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Constitutional Topic: Slavery

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The Constitutional Topics pages at the USConstitution.net site are presented to delve deeper into topics than can be provided on the Glossary Page or in the FAQ pages. This Topic Page concerns Slavery. Slavery is mentioned in two main places in the Constitution; in Article 1, Section 2 Clause 3, and the 13th Amendment. Also see the Not in the Constitution entry.

Primary source material for this essay include The Origins of American Slavery by Betty Wood (Hill and Wang, New York, 1997), Jim Crow Guide - The Way It Was by Stetson Kennedy (Florida Atlantic University Press, Boca Raton, 1990), and The History of Jim Crow. Population figures from census data were found at The University of Virginia. Quotes from the Founding Fathers concerning slavery were taken from FoundingFathers.info. George Washington's will can be found at The University of Virginia.


Introduction

Slavery is a prominent part of United States history. Slavery has existed for thousands of years in many cultures, but in the United States, the institution seemed to have been perfected. It also came at a time of enlightenment, when many began to see slavery not as the necessity that many felt it was, but as an evil exploitation of men.

From the time that Christopher Columbus arrived in the New World, slaves were as much a part of the settlement and economy as the settlers and the crops. But this was the normal state of affairs for much of the Western world. The African slave trade, which started in the 15th century, was begun by the Portuguese, but slavery among African tribes was common, as it was among the Native Americans that Columbus encountered in Hispaniola. The biggest difference between native slavery and the slavery brought by Europeans to Africa and the Caribbean was the scope and scale.

Going further back, ancient Rome is said to have been more dependent upon its slave labor than any society before or since. Some estimates place the slave population in Rome in the 1st century to be about a third. Slaves came mostly from conquered peoples. To a lesser degree, the children of slaves were also slaves. Kidnapping and piracy, as well as cross-culture purchase are also seen as likely sources. Finally, self-sale, slavery for debt, and slavery as punishment for crimes were also in place.

Lastly, as was often mentioned by American supporters of slavery, slavery is mentioned in the Bible. Therein, while it is not encouraged, it is acknowledged, and it is regulated.

Slavery, then, has a long, if ugly, history. In 21st century America, it is easy for us to look at our past and be disappointed, even disgusted, by slavery. In fact, it is right to do so. However, it must be understood in the historical context


The Origin of Slavery

When examining the American slave trade, a "why" must first be determined. Why were the slaves brought from Africa, and not from, say, the Caribbean or South America? There are two schools of thought on this topic. The first is purely racial - that the color of skin of the African made him a target for the European traders. The other is that race had little to do with the beginning of the trade, but that pure economics dictated the source. Race, when it eventually did become a factor, came afterwards.

Initial colonization of the New World by England came in the Caribbean, such as on St. Kitts, and in Virginia. The primary concern of the English in the use of these lands was as a source of income. Tobacco was discovered and became wildly popular, and its cultivation became a priority. Tobacco agriculture requires lots and lots of land, and, in turn, lots of labor to work the land. The first workers were recruited servants from England itself. Lured by the promise of land at the end of their term of service, many indentured servants came. In the islands of the Caribbean, however, land was not limitless, as it seemed to be in Virginia to the north.

Settlers branched out from one island colony to another, with some inhabitants and workers moving from other islands and some coming from Britain. Similar colonization was happening with the French, whose laws did not permit indentured servitude to fill labor needs. The Dutch slave traders stepped in with a ready source - enslaved Africans. The English were quick to adopt this model for labor, and by the 1650s, the source of labor had switched from voluntary to involuntary. On Barbados, where tobacco failed as a crop, but where sugar cane and cotton grew well. Based on the Portuguese model in Brazil, Africans were brought in to work the crops such that by 1660, the slave-to-free ratio was about 50-50.

The Africans were slaves in fact and, eventually, in law. They did not have an end to their term of service as indentured servants did. There was no loss in profit when a number of years ran out. In addition, the wage levels for indentured servants had a strong upturn in the 1640s. The economics of slavery were obvious to the plantation owners.

This plays into slavery into America because by the mid-1660s, proprietors of the North American lands, from Virginia on south, were looking to profit from their lands just as had been done in the Caribbean. They wanted to attract settlers from England, but more so, they wanted to attract settlers from the Caribbean, who had already worked successful crops and were used to the climate. Certainly, they promoted the religious freedoms of the colonies, and the extension of English rights and liberties, but they also guaranteed property rights. And by this time, African slaves were property. As planters moved from Barbados to the Carolinas, they brought their slaves with them.

