How the Constitution Faced Slavery without Saying Its Name

We explore how three clauses—and what’s left unsaid—shaped slavery’s legal status at the founding while pointing toward its moral illegitimacy. Dr. Michael Zuckert traces the tension between federal structure, state authority, and the Declaration’s promise of equality, and follows that thread to Reconstruction.

• abolitionist charge of a pro‑slavery Constitution vs Lincoln’s limited‑accommodation view
• three clauses: three‑fifths, slave trade to 1808, fugitive return
• deliberate omission of the words slave and slavery
• slavery as a state institution, not a federal one
• representation mechanics and political power of slaveholders
• commerce power, union threats, and the 1808 compromise
• Article IV comity and the fugitive clause’s enforcement conflicts
• legality vs legitimacy: Declaration ideals against state practice
• escalation to Civil War and the 13th–15th Amendments
• enduring legacy and limits of Reconstruction

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Setting the Debate’s Two Traditions

SPEAKER_00 0:47

Welcome back to Civics in the year. I am very excited to welcome Dr. Michael Zucker to the show. He is a renowned scholar of political theory and American constitutionalism with decades of teaching experience at some of the country's top universities. Beyond the classroom, he's also shared his expertise with the public through radio and documentaries. And we are very excited to have him on the podcast. Dr. Zucker, the question we have today is how did the constitution address slavery at the time of its founding?

SPEAKER_01 1:18

Well, as you probably know, this is an extremely controversial question right now. And it's actually been very controversial for a long time. The contrary goes back to before the Civil War, and there were kind of two points of view that were very strong then, and they actually persist even now. One point of view, much associated with the abolitionists, held that the Constitution was extremely supportive of slavery, and therefore was, as the chief abolitionist said, a covenant with death. That is very bad, a very bad thing for all the help that it gave to slavery. The alternative position was taken by, well, there were a couple of alternative positions, but the one that carries on the controversy into today, particularly, was a position associated with Lincoln or other other members of the Republican Party, which held that while the Constitution made some accommodations to slavery, it was not particularly helpful, but that was not its main aim. And that the hope was of the hope of the founders was that slavery would ultimately disappear. So that's the controversy, and it really persists into today, how much how much aid and comfort the Constitution uh gave to slavery and what the motives were for the people who wrote the Constitution. So the abolitionists, on the one hand, held that uh slavery was supported in the Constitution because of greed. It was a it was a big moneymaker, and secondly, by racism, the concerns that we recognize today. Whereas the Party of Lincoln held more that the slavery made some or slavery received some accommodation in the Constitution, but the point of it was more to it was a necessity in certain ways to deal with an institution that well pre-existed the existence of the U.S. as a nation, you know, the that came into existence with the revolution. One of the things that there's a lot of controversy about is how many parts of the Constitution actually deal with slavery. And some of the Neo-Garrisonians, as I call them after the leading abolitionists, some of them say, you know, 18 clauses or something like that. Whereas Lincoln, for example, would say, well, there are only three that are clearly

Three Clauses, Many Interpretations

SPEAKER_01 3:41

identified with slavery. And I'm gonna focus my attention on those three because otherwise we'd be here all night talking about the whole rest of it. So there are the three, maybe they're familiar to you, but are these. First, the so-called three-fifths clause. This is a clause in the Constitution providing the rule for representation in Congress. So each state is to be represented by according to its population, and that representation, or that population, I should say, is to be counted according to the formula that free people will count for one each, and enslaved people will count for three-fifths each. So that's we get the phrase, the three-fifths clause. The second part of the constitution that's clearly about slavery is the so-called slave trade clause. The slave trade clause holds that Congress will not have the power to prohibit or of or regulate the slave trade for 20 years after the adoption of the Constitution, which would take them to 1808. And in fact, when 1808 rolled around, Congress did indeed uh prohibit the slave trade further. But that that is part of the Constitution. And then the third part is the so-called fugitive slave clause. This was an attempt by Congress to prevent what might otherwise legally be the case, that if a slave should escape from a slave state to a free state, that slave would become free, or that the state into which that he had fled would decree him free and protect him. And this was prevented by the Fugitive Slave Clause. So these three, they sound sound indeed supportive of slavery, and it indeed was, but I'd like to say a little bit more specifically to try to understand what these clauses were about and where they came from and what they really signify. Let me begin by a kind of speaking at a general level, by calling attention to what's not in the Constitution about slavery. So one thing is until the 13th Amendment, which was adopted after the Civil War, the words slave or slavery nowhere appeared in the Constitution. And this was not actually just an accident, but this was by design. Let me quote you quickly a passage that James Madison, something James Madison, the so-called father of the Constitution, what James Madison said at the Constitutional Convention on this very issue. He said, it is wrong to admit in the Constitution the idea that there could be property in men. So the omission of that word was really with you know with some forethought, and it was meant to

