Counterfactual: Slavery & the American Constitution

Counterfactual History – slavery
by Jon Mandle on September 13, 2006

Although the U.S. Constitution of 1787 does not include the word “slavery”, there are five more-or-less direct references to it, and other more indirect references. Article IV, Section 2, is the fugitive slave clause – any person “held in service or labor in one state, under the laws thereunto, escaping into another … shall be delivered up on claim of the party to whom such service or labor may be due.”

Article I, Sections 2 and 9 contain the 3/5 rules – non-free, non-Indians are to count as 3/5 of a person for purposes of Congressional representation and taxation. These compromises were so important that Article V, which spells out the amendment process, specifically singles them out for protection from amendment until 1808.

Article I, Section 9 prohibits the banning of the slave trade before 1808. Madison objected: “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 American character than to say nothing about it in the Constitution.” Congress did, in fact, ban the importation of slaves on January 1, 1808. The British had banned the slave trade the year before. And Britain passed the Abolition of Slavery Act in 1833 – it freed all slaves under the age of six immediately and all others in four years (during which time they were to receive some compensation for their work).

It’s no surprise that during the Constitutional Convention, there was significant objection to the idea of counting slaves at all for the purpose of Congressional representation. Delegates from Northern states were worried about the balance of power in Congress. But there was another concern voiced by Gouverneur Morris (himself an opponent of slavery): “the people of [Pennsylvania] would revolt at the idea of being put on a footing with slaves.” (quoted in a recent article by Jon Elster in The Egalitarian Conscience, Christine Sypnowich, ed.).

Within the United States, the debate over slavery didn’t start with the Constitution, of course. But I never knew that in Jefferson’s draft of the Declaration of Independence, arguably the strongest grievance that he pressed against the King (compare this to: “He has refused his assent to laws, the most wholesome and necessary for the public good”) concerned slavery:

He has waged cruel war against human nature itself, violating it’s [sic] most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of infidels powers, is the warfare of the Christian king of Great Britain. He has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce determining to keep open a market where MEN should be bought and sold: and that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, by murdering the people upon whom he also obtruded them: thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of another.

Obviously, this was eliminated before adoption in order to bring the Southern states on-board. Jefferson wrote that it was “struck out in complaisance to South Carolina and Georgia, who had never attempted to restrain the importation of slaves, and who on the contrary wished to continue it. Our Northern brethern also I believe felt a little tender under those censures, for tho’ their people have very few slaves themselves yet they had been pretty considerable carriers of them to others.”

Assume that the calculation at the time was correct: the Revolution would not have been successful without the Southern colonies. Imagine that if the Revolution had failed, the colonies would have followed a path roughly like that of Canada over the next half-century. Would Britain have been willing and able to impose the abolition of slavery on the Southern colonies in 1833? My retrospective support for the Revolution may hang in the balance.

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