What Did the Constitutional Convention Do with Slavery?

What do Madison’s Notes reveal about how the Constitution handled slavery? For example, what significance should we place on the strong condemnation of slavery we find in Madison’s re-telling of his June 6 speech, or on his account of his July 14 speech in favor of proportional representation in the legislature, where the institution of slavery is said to “form the line of discrimination” dividing the Union?

Adam Seagrave

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Fascinating question. Let me respond with some thoughts about Madison’s comments about slavery in the Notes.

Madison’s June 6, 1787 speech contains one sentence about slavery. He wrote, “We have seen the mere distinction of colour made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man.”

This sentence is one of the most famous about Madison and slavery. In fact, it is the name of a terrific exhibit currently at James Madison’s Montpelier. In addition to exploring the Constitution, Madison, and slavery, the exhibit emphasizes the stories of the descendants of enslaved individuals at Montpelier and the legacies of slavery that continue today.

So how should we interpret this sentence?  Note that the sentence is descriptive rather than normative. That is, the sentence acknowledges that slavery is based only on a “mere distinction of colour” and seems to suggest some contradiction with the “most enlightened” moment. But Madison does not write slavery should be abolished. This is a troubling part of Madison at the Convention: other delegates did not record him condemning slavery. No other notetaker on June 6—and we have four or five others—wrote down Madison’s dramatic sentence about slavery.

When I studied the original Notes manuscript, I concluded that one could not prove that Madison had said it on June 6, 1787 or even had written it down contemporaneously. In fact, oddly, the sheet on which these words appear differs from the surrounding sheet. For textual and forensic reasons that I detail in my book, I suggest that Madison might have written down these words a couple years later when he revised and replaced this speech in his Notes—perhaps between the fall of 1789 and the summer of 1790.

To me, 1789-1790 fits more neatly with other things we know about Madison. In the fall of 1789, he wrote a memorandum on slavery that argued for African resettlement as an “encouragement to manumission” and “the best hope yet presented of putting an end to the slavery in which not less than 600,000 unhappy negroes are now involved.” In the spring of 1790, Madison participated in the controversial congressional debates over petitions against slavery. I argue he was no supporter of abolition in 1790 but, like a number of others, hoped that the foreign slave trade would be banned in the states.

How do we read the Notes without that sentence? We see Madison thinking about slavery for a different type of political reason. The second speech you mention—the July 14 speech—contains another sentence on slavery. Here are the two sentences from that speech: “It seemed now to be pretty well understood that the real difference of interests lay, not between the large & small but N. and South[er]n States. The institution of slavery & its consequences formed the line of discrimination.”

An important story in the original Notes is Madison’s willingness to have the two branches of Congress reflect the division over slavery. We often forget that Madison worked to defeat equal state suffrage in any branch of Congress. He wanted both houses of Congress to be based on proportional representation. In early July, Madison suggested that the first branch should represent the states according to free inhabitants and the second branch (the Senate) according to the “whole number, including slaves.” Madison hoped that this compromise would create a voting alignment in which the 3 large states (Virginia, Massachusetts, Pennsylvania) would be joined by 3 slave states (North Carolina, South Carolina, and Georgia) to end any chance that the states would be equally represented in the senate.  He was unsuccessful but the three-fifths compromise came to embody the same political dynamic.

Somewhat controversially, I argue that Madison “successfully persuaded delegates of a sectional divide and encouraged the southern states to prioritize protection of slavery. But Madison never gained a solid majority against equal state suffrage. Instead, the three-fifths clause was approved, southern delegates coalesced around slavery, and important northern delegates declared willingness to compromise over slavery.”

Without Madison, would the Convention have abolished slavery? That seems unlikely. Nearly half the enslaved population in the United States lived in Virginia, some 292,627 people in the 1790 census. And Madison carefully noted delegates who spoke explicitly in favor of the continuation of slavery. But might political representation have been based on a calculation that gave no benefit to those who enslaved others …. that possibility we can never know. I believe, however, that there was nothing politically foreordained about the specific compromises regarding slavery reached by the Convention.

Mary Sarah Bilder

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Your answer is intriguing in its implication that the Constitution’s treatment of slavery was the result not only of compromises—which is where the textbooks leave it—but also perhaps of the unintended consequences of political maneuvering, particularly on Madison’s part. This seems to add something of a tragic element to the usual story. What do you make of Madison’s reference to slavery in the “Vices” essay before the Convention? Do you think this was perhaps added in 1789-1790 as well? Does this mean Madison’s anti-slavery sentiment warmed after the Convention, even as Jefferson’s seemed to cool? And were his reasons for this mostly political, or were they principled as well?

