Winter 2000, Vol. 32, No. 4
The Covenant with Death and How It Was Made
By Paul Finkelman
© 2000 by Paul Finkelman
One of the compromises made by the Constitutional Convention was to close the African slave trade in 1808. This manifest from the schooner Gustavus shows the increased value of slaves in the domestic market after that date. (Records of the U.S. Customs Service, RG 36)image
The abolitionist William Lloyd Garrison thought the U.S. Constitution was the result of a terrible bargain between freedom and slavery. Calling the Constitution a "covenant with death" and "an agreement with Hell," he refused to participate in American electoral politics because to do so meant supporting "the pro-slavery, war sanctioning Constitution of the United States." Instead, under the slogan "No Union with Slaveholders," the Garrisonians repeatedly argued for a dissolution of the Union.1
Part of Garrison's opposition to continuing the Union stemmed from a desire to avoid the corruption that came from participating in a government created by the proslavery Constitution. But this position was also at least theoretically pragmatic. The Garrisonians were convinced that the legal protection of slavery in the Constitution made political activity futile, while support for the Constitution merely strengthened the stranglehold slavery had on America. In 1845 Wendell Phillips pointed out that in the years since the adoption of the Constitution, Americans had witnessed "the slaves trebling in numbers—slaveholders monopolizing the offices and dictating the policy of the Government-prostituting the strength and influence of the Nation to the support of slavery here and elsewhere—trampling on the rights of the free States, and making the courts of the country their tools." Phillips argued that this experience proved "that it is impossible for free and slave States to unite on any terms, without all becoming partners in the guilt and responsible for the sin of slavery."2
The Garrisonians believed that if they worked within the political system they were merely spinning their wheels, spending their money and time on a cause that was doomed. The Constitution was proslavery, the national government was controlled by slaveowners, and politics was a waste of time. A quick look at the presidency underscored their view. From 1788 until 1860, only two opponents of slavery, John Adams and John Quincy Adams, held the nation's highest office, and for only a total of eight years. On the other hand, slaveowners held the office for fifty of these seventy-two years, and doughfaces-northern men with southern principles—like James Buchanan and Franklin Pierce—held it the rest of the time.
This did not surprise the Garrisonians, who understood that the Constitution was heavily influenced by slaveowners. The Garrisonians did not necessarily see the Constitution as the result of a deliberate conspiracy of evil men; rather, they understood it to be the consequence of political give-and-take at the Convention of 1787.
Thus, in The Constitution A Pro-Slavery Compact; or, Selections from the Madison Papers, Wendell Phillips analyzed "that 'compromise,' which was made between slavery and freedom, in 1787; granting to the slaveholder distinct privileges and protection for his slave property, in return for certain commercial concessions upon his part toward the North." Phillips argued that "the Nation at large were fully aware of this bargain at the time, and entered into it willingly and with open eyes."3 Phillips both exaggerated and understated the nature of the relationship between slavery and the Constitution. Certainly, some of those at the Convention "entered into" the bargain with great reservations, and many at the ratifying conventions may not have seen the full extent of the "bargain." On the other hand, the bargain involved more than commerce and slavery; it concerned the very creation of the Union itself. Both the text of the Constitution and the debates surrounding it help us understand that the "more perfect Union" created by this document was in fact fundamentally imperfect.
Slavery in the Constitutional Structure
The word "slavery" appears in only one place in the Constitution—in the Thirteenth Amendment, where the institution is abolished. Throughout the main body of the Constitution, slaves are referred to as "other persons," "such persons," or in the singular as a "person held to Service or Labour." Why is this the case?
