Transcript of the 2013 Walter Berns Constitution Day Lecture: Slavery and the Constitutional Convention

Article Highlights

  • The Constitution never recognizes slavery as legitimate, even when it recognizes it as legal under the laws of the slave states.

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  • The Fugitive Slave Clause is not meant as a support for slavery; it's rather a support for comity between the member states in the federal Union.

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  • In making a constitution, the Founders were making a federation and not a nation--a union of otherwise independent states.

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Editor's note: The following text is a transcript of University of Notre Dame Professor Michael Zuckert's remarks, "Slavery and the Constitution: An immoral compromise?" delivered at AEI on Constitution Day, Sept. 17, 2013.

It is an immense honor to me to appear here at AEI to deliver the Walter Berns Constitution Day Lecture. This event also has great personal meaning for me because Walter Berns was my very first political science professor—more years ago than I think either he or I would care to count. He co-taught a course, Introduction to American Government, with a very newly minted PhD named Theodore Lowi. If any of you are familiar with the work and thought of these two men, you’ll have some idea of what kind of experience it was to sit through a class taught by these two: it was exhilarating, but it was also in equal measure confusing—at least for a neophyte political scientist such as I was. 

Walter Berns was also my first teacher in constitutional law, but in that subject he had a very capacious understanding of what ought to be covered. We spent a fair amount of time that semester reading James Madison’s notes on the Constitutional Convention because Walter seemed to have this very quaint idea that constitutional law did have something to do with the Constitution. We also read parts of John Locke’s Second Treatise, which he also thought had something to do with the Constitution. If it hadn’t been for that course, I wouldn’t be standing here today. I might be on Wall Street or in a law firm somewhere because that was my original plan. So Walter Berns was both an inspiring and a life-changing presence for me. But he was not always an easy person. 

My first personal contact with him came at the end of my sophomore year when I, and all other Cornellians of that age, had to declare our major, and as a part of declaring our major, we had to take a little card and have it signed by somebody who we had selected to be our adviser. I chose Walter. And, with a good deal of trepidation, I went to his office. Trepidation because this was the first time I had ever been in a faculty office at Cornell, so this was a new experience for me. Everything went very well—until I got to the office. I had just taken the only course I had had with him at that point, that very large introductory course, so he didn’t really know who I was and I had to explain why I was there. I explained, “I’m declaring my major, I would like you to be my adviser.” He looked me over and he asked, “Why me?” 

This seemed like a completely unanswerable question; no answer I could come up with would be sufficient to answer this question. I stammered out something—I have no idea what it was, but he did sign the card. With great relief, I left his office, and I got halfway down the stairs and realized I had left this card in his office. I had to go back and get the card, and it is at that time I started to think, “Maybe another adviser would do better.” In any case, I knocked on the door again, knowing that I was looking like an idiot, but Walter very kindly overlooked, or likely forgot, this less than auspicious beginning to our relationship. In any case, I still remember many things that I’ve heard or read by Walter, but what sits most in my memory is that “Why me?” 

In any case, I am hoping that he did not say something similar when he heard that I was giving the Walter Berns lecture: “Why him?” 

Now you probably did not notice this, but today we are celebrating the 226th anniversary of the day the delegates to the Constitutional Convention met for the last time and signed the document they had drafted. One of the reasons you did not notice this is that we don’t usually notice 226th anniversaries of anything. This anniversary is nowhere near as visible as was the 200th anniversary of the Constitutional Convention in 1987. Chief Justice [Warren E.] Burger, as you may remember, was appointed head of something called the US Commission on the Bicentennial, which was put in place in order to encourage events related to the bicentennial. One of the things that the commission did was to issue official seals of approval for events they felt were suitable for celebrating the bicentennial.

One activity of that year, which I do not believe got the bicentennial commission seal of approval, was a talk given by Supreme Court Justice Thurgood Marshall at a hotbed of constitutional studies—the San Francisco Patent and Trademark Law Association’s annual seminar, which was held in Maui, Hawaii, of all places.

Burger, who was one of the most conservative justices on the court, and Marshall, who was one of the most liberal justices on the court, had clashed many times before this, but this time their disagreement really caught the attention of the entire thinking public. Rather than joining in the celebration of the Founders that Burger was sponsoring, Justice Marshall announced right off in his talk in Hawaii that he did not “find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound.”[1] The issue that led Justice Marshall to his dissent, of course, was slavery.

