Slavery in the Constitution

Season 1: American Slavery

Episode 10: Slavery in the Constitution

Constitutional and legal historian Paul Finkelman explains the critical role slavery played in the founding of the United States and how the politics of slavery shaped in U.S. Constitution in ways that are still evident today.

Essential Ideas From This Episode

The United States was founded on the principles of freedom and liberty — and also on a belief in the institution of slavery. These conflicting ideas are enshrined in the U.S. Constitution, which created the nation’s legal foundation.

Understanding how the U.S. protected slavery in law and treated enslaved people in court is essential for analyzing the consistent failure of the legal system to provide African Americans with equal justice under the law.

In this episode, constitutional and legal historian Paul Finkelman explains the role slavery played in the nation’s founding. Finkelman explores how the institution of slavery informed both politics and laws during the Revolutionary era and shaped the U.S. Constitution and legal system in ways that are still evident today.

African Americans and the Legal System: Reflections on Past and Present

Hasan Kwame Jeffries’ first book, Bloody Lowndes, tells of the transformation of rural Lowndes County, Alabama, from a citadel of violent white supremacy into the center of Southern Black militancy during the height of the Civil Rights Movement. Bloody Lowndes, however, does not begin in the 1960s but rather a century earlier at emancipation.

To understand the African American freedom struggle in the 20th century, we need to examine the same battle in the 19th century.

Lowndes County’s register of arrests from the 1880s reveals a pattern of police misconduct and judicial malfeasance that made a mockery of criminal justice. African Americans were routinely arrested on trumped-up charges and convicted in sham trials. The ridiculous charges that landed Black people in jail included “abusive language,” which could be applied to any Black person saying anything to a white person, and “reckless eyeballing,” when a Black person made and maintained eye contact with a white person for too long. No matter the charge, the accused had little recourse. When a Black person could not pay the exorbitant court cost, they were leased to plantation owners and mine representatives who could. This practice was slavery by another name.

In March 2015, when U.S. Attorney General Eric Holder delivered an update on federal investigations in Ferguson, Missouri, he described Ferguson as a community where local authorities consistently approached law enforcement not as a means for protecting public safety but as a way to generate revenue. Holder concluded that Ferguson’s emphasis on revenue generation through policing had fostered unconstitutional practices and contributed to constitutional violations at nearly every level of law enforcement — a striking parallel with Lowndes County from more than a century earlier.

Lowndes County, Alabama, and Ferguson, Missouri, are not anomalies but reflections of a legal system that has consistently failed to provide African Americans with equal justice under the law.

This historical reality begs the question: When it comes to African Americans, is the legal system broken, or is it working as designed?

To understand the African American experience with our country’s legal institutions today, we need to examine the African American experience and the role of slavery in our nation’s foundation.

Slavery and the Revolution

The irony of U.S. history is that we are one of the few countries whose founding begins with a statement that we hold these truths to be self-evident that we are all created equal while the institution of slavery was protected in the legal foundations.

The Declaration of Independence asserts that “all men are created equal” with rights to “life, liberty, and the pursuit of happiness.” The irony is that its author, Thomas Jefferson, was a lifelong enslaver who held hundreds of people in enslavement — some of whom were his own children.
The Continental Congress that adopted the Declaration was filled with enslavers, creating an inherent tension between the rights of enslavers to be free and have liberty — including the liberty to own other people, to buy and sell people, to whip and treat enslaved people like property — and others who found slavery immoral and appalling.
In response to American colonists’ protests against taxes, in 1775, English intellectual Samuel Johnson asked, “Why do we hear the loudest yelps for liberty from the drivers of Negroes?” This question underscores the fundamental contradiction.
While some Revolution-era leaders opposed slavery, many others, the majority, in fact — including George Washington, Thomas Jefferson, Patrick Henry, and the Pinckneys of South Carolina — owned enslaved people.

So how do we balance slavery and freedom in a nation that begins with assertions of freedom and rights of liberty written by those who enslaved other people?

It is critical to recognize that the inherent tension between those who found slavery immoral and those who wanted to continue the institution of slavery was an integral part of the country’s founding.

Black Soldiers in the Revolutionary War

As the Revolution began, ideas of liberty spread, and African Americans fought in the war.

At the battles of Lexington and Concord, Black soldiers fought alongside white soldiers in the Massachusetts militias. At the Battle of Bunker Hill, one of the heroes was a Black soldier.
When George Washington arrived in Cambridge, Massachusetts, to command the American troops, he was shocked to discover hundreds of Black soldiers. He had never encountered Black men with muskets and bayonets, and as an enslaver, the sight was something he probably always feared.
The First Rhode Island regiment recruited enslaved African American men to fight in the Continental Army in exchange for their freedom.

[Note: African Americans fought on both sides during the Revolutionary War. In addition to those who fought alongside the American colonists, thousands of enslaved people escaped and fought for the British.]

Liberty wasn’t simply an ideal on paper for enslaved people; many African Americans embraced the direct promise and were willing to fight for their freedom.

State Laws Abolishing Slavery

Some Northern states began to dismantle slavery — some even before the end of the Revolutionary War.

The Pennsylvania Gradual Abolition Act of 1780 asserted that all children of enslaved women would be born free, and thus, slavery would die out. Rhode Island, Connecticut, New York, New Jersey, and the Canadian province of Upper Canada (today’s Ontario) adopted gradual abolition acts based on the Pennsylvania law.
Massachusetts’ law, adopted through its 1780 Constitution, declared that all men were born free and created equal. By 1783, the courts ruled that enslaved people could no longer be held in the state. New Hampshire had a similar clause in its Constitution.
Northern states that joined the Union after the Revolution, such as Vermont and Ohio, prohibited slavery in their constitutions. Vermont, which joined the Union in 1791, in fact had a constitution that abolished slavery earlier than any other — in 1777.

By the Constitutional Convention in 1787, Pennsylvania, Connecticut and Rhode Island had passed gradual abolition acts, while Massachusetts and New Hampshire had ended slavery. In all other states represented at the convention (Delaware, Georgia, Maryland, New Jersey, New York, North Carolina, South Carolina, and Virginia), slavery was still legal.

