Did the Constitution really set a pathway for slavery to “die out” by itself? If so, how?

by InfectionPonch

So Sen. Tom Cotton (among others) has described that the Union was founded on a way that slavery would end by itself “naturally”, he also claims that the Founding Fathers had that idea in mind when forming the Union. Does this holds any true?

sowser

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The short answer: no. Whilst there were individuals with anti-slavery sentiments who had hopes that slavery as an institution was going to die out in the United States through economic and social unsustainability, there were no special provisions in the Constitution that were - in the minds of the clear majority of the document's drafters and ratifiers - intended to facilitate that process and indeed, the Constitution as ratified included two measures intended to recognise and enhance the power and privileges of slavery as an institution, not diminish them. It is not my place to speculate on Senator Cotton's motives or thinking behind making his comments and whether they represent ignorance or willful distortion of the historic record, but suffice to say, these kind of misconceptions and misunderstandings are common.

In no small part, they arise from the tendency in American public life to almost deify the Founding Fathers: to create images of the men who formed the leadership of the American Revolution and later lead the former colonies to join together in federation under the Constitution between 1787 and 1790 as bastions of moral, civic and political virtue who infused the fledgling Republic's soul with everything that made them good and great. Closely related to this is the myth that the Founding Fathers were drafting a constitutional document that was intended to serve the United States well for all of time, best tampered with only in exceptional circumstances. But these are grand sweeping narratives of national destiny rather than honest and objective accounts of what was actually happening. The truth is that the Founding Fathers represented a mix of wealthy, influential men who reflected the norms and values and virtues of a narrow section of contemporary American society; who were largely hostile to the idea of democracy as we understand it today in which every man and woman is entitled to vote; and who had very different ideas and interests in shaping the future United States. They were every bit as flawed and cantankerous as politicians today can be, with their own agendas and visions both noble and selfish. Many problematic interpretations of the history of slavery come from misguided assumptions that the Founding Fathers represent a class of individuals with unique and exceptional foresight and talent and unity of purpose, rather than an honest and pragmatic assessment of the Founding Fathers as diverse, flawed figures just like anyone else in human history.

At the Constitutional Convention there certainly were men involved in the drafting of the Constitution who argued that the forming of a new government presented the opportunity to abolish slavery, either immediately or gradually. Delegates like Roger Sherman and Oliver Ellsworth did indeed take the view that slavery was in natural decline based on the way in which it was being abolished in some states already and claimed that there would inevitability be an abolition across the United States on a state-by-state basis; Gouverneur Morris was perhaps the most aggressively anti-slavery individual at the Convention. But this kind of interest represented a small minority in the Constitutional Convention as a whole. Very close to half the men in attendance were themselves slave owners, the majority of who went into the Convention with the express red line of not tolerating any meaningful interference in the institution of slavery from any new federal government; the representatives of Georgia and South Carolina were particularly strident on this issue. Many of the quirks of the Constitution that stand out as unusual or improper to our modern eyes are the provisions that were included at the behest of slave-owning delegates to protect the future of slavery.

Much is made of the fact that the word 'slave' does not appear anywhere in the Constitution and this is taken to suggest an intrinsic hostility to the institution of slavery and a desire to avoid putting it on any kind of footing in federal law. This is, I'm afraid, not the case. By the same logic many of the values and ideals political commentators ascribe to the Constitution and its Founders have no legal footing: words like 'freedom', 'democracy', 'integrity', 'dignity', 'individual' and 'liberty' (except in a very vague opening reference) do not appear in any of the provisions of the US Constitution as it was originally enacted, in contrast to the constitutions of many democratic nations today. 'Slavery' was avoided as a term simply to appease Northern delegates who felt uncomfortable with the idea of including the word in the final text of the Constitution. The most stand out protection for the institution of slavery comes from the fact that the US Constitution expressly made it illegal for a period of 20 years post-ratification for the federal government to outlaw or curtail "The Migration or Importation of such Persons as any of the States now existing shall think proper to admit". In other words, human trafficking - as embodied in its most extreme form by the transatlantic slave trade - was given constitutional sanction and protection until 1808.

Now, it is often held up that this provision represents a compromise on the inevitability of ending slavery: that the fact it was able to be included in the Constitution shows a contemporary acquiescence to the idea that slavery was in decline. In reality, this change reflected an understanding on the part of Southern slave owners that the nature of slavery was changing. For a mixture of reasons, every state had outlawed the slave trade during the war for independence from Britain, and it never recovered following independence - the enslaved population of the United States was increasing organically and in Virginia especially, the number of people being born into slavery was outstripping the labour needs of local plantation owners. An internal slave trade was instead developing in the Southern United States where enslaved men, women and children were compelled against their will to move deeper South, and this trade was growing increasingly elaborate in terms of scale and logistics. The inclusion of a 20 year grace period to protect the international slave trade was a concession that Southern planters saw as a means to secure the future of slavery in the event the domestic trade proved insufficient in those pivotal decades of early independence, but did not rely on the slave trade. And indeed, moral opposition to the slave trade but acceptance of slavery itself was a common position in American society at the time - some slave owners were willing to sacrifice the trade as a concession to anti-slavery elements, knowing it was the aspect of slavery that horrified Northern anti-slavery activists most, and secure in the knowledge the loss of the slave trade would not mean the end of slavery.

The other major pro-slavery concession in the Constitution was the counting of enslaved men, women and children as "free-fifths" of a person when calculating the population of the United States for the purposes of taxation and representation. Whilst increasing the tax burden on a wealthy southern elite, this compromise clause also meant that the representative power of the slave owning states was significantly over-stated in the United States Congress and the Electoral College (although manipulating the Electoral College was an accident rather than an intended outcome; the Electoral College very nearly did not exist). Although this inclusion of enslaved people in the census for determining population did not provide the South with an absolute majority of elected representatives over the North, it did have the effect of creating what we call a 'blocking majority' for the purpose of obstructing the amendment of the Constitution: the slave states would always have more than one-third of the seats in the House and one-third of the seats in the Senate, enabling them to prevent constitutional amendments modifying or abolishing slavery to be adopted, whilst also decreasing the number of allies pro-slavery lawmakers would need to challenge regular legislation. Slave owners in the Southern states were exceptionally content with the Constitution by and large: though they would have preferred a more explicitly pro-slavery document, they walked away with a legal text that contained no description of the powers of the federal government over slavery, that guaranteed them the ability to effectively veto any attempt to seriously interfere with slavery through the Constitution, and which legitimised implicitly if not explicitly the ownership of one human being by another by giving a legal foundation for the importing of human beings into the country as forced labour against their will.