While many people thought that it was a little bit indelicate for Justice Marshall to raise this awkward question at a time of great national celebration of the Constitution, nonetheless the issue of slavery and the Constitution had been much on the minds of historians, constitutional scholars, and many thoughtful citizens for quite a long time by then. And among the professionals, it seems to me, the ruminations about slavery had produced two factions—or schools of thought—about slavery and the Constitution: one sometimes known as “Neo-Lincolnian” and the other sometimes known as “Neo-Garrisonian.” The latter is named for William Lloyd Garrison, the great abolitionist, activist, and thinker who had condemned the Constitution as a “covenant with death” and an “agreement with hell” because of its support for slavery. The other group is, of course, named for Abraham Lincoln, who had rather a different view about the Constitution.

This is not the place to relate in any kind of detail the character of the debates between these different groups, but a brief summary will be useful. Two main issues separate these two groups. One is: how favorable was the Constitution produced in 1787 to slavery? The second is: what were the motives upon which the Founding generation acted when they acted with regard to slavery? 

Now the Neo-Garrisonians answer the first question by saying that the Constitution was very favorable to the institution of slavery—that the Constitution gave slavery a great deal of life-sustaining aid, including recognition of its moral legitimacy. To them, the Constitution was indeed an immoral compromise. 

The Neo-Lincolnians, while conceding that the Constitution did indeed contain some accommodations to the institution of slavery, deny that these were nearly as substantial as the Neo-Garrisonians claim. And they particularly deny that the Constitution stamped the institution with some kind of recognition of its moral legitimacy. 

The Neo-Garrisonians answer the second question about the motives behind the actions of the Founders by saying that they were moved by the same complex of motives that led to the establishment and thriving of slavery in the first place: greed, racism, Christian triumphalism, and moral indifference. 

The Neo-Lincolnians, on the other hand, emphasize the place of slavery in the constitutional order as due primarily to the press of necessity: they argue that without these concessions to slavery, the Union could not have been made, and so to them the Constitution was a moral, or at least a necessary, compromise. The Neo-Lincolnians frequently point in this connection to the expectation—or the hope, anyway—among many of the Founders that the process of abolition begun in the states during and just after the American Revolution would continue until slavery had been removed from the land.

The scholarly debates on the place of slavery in the Constitution can be very heated. The topic is indeed so controversial that the parties cannot even agree on how many parts of the Constitution are relevant to slavery. One Neo-Garrisonian that I know found in the Constitution 18 clauses directly or indirectly supportive of slavery. The Neo-Lincolnians find far fewer (only three): the three-fifths formula for representation and taxation, the Slave Trade Clause, and the Fugitive Slave Clause.

Since these three clauses are important for my talk, I’ll pause a minute and give you a quick idea of what’s in them. The formulas for representation and direct taxes provided that each state would have seats in the House of Representatives in proportion to the number of “free persons” in the state and, then they use the phrase, three-fifths of “all other persons.” “All other persons” in this context is a roundabout way of saying “the slaves.” All free persons count for one, and all slaves count for three-fifths. So far as there would be “direct taxes,” these also would be apportioned according to that same formula. The slave states would in effect get a bonus in representation for their slaves, but they would also be liable for more taxes for that same reason. As it turned out, direct taxes were not levied, so this formula turned out to be a bonus for the slave states and they didn’t have to pay any kind of particular penalty for it. 

The Slave Trade Clause denied Congress the power to prohibit the slave trade until 1808, 20 years from the ratification of the Constitution. 

The Fugitive Slave Clause provided, again in very roundabout language, that a slave escaping from one state into another would not become free by virtue of having done that but instead “shall be delivered up.” 

Now, for the rest of my talk, what I would like to do is to go beyond the Neo-Garrisonian–Neo-Lincolnian battle and put forward a somewhat different account of slavery in the Convention and in the Constitution.

I want to begin by saying a bit about the context of slavery at the time of the Constitutional Convention because I think both the Neo-Lincolnians and the Neo-Garrisonians go astray by not taking sufficiently seriously that context. The historical circumstances in place at the time of the Constitutional Convention were very different from the subsequent history of slavery in America. Therefore, that subsequent history does not form an adequate basis for thinking about the expectations of the people who wrote the Constitution. But when we today—and this includes historians—think back to the problem of slavery at the Convention, we too often think of it as if that history that subsequently unfolded was the history they foresaw, expected, or experienced—but it wasn’t.

