One hundred and fifty years ago
this month, the 13th Amendment officially
was ratified, and with it, slavery finally
was abolished in America. The New York
World hailed it as “one of the most important
reforms ever accomplished by voluntary
human agency.”
The newspaper said the amendment
 “takes out of politics, and consigns to
history, an institution incongruous to our
political system, inconsistent with
justice and repugnant to the humane
 sentiments fostered by Christian
civilization.”
With the passage of the 13th Amendment
—which states that “[n]either slavery
nor involuntary servitude, except as a
punishment for crime whereof the party
shall have been duly convicted, shall
 exist within the United States, or any
place subject to their jurisdiction”—the
central contradiction at the heart of the
Founding was resolved.
Eighty-nine years after the Declaration of Independence had proclaimed all men to
be free and equal, race-based chattel
slavery would be no more in the United States.
While all today recognize this momentous accomplishment, many remain confused
about the status of slavery under the
original Constitution. Textbooks and
history books routinely dismiss the
Constitution as racist and pro-slavery.
The New York Times, among others,
continues to casually assert that the
Constitution affirmed African-Americans
to be worth only three-fifths of a human being.
Ironically, many Americans who are resolutely
opposed to racism unwittingly agree with
Chief Justice Roger Taney’s claim in Dred Scott v. 
Sandford (1857) that the Founders’ Constitution
regarded blacks as “so far inferior that they
 had no rights which the white man was
bound to respect, and that the negro
might justly and lawfully be reduced to
slavery for his benefit.” In this view, the
worst Supreme Court case decision in
American history was actually correctly
decided.

The argument that the Constitution is racist suffers from one fatal flaw: the concept of race does not exist in the Constitution.
Such arguments have unsettling implications
for the health of our republic. They teach
citizens to despise their founding charter
and to be ashamed of their country’s origins.
 They make the Constitution an object of
contempt rather than reverence. And they 
foster alienation and resentment among 
African-American citizens by excluding them
 from our Constitution.
The received wisdom in this case is wrong.
 If we turn to the actual text of the Constitution
and the debates that gave rise to it, a
 different picture emerges. The case for
a racist, pro-slavery Constitution
collapses under closer scrutiny.
Race and the Constitution
The argument that the Constitution is
racist suffers from one fatal flaw: the 
concept of race does not exist in the 
Constitution. Nowhere in the Constitution
—or in the Declaration of Independence, 
for that matter—are human beings 
classified according to race, skin color, 
or ethnicity (nor, one should add, sex, 
religion, or any other of the left’s 
favored groupings). Our founding 
principles are colorblind (although 
our history, regrettably, has not been).
The Constitution speaks of people,
citizens, persons, other persons (a
euphemism for slaves) and Indians
not taxed (in which case, it is their
 tax-exempt status, and not their skin
color, that matters). The first
 references to “race” and “color”
occur in the 15th Amendment’s
guarantee of the right to vote, ratified in 1870.
A newly freed African American group of men and a few children posing by a canal against the ruins of Richmond, Va. Photo made after Richmond was taken by Union troops on April 3, 1865. (Photo: Everett Collection/Newscom)
A newly freed group of black men and a few children pose by
a canal against the ruins of Richmond, Va., after Union troops
 took the city on April 3, 1865. (Photo: Everett Collection/Newscom)
The infamous three-fifths clause, which
 more nonsense has been written than any
other clause, does not declare that a black
 person is worth 60 percent of a white person.
 It says that for purposes of determining the
 number of representatives for each state in
the House (and direct taxes), the government
 would count only three-fifths of the slaves,
and not all of them, as the Southern states,
who wanted to gain more seats, had insisted.
The 60,000 or so free blacks in the North and
the South were counted on par with whites.
Contrary to a popular misconception, the
Constitution also does not say that only
white males who owned property could vote.
 The Constitution defers to the states to
determine who shall be eligible to vote
(Article I, Section 2, Clause 1). It is a little
 known fact of American history that black
citizens were voting in perhaps as many
 as 10 states at the time of the founding
(the precise number is unclear, but only
 Georgia, South Carolina, and Virginia
explicitly restricted suffrage to whites).
Slavery and the Constitution
Not only does the Constitution not mention
 blacks or whites, but it also doesn’t
mention slaves or slavery. Throughout
the document, slaves are referred to as
persons to underscore their humanity.
As James Madison remarked during the
constitutional convention, it was “wrong
 to admit in the Constitution the idea that
there could be property in men.”
The Constitution refers to slaves using
three different formulations: “other persons”
(Article I, Section 2, Clause 3), “such
persons as any of the states now existing
shall think proper to admit” (Article I, 
Section 9, Clause 1), and a “person
held to service or labor in one state, under
 the laws thereof” (Article IV, Section 2, Clause 3).
Although these circumlocutions may not
have done much to improve the lot of
slaves, they are important, as they
denied constitutional legitimacy to the
institution of slavery. The practice
remained legal, but slaveholders could
not invoke the supreme law of the land
 to defend its legitimacy. These formulations
make clear that slavery is a state institution
that is tolerated—but not sanctioned—
by the national government and the
Constitution.
Reading the original Constitution, a
visitor from a foreign land would simply
 have no way of knowing that race-based
slavery existed in America. As Abraham
Lincoln would later explain:
Thus, the thing is hid away, in the