While slavery is often considered a Southern institution, a substantial number of enslaved people lived in New Jersey and New York at the time the Constitutional Convention met. And the business of slavery, in which the North played a role through commerce, was essential to perpetuating the institution of slavery.

Episode 3 of this podcast series, “Slavery and the Northern Economy,” offers a deeper discussion on this topic.

Slavery and the U.S. Constitution: Power and Representation

Scholar Annette Gordon-Reed explores how the Constitution protected the institution of slavery and allowed enslavers to aggressively defend its expansion.

The U.S. Constitution was written by a nation in which slavery was legal and prosperous in many states. At the 1787 Constitutional Convention, slavery was a deeply divisive issue, fueling the debate over representation and political power.

The conflict centered on how to count the population to allocate the number of representatives in the new Congress, specifically in the House of Representatives. Should proportional representation be based only on free inhabitants (a count that would make Pennsylvania the largest state with the most representatives) or on the total number of people, including those who were enslaved (which would make Virginia the state with the most representatives)?

The critical issue was political power. Does the South increase its political power by counting enslaved people toward the number of representatives in Congress, or is the national government going to be based only on the contributions of free people and thus, only free people will be counted for representation? (In essence, should states be able to use enslaved people to count toward representation and political power when enslaved people in those states have no freedom and no representative voice?)
The result was the convention’s adoption of the Three-Fifths Clause. This compromise determined that representation and direct taxes would be based on counting the whole number of free persons and “three-fifths of all other persons” (enslaved people). So, the basis for representation is to count all free people, then count all enslaved people and multiply by 3/5 or 60%, then add them together for the state’s total.
This clause is often misunderstood to mean a Black person was considered three-fifths of a person; rather, the clause was a mechanism to allocate political power to slaveholding states based on 60% of their enslaved population.
Ironically, those who opposed slavery did not want to count enslaved people at all for representation because that gave more political power to enslavers who gained representation based on the people they enslaved.
For slaveholding states, counting the enslaved was not about arguing for equality; it was purely a strategy for political advantage and the protection of the institution of slavery.

While the three-fifths ratio for counting enslaved people prevented the slaveholding states from gaining an outright majority.

Effects of the Three-Fifths Clause

Examining the role the Three-Fifths Clause played in the early political process and the subsequent laws passed reveals how slavery fundamentally shaped the American political system.

The Three-Fifths Clause was also crucial to the decision on how the U.S. president is elected and the creation of the Electoral College.
During the convention’s debates over presidential elections, James Madison noted that it would be best for “the people at large” to elect the president. But in the compromise of an Electoral College, Madison recognized that Northern states would have more power because the South’s enslaved population could not vote, and this would lead to Southern states objecting to a system of direct elections by the people.
[In Madison’s words: “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. The substitution of electors obviated this difficulty and seemed on the whole to be liable to fewest objections.”]
The Electoral College was established as a compromise, giving each state voting power based on its total number of Representatives (which used the Three-Fifths Clause count). This mechanism ensured that the enslaved population, who had no voting rights, would still provide slaveholders with crucial leverage in electing a pro-slavery president.
This bargain over slavery had immediate and dramatic consequences: In the presidential election of 1800 between John Adams (who was not an enslaver) and Thomas Jefferson (who enslaved at least 200 people), the electoral votes generated by the Three-Fifths Clause were decisive. If this election had been based on the popular vote or if three-fifths of the enslaved had not been counted, Adams likely would have won, illustrating how the clause affected not only Congress but also the office of the president.
The political advantage granted by the Three-Fifths Clause had lasting effects: the Missouri Compromise of 1820 was a law that allowed the spread of slavery into new Western territory. Specifically, it admitted Missouri as a slave state. This Compromise would have failed to pass without the disproportionate voting power the South gained from the Three-Fifths Clause.
Similarly, the Fugitive Slave Law of 1850, which stripped formerly enslaved people of protection, was a direct product of the South’s enhanced representation, powered by the three-fifths count that ensured the bill had the necessary votes to become law.

Political Power and the Presidency

Of the twelve men elected to serve as president between George Washington and Abraham Lincoln, the majority were enslavers from the South. But even among the presidents elected from the North, several had strong ties to slavery:

Martin Van Buren (New York) was an enslaver before the state abolished slavery in 1827.
William Henry Harrison (Ohio) was an enslaver for most of his life, hailing from a Virginia slaveholding family.
James Buchanan (Pennsylvania) was from a slaveholding family that used long-term indentures to continue holding the descendants of enslaved people even after Pennsylvania passed its Gradual Abolition Law.
Only four of the 12 presidents during this period were not enslavers and had no enslavement ties through their families. This indicates the power of slavery in the political process, a direct result of the Three-Fifths Clause in Article I of the Constitution.

The Constitution’s Provisions To Protect the Slave Trade

The belief that the slave trade was horrendously awful and immoral was a sentiment expressed even among enslavers like Thomas Jefferson.

States like Georgia and South Carolina lost thousands of enslaved people during the American Revolution. By the war’s end, tens of thousands of enslaved people left with British troops, some finding emancipation. (Unfortunately, not all found lasting freedom, as some were forced back into slavery.)

At the Constitutional Convention, delegates from Georgia, South Carolina and North Carolina argued against efforts to abolish the slave trade and for legal protections to prevent Congress from abolishing it, given the popular sentiment was that the slave trade was wrong.
Article I, Section IX, of the Constitution states, “The migration or importation of such persons as any of the states now existing shall think proper to admit shall not be prohibited by the Congress prior to the year One Thousand Eight Hundred and Eight.”
The Constitution established the Migration and Importation Clause, which specifically allowed for the continued importation of enslaved people until 1808. Some historians and political scientists mistakenly interpret this clause to mean that Congress was required to abolish the slave trade by 1808; in actuality, it ensured that the trade could not end before 1808.
Southern states believed they were buying time and that by 1808, the Deep South would have a larger population than the North, giving them veto power to maintain the slave trade.

