Slavery's Constitution: From Revolution to Ratification - David Waldstreicher Even though the Constitution never explicitly mentions slavery, it's legacy is throughout. Of the 84 clauses, "six are directly concerned with slaves and their owners. Five others had implications for slavery that were considered and debated. . . " I'm not sure we'll ever escape our heritage of bondage. Even the interpretations of the opinions rendered in Heller and McDonald were grounded firmly in the history of slavery. The minority, which argued for a "militia" interpretation noted that James Madison had been urged not to ignore the right of states to form militias (several states had already enacted constitutional rights to bear arms "for the common defense,") because southern states in particular were terrified of a slave rebellion and wanted to have armed militias to respond. The majority looked to the amendments after the Civil War which applied the Bill of Rights to the states and especially the importance of providing weapons to unarmed slaves to protect themselves from rampaging white Ku-Klux-Klan-like entities.

The three-fifths rule is the most notorious of the Constitution’s nod to enshrining slavery but Waldstreicher argues that many of the property protections written into the Constitution had the effect of protecting that “peculiar institution,” as well. And since all money bills had to originate in the House, the 3/5ths clause gave southern slave holders even more power since they then controlled the purse-strings. Not only that, but it prohibited Congress from making any laws prohibiting trade in slaves for 20 years after ratification. Given their control of the House, they could be pretty sure of few impediments down the road. Rules related to property further protected slave-owners since while ostensibly protecting trade by making property laws federal rather than state, fugitive slave laws were enshrined. (As an aside, the reason why the District of Columbia became the Capitol of the United States rather than Philadelphia, was because Quakers had passed laws freeing slaves whose masters took up residence in Philadelphia and the Founders most of whom owned slaves, did not want to risk losing their property.)

The conventional wisdom is that the Founders ignored the issue of slavery assuming it might disappear gradually, yet Waldreich suggests instead that they were obsessed with the issue. They were attempting to craft a stronger federal government yet had to deal with the parochial rights of the slave states. They preserved the “peculiar institution” while making a stronger federal system. That stronger federal presence, coupled with expanding power of the northern anti-slave states, mixed with some unfortunate Supreme Court decisions like Dred Scott (although it was declaring the Missouri Compromise that really inflamed things) and Prigg v Pennsylvania which overrode states which were trying to prevent local officials from having to enforce the Fugitive Slave Act. Prigg was another nail in the federal bulwark.

Slavery was so intertwined with the economy that its abolishment could only be done on the national level. Wealth was defined less by land than by the number of slaves one owned since they were needed to work the land. Any farm state would be at a serious economic disadvantage by unilaterally abolishing slavery. In the north where industrialization was taking hold, this was less of a factor. The southern states, heavily represented at the Constitutional Convention were determined to enshrine slave rights in the new national government.

Article IV, Section 2, Clause 2 reads:
A person charged in any state with treason, felony or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.

No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up, on claim of the party to whom such service or labor may be due.

Waldstreicher argues these clauses in particular were inserted to please southern slave owners as they prevented slaves from seeking freedom by fleeing to free states. The southern states used the power of the federal government to enforce their property rights (ironic in view of the Nullification Crisis of 1832.) Under Prigg the federal government was left with enforcing the Fugitive Slave Act when states such as Pennsylvania passed laws excluding local magistrates from having to do the enforcement, laws which, of course, enraged the slave states. As Calhoun wrote in a letter, “the new personal liberties laws rendered slave property utterly insecure" and was a "flagrant violation of the spirit of the U.S. Constitution."

Walstreicher argues that the Constitution’s imprecision with regard to slavery (I don’t think t was imprecise at all, it was clearly pro-slavery) led to both sides being able to claim the Constitution was or was not in favor of slavery. Given that most of the founders owned slaves and considered them property, I don’t think Justice Taney really had much choice in deciding Dred Scott in the way he did.

The assumption that southern population would grow faster than that of the north proved illusory as most immigration went to the anti-slave, industrial north thus rendering the infamous three-fifths clause moot and soon the southern states were desperately trying to add slave states to the union to retain some measure of power.

Quote: Many historians insist that the use of the word “slavery” to refer to taxes or restrictions of liberty simply came to seem hypocritical in light of racial slavery. It certainly did eventually, but this emphasis neglects the more basic, original link of British rights to property, the fact that slaves were property, and that both slavery and property were intrinsic to what colonies were all about: agricultural production and trade. . . The Americans had emancipated themselves, but in doing so had raised, not resolved, the question of slavery. On both ides of the Atlantic, people waited to see what exactly Americans meant when they said they would never be slaves.

I also recommend Negro President: Jefferson and the Slave Power