An "unspeakable compromise:" slavery and the Constitution

September 19, 2007Duke Law News

In their determination to hold a young and fractious alliance of states together with a national government, the 55 delegates to the 1787 constitutional convention in Philadelphia entered into an “unspeakable compromise” in their accommodation of slavery, Professor Walter Dellinger told a capacity audience at Duke Law School on Sept. 17, the anniversary of the convention’s conclusion.

A leading constitutional scholar and Supreme Court advocate, Dellinger headed the White House Office of Legal Counsel and served as acting U.S. solicitor general during the Clinton administration. He was introduced by Professor Erwin Chemerinsky as “one of the giants in the American legal community for our generation.” The Program in Public Law sponsored Duke University’s Constitution Day event, which is intended to encourage learning about the U.S. Constitution.

While praising the four-month-long constitutional debates as a display of “statecraft of the highest order,” resulting in a constitution that has lasted longer than any other in history, Dellinger devoted much of his Constitution Day address to an exploration of how the Framers committed the nation to the maintenance of slavery, even while sowing the seeds of its later demise in their concurrent commitment to firm republican principles of government.

The issue of slavery simmered in the background of the debates for many weeks before “bursting out” as the delegates considered whether slaves should be counted as “people” when determining representation in Congress, as was desired by the Southern slave-holding states. “By their numbers alone, if counted as three-fifths of ‘all other persons,’ slaves would add to the size of the delegation and influence of the states that had slavery,” said Dellinger, who read aloud Pennsylvania Gov. Robert Morris’s impassioned speech opposing this possibility.

“‘The admissions of slaves into the representation formula, when fairly explained, comes to this: that the inhabitant of Georgia and South Carolina who goes to the coast of Africa and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections and damns him to the most cruel bondages, such people shall have more votes in a government instituted for the protection of the rights of mankind than the citizens of Pennsylvania and New Jersey who view with a laudable horror so nefarious a practice.’”

The convention truly entered “the heart of darkness” in the delegates’ subsequent compromise over navigation laws ― essential to “seal” the convention, said Dellinger. Seeking to protect their shipping and ship-building industries, the Northern states wanted Congress free to enact navigation laws ― early free-trade laws ― by simple majority, without fear of any veto by the South. For their part, the Southern states wanted to guarantee that they could continue to import slaves from Africa. Their compromise: The two-thirds requirement for any navigation laws pertaining to shipping and ship-building was dropped, and Congress was expressly prohibited from passing any laws interfering with the importation of slaves before 1808.

“This was when the constitutional convention [made] the country much worse off in terms of slavery than before we had a national constitution,” said Dellinger. The Framers compounded the problem with the addition of the “fugitive slave clause,” which Dellinger called “the first national commitment to the maintenance of slavery,” in its requirement that non-slave states return escaped slaves to their slave-holders.

But while the Constitution both acquiesced in and facilitated slavery, “it contained, in its larger philosophy of government, the seeds of slavery’s demise,” said Dellinger. “The creation of a government that rested on the fundamental premise of the consent of the governed, and which had among its central values individual liberty and human dignity, made slavery a constitutionally variant institution, even in 1787. The institution of slavery was made even more anomalous with the adoption of the Bill of Rights as proposed by the first Congress. … Once the Framers had confirmed the sense of dignity of persons, the notion of having such a constricted view of who is a person in the real sense was part of that tension,” he said.

With a firm belief in “reading the Constitution for the best it could be read,” President Lincoln “reclaimed American history” at Gettysburg, with his famous beginning, “Four score and seven years ago, our forefathers brought forth…” said Dellinger. “That’s not the constitutional convention, or the beginning of government, it’s the Declaration of Independence. He says that’s the foundational covenant and says ‘all men are created equal.’

“Lincoln was a good enough lawyer to know that the Framers and authors of the Declaration of Independence never thought they were thereby freeing the slaves when they wrote [those words] and agreed to that document, but he insisted on general principles of republican liberty and equality embedded in the Declaration. He refused to assume that the Framers were simply being hypocritical in proclaiming liberty and equality while acquiescing in slavery,” said Dellinger, adding that the Framers’ commitment to republican principles “allowed those who came later to send the institution of slavery on the road to ultimate extinction.”

A webcast of Duke University’s Constitution Day address is available at
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