Provisions To Maintain the Institution of Slavery

At the Constitutional Convention, Southerners demanded a clause to recover fugitives from slavery. Northern delegates, seemingly exhausted by the debates from the Southern delegates, allowed the passage of the Fugitive Slave Clause — Article IV, Section 2, Clause 3 of the Constitution.

The clause read: “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.”
While this clause does not directly mention the words “slave” or “fugitive,” the impact was clear: If an enslaved person escaped from a Southern state to a Northern non-slaveholding state, they could not become emancipated under the Northern state’s law. Additionally, the Northern state would be obligated to comply and return the enslaved person based on the claim of the enslaver, even without proof.

Fugitive Slave Laws and Northern Response

In 1793, Congress passed the first Fugitive Slave Law, which had almost no protections for enslaved people claimed as fugitives. However, this Law was ineffective because many Northern states did not help Southern states capture fugitive enslaved persons.

In 1842, the Supreme Court heard its first case on the Fugitive Slave Law, Prigg v. Pennsylvania, ruling that no state could interfere with the return of a fugitive enslaved person. In effect, a “slave catcher” could seize an individual and claim them as property without any judicial process or proof, and the free state was legally forbidden from intervening.

In response to the Fugitive Slave Law, Northern states passed “personal liberty laws,” prohibiting their state officials from helping the return of fugitive enslaved persons and prohibiting the use of jails for fugitives.

This did not stop the seizing of fugitive enslaved persons — especially in easy treks like crossing from Maryland into Pennsylvania. For more complicated treks, such as traveling to New York and back to the South with a captive person, doing so without the help of local officials would be more difficult.
One example to explore: in Boston in 1842, George Latimer, a fugitive enslaved person, was seized by a slave catcher and detained in jail. The resulting public outrage forced the county sheriff, an elected official, to release Latimer, refusing to allow Massachusetts jails to be used for the detention of fugitives. Upon Latimer’s release, the enslaver realized there was no safe place to detain him in Boston. For a small amount of money, Latimer was emancipated. This case illustrates how some Northern states reacted to the Supreme Court’s ruling.

The pushback from Northern states, exemplified in the Latimer case, ultimately led to the Fugitive Slave Law of 1850.

Adding more provisions to the Fugitive Slave Law of 1793, under the 1850 law a federal commissioner was appointed to every county in the U.S. who had the authority to request assistance from the Army, Navy, Marines, Coast Guard or national militias to protect an enslaver’s interest in a fugitive enslaved person.
This led to about one thousand African Americans being captured and returned to the South between 1850 and 1860.
The irony of these laws is that they completely violated states’ rights.

While the Fugitive Slave Laws faced resistance from Northern states and raised concerns about violating states’ rights, Southern states grew angry at Northern efforts to protect formerly enslaved people — and all their African American citizens.

Episode 1 of this podcast series, “Slavery and the Civil War, Part 1,” examines the role of slavery in secession and the Civil War.

Southern states did not secede in 1860 to protect states’ rights; they disagreed with Northern states’ rights in trying to protect their citizens from being seized as fugitives. They seceded to protect the institution of slavery.

Suppressing Insurrections

The power to suppress fugitives and potential rebellion of enslaved people was a key concern of Southern states, and it is reflected in the Constitution. The Fugitive Slave Clause is not the only place in the Constitution where Southern states secured the authority to maintain order and suppress insurrections.

Article I of the Constitution, Section 8, says, “Congress shall have the power to provide for calling forth a militia to execute the laws of the Union, suppress insurrections and repel invasions.”
Article IV of the Constitution says, “The United States government can do the same thing against insurrections in the states.”

These articles provided double protection against insurrections and rebellions, a matter of concern for Southerners. Ultimately, Southern delegates supported ratifying the Constitution as a means to protect the institution of slavery, as the national government was empowered to use its resources, including federal law enforcement, to suppress such uprisings.

The pattern of Constitutional commitment to slavery is clear in two rebellions: The U.S. Navy was called to find and capture enslaved persons who participated in Nat Turner’s rebellion. Similarly, the U.S. Marines — led by Col. Robert E. Lee of the U.S. Army — were deployed to suppress John Brown’s raid into Virginia. In both cases, the military power of the United States was used to defeat attempts at emancipation.

The irony is that while Southern states insisted that the national government not interfere with their right to uphold slavery, they fiercely advocated that the national government use its full resources to protect that very institution.

The Southern Victory at the Constitutional Convention

Charles Cotesworth Pinckney, a general during the Revolutionary War and South Carolina’s head delegate at the Constitutional Convention, returned to South Carolina and relayed to the state legislature: “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 to the several states.”

Returning from the Constitutional Convention, Southern delegates felt victorious. They had secured a Constitution that granted them disproportionate political power through the counting of their enslaved population (Three-Fifths Clause), protected the slave trade for at least another 20 years (Migration and Importation Clause), and ensured federal military and naval resources would be used to suppress slave insurrections and guarantee that fugitives would be captured and returned.

Teaching Recommendations

Understanding how the U.S. was built on protecting and continuing slavery — from the political power wielded by enslavers in the South to the anti-slavery sentiments in the North’s attempts to defy the institution — is instrumental.

This foundational structure of compromise and power set the stage for all subsequent periods, creating the legal and systemic structures of inequality and discrimination that followed the Revolutionary War. This essential context serves as a foundational blueprint for any learning environment examining U.S. history.

Refer to Episode 4, “Doing the Hard Work of Teaching Hard History” for recommendations and strategies for teaching this history.

The key points above for this episode offer guidance on the historical context to teach and emphasize in helping students analyze the role of slavery in the foundational politics and laws and how they continue to affect society today.

How did the Southern delegates’ victory at the Constitutional Convention affect the early nation, lead up to the Civil War, and continue to affect us today?