In a debate over representation, William Paterson of New Jersey pointed out that the Congress under the Articles of Confederation "had been ashamed to use the term 'Slaves' & had substituted a description." This shame over the word "slave" came up at the convention during the debate over the African slave trade. The delegates from the Carolinas and Georgia vigorously demanded that the African trade remain open under the new Constitution. Gouverneur Morris of Pennsylvania, unable to contain his anger over this immoral compromise, suggested that the proposed clause read: the "Importation of slaves into N. Carolina, S— Carolina & Georgia" shall not be prohibited. Connecticut's Roger Sherman objected, not only to the singling out of specific states but also to the term slave. He declared he "liked a description better than the terms proposed, which had been declined by the old Congs & were not pleasing to some people." North Carolina's James Iredell, who had been a delegate in Philadelphia, later explained that "The word slave is not mentioned" because "the northern delegates, owing to their particular scruples on the subject of slavery, did not choose the word slave to be mentioned." Thus, southerners avoided the term because they did not want unnecessarily to antagonize their colleagues from the North. As long as they were assured of protection for their institution, the southerners at the Convention were willing to do without the word "slave."4
Despite the circumlocution, slavery was sanctioned throughout the Constitution. Five provisions dealt directly with slavery:
Art. I, sec. 2, par. 3. The three-fifths clause provided for counting three-fifths of all slaves for purposes of representation in Congress. This clause also provided that any "direct tax" levied on the states could be imposed only proportionately, according to population, and that only three-fifths of all slaves would be counted in assessing each state's contribution.
Art. I, sec. 9, par. 1. This clause prohibited Congress from banning the "Migration or Importation of such Persons as any of the States now existing shall think proper to admit" before the year 1808. Awkwardly phrased and designed to confuse readers, the clause prevented Congress from ending the African slave trade before 1808 but did not require Congress to ban the trade after that date. The clause was a significant exception to the general power granted to Congress to regulate all foreign and interstate commerce.
Art. I, sec. 9, par. 4. This clause declared that any "capitation" or other "direct tax" had to take into account the three-fifths clause. It ensured that, if a head tax were ever levied, slaves would be taxed at three-fifths the rate of whites. The "direct tax" portion of this clause was redundant, because that was provided for in the three-fifths clause.
Art. IV, sec. 2, par. 3. The fugitive slave clause prohibited the states from emancipating fugitive slaves and required that runaways be returned to their owners "on demand."
Art. V. This article prohibited any amendment of the slave importation or capitation clauses before 1808.
Taken together, these five provisions gave the South a strong claim to "special treatment" for its peculiar institution. The three-fifths clause also gave the South extra political muscle—in the House of Representatives and in the electoral college—to support that claim.
Numerous other clauses of the Constitution supplemented the five clauses that directly protected slavery. Some, such as the prohibition on taxing exports, were included primarily to protect the interests of slaveholders. Others, such as the guarantee of federal support to "suppress Insurrections" and the creation of the electoral college, were written with slavery in mind, although delegates also supported them for other reasons as well. The most prominent indirect protections of slavery were:
Art. I, sec. 8, par. 15. The domestic insurrections clause empowered Congress to call "forth the Militia" to "suppress Insurrections," including slave rebellions.5
Art. I, sec. 9, par. 5, and Art. I, sec. 10, par. 2. These clauses prohibited federal or state taxes on exports and thus prevented an indirect tax on slavery by taxing the staple products of slave labor, such as tobacco, rice, and eventually cotton.6
Art. II, sec. 1, par. 2. This clause provided for the indirect election of the President through an electoral college based on congressional representation. This provision incorporated the three-fifths clause into the electoral college and gave whites in slave states a disproportionate influence in the election of the President.
Art. IV, sec. 4. In the domestic violence provision of the guarantee clause, the United State government promised to protect states from "domestic Violence," including slave rebellions.