Paradoxically perhaps, achieving clarity on the history that occurred after the adoption of the Constitution is most important for accurately understanding our topic. The posthistory—the history after the Constitution was made—involved a real transformation of the slavery system. In the period around the time of the Constitutional Convention, the main use of slave labor in America was to produce tobacco in the upper South and rice and indigo in the lower South. But starting in the 1790s, the Southern economy shifted to cotton. And the shift to cotton was fueled by two technological developments. 

First was the development of steam-powered machinery, which led to the development of the textile industry in Britain, which led to the production of cheaper cotton cloth, which led, in turn, to a rising demand for raw cotton. The second big technological breakthrough was the famous cotton gin. The cotton gin was particularly important in driving the transformation of the Southern economy because the kind of cotton that could be grown readily in the American South was a kind in which the fibers of cotton and the seeds of the cotton were very difficult to separate. The cotton gin made it possible to do this separation cheaply and relatively easily. With the cotton gin, cotton became an economically viable crop for the South, and with the ever-increasing demand for raw cotton, it became an economically lucrative crop. 

The difference cotton production made after the Constitutional Convention is readily visible in a few simple statistics. In 1790, roughly at the time of the Convention, the United States produced 3,000 bales of cotton. In 20 years, that figure increased six-fold, and by 1858, near the start of the Civil War, cotton production stood at four million bales—from three thousand to four million, more than a thousand-fold increase. Cotton became the leading American export, and the dollar value of cotton was greater than that of all other American exports combined. 

That the slave system that produced this cotton, which was so economically profitable, should be transformed by this immense growth in the cotton industry is therefore not a matter for surprise. And that the slave system should become larger and more important, more entrenched, I think should be relatively easy to see. But we cannot read back from the history of what did happen to cotton, and thus to slavery, in the post-1790 world to the expectations and plans of the men who wrote the Constitution. That future, which we all see so clearly, was completely opaque and unexpected to them.

Instead, they looked back on a history and trajectory of slavery in America that was quite different—the history and trajectory before 1787. Of course, as is well known, slavery by the mid–18th century was well established on the American continent. All 13 colonies at the time of the revolution had slavery; slavery existed in French America and slavery existed in Spanish America. In 1750, according to the best estimates, about 20 percent of the population of what would become the United States was black, most of whom were slaves. But this population was very unevenly distributed. In the North, less than 5 percent of the population was black; in the South, on average 40 percent was black, with a high of 60 percent in South Carolina.

The situation of slavery, though, was much affected by the American Revolution and its aftermath. There was a combination of events and trends that actually set slavery back in those years. One cause was that the British, for example, offered freedom to slaves in the South who would come and fight on their side, and there were quite a few slaves who took them up on that. Moreover, there were many other slaves who took advantage of wartime chaos to flee from slavery. Beyond that, in a movement that one important historian has called “the contagion of liberty,” all the northern states moved to abolish slavery in the years after the revolution. Individual, voluntary manumission was occurring, and state laws were passed even in the South making it easier and easier to free your slaves. In 1787, the Congress under the Articles of Confederation passed the Northwest Ordinance, prohibiting slavery in the Northwest Territory, which includes the present states of Ohio, Indiana, Illinois, Michigan, and Wisconsin. That’s quite a large swath of land.

All of these developments produced an increase in the number of free blacks in both North and South. In 1790, it’s estimated that about 8 percent of all blacks in the United States were free. By 1810, 14 percent were free. The number of slaves was conversely affected, with the number of slaves dropping in those years. 

These few facts should make clear that the world the men at the Convention faced in 1787 was not the world the nation faced in the 1850s. These facts should make clear that the trajectory of slavery in 1787 was not the trajectory that led to the entrenching of slavery in the 19th century. To understand slavery at the Constitutional Convention, we must look at it as they did with their eyes, and not with our eyes, either enriched or clouded by our knowledge of subsequent history.

