Constitutional Arguments

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Constitutional Arguments

For students of American history, the U.S. Constitution and the Bill of Rights are the embodiment of America's belief in liberal democracy and individual freedom, but the original 1787 version of the Constitution was an explicitly proslavery document in a number of ways. The Constitution protected the political viability of slave states by establishing the three-fifths clause, an article that counted enslaved Africans as three-fifths of one individual in order to determine the number of representatives southern states would receive in the House of Representatives. Without the three-fifths clause, districts with large African majorities would receive a political penalty for their investment in a slave economy. Moreover, the 1787 Constitution mandated the end of America's involvement in the international slave trade by 1808. This clause ensured that there would be a massive domestic slave market that would move African Americans from northern and middle states to the cotton states of the Deep South and new Southwest. What historians have called the Second Middle Passage was made possible because the new nation's founding documents simultaneously endorsed slavery and outlawed the slave trade.

Although key sections of the Constitution supported slavery, the document's general allegiance to principles of liberal democracy and social egalitarianism also gave a platform to abolitionists, enslaved Africans, and free African Americans who sought to end chattel slavery throughout the nineteenth century. Most students are aware of the Dred Scott v. Sandford (1857) case, but most African Americans seeking to make constitutional arguments against slavery employed petitions. Petitions allowed activists to demonstrate the political will of their community and provided an avenue for a federal stage that was infinitely less likely via judicial proceedings. Because it was impossible for African Americans to testify in most southern courts, it was unlikely that African American claimants would make it through necessary lower court proceedings that would open up a hearing before the Supreme Court. Absalom Jones (1746–1818), a prominent free African American minister from Philadelphia, organized the first of many official petitions written by African Americans and read before Congress in opposition to slavery.

Though African Americans were often unable to stage court battles against slavery, slavery and slave law was a consistent portion of the Supreme Court's docket throughout the antebellum period. One of the lesser known, yet vitally important cases that forced the Court to question the constitutionality of slavery and the Fugitive Slave Law (1793) was Prigg v. Pennsylvania (1842). In 1837 Edward Prigg attempted to kidnap Margaret Morgan from York County, Pennsylvania, and return her to her Maryland mistress. When convicted on kidnapping charges by a Pennsylvania court, Prigg appealed to the Supreme Court with the argument that Pennsylvania's antikidnapping laws violated Article 4 of the Constitution and were in conflict with the Fugitive Slave Law. Often, when slavery came before the Court, the notion of state's rights replaced a real engagement with the legality of slavery as an institution. Broadly, these petitions and court cases continually pushed federal courts and legislatures to consider the role of slavery within a free republic.


Kennicott, Patrick C. "Black Persuaders in the Antislavery Movement." Journal of Black Studies 1, no. 1 (1970): 5-20.

Maltz, Earl. "Slavery, Federalism, and the Structure of the Constitution." American Journal of Legal History 36, no. 4 (1992): 466-498.

Ohline, Howard A. "Republicanism and Slavery: Origins of the Three-Fifths Clause in the United States Constitution." William and Mary Quarterly 28, no. 4 (1971): 563-584.

                                       Kwame A. Holmes

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Constitutional Arguments

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Constitutional Arguments