When I started rantism, one of the things I had hoped to do was to write some lecture-like articles on conceptual and historical topics. I haven’t done that as much as comment on the topics of the day, and while I think I have put a strong effort forward in that respect, I still wish I would return to more substantive topics. And so today I will give it a shot.
An argument I hear more and more often is that the Constitution is illegitimate because it enshrined racism and sexism. The position is quite absurd from my perspective, especially when you consider that the Constitution has been amended no less than 4 times to address such flaws.
One of the “flaws,” however, wasn’t really a flaw at all. It was in fact a brilliant move by anti-slavery Framers. And by playing the “long game,” these Framers laid the groundwork for the end of Southern slavery.
The debate over Slavery had been raging since 1776. The Declaration of Independence was nearly never signed because of language within it that condemned Slavery. The Southern States relied on Slavery for their economic viability, so there was no way they would get on-board with abolition of any kind.
And yet without the strong economy of the South, the nation as a whole was likely nonviable. It was essential to the Northern States to bring the South into the fold, but they had to ween the South off of Slavery.
When the Constitution was written, the South was adamant that they would only remain in the Union if Slavery could continue within their borders. They added specific clauses to protect that:
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.
U.S. Constitution – Article I, Section 9
Essentially, if a State wanted to continue to import Slaves it could without sanction by Congress, until the year 1808, at which point Congress could start writing laws to limit Slavery. This gave the South 20 years to get their economy to a place where Slavery wasn’t essential.
Look more carefully at the clause. The second half specifically. It allowed for taxes and duties up to $10 per Slave imported. So even though abolition was impossible before 1808, there was already a financial consequence to Slavery that would cause it to become less and less profitable to continue to import new Slaves.
The South was skeptical that some clever person would amend their way around this clause, so they added a unique and specific restriction to Article V to protect them:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
U.S. Constitution – Article V
Look how specific it was in fact. The South protected the first Clause (they could continue to import Slaves), and the fourth Clause (they couldn’t be taxed more than $10 per person) before 1808.
So, on its face it looks like the Constitution did indeed enshrine Slavery. It certainly locked it in-place for 20 years, making it impossible to abolish before 1808. If you represented the South in 1788, you’re feeling pretty good right now.
But the South wasn’t done trying to protect their institution. They wanted to solidify their hold on the Federal Government, and they tried to play a little game by asserting that they should have greater representation in Congress because of their higher population. But the North saw through that, and a compromise was struck:
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 to 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. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative. […]
U.S. Constitution – Article I, Section 2
And there it is. The famous “three fifths” clause. This is probably one of the most controversial parts of the entire Constitution and modern critics try to assert that this proved the racist nature of the Framers. After all, it was trying to say a Slave was only worth 3/5ths of a person, right?
Not quite. It says they were entitled to only 3/5ths of the representation that other persons had within Congress. It was a compromise that was critical to ending Slavery in America.
Critics of this compromise tend to focus on the 3/5ths part too much, and not understand why a compromise of some kind had to take place. The best way for me to demonstrate it is to walk through a series of “what if” scenarios:
Scenario 1: Slaves were granted the same amount of representation as free / freed men. In this scenario, the North would have been heavily outnumbered in Congress, perhaps by 2:1 or worse. The result would have undoubtedly been a rash of pro-Slavery legislation, and perhaps even amendments to the Constitution to keep Slavery alive. Certainly it would have led to strengthening the South’s economic power to the point where the North could not affect any constructive change. Result: The South would join the United States, but Slavery would continue within the South permanently.
Scenario 2: Slaves were not granted ANY representation. In this scenario, the South would have been heavily outnumbered in Congress. The result would have undoubtedly been a rash of anti-Slavery legislation, and perhaps even amendments to the Constitution to abolish Slavery outright. Certainly it would have led to the weakening of the South to the point where it became a mere vassal to the North. Result: The South would walk away from the United States, and Slavery would continue within their individual colonies permanently.
Scenario 3: Slaves were granted proportional representation. In this scenario, the Slave population was weighted to provide a balance between Northern and Southern representation in the First Congress. The result would be that neither side could impose its will legislatively on the other. Slavery would not be abolished, but neither would it be made permanent. Each side would have to respect the other’s stance in order for them to move forward together. Result: The South would join the United States, but Slavery was only safe from legislation until 1808, at which point Congress could start making changes.
So think about these scenarios. In all three Slavery would continue into the 19th century. In only one scenario was abolition even possible, and that was by making the 3/5ths compromise so that the South joins the Union on equal terms with the North.
Remember, the South didn’t need the North necessarily. They had agriculture and there were somewhat strong ties still to England. They could have easily returned to the Crown or at least established commerce with England and survived quite nicely as a set of Colonies.
By the same token the North definitely needed the South. That same agriculture was essential to national security. The North didn’t want to have to establish a trade relationship with their neighbors just to have cotton and tobacco and foodstuffs. The Articles of Confederation had already revealed that. Plus, the specter of the South returning to the Crown represented a real military threat to the North. If England had a sympathetic ally on the continent, then it was only a matter of time before they attempted to recapture the colonies (see the War of 1812 for more).
So there’s the reality of it. The North needed the South much more than the South needed the North. But the institution of Slavery was abhorrent to Northerners. In order for this young nation to even get started the North had to make many concessions.
But the “time bombs” they left in the Constitution did their job. As it became more and more expensive the South imported fewer and fewer Slaves. And as those Slaves didn’t contribute to the South’s power in Congress there was no motivation to endure the taxation. Starting in 1808 the importation of Slaves became completely illegal, even though Slavery itself continued within the South.
Looking at things as of 1808 it’s not hard to see the wisdom of the North’s long-game tactics. They managed to draw the South into the Union. They made the South feel like their institutions were safe. And all the while they were losing both political and financial capital.
In my opinion, the only mistake the Framers made was they didn’t project well beyond 1808. They didn’t see that the pressure on the South’s economy and the South’s belief that they were tricked into joining the Union would one day lead to outright Rebellion. I think they honestly thought that the South would come to realize that Slavery was nonviable and that they would make the needed changes to adapt their economy.
But that didn’t happen, and we all know the result.
The point I wanted to express is this — the Constitution was designed to end Slavery. But it had to be done delicately and over a long time or there would not be a United States. Clauses like the 3/5ths rule were not put in to devalue Slaves, but rather to make sure that Slavery itself couldn’t remain viable.
So before we trash the Framers as a bunch of old white men that owned slaves, take a moment to think about the strategy that was being employed. The “time bomb,” if you will, that lived within. And perhaps you’ll begin to appreciate the genius of those men….
rantism 