Slavery, the Constitution and Jan. 1, 1808

Slavery has been known to humankind from the beginning. In Mesopotamia, 8000-2000 B.C., the most famous slaves were Jews captured by King Nebuchadnezzar. In war, captured enemies were often forced to work, i.e., slavery. In 1444 A.D., Portuguese traders brought the first large cargo of slaves from West Africa to Europe, thus beginning the Atlantic slave trade. (Kevin Bales, “New Slavery,” 2004). The 1619 Project is based on the coming of 20-30 slaves to Fort Monroe in Hampton, Virginia, by the British, with additional African slaves coming a few days later.

Slavery was well-entrenched by 1787 when our Second Constitution (our current one) was written. Historian Eric Foner wrote: “When the struggle for independence began, slavery was an old institution in America. For well over a century, slaves had tilled the tobacco fields of Virginia and Maryland; for nearly as long, they had laboured on the rice plantations of coastal South Carolina. Slaves also worked on small farms in part of the North, and in many artisan shops in cities like New York and Philadelphia. Taking the nation as a whole, one American in five was a black slave in 1776.” (Eric Foner, “Blacks and the US Constitution,” New Left Review, issue 183, September-October 1990). African-Americans make up only 12.1% of the population today.

How did our Constitution treat the phenomenon of slavery? The answer is stealthily; the document does not mention slavery by name, only indirectly. We must remember a constitution is made by a compromise of political forces, some of which may be determined to be “evil” over time. (Mark A. Graber, “Dred Scott and the Problem of Constitutional Evil,” 2006).

In Article I (2)(3) on the allocation of the number of members to the House of Representatives per state, it was to be the “…whole Number of free Persons … (and) three fifths of all other Persons,” that is, slaves. This three-fifths provision gave Southern states (where most slaves lived) more representatives and, thus, more political power. Of the 16 presidents chosen between 1788 and 1848, all but four were slave owners. (Foner, Ibid.). (The number of presidential electors per state is the number of representatives plus the number of senators).

Among the powers of Congress in Article I (8)(15), there is the power for calling forth the militia to “…suppress Insurrections….” This was probably to suppress slave rebellions. (Professor William Novak’s class on legal history, University of Michigan Law School, Fall 2016).

In Article I (9)(1), the Constitution states: “(t)he Migration or Importation of such Persons as any of the States now existing shall think proper to admit,” will not be prohibited until Jan. 1, 1808. Thus, Congress could not prohibit foreign slave trade for 20 years. I’ll come back to this.

In Article I (9)(4) it states: “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census….” Perhaps, this had the effect of preventing a federal tax on an owner’s slaves.

Article IV (2)(3) means that an escaped slave into a free state had to be returned to the state of its owner. Going to a free state did not undue the owner’s property ownership.

Article IV (4) states that when a state so requests, the United States shall protect that state against “domestic violence.” This is probably a reference to slave rebellion. (Novak, Ibid.).

In Article V on amending the Constitution, it states there CANNOT BE an amendment regarding Article I (9)(1), i.e., no prohibition on foreign slave trade until Jan. 1, 1808.

On Jan. 1, 1808, a law passed by Congress and eagerly signed by President Thomas Jefferson in 1807 went into effect prohibiting the foreign slave trade! This was one of the most important statutes ever passed by Congress. An unchecked entrance of slaves into our country would have dramatically increased the number of slaves, with their price going down, being affordable by more people. (Eric Foner, “Forgotten Step Toward Freedom,” The New York Times, Dec. 30, 2007). It could have turned us into a slave nation, with inimical effects on the development of our democratic republic. We should celebrate Jan. 1, 1808, more than we do.

James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

This article originally appeared on The Daily Telegram: James Pfister: Slavery, the Constitution and Jan. 1, 1808