In Virginia, in the meantime, the cultivation of tobacco became of paramount importance. Over objections of the King to smoking, and over warnings concerning single-crop agriculture, the lure of profit fixated the settlers. Once they were able to take all the land they wished from the native Indian tribes, they were left with vast amounts of land to work. Indians proved too scattered and resistant to enslave in large numbers. Indentured servants were brought over from England, and they formed the backbone of Virginia labor until the 1680s. The thinking is that indentured servitude continued to be the more profitable way of acquiring labor - an African slave was simply more expensive. Some of the same forces that influenced the shift to African labor in the Caribbean came to Virginia. Though it came later, by 1710 the slavery system was so firmly established that it was a fully developed area of the law.

In 17th century Massachusetts, slavery was much less an important part of the economic structure, but it was, nonetheless, an important part of the social structure. The Puritans saw slavery as authorized by the Bible, and a natural part of society. However, the Puritans were also governed by a code of biblical conduct whereby slaves had some rights, and whereby the masters were presumed to be responsible not only for a slave's physical but also spiritual well-being. These factors made the life of a slave only slightly less onerous that those in Southern states. But the form of agriculture used in Massachusetts is probably more responsible for the relative lack of slaves in the North. Small farms, not large plantations, were the norm, and it was common to find the farmer working the fields alongside slaves. The tide would eventually turn, however, and by the time of the Constitutional Convention, Massachusetts had outlawed slavery.


The Founding Fathers and the Constitution

By the time of the Constitutional Convention in 1787, slavery in the United States was a grim reality. In the census of 1790, there were slaves counted in nearly every state, with only Massachusetts and the "districts" of Vermont and Maine, being the only exceptions. In the entire country 3.8 million people were counted, 700,000 of them, or 18 percent, were slaves. In South Carolina, 43 percent of the population was slave. In Maryland 32 percent, and in North Carolina 26 percent. Virginia, with the largest slave population of almost 300,000, had 39 percent of its population made up of slaves.

In the Articles of Confederation, the nation's first constitution, there is not mention of slavery. The states were represented in Congress by state, with each state picking its own representatives, so population, which became critical in the future House of Representatives, was not relevant. Also, because fugitive slaves, and the abolition movement, were almost unheard of as late as the 1780s, there is no mention of this issue in the Articles. The closest thing to be found is the Fugitive Clause in Article 4, but even that is more geared toward convicts.

There was no great movement in America to abolish slavery in the 1780's, when the Constitutional Convention met. To be sure, there were opponents of slavery, on a philosophical level, but the abolition movement did not appear until the 1830's, when the American Anti-Slavery Society was founded with William Lloyd Garrison writing the organization's nascent statement of principles. Prior to the Convention in 1787, many "Founding Fathers" expressed opinions that condemned slavery.

John Jay, great supporter of the Constitution after its creation and an author of The Federalist wrote in 1786, "It is much to be wished that slavery may be abolished. The honour of the States, as well as justice and humanity, in my opinion, loudly call upon them to emancipate these unhappy people. To contend for our own liberty, and to deny that blessing to others, involves an inconsistency not to be excused."

Oliver Ellsworth, one of the signers of the Constitution wrote, a few months after the Convention adjourned, "All good men wish the entire abolition of slavery, as soon as it can take place with safety to the public, and for the lasting good of the present wretched race of slaves."

Patrick Henry, the great Virginian patriot, refused to attend the Convention because he "smelt a rat," was outspoken on the issue, despite his citizenship in a slave state. In 1773, he wrote, "I believe a time will come when an opportunity will be offered to abolish this lamentable evil. Everything we do is to improve it, if it happens in our day; if not, let us transmit to our descendants, together with our slaves, a pity for their unhappy lot and an abhorrence of slavery."

Thomas Jefferson, author of the Declaration of Independence, which, famously, declares that "all men are created equal," wrote, "There must doubtless be an unhappy influence on the manners of our people produced by the existence of slavery among us. The whole commerce between master and slave is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submissions on the other. Our children see this, and learn to imitate it; for man is an imitative animal. This quality is the germ of all education in him." Alas, like many Southerners, Jefferson held slaves, as many as 223 at some points in his life. His family sold his slaves after his death, in an effort to relieve the debt he left his estate in.

