For nearly three months, over the holiday season of 1826, the following ad ran in the pages of The Richmond Enquirer and the Charlottesville Central Gazette:
On the fifteenth of January, at Monticello, in the county of Albemarle; the whole of the residue of the personal property of Thomas Jefferson, dec., consisting of 130 valuable negroes, stock, crop, &c. household and kitchen furniture. The attention of the public is earnestly invited to this property. The negroes are believed to be the most valuable for their number ever offered at one time in the State of Virginia.1
While one is certainly stunned by the advertisement and sale of human beings alongside livestock, crops, and furniture, there’s an even larger story behind this sad ad. When US president Thomas Jefferson died on July 4, 1826, he was deeply in debt to the tune of between $1 million and $2 million by today’s standards.
George Washington’s Mount Vernon estate failed in the 1760s, and his debt lingered throughout the War of Independence into the founding of a new nation, and his presidency. In a pre–Revolutionary War letter to George Mason, dated April 5, 1769, Washington, though speaking through the voice of an aloof third-person narrator, says of mounting debt in Virginia, and apparently his attempt to hide his own:
“For how can I,” says he, “who have lived in such and such a manner, change my method? I am ashamed to do it, and besides, such an alteration in the system of my living will create suspicions of the decay of my fortune, and such a thought the world must not harbour.”2
In whatever esteem, or ambivalence, we hold the Founders and their truths, we must also hold them as debtors, especially the men of Virginia, like Jefferson, Washington, and Richard Henry Lee, and all those they represented. That many of the Founders were slave owners is well-known and now little disputed. But an even more important understanding of these men, their accomplishments and failures, how slavery compelled and complicated their lives and their legacies, might be gathered from considering their debt.
At this point, it may be self-evident where the debt of the Founders came from; they were, after all, lords and masters of well-established, substantial Virginia plantations, along the rivers and channels of Chesapeake Bay. Up to, and even through, the Revolutionary War, wealth and power in Virginia were based not on simple landownership, but on the simple fact of land used to grow tobacco. It sounds preposterous, if not comical, that a cancerous, addictive plant first grown in the Andes eight thousand years ago would shape the fate of these men and the destiny of a nation but tobacco seduced the world, and America rose, in part, from the ashes of that seduction.
What also becomes clear is that debt, to these Founders, was far more than a simple business transaction. British merchants held much of the Founders’ debt. So, that debt structured the Founders’ social and political relationships with England. But at home, the Founders held much of the debt of the others, often incurred in trying to pay off British merchants while maintaining a certain refined lifestyle. And they also held the debt of smaller and less affluent White planters. So, the debt of the Founders lies beneath pre-Revolutionary social and political relationships here as well. Debt, an inevitable part of cultivating tobacco, structured the psychology of these men. It was an integral part of colonial tobacco culture and mindset. The Founders judged their own worth, and the worth of fellow planters, by the fitness of their “croppe” and the amount of their “debte.”
For merchants on the other side of the Atlantic, debt was a simple business transaction—you borrowed money, always at an interest rate, and at some point, you paid it back. Economic conditions in the middle eighteenth century squeezed British merchants, and they pushed back in the only way they could, by “dunning”—calling in outstanding loans—from colonial planters. This, in turn, squeezed Virginian planters, pushing some, like William Byrd, into bankruptcy, and others, like Jefferson and Washington, to the brink of financial ruin. Tobacco debt, while not the principal reason for the colonies breaking away from Britain, created fallow ground in which the seeds of revolution could take root and grow in the minds of the Founders.
Yet, in reading through the scholarship on debt, tobacco, and the Founders, one is struck again and again by how even modern historians gloss over slavery. Slaves are mentioned frequently, but it is as though these men and women were simply necessary commodities for cultivating tobacco, like the right tools or enough land. Certainly, the Founders felt they were—necessary commodities, that is. And one comes away feeling that many historians feel so, too.
The Founders, the principal southern Founders, at least, like Washington, Jefferson, and Lee, built their wealth and power on their “houses of smoke”—their tobacco plantations. In other words, they built their wealth and power on the backs of Black labor. Without slavery there would have been no tobacco crop for which debt was extended by British merchants for the Founders to buy English fineries, more land, and more slaves. Without the unpaid, forced labor of Black men and women, there would have been no economic basis for the Founders’ debt squeezing British merchants, who in turn squeezed the Founders, who in turn squeezed each other, who in turn squeezed poorer White planters, and who together got tired of all of the squeezing, and, finally, rose up against the British.
Slavery is the oft-excluded, inconvenient truth of the American Revolution. When it is included, what springs into sharp relief is the pivotal role played by slaves and free Blacks in creating this country through its founding documents and institutions, and how these documents and institutions affirmed time and again the fundamental compromise of this nation: the soundness of sacrificing liberty, justice, and equality for Black people, as long as these truths were affirmed and established for Whites. Again, and again, we are witness to this self-evident truth of race in America: freedom is a privilege enjoyed by a few because bondage is a condition suffered by many.