As I said, the two main ways of looking at this topic are the Neo-Lincolnian and the Neo-Garrisonian. I’m going to propose a third—the Neo-Madisonian approach, which is named for James Madison, who I think was the person at the time of the Founding who understood the Constitution best. I see the Neo-Madisonian position as a kind of middle ground between the Neo-Lincolnians and the Neo-Garrisonians, although not the kind of middle ground that just splits the difference between them. 

One of the ways in which it’s a kind of middle ground is that the Neo-Madisonian view holds the Constitution to be neither proslavery as the Neo-Garrisonians say, nor quite antislavery in the way the Neo-Lincolnians say. The Neo-Madisonian position denies that the Constitution endorses the institution of slavery as legitimate and right. But it also denies that the Constitution made provisions to stamp out slavery—or, as Lincoln put it, that it consigned the institution to “ultimate extinction.” Rather, the Neo-Madisonian position says a few things more subtle than these—three things in particular. First, it affirms that slavery is legal but not legitimate; second, it postpones or defers any disposition of the issue of slavery; and third, it does so for reasons deep in the fundamental principles of the Constitution, so deep as to make it nearly inevitable that slavery was treated just as it was at the Convention. Now, I want to take up those three things in turn.

It’s undeniable that slavery is in some sense legal under the Constitution. It existed in many of the states at the time of the Framing; the Constitution allows the continued importation of slaves for 20 years and it provides for the recapturing of fugitive slaves. These are all ways in which the legal existence of slavery is recognized. 

But the document itself is very careful not to endorse the institution it recognizes. The constitutional clauses that touch on slavery are all written in such a way as to establish unequivocally that slavery is an institution existing under the states, and not under the Constitution’s authority or with its blessing. The Fugitive Slave Clause, for instance, speaks of “persons held to service or labor in one state under the laws thereof.”[2] That is, the Constitution says forcefully that slavery is an institution under the laws of the states, not under its laws. The Slave Trade Clause is parallel: it speaks of “the importation of such persons as any of the existing states shall think proper to admit.”[3] The nefarious slave trade, then, is a trade of and by the states engaging in it, and not of the government formed by the Constitution.

Moreover, as has been frequently noted, the words “slave,” “slavery,” and the like do not appear in the Constitution, nor are there any racial references. In fact, the first mention of the word “slave” or “slavery” in the Constitution is in the 13th Amendment, abolishing it. Instead of speaking of slaves directly, the Constitution uses awkward and wordy circumlocutions to refer to the slaves—it speaks of “persons held to service or labor” and of “such persons as the states shall think proper to admit.” If you were parachuted down from Mars and read this, you would have no idea what this was all about. 

Avoidance of the words “slave” and “slavery” and the like was altogether deliberate and intentional. At the Convention, it was stated explicitly that such words should not appear in the document as a blemish on a system aiming to secure liberty. Moreover, when the Constitution does refer to the slaves, it invariably refers to them as “persons.” So far as the law of the Constitution is concerned, the slaves are persons, not property, only prevented from full recognition and enjoyment of their personhood by the state laws that treat them as property. The Constitution, then, never recognizes slavery as legitimate, even when it recognizes it as legal under the laws of the slave states.

In denying slavery legitimacy, the Constitution recognizes it as an imperfection, as a defect in the system. But it makes no provision to get rid of it, and indeed it contains many barriers to national action against it. Since slavery is recognized as an institution of the states, the most significant constitutional provision regarding slavery is the provision that isn’t there. 

The Constitution, as we all used to know, establishes a general government of limited and enumerated powers. None of the powers granted to this government remotely warrant action by the Union against slavery in the states. Slavery within the states is treated as a matter solely for the states themselves to deal with. This acceptance of the existence (if not legitimacy) of slavery in the states speaks against the Neo-Lincolnian theory. This was not something that was accepted only reluctantly. It was just taken for granted. Decisive action against slavery (or for it) was not provided for in the Constitution. Decisive action is deferred and displaced, both in time and place. If such action is to occur, it must occur in the states. 

Many of the Founders hoped and expected that such action would be forthcoming, but they did not provide for it. The fact that antislavery sentiment was strong even in many of the states that had many slaves—states like Virginia—and the fact that men like James Madison and Thomas Jefferson—big slaveholders themselves—were cooking up schemes for gradual emancipation within the states, seem to confirm the possibility that the institution could be eliminated inside the states. Thus at the Constitutional Convention, Connecticut’s Roger Sherman noted “that the abolition of slavery seemed to be going on in the U.S. and that the good sense of the several States would probably by degrees complete it.” Even some delegates from the Deep South joined in. Abraham Baldwin of Georgia surmised that his home state “if left to herself . . . may probably put a stop to the evil.”[4] But if slavery was to end in America, it would not be eliminated by the government established by the Constitution. 