In a letter to the Marquis de Lafayette, George Washington wrote, "[Y]our late purchase of an estate in the colony of Cayenne, with a view to emancipating the slaves on it, is a generous and noble proof of your humanity. Would to God a like spirit would diffuse itself generally into the minds of the people of this country; but I despair of seeing it." Washington and his wife held over 300 slaves. He wrote in his will that he'd wished to free his slaves, but that because of intermarriage between his and Martha's slaves, he feared the break-up of families should only his slaves be freed. He directed that his slaves be freed upon her death. His will provided for the continued care of all slaves, paid for from his estate.

The great American scientist and publisher Benjamin Franklin held several slaves during his lifetime. He willed one of them be freed upon his death, but Franklin outlived him. In 1789, he said, "Slavery is such an atrocious debasement of human nature, that its very extirpation, if not performed with solicitous care, may sometimes open a source of serious evils."

Other examples of anti-slavery messages abound from the late 1700's. They illustrate the feelings of some, but those feelings cannot be seen in the product of their works at creating a government. Despite the freedoms demanded in the Declaration and the freedoms reserved in the Constitution and the Bill of Rights, slavery was not only tolerated in the Constitution, but it was codified.

The Constitution has often been called a living tribute to the art of compromise. In the slavery question, this can be seen most clearly. The Convention had representatives from every corner of the United States, including, of course, the South, where slavery was most pronounced. Slavery, in fact, was the backbone of the primary industry of the South, and it was accepted as a given that agriculture in the South without slave labor was not possible. Though slaves were not cheap by any measure, they were cheaper than hiring someone to do the same work. The cultivation of rice, cotton, and tobacco required slaves to work the fields from dawn to dusk. If the nation did not guarantee the continuation of slavery to the South, it was questioned whether they would form their own nation.

Slavery is seen in the Constitution in a few key places. The first is in the Enumeration Clause, where representatives are apportioned. Each state is given a number of representatives based on its population - in that population, slaves, called "other persons," are counted as three-fifths of a whole person. This compromise was hard-fought, with Northerners wishing that slaves, legally property, be uncounted, much as mules and horses are uncounted. Southerners, however, well aware of the high proportion of slaves to the total population in their states, wanted them counted as whole persons despite their legal status. The three-fifths number was a ratio used by the Congress in contemporary legislation and was agreed upon with little debate.

In Article 1, Section 9, Congress is limited, expressly, from prohibiting the "Importation" of slaves, before 1808. The slave trade was a bone of contention for many, with some who supported slavery abhorring the slave trade. The 1808 date, a compromise of 20 years, allowed the slave trade to continue, but placed a date-certain on its survival. Congress eventually passed a law outlawing the slave trade that became effective on January 1, 1808.

The Fugitive Slave Clause is the last mention. In it, a problem that slave states had with extradition of escaped slaves was resolved. The laws of one state, the clause says, cannot excuse a person from "Service or Labour" in another state. The clause expressly requires that the state in which an escapee is found deliver the slave to the state he escaped from "on Claim of the Party."

It has been said that the seeds of the Civil War, which was fought, despite revisionist theory to the contrary, over the issue of slavery, were sown in the compromises of the Constitution on the issue. This is probably true. Slavery, which was started in violence in the kidnapping, shipment, and commerce of human chattel, needed violence to bring it to an end. After the devastation of the Revolutionary War and the unrest in the U.S. under the Articles, a time of peace and recovery was needed to strengthen the nation to a point where it could survive a civil war. The greatest tragedy is that in the nearly 100 years between the start of the Revolutionary War and the end of the Civil War, millions of slaves served, suffered, and died so that the nation could prosper.


Jim Crow

With the demise of the institution of slavery, it was the hope of many that blacks would quickly rise in their citizen status. However, there were several problems with this hope. The first was the bitterness the South felt about the Civil War, the Emancipation Proclamation, the 13th, 14th, and 15th Amendments, and the Radical Republicans. The second was basic prejudice. For centuries, most blacks had been relegated to a sub-human status, and that feeling, even among many Northerners, was not going to go away with slavery. Once the Southern states regained control of their own governments again, following Reconstruction, the Black Codes were quickly enacted.

The 14th and 15th Amendments were actually national reactions to Black Codes enacted in the South just after the Civil War. Legally, constitutionally, blacks were equal. Many of the Black Code provisions were illegal under the new amendments, and black voters, and even legislators, gained power in the immediate aftermath. But to counter the freedoms gained, eventually new Black Codes were enacted, most of which aimed to deny blacks the vote by means that did not rely on race on their face, but which relied on race at their root. Organizations such as the Ku Klux Klan also rose, intimidating black voters from exercising their new suffrage rights. Poll taxes, literacy tests, and other tactics, both legal and extra-legal, were used to deny blacks the vote. With no voice in the government, the rate of black voters, and any sign of black legislators, quickly disappeared.