Art. V. By requiring a three-fourths majority of the states to ratify any amendment to the Constitution, this article ensured that the slaveholding states would have a perpetual veto over any constitutional changes.7
Besides specific clauses of the Constitution dealing with slavery, the structure of the entire document ensured against emancipation by the new federal government. Because the Constitution created a government of limited powers, Congress lacked the power to interfere in the domestic institutions of the states. Thus, during the ratification debates, only the most fearful southern antifederalists opposed the Constitution on the grounds that it threatened slavery. Most southerners, even those who opposed the Constitution for other reasons, agreed with Gen. Charles Cotesworth Pinckney of South Carolina, who crowed to his state's house of representatives:
We have a security that the general government can never emancipate them, for no such authority is granted and it is admitted, on all hands, that the general government has no powers but what are expressly granted by the Constitution, and that all rights not expressed were reserved by the several states.8
The final Constitution provided enormous protections for the peculiar institution of the South at very little cost to that region. At the Virginia ratifying convention, Edmund Randolph denied that the Constitution posed any threat at all to slavery. He challenged opponents of the Constitution to show, "Where is the part that has a tendency to the abolition of slavery?" He answered his own question asserting, "Were it right here to mention what passed in [the Philadelphia] convention. . . I might tell you that the Southern States, even South Carolina herself, conceived this property to be secure" and that "there was not a member of the Virginia delegation who had the smallest suspicion of the abolition of slavery." South Carolinians, who had already ratified the Constitution, would have agreed with Randolph. In summing up the entire Constitution, Pinckney, who had been one of the ablest defenders of slavery at the convention, proudly told the South Carolina House of Representatives: "In short, considering all circumstances, we have made the best terms for the security of this species of property it was in our power to make. We would have made better if we could; but on the whole, I do not think them bad."9
Slavery and Congressional Representation
General Pinckney had good reason to be proud of his role in Philadelphia. Throughout the convention, Pinckney and other delegates from the Deep South tenaciously fought to protect the interests of slaveholders. In these struggles they were usually successful.
When they arrived, the delegates probably did not think slavery would be a pressing issue. Rivalries between large and small states appeared to pose the greatest obstacle to a stronger Union. The nature of representation in Congress; the power of the national government to levy taxes, regulate commerce, and pay off the nation's debts; the role of the states under a new constitution; and the power of the executive were on the agenda. Yet, as the delegates debated these issues, the importance of slavery—and the sectional differences it caused—became clear. Throughout the summer of 1787 slavery emerged to complicate almost every debate. Most important by far was the way slavery figured in the lengthy debate over representation.
On May 29, Governor Edmund Randolph of Virginia submitted the series of resolutions known as the Virginia Plan to the convention. Randolph introduced these resolutions in response to the "crisis" of the nation "and the necessity of preventing the fulfillment of the prophecies of the American downfall."10
Randolph's plan called for a radical restructuring of the American government by making population the basis for representation in the national Congress. Under the Articles of Confederation, each state had one vote in Congress. By changing the basis of representation to population, Randolph's plan immediately created tensions between the large and small states at the convention. But the plan also raised the dilemma of whether slaves would be counted for the purposes of determining how many representatives each state would get in the new Congress. This dilemma of how to count slaves, or whether to count them at all, would trouble the delegates throughout the convention.
Virginia was the most populous state in the nation, and thus Randolph had a vested interest in basing congressional representation on population. But how that population would be counted greatly affected the potential representation of Virginia and the rest of the South. Virginia's white population, as the 1790 census would reveal, was only slightly larger than Pennsylvania's. If representation were based solely on free persons, the North would overwhelm the South.11 But if slaves were counted equally with free persons, the Virginia delegation would be overwhelmingly larger than the delegation of any other state, and the South would have more members of Congress than the North. The Virginians of course realized that the northern states were unlikely to embrace enthusiastically a system of government that counted slaves for purposes of representation. Thus, Randolph's plan hedged the issue, declaring "that the rights of suffrage in the National Legislature ought to be proportioned to the Quotas of contribution, or to the number of free inhabitants, as the one or the other rule may seem best in different cases."12 The "other rule" would count unfree inhabitants.