The fact of facts about slavery in the Constitution, then, is that it is an institution of the states that have it and is neither established nor legitimated by the Constitution or government of the Union. However, as we have noticed, there are some places in the Constitution where slavery is somehow provided for, where some provision is made to deal with slavery. There are the Neo-Garrisonians’ 18 clauses, for example. 

I’m going to limit myself to the three clauses the Neo-Lincolnians emphasize and that are very clearly and directly involved with slavery. The presence of these three clauses points to the fact that although slavery is an institution of the states, there are some places where it necessarily spills over into the Union. Those are the places touched by our three clauses—places where the Constitution necessarily had to do something about slavery. I want to look briefly again at those three main clauses and see what they do.

Of the three, the Fugitive Slave Clause proved over time to provoke the most difficulty and trouble. Paul Finkelman, a Neo-Garrisonian, thinks this clause particularly reveals the falsity of the Neo-Lincolnian position because, contrary to the Neo-Lincolnian way of explaining things about slavery and the Constitution, the Southerners at the Convention made no threats to take their marbles, or their bat and ball, and go home if they did not get this protection. Finkelman is, as a matter of fact, quite correct, and he is also correct to see that this fact does stand in the way of some aspects of the Neo-Lincolnian theory. 

But I’d like to suggest a different interpretation of this clause that does not lead to Finkelman’s Neo-Garrisonian conclusion. According to the Neo-Madisonian way of looking at this, the basic idea of making the Constitution was that they were trying to construct a federal union of states with somewhat different domestic orders. One point of such a union was to have open internal borders to facilitate commerce and other kinds of intercourse among the member states or citizens of the member states. Open borders means that there will of necessity be a certain porousness that makes the escape of slaves from slave to free states more possible. The Union, in order to be stable, however, should not be perceived by its members to be subversive of their internal order or to be particularly burdensome to them. One should attempt in making such a union to minimize predictable sources of friction among the members. The open borders and the contiguousness of slave and free states produced likely threats to the harmony among the states. 

Moreover, since many of the new free states had become quite hostile to slavery, they might adopt the very provocative policy of declaring that all persons within their borders are free. Such is the prerogative of sovereign states to do—to declare or decide on the civil status of people within them. The Fugitive Slave Clause decrees as a matter of friendship or comity between the states that no state shall have the power to do that—that is, to declare escaped slaves free. That is why this clause is located in the part of the Constitution that deals with relations among the states. States have a duty not to become a refuge for fugitive slaves, just as under the extradition clause, they have a duty not to become a refuge for escapees from justice from other states.

Moreover, and this is maybe a little more controversial, the Fugitive Slave Clause contains no grant of power to Congress to enforce it. In my opinion, the best reading of this clause is to say that, originally, they did not intend a congressional power to enforce the Fugitive Slave Clause. The clause imposes a duty on the states not to attempt to change the legal status of fugitives, and indeed to “deliver them up,” but it has no mechanism to enforce this other than the good faith of the states. 

Here is another place where history moved off in a different direction from what the Founders expected. In 1793, Congress passed a Fugitive Slave Act, which was upheld by the Supreme Court in 1842 in the case of Prigg v. Pennsylvania—in my opinion, wrongly upheld by the court. If the Fugitive Slave Clause had been left as originally intended, it would not have been as effective an instrument for aiding slavery as it turned out to be. But in light of the potentially disruptive results of leaving some of the states free to undermine the domestic institutions of other states, it was easy for the Convention to adopt the Fugitive Slave Clause, even without the prompting of threats of disunion. But the clause is not, I would maintain, meant as a support for slavery; it is rather a support for comity between the member states in the federal Union. 

The  Slave Trade Clause was a different matter. Here is a case where indeed some of the states did make threats about not joining the Union if they didn’t get their way. So the reason why the  Slave Trade Clause was important was that under the Constitution, Congress would be given the power to regulate commerce with foreign nations, and that power would include the power to regulate the slave trade. So here was a place where because of a certain power given to Congress, a certain aspect of the institution of slavery was just put in the hands of the general government—the Union government—and something would have to be said about that policy. 

