Slavery and the Constitutional Conflict (E15 S2)
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Slavery and the Constitutional Conflict (E15 S2)

October 22, 2019


Their sometimes competing sets of interests
would prove to be a challenge throughout the United States constitutional convention. The
southern slaveholding states were ready to bolt if their interests were in anyway threatened
by the United States Constitution. So how did competing interests deal with this conundrum?
In short, they didn’t. The result is an almost comical avoidance of dealing with slavery
in any direct way. In fact if one were to do a search of the United States Constitution
one would find that neither do the words “slave” nor “slavery” appear anywhere in the document.
One way in which this challenge was manifest arose over the issue of representation. State
representation House of Representatives was to be determined by the state’s population
– the larger a state’s population, the larger the number of representatives for that state
in the House of Representatives. But what about slaves? Where they to be counted in
the state’s population for the purpose of representation? For the northern states, who
clearly wanted to stack the number of representatives is their favor (and thus further their interests
in the House of Representatives), the answer was clearly, no. For southerners — who wanted
to use the slave population to boost their representation in the House of Representatives
— the answer was clearly yes. Thus, the infamous three-fifths compromise was born, which stated
that representation “shall be determined by adding the whole of the number of free persons,
including those bound to service for a term of years and, excluding Indians not taxed,
three fifths of all other persons.” So, the framers dealt with the issue of whether slaves
were to be included in this population for purposes of representation without mentioning
the word “slave” in a way reminiscent of a scene from an Austin Powers film in which
Dr. Evil wants Mini Me to leave the room … … Alright it’s getting crowded in here.
Everyone out! Everyone out! Come on. Not you, Scotty. Not you, Number 2. Not you,
Frau. Not you, Goldmember. Not you guys back there. Not you, henchman holding wrench. Not
you, henchman arbitrarily turning knobs making it seem like you’re doing something.
Ohhh, this is uncomfortable! Another issue arose over the status of fugitive
slaves. What if a slave escaped to a non-slaveholding state? What would be the status of that slave?
Furthermore, how does the convention address the issue of fugitive slaves without mentioning
the word “slave?” Again, their avoidance of even mentioning the word “slavery” is
almost comical. The result is a very strangely worded clause that reads: “No person held
to service of labour 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 labour,
but shall be delivered upon claim of the party to whom such service or labour may be due.”
Alrighty then … What about the slave trade? What would be
the authority of the Congress regarding the slave trade? And, again, how do we specify
congressional authority in this regard without mentioning the “s” word? The result is another
strangely worded clause allowing the slave trade to continue for at least the next 20
years: “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 1808.” Vaguely written as the references to slavery
were, the rift between north and south was already so great that the United States Constitution
would not have been ratified without them — a fact that prompted James Madison to state,
“Great as the evil is, a dismemberment of the Union would be worse.”
That the Constitution was so vague on the issue of slavery left the union with no constitutional
means to deal with the issue — a problem that would finally come to a head four score
and seven years later. In fact, the moment the ink was dry on the US Constitution, the
monumental oversight on the part of its framers — the lack of any specific reference to slavery
— ultimately meant that civil war was virtually inevitable. It was only a matter of time.
The first sign of trouble occurred as soon as a peace deal was ratified with Britain.
By the terms of treaty, Britain granted independence to its 13 North American colonies. The problem,
however, was that Britain hand no further use for the land from the crest of the Appalachians
to the Mississippi River that it had acquired from France as a result of the 7 year’s war.
So, they threw that in for good measure, and, almost immediately, the United States doubled
its size and created a new western frontier. Why was this a problem? Well, suddenly we
have a large new territory and two emerging sections – North and South – that would
like to see it molded to fit their own competing interests.
So, what will become this new territory? Would be an extension of the southern slaveholding
interests, or will it be a platform for northern interests to exploit the cheap labor of poor
whites whites? Well, we could just consult the constitution. The only problem is that
the Constitution says nary a word about slavery. It’s a problem to United States is going to
confront after every territorial acquisition — and there is simply no constitutional remedy.
It’s a problem that can only be resolved through compromise and delicate balance of northern
and southern interests. Obviously, however, we can see where this is going. Ultimately
that balance is going to be upset and the only way to permanently resolve this issue
is through Civil War. Back to the issue at hand. Thomas Jefferson
proposed that slavery should not be introduced in the entire territory west of the Appalachians.
Why would Thomas Jefferson – a man who owned hundreds of slaves – suggest that slavery
should not be introduced on the frontier territory? Recall our earlier discussion of the nature
of frontier in episodes 6 and 7. The frontier tends to be an attractive place for poor and
marginalized folk. As discussed earlier, there was already a steady stream of poor white
ethnic Europeans who were supplying the cheap labor needs in the northern section. Many
of those poor ethnic whites were finding that it was largely the wealthy who were reaping
the rewards of their labor. That could be dangerous in that it could potentially create
another discontented class of poor whites that may end up revolting against the wealthy.
The saftey valve was the frontier. The frontier offered these poor whites cheap
land and an opportunity to acquire wealth — that is unless those poor whites have to
go head to head with slave labor. That is the reason that the last thing these poor
whites want to see out on the frontier was slavery. Thomas Jefferson recognized that
fact and was perfectly happy to see those poor whites out on the frontier where they
would be out of sight and out of mind. It turns out that slavery would have ruined that
dynamic. The South, of course, had other plans. The
increasing profitability of slave labor made the expansion of slavery to the west inevitable.
So here we have our first crisis of the post-revolutionary period. What to do? In this case the crisis
was resolved by extending the Mason-Dixon line to the Ohio River. It was determined
the territory north of the Ohio River be opened up to non-slave holding interests while Slavery
was allowed to expand inthe territory south of the Ohio River west to the Mississippi.
So, the crisis was averted in the Ohio Valley frontier … for now, but, again it’s easy
to see where this is going. The continued expansion westward, the competing
interests between north and south over the western frontier, and the failure of the nation’s
founders to provide any constitutional means of addressing the issue of slavery is going
to put the country on a collision course toward Civil War. As we will see, the further west
we expand, the closer we get to war.

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