Squabbling over slavery began in earnest the next day, May 30. James Madison moved to delete the term "free inhabitants" from the Randolph Plan because he felt the phrase "might occasion debates which would divert" attention "from the general question whether the principle of representation should be changed" from states to population. Madison understood that an early debate on the role of slavery in the Union might destroy the convention before it got started. But his proposal would have left representation based solely on "quotas of contribution," and this was also unacceptable to most delegates. Madison himself agreed "that some better rule ought to be found." Alexander Hamilton then proposed that representation be based solely on the number of "free inhabitants" in each state. This proposal was also too volatile, and the delegates quickly tabled it. Other attempts at compromise failed before the convention adjourned for the day.13
On June 11 the issue of slavery reemerged when the convention considered for the first time and provisionally approved the three-fifths clause. Over the next three months the convention would, on a number of occasions, redebate and reconsider the three-fifths clause before finally adopting it.
The evolution of the three-fifths clause during the convention shows that the clause was not essentially a compromise over taxation and representation, as historians have traditionally claimed, and as the structure of Article I, sec. 2, par. 3, implies.14 Rather, it began as a compromise between those who wanted to count slaves fully for purposes of representation and those who did not want to count slaves at all. On this crucial question the slave states won a critical victory without making any important concessions.
On June 11 James Wilson of Pennsylvania and Charles Pinckney, the younger cousin of Charles Cotesworth Pinckney, proposed what became the three-fifths clause. By teaming up, the nominally antislavery Pennsylvanian and the rabidly proslavery Carolinian may have hoped to undercut the antislavery sentiments of other northern delegates while also satisfying the demands of the proslavery delegates like Butler and Rutledge.15
While most delegates accepted this proposal, Elbridge Gerry of Massachusetts did not, sarcastically protesting, "Blacks are property, and are used to the southward as horses and cattle to the northward; and why should their representation be increased to the southward on account of the number of slaves, than horses or oxen to the north?" Gerry believed this would be an appropriate rule for taxation, but not for representation. He also argued that this clause would degrade freemen in the North by equating them with slaves. He wondered "Are we to enter into a Compact with Slaves?"16 Despite Gerry's objection, the convention endorsed the three-fifths clause as a basis for representation with little serious debate. The clause, which would give the South enormous political leverage in the nation, was accepted without any quid pro quo from the South. Application of the clause to taxation would not come until later in the convention. However, the issue would reemerge many times in the next month.
On June 30, with the convention stalled over how to allocate representation between the small and large states, Madison offered a new mode of analysis for the delegates. He argued:
that the States were divided into different interests not by their difference of size, but by other circumstances; the most material of which resulted partly from climate, but principally from their having or not having slaves. These two causes concurred in forming the great division of interests in the U. States. It did not lie between the large and small States: it lay between the Northern and Southern, and if any defensive power were necessary, it ought to be mutually given to these two interests.
Madison proposed two branches of Congress, one in which slaves would be counted equally with free people to determine how many representatives each state would have, and one in which slaves would not be counted at all. Under this arrangement, "the Southern Scale would have the advantage in one House, and the Northern in the other." Madison made this proposal despite his reluctance to "urge any diversity of interests on an occasion when it is but too apt to arise of itself."17
The convention ignored Madison's proposal. But the theme arose again and again. Sectionalism—rooted in slavery—was clearly a major cause of division within the convention and the nation. Indeed, slavery continued to complicate the convention debates long after the division between large and small states had evaporated. On July 2 Charles Pinckney argued that there was "a solid distinction as to interest between the southern and northern states" and that the Carolinas and Georgia "had a peculiar interest which might be sacrificed" if they did not have sufficient power in any new Congress.18
On July 6, after the convention seemed solidly in favor of the three-fifths rule, Charles Pinckney argued that "blacks ought to stand on an equality with whites," but he "w[oul]d . . . agree to the ratio settled by Congs."19 But southerners were not the only ones dissatisfied by the compromise. On July 9 William Paterson of New Jersey sparked a four-day debate over slavery and representation when he complained about counting slaves for allocation representation. Paterson declared he regarded
negroes slaves in no light but as property. They are no free agents, have no personal liberty, no faculty of acquiring property, but on the contrary are themselves property, and like other property entirely at the will of the Master.
