Long before the United States became a nation, the enslavement of people, especially Indigenous Americans and Africans abducted from their homelands, was a reality in every original American colony, including Massachusetts. In fact, the town of Hopkinton was named after a slave owner and enslaved people endured untold suffering in our town for generations.
By the late 1700s, many northern colonies/states had begun to outlaw slavery while many of the southern colonies/states expanded slavery in their territories. After the Revolutionary War, when the thirteen original colonies were tasked with forming a national government, the new government legitimized the institution of slavery by protecting it legally. Central to that governmental design was a federal Constitution with many provisions that upheld and allowed slavery to continue and flourish in the growing new nation allegedly built on the ideals of liberty and freedom.
Let’s look at the Constitutional provisions that most disturbingly and blatantly did so:
The Apportionment Clause (a.k.a., the Three-fifth’s Clause)
“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.” Article 1, Section 2, Clause 3 (emphasis added).
How did this promote slavery? This clause promoted slavery in profound and longstanding ways. While dehumanizing slaves, it also provided an opportunity for pro-slavery states to increase their representation by allowing these states to count enslaved people in the calculation for representation in the House of Representatives and in the Electoral College during presidential elections. This calculation was a significant boost to pro-slavery states. According to the 1790 census, enslaved people made up a significant portion of their populations in the early years of the U.S. (The percentage of enslaved people of the recorded population of these states are as follows: Virginia- 39.1%, North Carolina- 25.5%, Maryland- 32.2%, South Carolina- 43.0%, Georgia, 35.5%).
This increased representation of slave states strengthened and expanded the institution including allowing pro-slavery leaders to pass laws that expanded slavery in the growing U.S. An example of this is the Missouri Compromise of 1820 which expanded slave states in new “claimed” lands in the U.S. allowing for a “slave” state for every “free” state) and the Fugitive Slave Acts of 1793 and 1850 (which strenghtened the rights of slave owners to “reclaim” enslaved individuals who fled to free states).
The Slave Import Limitation Clause:
“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, not exceeding ten dollars for each Person.” Article I, Section 9, Clause 1 (emphasis added)
How did this clause promote slavery? Coupled with Article V of the Constitution, this clause absolutely forebade Congress from banning the international slave trade for twenty-one (21) years after the Constitution was ratified. In other words, the international slave trade was legal in the U.S. for its first 21 years. Disturbingly, the ultimate banning of international trade in humans in 1808 did very little to weaken slavery as an institution. After the ban, prosecutions for violations were rare and tens of thousands enslaved people were still “smuggled” into the country. Moreover, the ban was largely irrelevant because by 1808 the U.S. slave population was substantial enough that there was a “natural increase” locally such that the domestic slave trade was alive, well and thriving. Reportedly, from the early 1600s until the early 1800s, approximately 600,000 African people were enslaved and brought to the original colonies. However, records show that by 1860 there were nearly 4 million enslaved black people - representing 13% of the nation’s population.
The Fugitive Slave Clause:
“No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall in Consequences of any Law or Regulation therein, be discharged from such Service or Labour but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” Article VI, Section 2.
How did this clause promote slavery? This clause, for the first time, legitimized nationally a slave owner’s right to “reclaim” enslaved people who fled to free states. This clause was the precursor to the federal Fugitive Slave Acts of 1793 and 1850. In 1793, Congress enacted the Fugitive Slave Act to enforce the clause but left the enforcement of this act up to the states. Many free states refused to honor the alleged rights of slave owners. The Fugitive Slave Act of 1850 strengthened the rights of slave owners to “reclaim” enslaved people who fled and even criminalized citizens who helped enslaved people achieve freedom.
In Conclusion, thousands of pages have been written about whether the Constition was pro-slavery. Given just these provisions - which can still be found in the Constitution today - it is clear that this foundational document protected and promoted the institution of slavery. While it is true that the Reconstruction Amendments abolished slavery and called for equality in our nation, liberation for former slaves was hardly quick or decisive. Indeed, the virulent intergenerational impact of our nation’s promotion of slavery is profound and remains apparent to this very today. As Professor Perea argues astutely: “The formal abolition of slavery only changed the rules of play, not the game of white domination itself. Slave codes became black codes, which became Jim Crow laws, which became race-neutral laws with outsized, unfair disparate impacts on people of color. Formal equal protection has yielded, in the main, only ostensibly race-neutral laws with heavily disparate racial impacts.”
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