Teaching the irony and inconsistencies of the Declaration of Independence and the background of the Revolution-era leaders is crucial to analyzing how we balance slavery and freedom in a nation that begins with assertions of freedom and rights of liberty written by those who enslaved other people.
It is critical to recognize that the inherent tension between those who found slavery immoral and those who wanted to continue the institution of slavery was an integral part of the country’s founding.
The role of Black soldiers in the Revolutionary War should be examined in the context of the freedom they were fighting for — including the thousands who fought on the side of the British. Liberty wasn’t simply an ideal on paper for enslaved people; many African American men embraced the direct promise and were willing to fight for their freedom.
Understanding the makeup of the Constitutional Convention and the goal of enslavers to protect the institution of slavery is important for examining the compromises of the Constitution and issues of political power.
The Three-Fifths Clause is important for understanding the goals of power and representation for states with enslavers and the compromise at the foundation of the nation. Considering how this clause affected power and representation in the House of Representatives is critical for connecting to issues of representation and gerrymandering today.
Examining the reasons for the Electoral College and the relationship to the Three-Fifths Clause is essential for understanding the goals of maintaining political power for Southern states. Connecting this historical context to the critical question today of whether the Electoral College should be abolished as the remnant of an undemocratic past is important for students (as future voters) to consider.

The power to suppress fugitives and potential rebellion of enslaved people was a key concern of Southern states and is reflected in the Constitution through clauses regarding fugitives and suppressing insurrection.

While Southern states insisted that the national government not interfere with their right to uphold slavery, they fiercely advocated that the national government use its full resources to protect that very institution.

Analyzing how the “Fugitive Slave” laws disregarded Northern states’ rights and used the federal government to attempt enforcement of laws and suppress uprisings is crucial to understanding the hypocrisy of the “states’ rights” argument of Southern states in the Civil War.

The Constitution is a document that resulted from the Southern delegates’ goal in gaining disproportionate political power and protecting the slave trade and the institution of slavery. Further, in the protection of slavery, Southern states obtained federal resources to suppress slave uprisings and to guarantee fugitives would be captured and returned —trampling on the rights of Northern states.

This historical context is essential for engaging in current events, political issues and critical questions.

Resources From Teaching Hard History Framework

Teaching Hard History: American Slavery

A comprehensive K-12 guide to teaching this critical topic and to helping students understand how slavery influences us in the present day.

Grades K-2 Essential Knowledge 1: Students should be encouraged to think and talk about the meaning of freedom.
Grades K-2 Essential Knowledge 2: Students should know that slavery is when a person owns another person as property.
Grades K-2 Essential Knowledge 5: Students should know that enslaved people hated being enslaved, and resisted bondage in many ways.
Grades K-2 Essential Knowledge 9: Students will know that many people worked individually and in groups to end slavery.
Grades 3-5 Essential Knowledge 17: Students will know that the United States was founded on protecting the economic interests of white, Christian men who owned property. In the process, it protected the institution of slavery.
Grades 3-5 Essential Knowledge 18: While some states abolished slavery after independence, it remained legal in most of what is now the United States, expanding into some new states and across the South.
Grades 6-12 Summary Objective 5: Students will describe the roles that slavery, Native nations and African Americans played in the Revolutionary War.
Grades 6-12 Summary Objective 6: Students will demonstrate the ways that the Constitution provided direct and indirect protection to slavery and imbued enslavers and slave states with increased political power.
Grades 6-12 Summary Objective 7: Students will examine how the Revolutionary War affected the institution of slavery in the new nation and the ways that slavery shaped domestic and foreign policy in the early Republic.

Teaching Hard History: Key Concept Videos

In these short videos, historians and scholars explore the history of African and Indigenous enslavement in what is now the United States.

Teaching Hard History: Text Library

A collection includes more than 100 primary sources selected to support teaching and learning about slavery, the experiences and perspectives of enslaved people and the essential concepts in this framework.

Teaching Hard History Online Archives and Databases

This page includes links to online archives and databases to support educators in using original historical documents to represent the diverse voices and experiences of enslaved people.

Talking to Children About the History of Slavery in the United States

Recommendations and age-appropriate information for families and educators to emphasize in conversations with young children about slavery and racism in the U.S.

Additional Resources

U.S. Department of Justice, Attorney General Holder Delivers Update on Investigations in Ferguson, Missouri
History Channel, America’s First Black Regiment Gained Their Freedom by Fighting Against the British
National Park Service, The Constitutional Convention of 1787
Learning for Justice, The Missouri Compromise
Massachusetts, Constitution of the Commonwealth of Massachusetts (1980)
France, The Declaration of the Rights of Man (1789)
Hasan Kwame Jeffries, Bloody Lowndes: Civil Rights and Black Power in Alabama’s Black Belt
Teaching American History, U.S. Constitution: Article IV, Section 2I: Fugitive Slave Clause
History Channel, Fugitive Slave Acts
Learning for Justice, Declaration of Independence Excerpt
National Archives, Declaration of Independence: A Transcription
Learning for Justice, “What to the Slave Is the Fourth of July?”
PBS, The Sally Hemings Story
Learning for Justice, US Constitution: Articles I, IV, V
Learning for Justice, John Brown’s Speech to the Court at His Trial

Full Transcript of the Episode

Hasan Kwame Jeffries: The title of my first book is Bloody Lowndes. It tells the remarkable story of the transformation of rural Lowndes County Alabama from a citadel of violent white supremacy into the center of Southern Black militancy during the height of the civil rights movement. But Bloody Lowndes does not begin in the 1960s as one might expect but rather a century earlier at the moment of emancipation. You see, to understand the African-American freedom struggle in the 20th century, you have to understand the African American freedom struggle in the 19th century.

Like most places in the Alabama Black Belt, Lowndes County is resource-poor, making the preservation of local records a luxury the county cannot afford. When I asked the probate judge if they still had rest ledgers from the 19th century, I was not surprised when he took me to a long-neglected shed containing county records scattered about and piled high in no particular order.
After a fair bit of climbing, crawling, sifting and sorting, I actually found what I was searching for, Lowndes County’s register of arrests from the 1880s. These turn-of-the-century records revealed a pattern and practice of police misconduct and judicial malfeasance that made a mockery of criminal justice. African-Americans were routinely arrested on trumped up charges and convicted in sham trials and when they could not pay the exorbitant court cost, they were leased to plantation owners and mine representatives who could. It was slavery by another name.

