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7. The Slave Trade

No issue is more in need of careful consideration than the slavery question, because no issue is more likely to impeach the entire Founding enterprise than the slavery issue. Unfortunately, historians have a way of reading history backwards rather than forwards and when we read the slavery issue backwards it looks like in the most critical area—Article I, Section 9 on the Slave Trade—the delegates are unequivocally and perpetually endorsing the institution of slavery. It is as if Judge Roger Taney, in the Dred Scott Case—the Constitution embraces the perpetual enslavement of African Americans—has the story correct and Abraham Lincoln, in his debates with Douglas—the Framers intended to put slavery in the course of ultimate extinction—has it all wrong. There is no evidence that either Taney or Lincoln read Madison's Notes. When we turn to the evidence in Madison's Notes, which position makes more sense?

We need to ask a prior question: how did Article I, Section 9 get to be the way it is? Was there unanimity among the delegates, was there even a discussion, and if, so, was there anybody who put up the slightest resistance to the continuation of slavery?

On August 6, the Committee of Detail Report was presented to the delegates. Article VII, Section 1 itemized the powers of Congress and sections two through seven placed limitations on the powers of Congress. Section 4 stated that:

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 is clearly a slaveholder's document: Congress is forbidden forever from prohibiting the slave trade and any incentive through taxation is also prohibited. This section is the result of a demand from the North Carolina, South Carolina and Georgia delegations to think practically rather than in terms of humanity and religion.

On September 17, the delegates signed the Constitution, Article I, Section 9 of which states the following:

The Migration or Importation of such persons as 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.

Note that the final version permits Congress to eliminate the slave trade in 1808—which it did effective January 1, 1808—and permits Congress in the meantime to discourage the trade by taxation. Also the final version limits the Congressional prohibition to the existing States thus inviting the future restriction of slavery in the territories. In this regard, it is important to note that the Confederation Congress restricted slavery in the Northwest Territories in exchange for the return of fugitive slaves. The delegates adopt this Ordinance solution as part of Article IV.

What took place between August 6 and September 17? Rutledge of South Carolina argued on August 21, "Interest alone is the governing principle with Nations. The true question at present is whether the Southern States shall or not be parties of the Union." Sherman and Ellsworth, moreover, recommended not making the slave trade a divisive issue: "Slavery in time will not be a speck in our Country." Luther Martin disagreed: slavery "was inconsistent with the principles of the revolution." On August 22, Mason supported Martin's position: "Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a Country." Dickinson, from Delaware, considered slavery "as inadmissible on every principle of honor & safety." And Randolph stated, "he could never agree to the clause as it stands."

On August 25, the delegates received a Committee compromise recommendation to permit Congress to prohibit the slave trade in 1800. Pinckney moved to alter this to 1808. Madison's response was prophetic: "twenty years will produce all the mischief that can be apprehended from the liberty to import slaves." The first time the slavery issue was raised in the convention is by Madison on June 6. There in his itemization of the causes of faction, or the unjust use of power, he says "that we have seen the mere distinction of colour made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man." G. Morris from Pennsylvania, on August 25, was rather blunt: why not say that this part of the Constitution was a compliance with… North Carolina, South Carolina & Georgia."

The delegates agreed to the 1808 prohibition by a vote of Ayes 7, Noes 4. The 4 noes were New Jersey, Pennsylvania, Delaware, and Virginia and they voted "no" because they thought that 1808 was too compromising. Lincoln, and not Taney, has the weight of the Founders on his side of the argument.