most patriots were focused on self-rule under the Crown and “taxation without representation.” His most famous speech ended with the fiery “give me liberty, or give me death.” At the time of the Declaration of Independence Henry was serving as the Governor of Virginia.

During the ratification conventions Patrick Henry became the Constitution’s most prominent opponent. His commitment to state sovereignty was so complete that he objected to “We, the People” and preferred “We, the States.”

On June 24, 1788 he made the following remarkable statement at the Virginia Ratification Convention:

. . . they may, if we be engaged in war, liberate every one of your slaves if they please. . . . It has been repeatedly said here, that the great object of a national government was national defence. That power which is said to be intended for security and safety may be rendered detestable and oppressive. If they give power to the general government to provide for the general defence . . . All the means in the possession of the people must be given to the government which is intrusted with the public defence. . . . May Congress not say, that every black man must fight? Did we not see a little of this last war? … Another thing will contribute to bring this event about. Slavery is detested. . . . The majority of Congress is to the north, and the slaves are to the south.

Henry presciently foresaw President Lincoln’s Emancipation Proclamation, his subsequent creation of the famous Black Brigades of the Civil War, and ultimately the Thirteenth Amendment which ended slavery. Patrick Henry was deeply insightful, but stood on the wrong side of history.

There were those in Virginia even then who saw the deep contradictions in the position of Henry and many of the other Anti-Federalists. George Washington said. “It is a little strange that men of large property in the south should be more afraid that the Constitution will produce an aristocracy or a monarchy than the genuine, democratical people of the East.” “The Father of the Country”, was already on his difficult personal journey from slave owning Virginia planter to Abolitionist.

The generation of the Founders passed into history. But the contradiction of a country dedicated to freedom while maintaining slavery remained for later generations to resolve.

Frederick Douglas escaped from slavery to become one of America’s leading abolitionists. Self-educated and articulate he was an uncompromising opponent of slavery. His autobiographies, articles, and speeches are gems of American history.
In March 1860 Douglas addressed the Scottish Anti-Slavery Society in Glasgow. He explained that even though many of those at the Federal Convention were themselves slaveholders, the Constitution’s meaning stood on its own. He took issue with the main body of the Abolitionist movement because “They hold the Constitution to be a slaveholding instrument.” However, “no such words as ‘African slave trade,’ or ‘slave insurrections’ are anywhere in that instrument.” Echoing the writings of Madison (or Hamilton) he explained that the three-fifths provision for the assignment of members of the House of Representatives incentivized freedom:

It is a downright disability laid upon the slaveholding States; one which deprives those States of two-fifths of their natural basis of representation. A black man in a free State is worth …two-fifths more than a black man in a slave State, as a basis of political power under the Constitution. Therefore, instead of encouraging slavery, the Constitution encourages freedom by giving an increase of "two-fifths" of political power to free over slave States.

As to delaying the regulation of the slave trade until 1808, Douglas explained that that provision had become irrelevant since “the slave trade … became a dead letter more than 50 years ago.”

Moreover allowing for the end of the slave trade itself moved the country towards the end of slavery because:
Men, at that time, both in England and in America, looked upon the slave trade as the life of slavery. The abolition of the slave trade was supposed to be the certain death of slavery. Cut off the stream, and the pond will dry up, was the common notion at the time.

Thus the Constitution was anti-slavery because:

It says to the slave States, the price you will have to pay for coming into the American Union is, that the slave trade, which you would carry on indefinitely out of the Union, shall be put an end to in twenty years if you come into the Union. . . . It showed that the intentions of the framers of the Constitution were good, not bad.

Douglas explained the “Fugitive Slave Provision”:

. . . declared that persons held to "servitude" should be given up; but that the word "servitude" was struck from the provision, for the very reason that it applied to slaves. He might have told you that the same Mr. Madison declared that the word was struck out because the convention would not consent that the idea of property in men should be admitted into the Constitution.

The provision applied a much wider group of persons than slaves, if slaves were included at all:

“redemptioners . . . bound to "serve and labour" for the parties to whom their service and labour was due. . . The legal condition of the slave puts him beyond the operation of this provision. He is not described in it. He is a simple article of property. He does not owe and cannot owe service. He cannot even make a contract. . . . He can no more make such a contract than a horse or an ox can make one.

