The Constitution Protected Slavery Without Ever Naming It

In mid-July, the delegates in Philadelphia hit the question that could break their new union. If seats in the lower house would be based on population, should enslaved Black Americans count at all?

The stakes were plain, and large. Northern states, where slavery was mostly dead or dying, wanted them counted not at all. Southern states wanted them fully counted, because counting them meant more seats and more power. Virginia alone had almost 450,000 free citizens and 300,000 enslaved people. By the 1790 census, 43 percent of South Carolinians were enslaved.

This is the story of how the framers bought Southern support for the Constitution. To hold South Carolina and Georgia in particular, they counted three out of five enslaved people for both representation and taxation, protected the Atlantic slave trade for 20 more years, and required that people who escaped slavery be returned, all without ever writing the word slave.

The counting formula was not new. In 1783, when the Congress under the old Articles of Confederation asked states for money based on population, delegates had debated counting half or three-fourths of enslaved people, and landed on three-fifths. That toothless revenue measure now became the Three-Fifths Compromise.

The language became Article I, Section II: “Representatives and direct taxes shall be apportioned among the several states by adding to the whole number of free persons, including those bound to service for a term of years, excluding Indians not taxed, three-fifths of all other persons.” Other persons meant enslaved people. The word slave appears nowhere in the Constitution.

That omission appalled John Dickinson, the Delaware delegate and pamphlet writer of the Revolution who had once held dozens of enslaved people and then freed them unconditionally out of Quaker belief and devotion to American liberty. He wrote privately, “Acting before the world, what will be said of this new principle of founding a right to govern free men on a power derived from slaves? The omitting of the word will be regarded as an endeavor to conceal a principle of which we are ashamed.”

Some antislavery delegates went along anyway. Constitutional historian Richard Beeman calls it “a bargain that recognized the hard, unchangeable facts of political life,” meaning the South would walk out otherwise. Virginia delegate James Madison said the real divide was no longer large states against small states. “The great division did not lie between the large and small states. It lay between the Northern and Southern,” he said, “principally from the effects of their having or not having slaves.”

In late August came a second bargain. Northerners worried the South would keep importing captive Africans to boost its representation. Southerners, dependent on slavery and farm exports, feared Northern merchants who controlled shipping would use laws on trade and navigation against them. So they traded. Congress would need only a simple majority, not two-thirds, to approve trade and shipping laws, while lawmakers were barred from interfering with the overseas traffic in enslaved people for 20 years, until 1808.

South Carolina’s General Charles Cotesworth Pinckney made the threat clear, saying approval back home would otherwise be hopeless because “South Carolina and Georgia cannot do without slaves.” Even Madison, himself reliant on slavery, called the deal dishonorable, lamenting, “20 years will produce all the mischief that can be apprehended from the liberty to import slaves.”

Three days later, on August 28, the slave states won again with the Fugitive Slave Clause. It made it a constitutional fact that enslaved Americans who fled to a free state were not free, and could be sent back into slavery. Again, the word slave was avoided, but everyone understood what it meant.

Nearby in Philadelphia were three Black men held by George Washington, horse handlers Giles and Paris, and his longtime valet William “Billy” Lee. What they thought of the debate, and whether Washington shared any of it with men to whom he felt close, cannot now be known.