Major Themes at the Constitutional Convention

How did the Founders approach the slavery question?

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. 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 (who held in the Dred Scott Case that the Constitution embraces the perpetual enslavement of African Americans) has the story correct and Abraham Lincoln (who in his debates with Stephen Douglas argued that 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?

To what extent did the Founders discuss the roles of slavery and the slave trade in the new nation?

Slavery was, in fact, repeatedly discussed during the Convention. It was first raised in the convention by Madison on June 6. Itemizing the causes of faction, or the unjust use of power, he said, “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.” Later, arguments over slavery entered the discussion of proportional representation, resulting in the “three-fifths compromise.”

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.

In this wording, the Constitution would have been clearly a slaveholder’s document, with Congress forever forbidden from prohibiting the slave trade or from using taxation  incentives to end it. This section resulted from repeated demands from the North Carolina, South Carolina and Georgia delegations that no Constitutional provision threaten their practice of slavery.  Thinking practically rather than in terms of humanity and religion, the delegates acceded to the demand, lest the southernmost delegations refuse to sign the document.

What decisions did they make about slavery and the slave trade?

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.

How did the Founders arrive at these decisions?

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.” G. Morris from Pennsylvania was even more blunt: why not state in the text of the Constitution that this provision “was a compliance with… North Carolina, South Carolina & Georgia”? (He was persuaded to withdraw this motion.)

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.