What’s Missing: No “Slavery” Named

SPEAKER_01 6:43

give the idea that slavery is something frowned on in this constitution. So that's that's the first part. The second, and in a way more operational, if you look all at the in the Constitution, there is no federal power given to deal with slavery in the states. The federal government, the government brought into existence by the Constitution, has no power to deal with slavery in the states. So those are two of the big things that were not in the Constitution that have some bearing on how the Constitution stands towards slavery. Then let's look at what is in the Constitution, and we'll look at the three clauses that I mentioned to you before. Let me read you part of the Fugitive Slave Clause. Remember the clause that prohibits slaves, free states from, in effect, freeing slaves who have escaped into them. The Fugitive Slave Clause says as following Persons held to service or labor in one state under the laws thereof. And then it goes on and says about not freeing those slaves. So again, let me repeat. Slave trade clause goes something like this. It refers to a power of Congress to not prohibit for those 20 years. Quote, such persons as any of the states now existing shall think proper to admit. Okay, that's the that is so referring to people who this is the slaves who want to import persons as slaves, that they they have the right to do that for those 20 years. And then third, finally, the three-fifths clause, which is already mentioned, establishes a representation, whole person representation for free people, and three-fifths for the enslaved. Now, I don't know. There are two things that you might notice about all three of these clauses. First, the word slave never nowhere appears. And in plates of that, we have very almost weird uh workarounds, that is, very awkward circumlocutions which describe these people, but does not, in fact, use that term. Such persons as they need the states now existing, yeah. Or in the in the Fugitive Slaves Clause, persons held as service or labor. So that that's one thing, the way in which we don't mention this term and we find alternative ways of describing them without describing them as slaves. And second, the second point to notice in all three of these clauses is the emphasis on the states as the source of the slavery that they experience. Held to service or labor in one state under the laws thereof.

States’ Authority vs. Federal Limits

SPEAKER_01 10:02

Another in the slave trade clause, such persons as any of the states now existing shall think proper to admit. In other words, what this what the Constitution is saying is that slavery, so far as it exists in the United States, is not an institution of the federal government, that is the government created by the Constitution, but rather is an institution of the states which preexists the Constitution and which it actually had no particular power to deal with. Well, I'll talk about that in a minute. One way to understand what all of this is saying is uh I'm gonna give you a quotation from Stephen Douglas. Perhaps you remember him. He's the guy that Abraham Lincoln debated up and down the state of Illinois. And Stephen Douglas, who was not nearly as anti-slavery as Lincoln was, but he said the following that I think captures pretty well what these clauses are trying to say. A slave within the meaning of the Constitution, says Douglas, is quote, a person held to service or labor in one state under the laws thereof, not under the Constitution of the United States, nor by the laws thereof, nor by virtue of any federal authority whatsoever, but under the laws of the particular state where such service or labor may be due. That is to say, Douglass points out clearly how slavery is an institution of the states and not an institution of the government created by the Constitution. Now, so there's an interesting question. Why are these three places in the Constitution selected out for notice and some protection when everything else in the Constitution turns its back against slavery? I think the answer is here's the answer I would give to that question. These are three places where, because of the structure of the new government, slavery necessarily somehow had to be treated. So let's take the issue of representation. We have a new system in which we're going to represent population, the population of the individual states. You may all remember that under the Articles of Confederation, the government which preceded the Constitution, each state had equal representation. Each state had one vote. This was considered wrong and was replaced with the idea that the states deserve representation in proportion to their size and their importance and so on. And so we're going to have population-based representation. Well, then the question came up: well, what about the slaves? And this was a question in a couple of different ways. One,