Paterson pointedly asked, "Has a man in Virga. a number of votes in proportion to the number of his slaves?" He noted that slaves were not counted in allocating representation in southern state legislatures, and asked, "Why should they be represented in the Genl. Gov't.[?]" Finally, Paterson argued that counting slaves for purposes of representation encouraged the slave trade.20
In response, Madison once again proposed that representation in one house of the legislature be based on total population and the other on only the free population. Pierce Butler again argued for wealth as a basis for representation. This proposal, of course, meant that slaves would be counted equally with whites. Rufus King of Massachusetts gave unexpected support to Butler by warning that the South would not unite with the rest of the country "unless some respect were paid to their superior wealth." Furthermore, King reminded his northern colleagues that, if they expected "preferential distinctions in Commerce," they should be willing to give up something. At least at this point in the convention, King was willing to accept the three-fifths ratio for representation.21 Here was the beginning of a major compromise between the Deep South and the commercially oriented states of the North. At the moment, King and other northerners were offering the three-fifths clause to the South, but the South offered no concession in return.
On July 10 Charles Cotesworth Pinckney responded that the South did not require "a majority of representatives, but [he] wished them to have something like an equality." Otherwise, Congress would pass commercial regulations favorable to the North, and the southern states would "be nothing more than overseers for the Northern States." Hugh Williamson of North Carolina feared "the Southern Interest must be extremely endangered" by a northern majority in Congress.22
Gouverneur Morris of Pennsylvania, who was emerging as the convention's most vocal opponent of concessions to slavery, argued that in time of emergency, northerners would have to "spill their blood"23 because there were more free people in the North than in the South and because slavery made the South an unreliable ally in wartime.
The next day, while debating the provision for a national census, Pierce Butler and Charles Cotesworth Pinckney of South Carolina "insisted that blacks be included in the rule of Representation, equally with the Whites." Butler argued that "the labour of a slave in South Carolina was as productive and valuable as that of a freeman in Massachusetts," and since the national government "was instituted principally for the protection of property," slaves should be counted fully for representation.24
On July 11 Wilson of Pennsylvania argued for retaining the three-fifths rule on pragmatic grounds. Admitting he "did not well see on what principle the admission of blacks in the proportion of three fifths could be explained." He asked, if slaves were citizens "why are they not admitted on an equality with White Citizens?" But if slaves were "admitted as property," it was reasonable to ask, "Then why is not other property admitted into the computation?" But Wilson argued that these logical inconsistencies "must be overruled by the necessity of compromise." Gouverneur Morris was unwilling to sacrifice principle. Having been "reduced to the dilemma of doing injustice to the Southern States or to human nature," Morris chose the former, asserting that he "could never agree to give such encouragement to the slave trade" by allowing the slave states "a representation for their negroes."25
The next day, July 12, the three-fifths clause was back on the floor, directly tied to taxation for the first time. Six southerners spoke, all threatening to oppose the Constitution if the South did not get substantial representation for its slave population. The South Carolinians once again demanded full representation for slaves, declaring themselves willing, even eager, to be taxed fully for their slaves in return for full representation for their slaves.26 William R. Davie of North Carolina, who had been virtually silent throughout the Convention, now declared "it was high time now to speak out." Davie warned that North Carolina would "never confederate" unless slaves were counted, at the very least, under a three-fifths ratio. Otherwise, he threatened "the business [of the convention] was at an end."27
Only Gouverneur Morris was prepared to call Davie's bluff. Morris warned that Pennsylvania would "never agree to a representation of Negroes," but he also agreed that it was "vain for the Eastern states to insist on what the Southern States will never agree to."28 Oliver Ellsworth and William Samuel Johnson of Connecticut answered Morris, strongly supported southern interests, foreshadowing an emerging compromise between New England and the South over slavery and commerce. After a heated debate, the convention finally adopted the three-fifths clause by a vote of six to two, with two states divided.29
After more than a month and a half of anguished argument, the convention had finally resolved the issue of representation for what would become the House of Representatives. Throughout, slavery had constantly confused the issue and thwarted compromise. Sectional interests caused by slavery had emerged as a major threat to the Union.
