A major criticism of the Constitution in recent years is that prior to the passage of the 13th Amendment it had maintained slavery as a national institution. Yet this claim does not match what took place at the Philadelphia Convention in 1787 nor is it reflected in what the document actually says about slavery itself.

In an opinion piece for the New York Times, establishment historian Sean Wilentz argues that contrary to recent statements by Democrat presidential candidate Bernie Sanders and others, the United States was not “founded on slavery,” calling this “one of the most destructive falsehoods in all of American history.”

Although many proslavery elements were present at the Constitutional Convention and strove to make slavery a permanent part of the Constitution, their efforts failed despite securing compromises that merely tolerated the existence of slavery rather than endorse it. Wilentz writes:

James Madison (himself a slaveholder) opposed the ardent proslavery delegates and stated that it would be “wrong to admit in the Constitution the idea that there could be property in men.” The Constitutional Convention not only deliberately excluded the word “slavery,” but it also quashed the proslavery effort to make slavery a national institution, and so prevented enshrining the racism that justified slavery.

He continues, noting the debate about “property,” but at the same time making clear that slavery was not “sanctioned:”

The property question was the key controversy. The delegates could never have created a federal union if they had given power to the national government to meddle in the property laws of the slave states. Slavery would have to be tolerated as a local institution. This hard fact, though, did not sanction slavery in national law, as a national institution, as so many critics presume. This sanction was precisely what the proslavery delegates sought with their failed machinations to ensure, as Madison wrote, that “some provision should be included in favor of property in slaves.” Most of the framers expected slavery to gradually wither away. They would do nothing to obstruct slavery’s demise.

An example of proslavery failures include the ban on the Atlantic slave trade that would go into effect in 1808 and the three-fifths clause that determined how slaves were counted as part of the census for purposes of determining the number of representatives the state would receive in the House (proslavery individuals wanted them to be counted as full people – at least only when determining representation).

However, some point to the fugitive slave clause, but Wilentz writes that it “was so passively worded that enforcement was left to nobody, certainly not the federal government.” Its final wording was deliberately written vaguely in order to avoid any sanction of slavery, which was a matter of state, not federal law.

The Clause reads as follows:

No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.

It would prove so ineffective, particularly as Northern states introduced emancipation laws, that the blatantly unconstitutional Fugitive Slave Act of 1850 would be passed as part of the Missouri Compromise to give the clause the teeth it was never intended to have.

In fact, escaped slave and abolitionist Frederick Douglas himself believed the Constitution did not endorse slavery, putting him at odds with more radical abolitionists who argued that it did.

The Constitution was written by men, and therefore was not devoid of imperfections. However, saying that it turned slavery into a national institution, against the will of free states, ignores both the historical record and the context in which it was written, making this indeed “one of the most destructive falsehoods in all of American history.”

TJ Martinell

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