Adam Seagrave

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You raise a very important issue.  One of the more controversial aspects of my book has been my suggestion that Madison’s famous “Observations on the Vices of the Political System of the United States” may not date in its entirety to April 1787. My concerns about the Vices, however, relate to a later section.

I suspect that the line about slavery was written before the Convention.  That line is “where slavery exists the republican theory becomes still more fallacious.”  But what does Madison mean by this sentence?  He is reflecting on the problem that the Articles can’t secure the states against internal violence. He notes that under Republican Theory, right and power are supposed to be the same and both vested in the majority. But he says in reality, a minority may appeal to force and overmatch the majority. He gives three examples where a third can take power, implicitly illegitimately, against the majority. The first is where the third is composed of those who are in the military or the wealthiest. The second is where the third are joined by men who do not have enough property to vote–and who Madison says are “more likely to join the standard of sedition.” (Perhaps he is thinking of events leading to Shay’s rebellion.) The third example is in places with slavery.

So what does Madison mean by this sentence? A modern reader might think it means that he is writing against slavery. But there is a different possibility. He may mean that one third, joined by the threat of an uprising by those enslaved, could take power.  In short, Madison may be referring here to the possible threat of slave rebellions. He might have been recalling the seventeenth-century Bacon’s rebellion or, more likely, his own fears in the 1770s about slave rebellions, particularly in the wake of Governor Dunmore’s 1776 proclamation.

If so, then Madison’s three examples of why a national government was necessary to protect state governments were: a coup by the military (or corruption); a revolt by white men lacking sufficient property to vote; and a rebellion by enslaved people.

Mary Sarah Bilder

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Your answer is very interesting. It adds this cryptic statement by Madison in the “Vices” to the long list of troublingly ambiguous engagements with slavery in the Founding era. It is certainly plausible that many apparently anti-slavery statements in the Constitutional text as well as in the Convention and other Founding era writings are in fact less motivated by anti-slavery sentiment than they initially appear to be—or, even, that they are sometimes motivated by pro-slavery sentiment, as you suggest may be the case in this example in the “Vices.”

This brings to mind—by contrast, perhaps—Frederick Douglass’s literal, anti-slavery reading of the Constitution after his break from William Lloyd Garrison. Does your study of Madison and the Constitutional Convention directly or indirectly refute such a reading? And if so, does that mean the original Constitution is hopelessly entangled with slavery?

Adam Seagrave

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Your question points to an enduring fundamental puzzle: was the Constitution a proslavery or antislavery document?  Frederick Douglass, Lysander Spooner, William Garrison, and many others debated that issue in the nineteenth century. The publication of Madison’s Notes in 1840 provided fuel for that debate. Those who saw the Constitution as a pro-slavery document could point to the provisions in the Constitution protecting slavery and what would become known later as the slave power: the fugitive slave clause, the three-fifths clauses, the clause barring Congress from ending the slave trade for twenty years—and the prohibition on amending the Constitution to alter that bar. Those who saw the Constitution as an antislavery document could point to the absence of the word “slave” or “slavery;” the absence of prohibitions on abolition, and the ambiguity about whether enslaved people were “property” under the Constitution. (A comparison with the Confederate Constitution is a noted contrast.)  And many scholars have offered evidence on both sides of this issue.

I have come to think that we should consider this question in a different light. Instead of thinking there is a single answer, I think we should ask what kind of space did the Constitution create or limit with respect to the existence of slavery, its expansion, or its demise?  Was the interpretation of the Constitution’s relationship to slavery initially more fluid? When I went back over Madison’s Notes, the story that emerged strongly was the recognition by the delegates of the deeply entwined relationship of slavery and the new nation. The delegates who attended the Philadelphia Convention realized more profoundly than at any other prior political moment that the new United States government potentially could have power to end slavery or to perpetuate it–and that there were people beginning to identify the idea of the new nation with one or the other possibility.

Mary Sarah Bilder

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Mary Sarah Bilder is Founders Professor of Law at Boston College, and the author of Madison’s Hand: Revising the Constitutional Convention (Harvard University Press, 2015).



What Did the Constit…

by Mary Sarah Bilder time to read: 10 min
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