Three-Fifths: Representation and Power

SPEAKER_01 12:56

because the slaves themselves, of course, didn't have a vote. So it's not exactly that they would be represented. It's the people who were holding them as slaves would have representation. And the more the slaves were counted as one equal persons, the more representation that actually gave, the more power that actually gave to the slaveholders. Didn't do anything for the slaves, well, other than make them more vulnerable. So, but this was a place where the Constitution had to make some decision about how to count the slaves. And the interesting thing about this is that the slave holders, yes, they wanted to count the slaves as whole persons for reasons that I just mentioned that would increase their representation and their power in Congress. And the free states, the states which were in the process of abolishing slavery, favored countering counting them, in some cases as zero persons, because the idea was this was not to support or increase the power of the of the slaveholders. Well, this issue was ultimately settled in the following way. Under the Articles of Confederation, there had been a provision that the each state would contribute to the Treasury of the Government, Treasury of the United States, this was during the Revolutionary War, would contribute during the war an amount of money based on their population. Just the same kind of idea as we have with the three-fifths clause. And the idea was, well, not let me back up, actually, based on their wealth, on the state's wealth, and there was supposed to be a kind of census taken of the wealth of the state, and then they would be charged a certain amount of money based on their wealth. Well, can you imagine what it's like to tally up the total wealth of a state in the middle of a war? It would be difficult at any time, but not very difficult in the middle of a war. So they settled on a compromise, and that compromise was they would count population instead. So that's how we got the concern with population in the Articles of Confederation. And then the question came up again: well, should the states, sure the slaves, be counted towards this tally? And the slaves as laborers actually do contribute to the wealth of the states. And the here we have the interesting case where the slaveholders wanted to say, well, wait, they contribute less because they do less work, or they they are less productive than free workers would be because you know people don't work so hard when they're when they're not keeping the result of their labor themselves. So that's one answer. But in the free states, on the other hand, said, no, we're going to count them more as contributing more to your wealth, so you'll have to contribute more. Well, so one answer was to say, well, we'll count the slaves as half, and another answer was to say we'll count them as two-thirds. And guess where the three-fifths formula came up? That is a compromise between one-half and three and two-thirds. So that's that's the the loc, that's the location of that one. The second clause that needed to be dealt with was the slave trade clause. The slave trade clause became important because the federal government, the new government, was given a power to regulate trade with foreign countries. And trade with foreign countries did involve the slave trade. That was part of the trade with foreign countries. And so, therefore, some policy or other would have to be arrived at to deal with that. Would the new government be allowed to abolish the slave trade? Would it be allowed to regulate it or would or not? And the some of the states, in this case, Georgia, South Carolina in particular, these states said we cannot do without the slave trade being open for at least more some more years. They didn't specify how many. And they threatened to not join the union if there was an if it was left possible for the Congress to outlaw the slave trade right away. And uh for various reasons, this this threat mattered to the others. So they came to this compromise, I guess, that will keep the slave trade open for 10 years, just for those states that want it. Other states that don't want it are allowed to forbid it for their for entry into their own states. But for those states that want it, we'll keep it open. But then after 10 years, the Congress has the power to forbid the slave trade, which, as I said before, they did. And then finally, we have the Fugitive Slaves Clause, which over time became the most controversial of the three. And the Fugitive Slave Clause, we have to think back to what how they were thinking about the Union. The Union was meant to be a very large free trade zone in which there would be open borders. That is, it would be very possible to move from one state to the other. There wouldn't be guards at the border or anything like that. And so there would be freedom of movement. Now, that freedom of movement would, however, facilitate escaping slaves. Now, that was a problem for the Union in the following way. It would be a standing source of friction and perhaps hostility between the states. And one of their concerns was that we not have that happen in the U.S., that we want the states to get along okay. So, as a matter of comedy, that is, of sort of good relations between the states, they put in the future slave clause to prohibit this source of

