Slavery and the US Constitution 1787-1860

…all slaves of a particular state are to be counted as three-fifths of a white person.1

the States were divided into different interests not by their…size…but principally from their having or not having slaves.2 Future President Madison

lavery caused mayhem for the Founding Fathers as they wrote the constitution in 1787. What sort of people are slaves? The intellectually tortured answer was the infamous three-fifths compromise declaring that five slaves equated to three ‘people’. A further insidious compromise was formulated in Missouri, 1820. This dealt with slaves returning from non-slave states where they were temporarily free. The Missouri Compromise proclaimed ‘once free, always free’. The Dred Scott case came about when Scott wasn’t freed after returning to Missouri. His case reached the Supreme Court in 1857. They ruled no black, free or slave, could ever be a citizen and therefore couldn’t petition the Supreme Court. This dissolved the distinction between slave and non-slave states in the New Territories in the west. Slave-owners could bring slaves with them as ‘property’.

Writing the constitution was a huge endeavour. Slavery was contentious. The southern states said slavery was essential whilst the northern states denounced it as odious. Southern delegates wanted slaves counted as ‘people’, one-for-one. This was dismissed by northern delegates fearing slave states would get a permanent majority in the House of Representatives. Future president and slave-owner, James Madison proposed the three-fifths compromise where five slaves equated to three people. Madison’s proposal got unanimous support and the constitution was ratified in 1787.3 Additionally a balance was created with eleven slave states matched by non-slave states. The balance led inexorably to the Missouri Compromise in 1820.

The Missouri Compromise meant slaves taken to non-slave New Territories states became free and remained free after their return to their home state. (The compromise didn’t apply to slaves who escaped their bondage. They could be pursued and forcibly returned.4) Scott’s claim was that his rights had been breached as he hadn’t been freed on his return. He therefore began court proceedings. His case wound its way through Missouri’s court system finally reaching the Supreme Court in 1857.

The Supreme Court, led by Chief Justice Taney,5 shocked everyone. The 7-2 majority verdict threw out Scott’s case by saying Missouri had exceeded their powers in creating the compromise in the first place. Property rights trumped state rights and Scott had no status in the USA at all as he wasn’t, and never could be, a citizen.

…A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a “citizen” within the meaning of the Constitution of the United States…..he [Dred Scott] is not a citizen of the State of Missouri according to the Constitution of the United States..6

Taney extended slavery to the New Territories in the west by adjudicating that Every citizen has a right to take with him into the Territory any article of property which the Constitution of the United States recognises as property.7

The implications of this were profound. It altered the status quo ante for every black-American whether enslaved or not. Taney, wittingly or not, destroyed the constitutional balances built up since 1787. After this judgement the tectonic plates of mutual distaste led to civil war three years later. The Dred Scott case was a contributory factor leading to civil war.



3 The three-fifths compromise altered the demography of representation. “The Southern states, if represented equally, would have accounted for 33 of the seats in the House of Representatives. However, because of the Three-Fifths Compromise, the Southern states accounted for 47 seats in the House of Representatives of the first United States Congress of 1790.”

Paragraph 4 Section 8 is the key to this point

That in all that territory ceded by France to the United States, under the name of Louisiana, which lies north of thirty-six degrees and thirty minutes north latitude, not included within the limits of the state, contemplated by this act, slavery and involuntary servitude, otherwise than in the punishment of crimes, whereof the parties shall have been duly convicted, shall be, and is hereby, forever prohibited: Provided always, That any person escaping into the same, from whom labour or service is lawfully claimed, in any state or territory of the United States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labour or service as aforesaid

4 The 1772 Mansfield Judgement, in England, drew no distinction as to how a slave entered the country. All slaves were automatically freed once they landed. However slaves arriving in England did so by ship, which was a major barrier for an escape plan.

5 Taney wasn’t a slave-owner but his parents had owned slaves and he grew up in an atmosphere where slavery was normal. He was also a fervent believer in limiting federal rights on internal state policies.

6 section I paras 4 and 12

7 ibid section IV para 4


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