I was especially struck by the ridiculous charges that landed Black people in jail, charging Black folk with abusive language was a favorite because it could be applied to any Black person saying anything to any white person at any time. Another equally absurd charge was reckless eyeballing, when a Black person made and maintained eye contact with a white person for too long. No matter the charge, the accused had little recourse. They were at the mercy of Lady Justice and she was not wearing her blindfold.

A few years ago, I watched US Attorney General, Eric Holder, deliver an update on federal investigations in Ferguson, Missouri. He described Ferguson as a community where local authorities consistently approached law enforcement not as a means for protecting public safety but as a way to generate revenue.

Eric Holder: Revenue, a community where both policing and municipal court practices were found to be disproportionately harmful to African-American residents. A community where this harm frequently appears to stem at least in part from racial bias, both implicit and explicit and a community where all of these conditions, unlawful practices and constitutional violations have not only severely undermined the public trust, eroded police legitimacy and made local residents less safe, but created an intensely charged atmosphere where people feel under assault and under siege by those who are charged to serve and to protect them.

Hasan Kwame Jeffries: As I listened to Attorney General, Eric Holder, I thought immediately about what I had found in that courthouse shed in rural Alabama. The parallels were striking. Holder could just as easily have been talking about Lowndes County more than a century earlier when he concluded that Ferguson’s emphasis on revenue generation through policing had fostered unconstitutional practices and contributed to constitutional violations at nearly every level of law enforcement.

Lowndes County, Alabama, and Ferguson, Missouri, are not anomalies. They are reflections of a legal system that has consistently failed to provide African-Americans with equal justice under the law. This historical reality begs the question when it comes to African-Americans is America’s legal system broken or is it working just the way it was designed to? Let’s find out.

I’m Hasan Kwame Jeffries and this is Teaching Hard History: American Slavery, a special series from Learning for Justice, a Project of the Southern Poverty Law Center. This podcast provides a detailed look at how to teach important aspects of the history of American slavery. In each episode, we explore a different topic, walking you through historical concepts, raising questions for discussion, suggesting useful source material and offering practical classroom exercises. Talking with students about slavery can be emotional and complex. This podcast is a resource for navigating those challenges, so teachers and students can develop a deeper understanding of the history and legacy of American slavery.

The United States was founded on the principles of freedom and liberty. It was also founded on a Deep and abiding belief in the institution of slavery. These conflicting ideas are enshrined in the United States Constitution, which created the legal foundation of our nation. Understanding how America protected slavery in law and treated enslaved people in court is so important that we’re going to spend a couple of episodes on this topic.

In this installment of Teaching Hard History, legal historian, Dr. Paul Finkelman, explains the role that slavery played in the founding of the United States. He explores how the institution informed both politics and laws during the Revolutionary Era and outlines how the politics of slavery shaped the U.S. Constitution in ways that are still evident today. I’ll see you on the other side, enjoy.

Paul Finkelman: The irony of American history is that we’re one of the few countries in the world that begin with the stated purpose: we hold these truths to be self-evident that we’re all created equal. England doesn’t have a statement “We hold these truths to be self-evident that all Englishmen have the rights of Englishmen.” France doesn’t say this is what it means to be French. The French Declaration of Rights says that, but that’s well after France became a country, but we state it.

The Declaration of Independence says “We’re all created equal. We’re all endowed by our Creator with inalienable rights of life, liberty and the pursuit of happiness,” and yet the man who wrote those words, Thomas Jefferson, owned about 150 slaves when the revolution began. In the rest of his lifetime, he would own many, many more slaves, dying with over 200 slaves.

Slave-owners are all over Continental Congress, which is adopting it and so there is this inherent tension from day one between the rights of slave-owners to be free and to have liberty, including the liberty to own other people, to buy and sell other people, to whip other people, to treat other people like property and other Americans who find this to be immoral and appalling and horrible and that’s the tension that comes in with the creation of the United States. So how do we balance slavery and freedom in a nation that on one hand begins with assertions of freedom and rights of liberty and on the other hand these assertions are actually being written by slave-owners?

So, let’s start with that problem. During the American Revolution, the English intellectual, Samuel Johnson, sarcastically asked, “Why do we hear the loudest yelps for liberty from the drivers of Negroes?” and, of course, it’s a very valid question. If we think of the heroes of the revolution, while many of them are opposed to slavery, John Adams, Samuel Adams, John Jay, the young man, Alexander Hamilton, many of the other leaders of the revolution, Washington, Jefferson, Patrick Henry, the Pinckneys in South Carolina, they all owned huge numbers of slaves and indeed, probably a majority of the revolutionary leadership in terms of sheer numbers were slave-owners and this is a question that very few people in the revolution wanted to think about.

Now, as the revolution began however, liberty began to spread in some parts of the nation. At the battles of Lexington and Concord, there were Black soldiers fighting along white soldiers in the Massachusetts militias and at the Battle of Bunker Hill, one of the heroes was a Black soldier. When George Washington arrived in Cambridge to take command of the American troops, he was shocked to discover that there were hundreds of Black soldiers in his new regiments. Obviously, for a Virginia slave owner, the sight of Black men with muskets and bayonets was something he had never encountered and something that he probably always feared and worried about.

But gradually, George Washington came to the conclusion that Black soldiers were just like white soldiers, some were cowards, some are heroes. Most were simply men doing their jobs as good soldiers and by the end of the revolution, one of Washington’s favorite regiments was the First Rhode Island, which was about 50% Black and 50% white and most of the Blacks in the First Rhode Island had been slaves when the war began. So we see during the revolution a transition from slavery to freedom.

Some Northern states began to dismantle slavery. Pennsylvania passes the first piece of legislation in the history of the world to end slavery, the Pennsylvania Gradual Abolition Act of 1780. The law worked in this way. The children of all slave women would be born free and thus literally, slavery would die out in Pennsylvania. Eventually, Rhode Island, Connecticut, New York, New Jersey and even the Canadian province of Upper Canada, today known as Ontario, would adopt a gradual abolition act, based on the Pennsylvania law.