Following the Plessy v Ferguson decision in 1896, where the Supreme Court ruled that while blacks had equal right under the law, but that separation of the races was legal as long as facilities were equal, throughout the South, and elsewhere, more laws were enacted to keep blacks on one side and whites on the other. These laws, known as Jim Crow laws, affected every aspect of the lives of blacks.

The term "Jim Crow" comes from popular minstrel shows around the time of the Civil War. The Jim Crow character was a stereotypical black man. The term was picked up to describe laws which segregated whites and blacks in everyday personal life, and to describe laws aimed at denying blacks the vote. By 1910, each state that had been a part of the Confederacy had a complex and complete system of Jim Crow laws in place. This legal separation continued to be buttressed by extra-legal acts, such as widespread lynchings and other terrorist acts committed upon any one who spoke out, or, often, on random blacks for the sake of pure terror.

The unfairness of the "separate but equal" doctrine seems obvious to us today, and the effects of the Plessy case on the lives of ordinary blacks seems to be very direct and incontrovertible. But it took 60 years before the courts were ready to part with the Plessy case. In that time, numerous people were killed, millions were denied the right to vote, some blacks being born and dying without even having voted, and segregation dug its claws ever deeper into American society.

For example, a 1958 Alabama law stated that "It shall be unlawful for white and colored persons to play together ... in any game of cards, dice, dominoes, checkers, pool, billiards, softball, basketball, football, golf, track, and at swimming pools or in any athletic conference." Prejudice extended past the law into the jury box, too. According to the Jim Crow Guide, "three white youths who confessed to a Christmas Eve rape of a 17-year-old Negro girl at Decatur, Georgia, were nevertheless acquitted by the DeKalb County jury."

In the end, as prejudices were seen to be as arbitrary as they are, the tide began to turn, especially in higher legal circles. In the North, organizations like the NAACP were formed to better the lives of blacks, and in doing so, they brought more and more legal challenges to segregation. When black soldiers returned from Europe after World War One, they were shocked to return to segregation, which did not exist across the Atlantic. These men were the first large group to agitate against segregation. In World War Two, threats of unrest in the military industry and within the ranks forced President Roosevelt to equalize, though not desegregate, jobs and ranks. Blacks were enticed away from the South by the promise of jobs in the Mid-West and Northeast, where they enjoyed much more freedom.

Eventually, the federal courts, the Supreme Court in particular, began to see cases of segregation and discrimination as counter to the 14th Amendment and one by one, entire categories of Jim Crow laws began to fall. White opposition in the South to many of the rulings, such as those integrating schools and universities, was strong and militant. In several cases, U.S. Marshals or National Guardsmen had to be called out to protect pioneering black students.

Finally, the Civil Rights Act and Voting Rights Act were passed, in 1964 and 1965 respectively, ending legalized segregation and disenfranchisement. Jim Crow was dead, at least in the law. The last vestiges of legalized slavery were removed from the American legal system, for good. Jim Crow does live on, however, in the continuing, but seemingly dwindling, personal prejudice. America will not be able to say that the legacy of slavery has truly been eradicated until race is as irrelevant as eye color. In this, we still have work to do.


Postscript

In February 2007, almost 150 years after the end of the Civil War and 400 years after the introduction of slavery to the lands of the United States, the Virginia legislature anonymously adopted a resolution expressing "profound regret" for the state's history of slavery. The apology was the first made by any of the former states of the Confederacy or any other state. Meeting in the former capital of the CSA, the resolution passed both the Virginia House and Senate by unanimous vote. The measure marks a high-point in the turn around of the state from that having the largest slave population to that electing the first black governor.

On March 27, 2007, the Maryland legislature passed a bill that expressed "profound regret" for its role in slavery. On April 8, the North Carolina Senate issued an apology for its state's role in slavery, and three days later, the North Carolina House did the same.

On April 24, 2007, the House and Senate of Alabama each separately passed apology resolutions, though they differed - the governor of Alabama said that if either body signed the others' resolution, he would sign it. Similar efforts in Georgia at the same time failed - one black Georgia lawmaker said that it was insulting to think that an apology would make up for slavery.



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