Constitution, just as an afflicted man

hides away a wen or a cancer, which

he dares not cut out at once, lest he

bleed to death.
One could go even further and argue, as
Frederick Douglass did in the lead-up to the
Civil War, that none of the clauses of the
Constitution should be interpreted as
applying to slaves. The “language of the
 law must be construed strictly in favor
of justice and liberty,” he argued.
Because the Constitution does not
 explicitly recognize slavery and does
 not therefore admit that slaves were
property, all the protections it affords
to persons could be applied to slaves.
 “Anyone of these provisions in the
hands of abolition statesmen, and
backed up by a right moral sentiment,
would put an end to slavery in America,” Douglass concluded.
Those who want to see what a racist and
pro-slavery Constitution would look like
should turn to the Confederate Constitution of 1861. Though it largely mimics the Constitution,
it is replete with references to “the institution
of negro slavery,” “negroes of the African
race,” and “negro slaves.” It specifically
forbids the Confederate Congress from
passing any “law denying or impairing
the right of property in negro slaves.”

Contrary to a popular misconception, the Constitution also does not say that only white males who owned property could vote.
One can readily imagine any number of clauses that could have been added to our Constitution to enshrine slavery. The manumission of slaves could have been prohibited. A national right to bring one’s slaves to any state could have been recognized. Congress could have been barred from interfering in any way with the transatlantic slave trade.
It is true that the Constitution of 1787 failed to abolish slavery. The constitutional convention was convened not to free the slaves, but to amend the Articles of Confederation. The slave-holding states would have never consented to a new Constitution that struck a blow at their peculiar institution. The Constitution did, however, empower Congress to prevent its spread and set it on a course of extinction, while leaving the states free to abolish it within their own territory at any time.
Regrettably, early Congresses did not pursue a consistent anti-slavery policy. This, however, is not an indictment of the Constitution itself. As Frederick Douglass explained: “A chart is one thing, the course of a vessel is another. The Constitution may be right, the government wrong.”
Congress and the Slave Trade
In his original draft of the Declaration of Independence, Thomas Jefferson called the African slave trade an “execrable commerce” and an affront “against human nature itself.” Because of a concession to slave-holding interests, the Constitution stipulates that it may not be abolished “prior to the year one thousand eight hundred and eight” (Article I, Section 9, Clause 1).
(Photo: Everett Collection/Newscom)
Before the Civil War, Frederick Douglass said that nothing in the Constitution should be interpreted as applying to slaves. The “language of the law must be construed strictly in favor of justice and liberty,” he argued. (Photo: Everett Collection/Newscom)