Shortly after Pennsylvania passed its Gradual Abolition Act, Massachusetts adopted its 1780 Constitution, which declared that all men were born free and equal and by 1783, after their Constitution was adopted, the Massachusetts courts ruled that this meant that slaves could no longer be held in Massachusetts. New Hampshire had a similar clause in its Constitution and states that joined the Union after the revolution, like Vermont and Ohio, simply prohibited slavery in their new constitutions.

At the time of the Constitutional Convention in 1787, only Pennsylvania, Connecticut and Rhode Island had passed gradual abolition acts and only Massachusetts and New Hampshire had ended slavery. Slavery was legal in all of the other states and while we think of slavery as being a Southern institution, there were substantial number of slaves in both New Jersey and New York at the time the Constitutional Convention met.

The U.S. Constitution was, of course, a complicated document, written by a nation in which slavery was legal and prosperous in most of the states. At the convention, slavery is debated throughout the summer of 1787. At the very beginning of the convention the question is, “How do you allocate representation in Congress?” and immediately there is a debate between those people who say allocation of representation should be based on the whole number of free people and those who would like it based on the whole number of people.

The difference, of course, is critical because Virginia has the largest population in the nation if you count slaves and free people, but if you only count free people, Pennsylvania has the largest population. Thus, the debate in the convention is about political power. Does the South get political power for its slaves or is the national government going to be based only on the contributions of free people and thus, only free people will be counted for representation?

We all know, of course, that in the end the Constitutional Convention adopts something called the Three/Fifths Clause. The Three/Fifths Clause says, “That representatives and direct taxes would be allocated in the country by counting the whole number of free people, including indentured servants and others who have some sort of servitude but are not slaves and Three/Fifths of all other persons.” So, the Constitution requires that you count up all the free people and then you count up all the slaves and multiply them by Three/Fifths, 60% and that becomes the basis for representation.

Now, this clause is often misunderstood. The Three/Fifths Clause does not say that Black people are 3/5th of a person. It says that political power will be allocated to the states by counting slaves under a Three/Fifths rule rather than a full rule. The irony of this is as follows. Those who opposed slavery did not want to count slaves at all for representation.

After all, if you counted slaves for representation, it simply gave the slave-owners more power. It didn’t give the slaves any power. One of the delegates at the convention mocked the idea of counting slaves and said, “Does a voter in Virginia get as many as votes as the number of slaves he owns?” and, of course, this was laughable and not what was going to happen, but it did indicate the political issue at stake.

On the other hand, Southerners said, “You should count all slaves for representation.” This didn’t mean that Southerners thought Black people were equal. It certainly didn’t mean they thought slaves were equal. What it meant was the South wanted to get more political power for its slaves and the way to do this would be to count all the slaves. If this had been done, then the Southern states would have had probably a majority in the House of Representatives at the beginning of the nation. However, by doing the Three/Fifths ratio, the Southern states don’t get a majority, although they have close to a majority.

The other place where the Three/Fifths Clause matters a great deal is, of course, the election of the president. During the debate over electing a president, James Madison says, “The fittest things.” That’s the language he uses. Of course, “Fittest means the best thing, “he said, “would be for the people themselves to directly elect the president,” but then Madison says there are a couple of problems with that. One of the problems is that were different rules for voting in different states, so that would mean that if you had a popular vote, the state which had the most expansive voting rules, what they called the “franchise” at the time, that that state would have more votes in the presidential election.

But you could have easily have solved that problem. You could have simply said that every free adult male in the country could vote. No one was considering that women could vote at the time, so that would not have been on the table. But Madison said the other problem was if you counted just the popular vote, our slaves won’t count. He actually says we won’t get any power because of our Negroes, and of course, what he means by that is if you have a direct election of the president, the North with a much larger population of free people is going to overwhelm the South.

One of the delegates at the convention actually put an asterisk in his own private notes and said that Madison was really trying to make sure that Virginians got elected president because if Virginia can’t count its slaves and election of the president, then a New Yorker or a Pennsylvanian or a man from Massachusetts is going to get elected president.

The end result was that the Three/Fifths Clause is folded into that monstrosity called the Electoral College. Now, why do we have the Electoral College? Not because of states’ rights, not because the delegates didn’t trust voters, we have the Electoral College because it was the only way they could figure out how to count the numerical power of slaves in a country where slaves, of course, wouldn’t vote. And so the electoral votes that every state got was based on the number of members of the House of Representatives that each state had and that was based on the Three/Fifths Clause.

If you look at the presidential election of 1800 between John Adams and Thomas Jefferson, between a man, Adams, who had never owned a slave and hated slavery and had written the Massachusetts Constitution of 1780, which ended slavery in Massachusetts and on the other side you have Thomas Jefferson, who by 1800 owns at least 200 slaves, including a few who are his own children who he fathered with his own slave, Sally Hemmings, you see the power of the Three/Fifths Clause in the Electoral College.

If it had been a popular vote, Adams probably would have one because the population of the North was so much bigger than the population of the South if you excluded the slaves. In fact, if you took away from Jefferson all the presidential electors he got by counting 3/5th of the slaves’ representation and therefore for electors and did the same for Adams, Adams would have won the Electoral College as well. So here is an example where this bargain over slavery in the Three/Fifths Clause affects not only Congress but also affects the President of the United States.

If you look at subsequent debates, if you look at the debate over the Missouri Compromise, which allows slavery to spread into Missouri west of the Mississippi, north of where the Ohio River reaches the Mississippi, the Missouri Compromise could not have been passed if the South had not had a significant number of representatives based on counting slaves as three-fifths of the population for representation. Similarly, it’s impossible to imagine in 1850 that the Fugitive Slave Law of 1850 could have been passed if there had been no Three/Fifths Clause because the votes weren’t there.

So, what the Three/Fifths Clause does is to change the political dynamic by giving Southern whites, slaveholding Southerners, greater political power than Northern voters had and this will continue from the beginning of the nation right up until the Civil War. It is not insignificant that almost all of the presidents elected under the Constitution before Abraham Lincoln were slaveholding Southerners and among the Northerners who become president, you discover that three of them came from slaveholding families.

