How Proslavery Was the Constitution?

Page 4 of Jefferson’s ‘Farm Book’... by Titus Kaphar
Titus Kaphar/Jeremy Lawson
Titus Kaphar: Page 4 of Jefferson’s ‘Farm Book’…, 2018. That page of Jefferson’s ledger lists the names of enslaved people on his plantation at Monticello in January 1774.

Were the Founding Fathers responsible for American slavery? William Lloyd Garrison, the celebrated abolitionist, certainly thought so. In an uncompromising address in Framingham, Massachusetts, on July 4, 1854, Garrison denounced the hypocrisy of a nation that declared that “all men are created equal” while holding nearly four million African-Americans in bondage. The US Constitution was hopelessly implicated in this terrible crime, Garrison claimed: it kept free states like Massachusetts in a union with slave states like South Carolina, and it increased the influence of slave states in the House of Representatives and the Electoral College by counting enslaved people as three fifths of a human being. When Garrison finished excoriating the Founders, he pulled a copy of the Constitution from his pocket, branded it “a covenant with death and an agreement with hell,” and set it on fire.

Garrison was one of the most unpopular men in nineteenth-century America, and this performance did little to improve his standing with the moderates of his time. Today’s historians are more sympathetic to his argument that the Constitution made possible the expansion of slavery in the early United States. According to Ibram X. Kendi, author of the National Book Award–winning Stamped from the Beginning: The Definitive History of Racist Ideas in America (2016), the Constitution “enshrined the power of slaveholders and racist ideas in the nation’s founding document.” David Waldstreicher, in Slavery’s Constitution (2009), charges that the Founders produced “a proslavery constitution, in intention and effect.”

Their bleak assessments are grounded in the many protections for slaveholding agreed on at the Constitutional Convention of 1787. Beyond the three-fifths rule, the international slave trade was exempted from regulation by the federal government, which otherwise oversaw foreign commerce. Congress was banned from abolishing the trade until 1808 at the earliest. The federal government was prevented from introducing a head tax on slaves, and free states were forbidden from harboring runaways from slave states. The Founders obliged Congress to “suppress insurrections,” committing the national government to put down slave rebellions. The abolitionist Wendell Phillips, an associate of Garrison’s, summarized the work of the Founders in 1845: “Willingly, with deliberate purpose, our fathers bartered honesty for gain, and became partners with tyrants, that they might share in the profits of their tyranny.”

The effectiveness of constitutional protections for slavery can be measured in the growth of the institution between the formation of the federal government in 1789 and the secession of South Carolina in 1860. Across these seven decades, the number of enslaved people in the United States increased from 700,000 to four million. The dispossession of Native Americans and the violent seizure of northern…

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