The intent of the Constitution was given in the plain language of the Preamble:

"We, the people of these United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution of the United States of America." The objects here set forth are six in number: union, defence, welfare, tranquility, justice, and liberty. These are all good objects, and slavery, so far from being among them, is a foe of them all. But it has been said that Negroes are not included within the benefits sought under this declaration. This is said by the slaveholders in America — it is said by the City Hall orator — but it is not said by the Constitution itself. Its language is "we the people;" not we the white people, not even we the citizens, not we the privileged class, not we the high, not we the low, but we the people;

Douglas opposed the Abolitionist movement’s policy of separating the slave states from the Union because it would remove slavery from the potential control of those who wished to eliminate it: “Slavery is essentially barbarous in its character. It, above all things else, dreads the presence of an advanced civilization.”

Douglas’ arguments mirrored those of Patrick Henry but from an opposing perspective. Henry was the “peculiar institution’s” defender; Douglas its implacable foe.

Frederick Douglas was a man truly ahead of his time. Fortunately, he was not alone in that regard. A rising political figure from Illinois had also concluded that the Constitution mandated slavery’s eventual end. In March 1860 they were not yet acquainted. They would become close personal friends in the violent, existential struggle that was soon to break loose in the land.

In 1854 Senator Stephen Douglas of Illinois sponsored the Kansas-Nebraska Act bringing these two states into the Union. To secure Southern support he inserted a clause rescinding the 1820 Missouri Compromise which limited the geographic extension of slavery. This rescission struck to the core of 45 year old general attorney Abraham Lincoln and became the basis for this former Whig state legislator’s return to politics. In 1858 he challenged Douglas for his Senate seat. The two candidates conducted a series of seven three hour debates which have become part of the cannon of American History. Much of their dispute revolved around the extension of slavery to the Federal Territories. Lincoln was opposed to any such extension which, he maintained, was within Congress’ Constitutional authority to control. Douglas argued that the issue of slavery should be left to the voters of each territory under the doctrine of Popular Sovereignty or “Pop Sov.”

Abraham Lincoln’s unlimited capacity for growth was evident in their final debate in Alton, Illinois on October 15, 1858, where he made his strongest case yet that the Constitution intended the elimination of slavery:

I entertain the opinion upon evidence sufficient to my mind, that the fathers of this government placed the institution of slavery among them when the public mind did rest in the belief that it was in course of ultimate extinction. Let me ask you, if they did not, why did they make provision that the source of slavery-the African slave trade-might be cut off at the end of twenty years? Why did they make provision that in all the territories that were held at the time slavery should be inhibited? Why cut if off in one direction, and prevent its spread in another, if it was not that they placed (it) in the course of ultimate extinction. In the Constitution slavery is but referred to three times and covert language is then used . . .

Regarding the three-fifths provision Lincoln said, “No negro mentioned-no slaves mentioned, but the ‘three fifths of all other persons’ can be applied to no other class of persons among us and did mean slaves.” On the fugitive slave issue:

“There again there is no mention of the negro, or of slavery. In all three of these places, being the only allusions in the constitution to the institution of slavery at all-covert language is used- language is used not at all suggestive that slavery exists, . . . that that language was used with a purpose, and that purpose was that our constitution, which, it was hoped- and it is still read by intellectual and patriotic men – that there should be nothing in the face of that instrument that should suggest to the mind that we had negro slavery among us. … that the fathers of the government intended and expected the institution to come to an end. . . . and when I say that I desire to see the further spread of it arrested, I only say that I desire see that thing done that they then did; when I say that I desire to see it placed where the public mind will rest in the belief of its ultimate extinction, I only say that I desire to see it placed where they placed it.

They also clashed over the inclusiveness of the Declaration of Independence. Douglas declared:

“the signers of the Declaration of Independence had no reference to the negro at all, when they declared all men to be created equal. . . They alluded to European men-of European birth and European descent-white men, and none others, that doctrine. … this government is established on the white basis. It was established by white men, for the benefit of white men and their posterity forever….

Lincoln replied:

“there had never been a man, so far as I knew or believed, in the whole world that had declared that the Declaration of Independence did not mean the negro . . . Judge Douglas and all his friends may search the whole of the records of the country, and it will be a matter of great astonishment to me if they shall be able to find that any one human being on earth . . . had ever uttered that, to me, astounding sentiment, that the term “all men” does not include the negro.

Senator Douglas won the election and retained his Senate seat. However, the debates made Abraham Lincoln a national figure. His stature rose even further with his famous Cooper Union Speech in Brooklyn, New York on February 27, 1860. Here he further developed the themes that he had begun in Alton, Illinois.