The Slave Trade and 1808 Compromise

SPEAKER_01 18:51

friction or to prevent this source of friction, which it actually in practice didn't do, but nonetheless it was there. And we can see the importance of the Fugitive Slave Clause or why it's there better when we look at where in the Constitution it f we find it. It's in Article 4, and Article 4 is the article that deals with relations between the states. That is, this isn't really a statement about slavery, it's a statement about interstate relations, and that was the main thing that they that determined that outcome. So, where where are we when we come down to a kind of estimate of what we might think about slavery? I'd say two things on that. One, the provisions about slavery that we find in the Constitution are not a result really of what they thought about slavery, how they what they aimed for, what they what they wanted to see for the future of slavery, but rather can't derive from the particular structure of the union. And the particular structure of the union was a federation. That is, we created a federation in which, on the one hand, we have individual states that are joined together for certain common purposes, but not for all purposes. And it was not understood to be the business of the central government of this federation to deal with the internal life of the states. That's one. And secondly, the individual states were understood to be republics, meaning self-governing entities. And that meant that the other states should not interfere much, anyway, with the internal governance of the states. So my main point would be the character of what they were trying to create led to the dominant fact about the Constitution, which is to say that slavery was accepted for those states that wanted to have it as a function of the federal character of the system that they were establishing. But on the other side, we see that slavery was understood to be somehow not a not a good thing. Not a good thing. So that seems to me to suggest that in their minds, slavery was legal within in the Constitution, within certain boundaries, the limited boundaries I've mentioned, but that it was not legitimate. It was not legitimate. And if we think about the broader political theory or political thought context or political culture context of the time, I think we can see that the that the principles of politics that they were working with largely worked against slavery. So for example, as we we all learned somewhere in high school, in the high school or elementary school, the Declaration of Independence starts off, all men are created equal, and they're endowed with certain inalienable rights, including life, liberty, and pursuit of happiness. Slavery is simply completely incompatible with those with those principles. So that in the background, in the backdrop of American political life, were certain principles which spoke against slavery. But in the foreground, there were certain facts which at least made this survival of it in the present moment almost a necessity. So we went into the we the Constitution

Fugitive Clause as Interstate Policy

SPEAKER_01 22:46

began with a conflict, an internal conflict between legitimacy and legality. That is, we had certain practices and institutions which were legal but not legitimate. And any political community which has such a conflict has a difficult time, how should we say, living with that tension. So there's always pressure for it to go one way or the other. And that's exactly what we saw in the pre-Civil War period, where there was an effort by the slaveholding states to make the more un make the Union more compatible with slavery altogether. People like John C. Calhoun said that the Declaration of Independence, when it says all men are created equal, is lying. This is a lie. This isn't true. On the other hand, the abolitionists wanted to say we need to get rid of slavery because it's incompatible with the principles of legitimacy. Well, the result of this was the Civil War, of course. And uh, of course, the the free states won the Civil War and produced for us the 13th, 14th, and 15th Amendments, which undid slavery as a fact in America, tried to establish the civil rights of the freed of the freedmen, and finally tried to establish in the 15th Amendment the political rights for the freedmen. Now, it's a long story, but the these amendments didn't exactly transform the nation entirely. So we're still living with some of the legacy of the preexisting slavery. But that's the story of how the Constitution dealt with slavery, kind of in a brief form, but that that's it. Thank you.

SPEAKER_00 24:31

Thank you so much, Dr. Zuckerberg. I have so many pages worth of notes, and I appreciate that you talked about what is in the constitution, but also having us look at what is not in the constitution, because I think that both of those considerations are you know are important as well as the words that are used, right? Not using the word slavery means something. Thank you so much. Your expertise is just unmatched. And I really appreciate you giving our listeners such a great story that tells us, you know, how the founders address slavery in the Constitution. We appreciate you.

SPEAKER_01 25:12

Thank you.