No sooner had the convention laid to rest the issue of representation than it resurfaced as part of the debate over taxation. On July 13 Elbridge Gerry proposed that, until an actual census could be taken, taxation would be based on the initial representation in the House. This seemingly reasonable proposal set the stage for more debate over representation. Once again Madison asserted that "the difference of interest in the United States lay not between the large and small, but the Northern and Southern States." After much debate, the convention reiterated its commitment to the three-fifths clause, both for representation and for taxation.30
With the sense of the convention on this issue apparently clear, Randolph moved to bring language previously used in the working document into conformity with the three-fifths clause. Earlier in the convention the body declared that representation would be based on "wealth." Randolph now proposed substituting the wording of the three-fifths clause for the word "wealth."31 Gouverneur Morris mocked Randolph's attempt to replace the word "wealth" with the three-fifths clause. If slaves were "property," then "the word wealth was right, and striking it out would produce the very inconsistency which it was meant to get rid of." Morris then launched into a full-scale attack on southern demands. In the process, he suggested that a peaceful end to the convention, and the Union itself, might be in order. Morris asserted that, until this point in the convention, he had believed that the distinction between northern and southern states was "heretical." But he saw that it was "persisted in; and that the Southern Gentleman will not be satisfied unless they see the way open to their gaining a majority in the public Councils." The North naturally demanded "some defence" against this. Morris thus concluded:
Either this distinction is fictitious or real: if fictitious let it be dismissed and let us proceed with due confidence. If it be real, instead of attempting to blend incompatible things, let us at once take a friendly leave of each other. There can be no end of demands for security if every particular interest is to be entitled to it.
Morris argued that the North had as much to fear from the South as the South had to fear from the North.32
South Carolina's Pierce Butler responded with equal candor: "The security the Southn. States want is that their negroes may not be taken from them which some gentlemen within or without doors, have a very good mind to do."33
By Saturday the fourteenth, sectional tempers had cooled, and the convention now reconsidered the makeup of what would ultimately become the Senate. The small states again reiterated their fears that the large states would overwhelm them in a legislature based entirely on population. Madison yet again argued that "the real difference of interests lay, not between the large and small but between the Northern and Southern States. The institution of slavery and its consequences formed the line of discrimination." Madison seemed particularly worried that state equality would give the North a perpetual majority in one branch of the legislature.34
Over Madison's protests, the equality of the states in the Senate remained part of the Constitution. On the final vote on this issue, three of the four negative votes came from the South.35 This vote indicates that Madison's sense of sectional division was at least as important as the division between large and small states.
Slavery and the Executive Branch
Slavery also complicated the debates on how to choose the national executive. Many of the delegates instinctively believed in a direct election of a President, just as their governors were elected. But in the end, the most vocal opposition to election by the people came from three southerners: Charles Pinckney, George Mason, and Hugh Williamson. While Pinckney and Mason argued against the competence of the "people," Williamson was more open about the reasons for southern opposition. He noted Virginia's leaders would never be elected President because "her slaves will have no suffrage."36 The same of course would be true for the rest of the South.
Madison believed the "the people at large" were "the fittest" to choose the President. But "one difficulty . . . of a serious nature" made election by the people impossible. Madison noted that the "right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of the Negroes." In order to guarantee that the nonvoting slaves could nevertheless influence the presidential election, Madison favored the creation of the electoral college.37 Under this system, each state was given a number of electors equal to its total congressional and senatorial representation. This meant that the three-fifths clause would help determine the outcome of presidential elections.38 Thus, the fundamentally antidemocratic electoral college developed, at least in part, to protect the interests of slavery.
Paul Finkelman is the Chapman Distinguished Professor of Law at the University of Tulsa College of Law. He is the author of numerous books and articles including Slavery and the Founders: Race and Liberty in the Age of Jefferson (1996), Dred Scott v. Sandford: A Brief History (1997), and An Imperfect Union: Slavery, Federalism, and Comity (reprint ed., 2000).