The US Constitution
Freedom, Power, and Servitude
1788
In his book Slavery’s Constitution, David Waldstreicher notes that the U.S. Constitution never mentions slavery. The word does not appear; and yet slavery is all over the document.
Of the Constitution’s 84 clauses, six are directly concerned with enslaved people and their owners; five others had implications for slavery that were considered and debated by the delegates to the 1787 Constitutional Convention and the citizens of the states during ratification. All but one of these clauses protects slavery. Only one points toward a possible future power by which the institution might be ended. In establishing their government, the framers and their constituents created fundamental laws that sustained human bondage.
The Constitution begins by addressing the nature and law-making powers of the national government, establishing that the U.S. Congress, charged with making the law, would be comprised of two branches—the House of Representatives and the Senate, with elected representatives from each state in each branch. The number of representatives allotted to each state would be determined by the number of free persons living therein.
The document also makes reference to “three-fifths of all other Persons.” Waldstreicher asks who those “other persons” were and concludes that they were enslaved people. He adds that Africans and their descendants were being defined as “three-fifths of all other persons” strictly to boost populations and thereby increase the voting power of white voters in slave-holding states—not to give enslaved people three-fifths of a vote. Their presence was being acknowledged only as a source of power and of wealth for their owners.
Reading the original Constitution, a visitor from a foreign land would simply have no way of knowing that race-based slavery existed in America. As Abraham Lincoln would later explain: “Thus, the thing is hid away, in the Constitution, just as an afflicted man hides away a wen or a cancer, which he dares not cut out at once, lest he bleed to death.”
One could even argue, as Frederick Douglass did in the lead-up to the Civil War, that none of the clauses of the Constitution should be interpreted as applying to enslaved people. The “language of the law must be construed strictly in favor of justice and liberty,” he argued. Because the Constitution does not explicitly recognize slavery and does not therefore admit that enslaved people were property, all of the protections it affords to persons could be applied to enslaved people. “Anyone of these provisions in the hands of abolition statesmen, and backed up by a right moral sentiment, would put an end to slavery in America,” Douglass concluded.
Source
David Waldstreicher, Slavery’s Constitution: From Revolution to Ratification, 1st ed. (New York: Hill and Wang, 2009), 3-5.