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Constitutionally, Slavery Is Indeed a National Institution

Hulton Archive/Getty

Sean Wilentz’s latest op-ed in the New York Times, “Constitutionally, Slavery Is No National Institution,” argues that it is a “myth that the United States was founded on racial slavery.” Instead, the Princeton professor demonstrates a woeful misreading of the debates over the drafting of the Constitution. That the document does not contain the words “slave” or “slavery” in no way indicates that it was written to reject the institution. In the debates, the delegates almost always employed euphemisms such as “this unique species of property,” “this unhappy class,” or “such other persons,” as stand-ins for the more repugnant “slaves.” They simply carried that practice over to the final document.

But whether or not the words appear in the text of the Constitution, they dominate its spirit. Slavery was instrumental to the economic well being of not only the states in which it was pervasive, but also in the North. As such, slavery profoundly altered the four months of Constitutional debate, both with respect to obvious issues, such as how slaves would be counted for apportionment, and some more indirect, such as how often would the census be taken, or how a president would be elected. By the time the Constitution was signed on September 17, 1787, slavery had indeed become a national institution.

Key to fully appreciating the impact of slave economics at the Constitutional Convention is that slavery had cleaved the nation into not two, but three separate and conflicting socio-economic systems. In the lower South, primarily South Carolina, the staple crop was rice: immensely profitable, but grown in fetid, leech- and snake-infested swamps in which slaves toiled all summer in thigh-deep standing water. Mortality was high; many slaves survived only two or three years. South Carolina therefore needed a constant influx of able-bodied males to overcome the attrition, and the cheapest place to get them was Africa. The rice planters were thus committed both to slavery as an institution as well as perpetuation of the slave trade, not at all the same thing.

The upper South grew tobacco, cultivated in open country under what, by comparison, were temperate conditions. Slaves bred rather than died, resulting in a crippling oversupply. As the convention began, slaves in Virginia likely outnumbered whites. But tobacco planters couldn’t fire their workers—they had to feed, clothe, and house them from birth to death. In addition to the financial burden, white southerners lived in constant dread of slaves—whom they regarded as sub-human savages—rising up and slaughtering them. During the war, though the army was undermanned, troops in the southern states were often held out of action to guard against slave revolts.

The upper South wanted desperately to rid themselves of the surplus. The obvious solution was to sell to the rice growers. But to make the domestic slave trade worthwhile, tobacco planters needed to recoup the investment they had already made in those slaves, which pushed the price to levels that Atlantic slave traders could easily undercut. With the cheaper African option available to rice planters, Virginians found themselves in the curious position of being defenders of slavery but opponents of the slave trade.

Finally, the North’s economy was dominated by finance, manufacturing, and shipping. They brought rice and tobacco to Europe and returned with the fineries that planters required to maintain their aristocratic lifestyle (to say nothing of side trips to the west coast of Africa for a return cargo of a different sort). So long as northerners could ensure the free flow of commerce, their wealth would increase.  

It became clear early on that these three competing groups would engage in a shifting game of odd-man-out. 

When it came to fashioning a legislature, the South spoke with one voice. In 1787, the North was more populous, but expansion was expected to trend south and west, with as many as ten new (slave) states joining the Union. The Northwest Ordinance limited new free state admissions to five. If slave owners could hold out for 20 years or so, they might well be able to control the government. That process would be foreshortened if southerners could “supplement” the electorate by including slaves in apportionment, a measure that northerners were certain to oppose. On the other hand, southerners—especially Virginians—were none too keen on paying direct taxes on their slaves, which northerners insisted on linking to apportionment.

North and South debated one tortured construction after another until, after three days, they settled on counting slaves as three-fifths of whites. Southerners, who previously had insisted that slaves were property had to admit that, for apportionment, they were people. Northerners, who had denounced the enslavement of human beings, found themselves insisting they were property. 

The three-fifths compromise would be moot, however, unless southern states found a means to incorporate population shifts into legislative apportionment. So they pushed for a periodic census whose results would form the basis for representation. Northerners wanted to perpetuate the status quo as long as possible and were thus in the unenviable position of trying to persuade the convention not to count the number of people in the country. They tried but failed, and a ten-year period was finally agreed to. 

In late July, after two months of wrangling, the convention appointed a five-delegate Committee of Detail to draft, in secret, a prototype constitution. Anyone who has been in business or government knows that creating the working document bestows enormous influence and power. To chair this all-important committee, the delegates unanimously agreed on South Carolina’s John Rutledge, “Dictator John,” the convention’s fiercest, most unapologetic defender of slavery. (James Madison, whose influence had been waning as the months wore on, was specifically excluded.) Rutledge’s selection made certain that whatever terms emerged would protect slaveholders’ interests.

And so they did. When debate resumed, based on the committee’s report, slaveholders won a series of concessions—on the makeup of the Senate, fugitive slaves, admission of new states, the election of the president, and even the Electoral College. In late August, however, the question of the national government’s control of commerce came up. Here, the North would not budge. In a compromise fashioned principally by Rutledge and fellow Committee of Detail member Oliver Ellsworth of Connecticut, the slave trade was extended for 20 years (after which the South would be protected by population shifts) and the free flow of commerce was assured when a proposal by the South to require a two-thirds majority to pass navigation acts was stricken. Virginia delegates were livid, none more so than the influential George Mason, who denounced the “infernal traffic” in a speech for which he has been incorrectly lauded by some historians, since he was convention’s largest slaveholder. (Rutledge was number two.) So upset was Mason that he refused to sign the Constitution, and Virginia, a state that had taken the lead in calling for a new constitution, only barely agreed to adopt the document during the ratifying conventions. 

So, perhaps as Professor Wilentz suggests, the Constitution didn’t specifically anoint slavery as a national institution, but in clause after clause it tried to make certain that slavery would endure as one.