Lincoln framed the speech around a statement of Douglas, "Our fathers, when they framed the Government under which we live, understood this question just as well, and even better, than we do now." The “fathers”, he maintained, clearly felt that the Federal Government had the authority to regulate and control slavery in the Federal territories. Of the 39 signers of the Constitution 21 of them, a clear majority, had acted in accordance with that principle. Even under the Articles of Confederation most of those who would later serve at the Federal Convention voted to prohibit slavery in the Northwest Territory. Then in 1789 the Congress under the Constitution, with 16 of the 39 Fathers, voted unanimously to prohibit slavery in the Northwest Territory. President George Washington signed the bill into law without controversy.

Later when the States of North Carolina and Georgia ceded land to create the Territories of Tennessee, Mississippi, and Alabama, Congress, with three of the “thirty-nine Fathers” did not prohibit slavery where it existed but did take a measure of control over it in those new states. The importation of slaves into those territories from outside the United States was prohibited with the punishment of a fine and freedom for any slave so imported.

With the purchase of the Louisiana Territory in 1803 Congress, with two of the ‘thirty-nine” Fathers, again did not prohibit slavery where it already existed, but severely restricted the importation of slaves with the punishment of a fine and freedom for the slave.

Then with the Missouri Compromise of 1819/20 Congress limited the spread of slavery to the Federal Territories. Two of the “thirty-nine” Fathers voted on the slavery prohibition. In this case those votes were divided with Charles Pinckney of South Carolina voting against the Compromise.

Lincoln clearly demonstrated that 21 of the “thirty-nine” fathers had voted to prevent or control the importation of slavery into territories controlled by the United States Government.

The fathers intended to limit the extension of slavery not out of some whim, but rather out of the realization that slavery was, at its core, an evil:

“As those fathers marked it, so let it be again marked, 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.”
Abraham Lincoln went on to win the Presidency and lead the nation through the devastating Civil War with its 750,000 dead. On January 1, 1863 he issued the Emancipation Proclamation which redefined the goal of the Union war effort to include the elimination of Slavery. To this end President Lincoln and his Congressional supporters initiated the Thirteenth Amendment ending Slavery once and for all. His friend Lyman Trumbull of Illinois was the Senate sponsor. Tragically Abraham Lincoln was assassinated on April 14, 1865, never living to see the enactment of the Thirteenth Amendment in December of that year. And the Nation would lack his strong guiding hand in the difficult time that followed.

Reconstruction after the Civil War began with both the granting of the franchise and protection of the U. S. Army to the Freedmen (ex-slaves). Unfortunately these policies continued only through the contested election of 1876. Subsequently from 1877 thought 1907 the Southern States removed the franchise for the Freedmen and their descendants. The U.S. Army was also withdrawn. What followed were the Jim Crow Laws and the domestic terrorism of lynching. The devastating impact of these changes upon the Freedmen is stunningly preserved in W.E.B. DuBois’s classic “Black Reconstruction in America.”

Once there had been the contradiction of a country dedicated to freedom while maintaining slavery. After the collapse of Reconstruction there was a similar contradiction between a nation dedicated to freedom and the maintenance of a separate and inferior class of citizens.

These circumstances continued in the Southern States, by and large, through the Second World War. Then in the mid-1950s the Civil Rights Movement gained momentum and with it came the rise of the Movement’s greatest leader Dr. Martin Luther King Jr.

On August 28, 1963 Dr. King led the dramatic March on Washington which helped to pave the way for two of the Civil Rights Movement’s greatest accomplishments, the Civil Rights Act of 1964 and the Voting Rights Act of 1965. In front of the Lincoln Memorial, he delivered his immortal “I Have a Dream” speech which began:

Five score years ago, a great American, in whose symbolic shadow we stand today, signed the Emancipation Proclamation. This momentous decree came as a great beacon light of hope to millions of Negro slaves who had been seared in the flames of withering injustice. It came as a joyous daybreak to end the long night of captivity.
He gave honor to the eternal importance of the founding documents:

In a sense we've come to our nation's Capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir.

This note was a promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness.

Then most famously, “I still have a dream. It is a dream deeply rooted in the American dream.”

Dr. King’s impassioned speech was part of a continuum of an idea that began at the Federal Convention and had been articulated by such persons as James Madison, Gouverneur Morris, Alexander Hamilton, Frederick Douglas, and Abraham Lincoln.

On April 4, 1968 Dr. Martin Luther King, Jr. joined President Abraham Lincoln in the pantheon of great leaders taken in their prime by the assassin’s bullet. May he rest in peace. And may we continue to honor his memory and the legacy of freedom which was begun by the Framers that Dr. King championed in his own time.