Juneteenth to July 4th

An opportunity to reflect on Freedom and Racial Injustice

T - The constitution

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.”

Resources/Additional Reading Recommendations

Call to Action

Top right: Marchers carrying banner "We march with Selma!" on street in Harlem, New York in 1965; Bottom left: 1965 Selma to Montgomery march; Bottom right: Dr. King, Dr. Ralph David Abernathy, their families, and others leading the Selma to Montgomery march in 1965 | Photo Credit: Wikimedia Commons

Yesterday’s educational content addressed the pro-slavery provisions in the U.S. Constitution. The Reconstruction Era Amendments to the Constitution were meant to redress the atrocity of slavery. Meaningful enforcement of these Amendments, however, did not happen for well over a century. Still to this day, profound inequality between White and Black Americans remains in nearly every aspect of society. It will take a broad array of legislation, programs and societal commitment for the nation to achieve an equitable and inclusive democratic republic.

Today, we spotlight the need for new federal voter protection laws. Simply put, the right to vote is not only an essential pillar to a healthy constitutional democracy, it is the bedrock to the passage of meaningful and necessary reform for racial justice specifically and social justice broadly.

The Fifteenth Amendment, ratified in 1870, extended the right to vote to Black men. Despite this guarantee, for generations, Black voters and other people of color were consistently and systematically disenfranchised, especially in states under Jim Crow. Even after the Civil Rights Act of 1964 was enacted, some states still flagrantly and violently denied the right to vote to Black people. Voting rights activists were routinely terrorized, some even killed, for their efforts. In 1965, Congress enacted the Voting Rights Act, but only after state troopers brutally attacked peaceful voting rights activists - led by a young John Lewis - at the famed “Bloody Sunday” march in Selma, Alabama. Among many things, the Voting Rights Act prohibited virulent discriminatory voting practices that targeted people of color and imposed necessary requirements on states with a history of disenfranchising minority voters.

In 2013, however, the Supreme Court struck down key provisions of the Voting Rights Act. Not surprisingly, after that decision, many states with a disturbing history of voter suppression enacted partisan and discriminatory voter restrictions. Just as predictably, after the 2020 election saw a record voter turnout especially by people of color, a shocking monsoon of state governments are enacting an array of partisan laws to weaken free and open elections and to disenfranchise voters, especially voters of color. Even with the DOJ’s recent announcement to crack down on these virulent voter restrictions, there is great work to be done especially congressionally.

Congress has an opportunity to act again. There are two proposed federal bills to strengthen voting rights: The John Lewis Voting Rights Advancement Act (H.R. 4), which largely restores the provisions of the 1965 Voting Rights Act struck down by the Supreme Court and its more expansive election protection counterpart, The For the People Act (H.R. 1 and S.1). Check out the links below to learn more about this proposed legislation:

What can you do to protect voting rights?

  1. Join Voting Rights Champion and Fair Fight Action Founder, Stacey Abrams and make this a “Hot Call Summer". Call both of your Senators every day all summer long and demand that they support national voter protection laws. The number to call is 888-453-3211. Check out Fair Fight Action and the work they are doing to promote free elections throughout the country.

  2. Contact all of your US Legislators and demand their support for national voter protection laws so we can make divisive, discriminatory voter suppression a thing of the past!!!

  3. Spread the word about the need for new federal laws to protect free and open elections. The hashtag #CallOutYourSenators is getting a lot of attention. See link.