The United States Constitution
Though the word “slave” or “slavery” does not appear in the Constitution of the United States, the issue was very much alive during the Constitutional Convention of 1787. Spalding (2002) pointed out that, “by the time of the U.S. Constitution, every state (except Georgia) had at least proscribed or suspended the importation of slaves”; however, the Southern states were by means ready to put an end to slavery itself. The difficulty for the framers of the Constitution then was to craft a document that would bind the states into an effective union without offending sectional sensitivities. Slavery was as big a sectional sensitivity as there could be. One of the main questions was how the slave populations of the Southern states should be counted. As slaves, they had no vote to cast. Should they then be counted as part of the population in regards to representation in the legislature?
As Kennedy, Cohen, and Bailey (2002) stated, “the North replied ‘no,’ arguing that, as slaves were not citizens, the North might as logically demand additional representation based on its horses” (p. 180). A compromise was reached in which a slave would be counted as three-fifths of a person thus conceding to the South a portion of their human property for the purposes of representation and increased political power. A second constitutional issue concerning slavery was the slave trade. As stated above, nearly all states had already restricted the importation of slaves or abolished it all together. However, in order to placate the South, particularly South Carolina and Georgia, the Constitution would not prohibit “the migration or importation of such persons [slaves] as any of the states now existing shall think proper to admit” until 1808.
The states could, restrict the slave trade as they saw fit, but the federal government was prohibited from doing so for two decades.A third key issue was the question of fugitive slaves. What will the law require of a free-state found to have a runaway slave within its borders?
The Privileges and Immunities Clause was thus inserted which required fugitive slaves in free-states be returned upon their master’s request.These three concessions seem a heavy human price to pay as a sop to Southern interest. How could someone like James Madison who once wrote that he “thought it wrong to admit in the Constitution the idea that there could be property in men” (as cited in Spalding, 2002) allow conditions that led to slavery’s perpetuation? The answer can again be found in the words of Madison, this time to the Constitution ratification convention of Virginia:
Great as the evil [slavery] is, a dismemberment of the Union would be worse. If those states should disunite from the other states for not indulging them in the temporary continuance of this traffic, they might solicit and obtain aid from foreign powers.
During the Civil War (1861–1865), the contrasting strategic and political value of controlled manumission versus universal emancipation became apparent when General John Charles Frémont, commander of the Department of the West, instituted martial law in Missouri in September 1861, and proclaimed manumission for the slaves of rebel owners in that state. Despite his desire to free the slaves, President Lincoln, still fighting what seemed like a losing war, annulled Frémont's order (but not before a number of Missouri slaves had already been freed).
In a similar unilateral move in 1862, General David Hunter, commander of the Department of the South, issued an order freeing the slaves of Florida, Georgia, and South Carolina. Again, Lincoln forced a retraction, explaining that his military commanders were not empowered to enact such sweeping policy initiatives. Nonetheless, the manumission orders of Frémont and Hunter tested the waters of public approval for universal emancipation and set the stage for Lincoln's Emancipation Proclamation of 1863.