Martin Van Buren was from New York, but he had owned slaves in New York before New York completely abolished slavery in 1827. William Henry Harrison was elected from Ohio, but, of course, the Harrisons were Virginia slave owners and William Henry Harrison had owned slaves for much of his life. Finally, oddly, in 1856, James Buchanan who was elected president, turns out to have come from a family in Pennsylvania that owned slaves and continued to own the descendants of slaves in long-term indentures well after Pennsylvania had passed the Pennsylvania Gradual Abolition Act of 1780.

If you look at the presidency, what you discover is of the 12 presidents between Washington and Buchanan, only four of them, the two Admases, Fillmore and Pierce had not either owned slaves or come from slaveholding families. This, again, indicates the power of slavery in the political process, which comes from the Three/Fifths Clause in Article I of the Constitution.

Hasan Kwame Jeffries: This is Teaching Hard History: American Slavery. I’m your host, Hasan Kwame Jeffries. We’ve been listening to Dr. Paul Finkelman discuss the relationship between liberty, slavery and the law in the new nation. People continue to explore the specific provisions in the Constitution that protected the institution of slavery and the interest of slaveholders. Once again, here’s Dr. Paul Finkelman.

Paul Finkelman: The other big debate at the Constitutional Convention concerned the African slave trade. Almost everybody in America realized that the African slave trade was horrendously awful and immoral, even people who believed in slavery, even people like Jefferson, who had owned slaves all his life, who would buy and sell human beings throughout his life, who had fathered children with his own slave, even some like Jefferson found the African slave trade to be immoral and wrong.

On the other hand, Georgia and South Carolina had lost thousands of slaves during the American Revolution and when the British troops left the United States, tens of thousands of African-Americans went with them to freedom somewhere else, some to Canada, some to England, some to the British West Indies. Sadly, some were re-enslaved in the British West Indies but most of these former American slaves lived their lives with liberty.

So at the Constitutional Convention, the delegates from Georgia, South Carolina and North Carolina insisted that the African slave trade get an explicit, specific protection because these delegates knew that the Congress would abolish the African slave trade immediately because it was popular and because most Americans thought the African slave trade was just horrible and wrong.

Thus, the Constitution provides, and I will read the clause because it’s such a convoluted clause and it gives you an idea of how hard the delegates worked to hide what they were doing. The Constitution provides in Article I – Section IX “The migration or importation of such persons as any of the states now existing shall think proper to admit shall not be prohibited by the Congress prior to the year One Thousand Eight Hundred and Eight.”

If you read this today, you might have no idea what they are talking about “Importations of such persons.” What the Constitution is saying is the Migration and Importation Clause, which we refer to as the African Slave Trade Clause, provided that Congress could not end the African slave trade until at least 1808. However, the clause did not require that the African slave trade ended in 1808. Sadly, many historians, some political scientists and legal scholars don’t understand this and often write in textbooks that the clause required an end to the African slave trade. It did not. It says it cannot be ended before 1808.

The Deep South delegates, the South Carolinians, the Georgians, they believed that by 1808 the Deep South would have a bigger population than the North. They believed that this American population was moving South and west and thus, states like Alabama and Mississippi would have been brought into the Union by 1808 and the South would have essentially a veto power over a ban on the African slave trade. Luckily, it didn’t work out that way. Luckily, Ohio came into the Union, but Alabama and Mississippi did not. Luckily, by 1808 the Northern population was substantially larger than the Southern population and so we can ban slave trade in 1808.
What happened in the meantime? At least 60,000 slaves are brought into the United States between 1803 and 1808. This is the largest importation of slaves into what became the United States in the entire history of the country. From the colonial period to 1803, you never had 60,000 slaves brought in in five years and then from 1803 to 1808 you got at least 60,000 slaves. This is the debate over the slave trade.

Towards the end of the convention, Southerners demanded a clause to allow them to recover runaway slaves and Northerners, without any great debate, without very much thought seemed to be worn out by these constant debates over slavery and they are so worn out that they allow for the Fugitive Slave Clause to be inserted into the Constitution. Like the clause on the African slave trade, the Fugitive Slave Clause is almost impossible to understand and is convoluted.

The clause read “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.” This is Article IV – Section II – Paragraph III of the Constitution. It doesn’t mention the word “slave.” It doesn’t mention the word “fugitive.”

But the impact is clear. If a slave runs away from Virginia to Pennsylvania, he cannot become free under Pennsylvania law. If a slave runs from Kentucky into Ohio, she does not become free under Ohio law. Rather, Ohio or Pennsylvania are obligated to return this upon the claim of the person to whom such service or labor may be due and, of course, how do you prove that claim? How do you prove you own someone else?

In 1793, Congress passes the first Fugitive Slave Law, which has almost no protections for people claimed as fugitive slaves, but it doesn’t work very well in part because many Northerners simply don’t help Southerners capture runaway slaves. In 1842, the Supreme Court will hear its first case on the Fugitive Slave Law. It’s remarkable that the law’s passed in 1793 and there’s no case that reaches the Supreme Court before 1842.

But in a case called Prigg vs. Pennsylvania, the court holds that no state can interfere in the return of a fugitive slave. That Congress has the constitutional power to pass the Fugitive Slave Law, although there were many people who said that Congress did not have this power. They thought that this was a regulation of state to state relations. Furthermore, the court ruled that a master had a right to seize a slave anywhere the slave was found without any judicial process. A slave catcher could simply grab someone and say, “This is my slave. I’m taking him or her back to my state,” and the free state had no right to interfere.

Now what this led to was a remarkable response by Northern states. Northern states immediately passed laws prohibiting their state officials from helping in the return of fugitive slaves, prohibiting the use of jails for fugitive slaves. Well, it was one thing to cross from Maryland into Pennsylvania, grab your fugitive slave and go back to Pennsylvania. That you could do in an afternoon. Quite another to go up to New York or even to Philadelphia or to Ohio and grab a fugitive slave and try to bring that slave all the way back to the South. You can’t do it easily and you can’t do it without the help of local officials.