In the meantime, Congress could discourage the importation of slaves from abroad by imposing a duty “not exceeding 10 dollars on each person” (Article I, Section 9, Clause 1). Although early Congresses considered such measures, they were never enacted.
Early Congresses did, however, regulate the transatlantic slave trade, pursuant to their power “to regulate commerce with foreign nations” (Article I, Section 8, Clause 3). In 1794, 1800, and 1803, statutes were passed that severely restricted American participation in it. No American shipyard could be used to build ships that would engage in the slave trade, nor could any ship sailing from an American port traffic in slaves abroad. Americans were also prohibited from investing in the slave trade.
Finally, on the very first day on which it was constitutionally permissible to do so—Jan. 1, 1808—the slave trade was abolished by law.
The law, which President Thomas Jefferson signed, stipulated stiff penalties for any American convicted of participating in the slave trade: up to $10,000 in fines and five to 10 years in prison. In 1823, a new law was passed that punished slave-trading with death.
Congress and the Expansion of Slavery
Banning the importation of slaves would not by itself put an end to slavery in the United States. Slavery would grow naturally even if no new slaves were brought into the country.
Although Congress could not prevent this, it could prevent slavery from spreading geographically to the territories from which new states would eventually be created.
Congress has the power “to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States” (Article IV, Section 3, Clause 2), to forbid the migration of slaves into the new territories (Article I, Section 9, Clause 1), and to stipulate conditions for statehood (Article IV, Section 3, Clause 2).

In no way could the Constitution be said to be pro-slavery. The principles of natural right undergirding it are resolutely anti-slavery. Its language conveys disapproval of slavery.
Regrettably, early Congresses did not prevent the spread of slavery. Between 1798 and 1822, Congress enacted 10 territorial acts. Only half excluded slavery.
As a result, seven slaveholding states and five free states were admitted into the union. The seeds of what Abraham Lincoln would later call the crisis of the house divided were sown.
Slavery in the Existing States
As for the existing slaveholding states that had ratified the Constitution, what could Congress do to restrict the growth of slavery within their borders? Here Congress had more limited options. After 1808, “the migration” of slaves across state lines could have been prohibited (Article I, Section 9, Clause 1). This was never done.
In principle, slavery could have been taxed out of existence. However, the requirement that direct taxes be apportioned among the states made it impossible to exclusively target slaveholders. A capitation or head tax, for example, even though it would have been more costly for Southerners, would also impose a heavy burden on Northerners.
While one could perhaps have circumvented the apportionment requirement by calling for an indirect tax on slaves—as Sen. Charles Sumner, R-Mass., would later doduring the Civil War—such arguments were not made in the early republic.
There was one clause in the original Constitution that required cooperation with slaveholders and protected the institution of slavery. Slaves who escaped to freedom were to “be delivered up” to their masters (Article IV, Section 2, Clause 3). The motion to include a fugitive slave clause at the constitutional convention passed unanimously and without debate. This would seem to indicate that all knew it would be futile to try to oppose such a measure.
The debate instead focused on the wording. Whereas the original draft had referred to a “person legally held to service or labor in one state,” the final version instead refers to a “person held to service or labor in one state, under the laws thereof.” This change, Madison explains in his notes, was to comply “with the wish of some who thought the term legalequivocal,” as it gave the impression “that slavery was legal in a moral view,” rather than merely permissible under the law.
This remark by Madison captures the Constitution’s stance vis-à-vis slavery: permissible, but not moral. Legal, but not legitimate.
In no way can the Constitution be said to be pro-slavery. The principles of natural right undergirding it are resolutely anti-slavery. Its language conveys disapproval of slavery. And it contains within it several provisions that could have been and were at times used to prevent the spread of slavery.
This may not make it an anti-slavery Constitution. But even before the 13th Amendment, it was a Constitution that, if placed in the right hands, could be made to serve the cause of freedom.