Info Brief: Slavery at the Founding

Generations of Americans battled over slavery and the Constitution—with each side laying claim to the Constitution’s text and history. A range of voices—both pro-slavery and anti-slavery—turned to the Constitution’s language and constructed arguments to favor their side of the great constitutional battles over slavery in the 1800s.

But it’s also important not to forget the human cost of slavery. The violence. The forced labor. The families torn apart. Wives sold away from husbands. And children away from parents. Every single right that we cherish was violated. No right to speak. Or pray. Or read. Or learn. Or gather together. Or to a fair process before we’re punished or lose our freedom. Or to marry and raise a family. Or to earn a freely chosen living. And so on.

Finally, let’s also not forget that African Americans played a central role in this story of constitutional transformation. In the late 1700s and throughout the 1800s, African American men and women played a key role in the nascent abolitionist movement. These voices fought for the rights of free African Americans, and they demanded emancipation for enslaved people. They also advanced a powerful vision of equal citizenship—a vision that the Reconstruction generation would later write into the Constitution with the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments.

Ratified after the Civil War, the Thirteenth Amendment abolished slavery. Soon after, the Fourteenth Amendment wrote the Declaration of Independence’s promise of freedom and equality into the Constitution. And the Fifteenth Amendment promised to end racial discrimination in voting. While the original Constitution—plus the Bill of Rights—remains a powerful statement of many of America’s most enduring principles, the Thirteenth, Fourteenth, and Fifteenth Amendments truly represent our nation’s “Second Founding.”

With those framing thoughts in mind, let’s first turn to the history of slavery in early America.

Slavery is obviously older than the U.S. Constitution. And slavery itself was written into colonial law as early as the 1660s in places like Virginia and the Carolinas.

By the 1700s, these colonial slave codes transformed slavery itself—making it inheritable. In other words, it was passed down from mother to child and was a lifelong condition based on race. This is known as “chattel slavery.” And this represented a fundamental shift in how the institution of slavery worked.

In the 1700s, American slavery expanded. To give just the example of Virginia—enslaved people grew from just 7% of the population in 1680 to 28% in 1700 and, finally, to 46% in 1750. So, slavery became a massive part of the Southern population—and white Southern wealth—in the 1700s.

With the signing of the Declaration of Independence in 1776, American slavery also flew in the face of our nation’s Founding principles.

Finally, at the Constitutional Convention, the framers refused to recognize the right of property in men. However, they did compromise over the issue of slavery, enshrining protections for slaveholders in the Constitution. The original Constitution prohibited Congress from ending the slave trade until 1808, counted enslaved people as three-fifths of a person for purposes of representation in Congress, and protected the slaveholder’s power to retrieve those who escaped slavery.

Finally, the anti-slavery movement was part of the American story from the very beginning.

Of course, throughout the colonial period, slavery wasn’t only a Southern phenomenon. There were enslaved people in the North. However, during the 1780s, many Northern states took steps towards freeing enslaved people. For instance, Vermont ended slavery in its 1777 constitution, and Pennsylvania passed a gradual emancipation bill in 1780, followed by Rhode Island and Connecticut in 1784.

Or consider the push for abolition in Massachusetts. In January 1777, Prince Hall—a free African American in Boston—offered a petition for freedom to the Massachusetts House on behalf of seven African Americans. The petition drew on the theory of natural rights at the heart of the Declaration of Independence, arguing that slavery violates natural law. And this was just one of many similar petitions brought in Massachusetts—using the American Revolution and the language of liberty through the right of petition to destroy slavery. Massachusetts’s highest court would go on to declare slavery unconstitutional in 1783.

Finally, consider Benjamin’s Franklin’s push to present an anti-slavery petition to Congress in 1790. Pennsylvania had the first abolition society in the country—founded in April 1775. The Quakers took a lead role in the society. A decade later, Benjamin Franklin was elected the Society’s president.

Franklin turned to the abolitionist cause late in life. He became an outspoken critic of slavery after the ratification of the U.S. Constitution, publishing several essays calling for slavery’s abolition. In his final public act, he sent a petition—signed in February 1790—to Congress on behalf of the Pennsylvania Abolition Society, calling for the abolition of slavery and an end to the slave trade. The petition called for the First Congress to “devise a means for removing the Inconsistency from the Character of the American People” and “to promote mercy and justice towards this distressed Race”—namely, African Americans.

The petition was introduced in the House and Senate shortly thereafter. Pro-slavery forces denounced the petition—and it sparked a heated debate in both the House and the Senate. The Senate took no further action on the petition while the House sent it to a select committee. The House eventually tabled the resolution—putting it to the side—and argued that the Constitution limited Congress’s power to end the slave trade until 1808. This ended the debate on slavery in the First Congress.

Franklin died two months later.