The Neo-Garrisonians concede that this was an area where threats of disunion were made. At the Convention, representatives of both South Carolina and Georgia demanded that some provision be made for them to keep the slave trade open and if not, they claimed they would be compelled not to join the Union. General Charles Cotesworth Pinckney of South Carolina insisted that “S[outh] Carolina and Georgia cannot do without slaves.”[5] Another South Carolinian was even more pointed: “South Carolina can never receive the plan [for a constitution] if it prohibits the slave trade.”[6]

Neo-Garrisonians believe that they were bluffing. There are many good reasons, the Neo-Garrisonians say, why Georgia and South Carolina wanted to be, and needed to be, part of the Union. Perhaps it was a bluff. But a factor we need to keep in mind when we think about that is how people were thinking about the future of America if this effort at making a Constitution did not succeed. It was already being said that perhaps one big union of all 13 states was not possible, and that instead of that one big union, maybe three smaller, partial unions would be preferable, or at least more possible: one, a New England confederacy; another, a middle-states confederacy; and third, a southern states confederacy. 

This idea disturbed many people. One of the reasons it disturbed them was because it played into their fears that Britain and other European powers were looking for a way to get a toehold back in this part of the continent. If they did that, and if there were different and competing confederacies, then the European powers would bring with them to America the balance-of-power and great-power politics competition the Americans wanted to avoid. In the face of the possibility that this union wouldn’t include all of the 13 states, it’s perhaps understandable why the Convention did not wait to see whether South Carolina and Georgia were bluffing or not, and why they were willing, then, to accept a 20-year extension of the slave trade for those states—and only those states—that wanted to keep it.

Finally, I’d like to turn to the third big clause, the so-called three-fifths clause that deals with taxation and representation. This is probably the clause in the Constitution that has had more nonsense said about it than any other. The usual point is captured in the title of a book, Three-Fifths of a Man,[7] with the point being that counting the slaves as three-fifths was a statement of Americans’ estimate of the degree of humanity of black people. There are at least two facts that speak against that interpretation. First, free blacks were counted as full persons for purposes of representation, and as the statistics I cited earlier indicate, the number of free blacks was not negligible and was indeed, it seemed, growing. So this was not a racial matter per se. The second fact of significance is that the slave states and the slave owners at the Convention were the ones pressing to count the slaves as full persons. And the Northerners, who were in the process of getting rid of slavery, were the ones who wanted to count the slaves for nothing, for zero. This fact I think is most inconvenient for the normally circulated account of the meaning of the Three-Fifths Clause.

The three-fifths formula, in fact, arose under the Articles of Confederation, and it was part of an attempt to come up with a formula that would allow Congress to calculate how much each state owed the general budget to pay into the Treasury of the United States at that time to offset the cost of the war. The original plan in the Articles of Confederation was to assess the total wealth of each state and then charge them in proportion to that. I don’t know exactly how one would go about doing that—this would be a daunting task at any time—but imagine trying to do it during a war. After a while, they got the idea that this was not going to work, so they came up with the idea of using population as a surrogate for total wealth—the idea being, in part, that human labor (they were good Lockeans) is the chief source of wealth. But the question then came up: how to count slave labor? Everybody agreed that slave labor was less productive than free labor because people work harder when they get to keep the fruits of their labor than when not. 

So Southerners thought a slave was only half as productive as a free laborer. Northerners, who had a higher estimate of slave labor, thought it was two-thirds as productive as free labor. Remember, what’s at stake here is the amount of taxes each state is going to have to pay. So, of course, the Southerners try to minimize it and the Northerners try to maximize it. Now the three-fifths formula arose as a compromise between one-half and two-thirds. That is the mysterious origin of that number. 

At the Constitutional Convention, this issue came up because one of the early and most important decisions made provided that representation in the lower house would be in proportion to state population. Again, here was a necessary spillover effect of slavery because something would have to be decided about how to count the slaves when you counted the population. The idea behind population-proportional representation was, in part, that each state should be represented to a degree that reflected its relative wealth, relative power, and influence—that is to say, these were many of the same considerations that went into the original formulation of the three-fifths rule under the Articles. After some back and forth, they decided on three-fifths for many of the same reasons that it had been decided upon under the Articles.

