The Peculiar Institution Expands: Slavery and the Constitution

Women and Children Picking CottonWomen and Children Picking Cotton. (Photo: Avery Research Center at the College of Charleston)
From the Editors…

There is a currently a dust-up in political and historical forums over whether or not the Constitution sanctioned slavery or was an anti-slavery document. It is heated, and personal, and must, to many people, seem arcane. Who really cares, today, whether or not the Founding Fathers technically saw the nation as one based on slavery, when the reality was that the Constitution permitted the institution? Slavery existed before the American Revolution, it expanded afterward, and Americans had to fight a four-year war that cost more than $5 billion and 600,000 lives to end it.

So why does this issue matter so much?

It is really a fight about politics, and the nature of modern-day America.

Princeton professor Sean Wilentz launched the fight with an op-ed in the New York Times on September 16 shortly after Bernie Sanders said that the United States was “created…on racist principles.” Wilentz, a long-time Clinton supporter, vehemently disagreed. He insisted that the Constitution, which established the nation, was anti-slavery because it kept slavery a local, rather than a national, institution.

The larger question at stake in this argument is about whether or not America needs to address a history of inequality that is knit into the fabric of our society, or whether the problems we see today are largely policy issues that are not part of the nation’s fundamental make-up. This translates to politics because Sanders has been a more vocal supporter of the Black Lives Matter movement than Hillary Clinton has been. At a more general level, though, it is a fight about how to incorporate new voices into a discussion about America’s future.

We’re History believes the best way to address these questions is by looking at what, exactly, happened in the past. Today Professor Joshua D. Rothman from the University of Alabama explains how the Constitution encouraged the growth of slavery.

Critics of Sean Wilentz’s essay in the September 16 New York Times have rightfully noted that contrary to Wilentz’s claims, the Constitution quite clearly entrenched racial slavery in the national government and made it a national institution. The Constitution contained enough ambiguity to allow antislavery forces to maintain by the middle of the nineteenth century that the federal government could legitimately put slavery on the path toward extinction. But to make the case that the Constitution was nationally antislavery in intent in 1787 is to read history backwards from 1865.

Perhaps more significantly, such an argument makes American history in the years between the ratification of the Constitution and the outbreak of the Civil War difficult if not utterly impossible to understand. For if the Constitution was indeed, in Wilentz’s words, “based on a repudiation of the idea of a nation dedicated to the proposition of property in humans,” slavery never should have become an even more powerful force in American life after ratification than it had ever been before. If the Constitution was truly antislavery at a national level, the enslaved population that stood at around 700,000 in 1790 never should have increased nearly sixfold to roughly 4,000,000 people by 1860, at which point the United States had the largest enslaved population on the planet. The landscape of slavery and the number of people imprisoned on it in the United States expanded not because white southerners somehow conspired against the intentions of the framers, but because structurally and politically the Constitution encouraged it.

Some of the men involved in drafting the Constitution did believe that the institution of slavery was morally problematic and hoped that it would fade over time before effectively ending on its own. Given the declining Chesapeake tobacco economy of the late eighteenth century, it was not unreasonable to imagine that the compromises that made slavery part of the infrastructure of the national government were temporary expedients that would largely cease to matter within a generation or two. Even as some northern states began moving toward gradually emancipating their enslaved populations, however, no constitutional provision was ever made to nudge the nation as a whole in that direction, and in short order after ratification the burgeoning cotton economy of the southwest shattered the illusion that slavery might somehow simply disappear.

If any sense of urgency for moving against slavery at the national level ever really existed around the time of ratification, congressmen abandoned it quickly. In the late 1790s, Congress formally opened for settlement the Mississippi Territory, comprising what is now Mississippi and Alabama, and, after briefly debating alternatives that were within its power to enact, endorsed slavery’s legality there. The United States then acquired the massive Louisiana Territory in 1803. Here too lay an opportunity for the national government to demonstrate its commitment at least to restricting slavery’s growth if not to ending it. But no such commitment existed, and white settlers expanded slavery throughout the Southwest. In the region of the Mississippi Territory alone, the enslaved population increased from fewer than 4,000 people in 1800 to more than 180,000 by 1830.

To the extent that Congress used the Constitution to circumscribe slavery at all, it did so in ways that actually entrenched the institution and nurtured its growth. The Missouri Compromise of 1820, for example, drew a line across the Louisiana Purchase above which federal law banned slavery’s expansion. But it simultaneously recognized and affirmed federal support for slavery’s expansion below the line. Then Congress demonstrated its support for that expansion through its program of Indian removal that used federal money and military might to clear Native Americans off millions of acres of cotton land for white slaveholders to exploit.

Similarly, while Congress did enact legislation to abolish the transatlantic slave trade as soon as it was constitutionally permissible in 1808, it simultaneously gave national license for Americans to engage in the domestic slave trade that had been growing in the United States to feed white demands for labor in the cotton lands. The very same legislation that barred the importation of enslaved Africans for sale placed no restrictions on the sale of enslaved people across state lines. On the contrary, the law required only that ships transporting enslaved people from the failing tobacco fields of Maryland and Virginia to the thriving cotton and sugar regions of the Southwest had to document on their manifests that their cargo had lived in the United States by 1808. Congress thus had the explicit constitutional power to regulate interstate commerce, and at the very moment the minds of its members turned to the horrors of the transatlantic slave trade, they used that power to legitimize the domestic slave trade as an acceptable form of commercial exchange in the United States.

All of these developments had their greatest meaning in the places where slavery continued to exist in the nineteenth century, but all of them were national in significance. Cotton only grew in the South, but by the 1830s it was by far the nation’s most vital export. Slave-grown cotton made up more than half of everything the United States shipped overseas, and it fueled the early Industrial Revolution specifically and the evolution of American capitalism more generally. Enslaved people were traded only in the South, but the profits from their sales were shared nationally, and even internationally, as banks scattered across the United States and England provided the credit that facilitated the trade. In fact, during the 1820s and 1830s, the years when the trade was arguably at its most flourishing, that credit came directly from the federal government, with the Second Bank of the United States pouring millions in government funds into the Southwest.

Growing numbers of American antislavery activists understood that the profits of slavery accrued generally in the United States. As abolitionist Joshua Leavitt put it in 1840, the wealth produced by slavery was “the common plunder of the country.” And abolitionists understood equally well from whence the authority to carry out what Leavitt called “this general robbery” of the enslaved ultimately derived. One might make the case that the Constitution’s omission of the word “slavery” eventually helped enable that institution’s demise. But that linguistic squeamishness notwithstanding, only the fact that the Constitution confirmed the legitimacy of racial slavery can explain its explosive growth before the Civil War.

See all of the pieces in our series: Slavery and the Constitution.

About the Author

Joshua D. Rothman

Joshua D. Rothman is Professor of History and Chair of the Department of History at the University of Alabama. He is the author, most recently, of Flush Times and Fever Dreams: A Story of Capitalism and Slavery in the Age of Jackson (2012), and is currently working on a book about the slave traders Isaac Franklin, John Armfield, and Rice Ballard.

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