An example of how this worked occurred in Boston in 1842 when a fugitive slave named George Latimer was seized by a slave catcher and put in the Suffolk County Jail. The jailer accepted the fugitive slave until public pressure forced the jailer to let him go because the sheriff of the county was, of course, an elected official and it was clear the population would not stand for allowing Massachusetts’ jails to house runaway slaves. Once Latimer was released, his master found that there was no safe place to keep him in Boston and for a small amount of money, he agreed to free him. So, this is an indication of the crisis that occurred in some Northern states when the Supreme Court said that states could not protect free Blacks from kidnapping.

This ultimately led to the Fugitive Slave Law of 1850, the first national law enforcement act in the history of the United States. It provided for a federal commissioner to be appointed in every county in the United States. The federal commissioner had the authority to authorize the return of fugitive slaves. The commissioner had the authority to call up the Army, the Navy, the Marines, the Coast Guard or local militias to protect an owners’ interest in a fugitive slave and it led to about a thousand African-Americans being returned to the South between 1850 and 1860.

One of the ironies of the Fugitive Slave Law of 1850 is that it completely violated states’ rights because the 1850 law, as well as the Prigg decision in 1842 said that the states had absolutely no power to protect their own citizens from being wrongly seized as fugitive slaves. And when we think about the debates of the 1850s and the claim that secession is about states’ rights, it turns out to be the opposite.

The Southern states did not secede to protect states’ rights. They seceded because they were fed up with Northern states’ rights. They were fed up with Northern states that were trying to protect their citizens, their neighbors, their friends from being seized as fugitive slaves. Sometimes the people seized were not actually fugitive slaves at all. Other times they were. But for Northerners, it didn’t matter. If your neighbor was living next door to you peacefully, you saw no reason why that person should be dragged to the South as a fugitive slave.

So, the irony is that the first federal law enforcement apparatus was an anti-states’ rights law passed by Congress at the insistence of Southerners for the protection of slavery. So, these are the kind of the major provisions of the Constitution that play-out with regard to slavery. But there are a couple of others that are worth noting.

There are two places in the Constitution where the document provides for the suppression of rebellions and insurrections. Article I of the Constitution – Section VIII says, “Congress shall have the power to provide for calling forth a militia to execute the laws of the Union, suppress insurrections and repel invasions.” Article IV of the Constitution says, “The United States government can do the same thing against insurrections in the states.”

Now here’s the interesting thing. Why do we have double protection against insurrections and rebellions? The textbooks all say, “Well, they’re thinking about Shay’s Rebellion in Massachusetts,” and certainly, they were thinking about Shay’s Rebellion in Massachusetts, but the Southerners were thinking about slave revolts. They were worried about their own slaves.

When Southern delegates go back to the ratifying conventions after the Constitution, they say, “We should support this Constitution. We should ratify it because it’s going to protect slavery,” and one of the ways it protects slavery is that the national government will suppress insurrections and rebellions. And when is the militia called out? When is the army called out?

After Nat Turner’s rebellion, the U.S. Navy hunts for slaves who had been part of Nat Turner’s rebellion. When John Brown organizes a raid into Virginia, now West Virginia, to help free slaves, the local Virginia authorities don’t have the power to suppress John Brown. They have to wait for the US Marines to arrive, led by an Army Colonel named Robert E. Lee and so John Brown is suppressed by the US Army.

So again, the interesting thing is while Southerners talk about states’ rights, they are in fact delighted to have the federal government send troops to Virginia, send troops to what is now West Virginia, send troops to Louisiana, send troops to anywhere where there might be a slave rebellion. And so again, the Constitution protects slavery by guaranteeing that the United States government will suppress slave rebellions.

Finally, most people who were at the Constitutional Convention argued that the convention was a government of limited powers and as a result, the national government could not interfere with slavery where it existed and this becomes very important for understanding the nature of what the Southerners thought they were ratifying. They argue over and over again that the national government can never interfere with slavery, but that the national government can protect slavery.

Charles Cotesworth Pinckney, a general during the revolution, the hero of South Carolina and the head of the South Carolina delegation to the convention, returns to South Carolina after the convention. He tells the state legislature, “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 to the several states.”

The delegates who come back from the convention are thrilled with what they’ve won. They have one a Constitution, which gives them political power for their slaves, protects the African slave trade for at least 20 years, guarantees that their political power to elect members of Congress will also affect the election of the presidency, guarantees the national government will suppress slave insurrections and rebellions and guarantees that their fugitive slaves can be captured and returned to the Southern states.

Hasan Kwame Jeffries: Dr. Paul Finkelman is the president of Gratz College in Philadelphia. He received his PhD in history from the University of Chicago and later studied at Harvard Law School. He’s the author of more than 50 books and over 200 scholarly articles. The US Supreme Court has recognized his legal expertise by citing him in four of its decisions. We’re going to continue his discussion of liberty, slavery and the law in our next episode, moving from how the institution of slavery shaped the U.S. Constitution to how the Supreme Court dealt with cases about slavery prior to the Civil War.

Teaching Hard History is a podcast from Learning for Justice, with special thanks to the University of Wisconsin Press. They are the publishers of a valuable collection of essays called Understanding and Teaching American Slavery. In each episode, we’re featuring a different scholar to talk about material from a chapter they authored in that collection. We’ve also adapted their recommendations into a set of teaching materials, which are available at LearningForJustice.org. These materials include over 100 primary sources, sample units and a detailed framework for teaching about the history of American slavery.

Learning for Justice is a project of the Southern Poverty Law Center, providing free resources to educators who work with children from kindergarten through high school. You can also find these online at LearningForJustice.org. Thanks to Dr. Finkelman for sharing his insights with us. This podcast was produced by Shay Shackleford, with production assistance from Tori Marlan and Jonathan Jennings at Gratz College.

Our theme song is “Kerr’s Negro Jig” by the Carolina Chocolate Drops, who graciously let us use it for this series. Additional music is by Chris Zobriski. If you like what we’re doing, please let your friends and colleagues know and take a minute to review us in iTunes. We always appreciate the feedback. I’m Dr. Hasan Kwame Jeffries, associate professor of history at the Ohio State University and your host for Teaching Hard History: American Slavery.

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