In surveying the provisions that directly touch on slavery, what is striking is how few they are and how much they share one characteristic. They are the places where it was unavoidable that the Constitution take some stand on slavery, build in some power or some policy with regard to the institution of slavery. And when the Constitution dealt with the topic, it was very careful to hold it at arm’s length as a matter for and within the states. Otherwise, it stayed away from the topic of slavery.

This arrangement should, I think, be called an acceptance of a certain sort—not the endorsement of slavery as the Neo-Garrisonians have it nor the rejection that the Neo-Lincolnians say—but an acceptance of the principle that, in a federal system, it is a matter up to the states. It is an acceptance only of a certain sort, though, and the embarrassed circumlocutions in the text, the frequent denunciations of slavery as unjust—inside and outside of the Convention—show that this was not an acceptance of slavery in the states as a matter of official indifference or neutrality with regard to it. So, to give a sampling of that view, Luther Martin of the slave state Maryland called for abolishing the slave trade because it was “inconsistent with the principles of the revolution.”[8] That, I think, was a fairly widely held view. Slavery is accepted as a state institution but, at the same time, regarded as an anomaly and as incompatible with the principles of right endorsed in the revolution and after. Nonetheless, the Constitution did little about this incompatibility. It in effect defers, postpones, or displaces any decision for later and elsewhere. The Founding generation acted in the hope that somehow the issue would be taken care of in the future. 

My point is that the way in which slavery was treated in the Constitution was inevitable, or at least nearly so, when we understand what the Founders were doing as they understood it. The first and really central point is this: in making a constitution, they were making a federation and not a nation—they were making a union of otherwise independent states for certain very important but still limited purposes. The internal ordering of the members of the federation was not one of the accepted purposes of such unions, and hardly anyone in 1787 thought that was what was at stake in making the Constitution. Almost no one thought that the Convention or the union it was making had the power, right, or responsibility to settle questions of the internal ordering of the member states. Abraham Baldwin of Georgia made the point when he intervened in the discussion of the slave trade and said he thought that “national objects alone are to be before the Convention, not [matters] such as [slavery, which] were of a local nature.”[9] That in itself made the rest more or less inevitable.

But there was more to it than that, actually, and that more reinforced the same point. The two leading structural principles of the Constitution were to be a new kind of federalism and a new kind of republicanism. As I learned in Walter Berns’s Introduction to American Government course, this new kind of federalism involved a direct interaction between the government of the Union and the human individuals within the member states in ways that had never been the case in previous federations. But the condition for this unprecedented kind of interaction is a very clear line of demarcation between matters of rightful concern to the general government and all the remaining matters that belong to the states. The new federalism reaffirmed the general idea that matters of internal governance are not matters for the general government. And that reaffirmation was particularly necessary because of the deep intrusiveness of the general government into the member states.

The republicanism of the Constitution, like every form of republicanism, is a commitment to self-government. Each unit should be republican—that is to say, a self-governing entity. That means that other units should not make decisions for it, and that’s a thought that reinforced the division of authority demanded by the new federalism.

So the way slavery was treated in the Constitution was perfectly in accord with, and in a way required by, the nature of the task of union-making as they understood it and by the two chief principles of federalism and republicanism. So despite the Neo-Garrisonians’ 18 or more clauses, slavery was not in fact a central theme at the Convention, and all of what was done with respect to it was pretty much a side effect of other things that they were doing. That is not to say that they didn’t see slavery to be important, or that they thought it was insignificant—far from it—but that they saw it as a matter for the individual states and not for the Union. And as I’ve tried to suggest, in 1787, they at least had some good reason to believe that the states were on a trajectory to abolish this institution that had no place in a free country. 

If we conclude that the best way to characterize the place of slavery in the Constitution and in the Convention is in terms of inadvertence, deferral, and avoidance, this is not to deny that the issue played a major role in the travail of the American republic in the subsequent years, and perhaps it could have been predicted to do so. But strikingly, none of the leading men at the time of the Founding did so predict. It was not until the crisis over Missouri in 1820 that it became clear that slavery was going to be a major challenge to the constitutional order. The reasons why nobody foresaw this should be clear, I think, from my talk. 

There was first the expectation or hope that the issue would take care of itself with the growth of enlightenment, liberal values, and “humanity” within the states. Second, the Founders thought they had provided for all these “spillover” places in the new order. In this they were much mistaken. Many more arose, requiring fresh constitutional-level decisions in a much less favorable environment for deciding. Questions like the fate of slavery in new territory, the role of the postal service in spreading anti or proslavery opinion, the role of free states in relation to the unanticipated efforts to enforce the Fugitive Slave Clause—these and many other largely unprovided-for issues arose in the post-Founding era.

Finally, there was also the novelty of the federal republic that they created. It was more of a nation than any previous federation, but it was still thought of as a federal arrangement with limited need for a common moral sensibility. As was said at one point in the Convention, referring to the Southern slaveholders: “Let their consciences be their own.” That proved not to be possible. As Lincoln said: “A house divided against itself cannot stand.” 

The original Founders, however, did not think of it as one house, but rather as a subdivision with covered walkways joining the different states or units. The new federalism in time filled in those walkways so that eventually, it did feel more like a house than a subdivision. The result was that both the slave and the free states came to demand that the Union more unequivocally endorse their vision of moral truth. The political struggle became a struggle for recognition as much as for concrete gains and goods. The original arrangement with regard to slavery—that is to say, legal but not legitimate—became increasingly untenable. 

Political societies in general tend to work toward consistency between legality and legitimacy, and that effort proved to be much of the story line for pre–Civil War America. So some—the abolitionists—demanded that the reigning legality be brought into conformity with the notion of legitimacy captured in the idea of a “natural rights republic.” On the other side were those who tried to redefine legitimacy to match and justify the reigning legal presence of slavery. They rejected the central idea of the natural rights republic—the equal endowment of all human beings with natural rights to life, liberty, and pursuit of happiness. Thus, to the shame of Indiana, my home-state senator rose on the floor of that body to declare the propositions of the Declaration of Independence to be “self-evident lies.”

All of this brings us back to Thurgood Marshall and his bicentennial tirade against the Founders. As I hope I have made clear, he had a point, although I think not quite as much of a point as he thought. The Founders were not all-seeing or all-wise. Both history and their constitutional order developed in ways they did not foresee and for which they had not provided well. Yet he ought not to be so harshly dismissive of them. Because the vision of racial equality in the name of which he denounced them is, after all, a vision built on their commitment to, and their construction of, a natural rights republic—a republic where all men are held to be created equal and endowed by their creator with certain unalienable rights. Thank you.


1. Thurgood Marshall, “Remarks at the Annual Seminar of the San Francisco Patent and Trademark Law Association in Maui, Hawaii,” May 6, 1987,
2. Emphasis added to the original. See US Constitution, art. 4, sec. 2.
3. Emphasis added to the original. See US Constitution, art. 1, sec. 9.
4. James Madison, “Madison Debates,” August 22, 1787, Avalon Project, Yale Law School,
5. Ibid.
6. James Madison, “Madison Debates,” August 21, 1787, Avalon Project, Yale Law School,
7. Floyd Bixler McKissick, Three-Fifths of a Man (New York: Macmillan, 1969).
8. Madison, “Madison Debates,” August 21, 1787.
9. Madison, “Madison Debates,” August 22, 1787.


The Walter Berns Constitution Day Lecture Series

A scholar of political philosophy and constitutional law, Walter Berns has written extensively on issues of American government and its Founding principles. He is the author of 10 volumes and has published widely in professional and popular journals and America’s leading newspapers. He is the John M. Olin University Professor Emeritus at Georgetown University and served as a resident scholar at AEI. He has taught at Louisiana State University, Yale University, Cornell University, Colgate University, and the University of Toronto. He earned his master’s and doctorate degrees in political science at the University of Chicago. Berns served on the National Council on the Humanities from 1982 to 1988 and on the Council of Scholars in the Library of Congress from 1981 to 1985. He was also a delegate to the United Nations Commission on Human Rights. He was awarded the National Humanities Medal in 2005. 

In September 2011, AEI president Arthur Brooks announced that henceforth the Program on American Citizenship’s annual Constitution Day celebration would be named in honor of Walter Berns in appreciation of his scholarly legacy in this field and his many years of contributing to the work of AEI.


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