Prior to the Revolutionary War, Virginia planters felt the tightening of financial screws by the British. In November 1763, for example, came the apparently unrelated case of the Reverend James Maury before the Hanover, Virginia, County Court. Maury, an Anglican and a local representative of the Church of England, was used to an annual salary paid by Virginian taxpayers in tobacco, sixteen thousand pounds to be exact. With tobacco prices fluctuating, the General Assembly in 1758 decided to fix Maury’s salary at two pence per pound, through legislation that became known as the Two-Penny Act. Maury, also a mentor of Thomas Jefferson, was enraged, and so were other Anglican ministers, who protested to King George. The king vetoed the act, thus enraging many local Virginians who believed he’d usurped their taxing authority. Maury, because of the king’s veto, sued for three years of back salary.
Colonel John Henry, before whom Maury argued his case, was Patrick Henry’s father. Henry decided in Maury’s favor, ruling the minister should be compensated. But when the trial proceeded to the damages phase it took an unexpected turn. The defense hired a newly minted young lawyer named Patrick Henry. Arguing before his father, Patrick bore into royal authority; a king, Henry said, by vetoing acts of this nature transforms into a monarch and “forfeits all rights to his subject’s obedience.”3 Patrick Henry’s brash oratory limited Maury’s damages to a mere one penny, while vaulting his own career, and presaging arguments that Jefferson would insert into the Declaration of Independence, specifically the mention of usurpations by King George thrice in that great document. Tobacco, once again, had swirled its way into the political affairs of Englishmen. Actually, tobacco had been in the midst of colonial affairs for quite some time.
London and Glasgow merchants controlled the purchase of tobacco from the colonies. A few years prior to the war, in 1772, a panicked financial sector caused British stock prices to plummet and credit to tighten. London merchants and investors, then, put colonial planters in a vise, refusing to accept their notes of credit, only cash, and denying further credit. Tobacco prices were lowered and loans were dunned. Jefferson, Washington, and the other tobacco planters were not only squeezed, they were irritated.4 Jefferson believed a conspiracy against colonial planters was afoot. As he said later:
This is to be ascribed to peculiarities in the tobacco trade. The advantages made by the British merchants on the tobaccos consigned to them were so enormous that they spared no means of increasing those consignments. A powerful engine for this purpose was the giving good prices & credit to the planter till they got him more immersed in debt than he could pay without selling his lands or slaves. They then reduced the prices given for his tobacco, so that, let his shipments be ever so great, and his demand of necessaries ever so economical, they never permitted him to clear off his debt. These debts had become hereditary from father to son for many generations, so that the planters were a species of property annexed to certain mercantile houses in London.5
Meanwhile, George Washington, up the Potomac at Mount Vernon, struggled with tobacco problems of his own. Washington’s paternal great-grandfather, Colonel John Washington, patriarch of the family, played a role in the events leading up to Bacon’s Rebellion. In 1674, the older Washington, under commission from then governor Berkeley, led a military raid, against the governor’s wishes, that slaughtered a Susquehannock village across the Potomac from the estate he was building, called Mount Vernon. George, now inheritor of the estate passed down to him, sold his tobacco each year in London through Robert Cary & Company, his agents. On September 20, 1765, Washington wrote to the company, unhappy with the price he’d received for his tobacco. “That the Sales are pitifully low, needs no words to demonstrate—and that they are worse than many of my Acquaintance upon this River—Potomac—have got . . . from Mr Russel and other Merchants of London for common Aronoko Tobo.”6
Planters’ unrest at their treatment by British tobacco agents was by no means limited to Jefferson and Washington. Robert Carter III, scion of the wealthy Carter family of slaveholders and tobacco planters, patriarch of the two-thousand-acre Nomini Hall plantation in the Northern Neck of Virginia, said to an English creditor in 1758, “I have experienced that the produce of my land and negroes will scarce pay the demand requisite to keep them. I have sold part to sink the debts due against me.”7
Still, how does one get from tobacco pressed into hogsheads, to tea pushed overboard into Boston Harbor, to a declaration penned in Philadelphia, to shots fired on a Lexington green and a Concord bridge? Follow the money, of course, or at least follow the lack thereof. Washington, Jefferson, Lee, Byrd, all of the Chesapeake planters lived well beyond their means. They imagined themselves to be English patricians, reconstructing an American version of that aristocratic lifestyle. Monticello. Mount Vernon. Montpelier. Mount Airy. Oak Hill. Tuckahoe. Walnut Grove. Westover. Woodlawn. Sabine Hall. Nomini Hall. Gunston Hall. Stratford Hall. They built great Georgian estates along the banks of the Potomac, the York, the Rappahannock, and the James, which they outfitted with the finest European décor and furnishings. Their homes were the center of sprawling plantations, actually small cities, of thousands of acres filled with buildings and dwellings, and hundreds of smiths, and tanners, and curriers, and cobblers, and tradesmen, and slaves, who if they did not work in the rambling tobacco fields, worked in support of those who did.
Tobacco was a demanding mistress, even for the planters, let alone for their slaves. The planters’ lives were bound to the cycle of the crop, as was the sense of their worthiness as adequate men. But to a man, the Founders perceived themselves in a blissful state of autonomy, independence, and freedom. “The public or political character of the Virginians corresponds with their private one,” observed British travel writer Andrew Burnaby in 1759, “they are haughty and jealous of their liberties, impatient of restraint, and can scarcely bear the thought of being controuled by any superior power.”8
These men really did think of themselves as “Fathers,” or as one author put it, they “viewed themselves as Old Testament Patriarchs.”9 And the cities these patricians built around them only further supported that view. In truth, their world was a fiction, veritably a “house built on smoke.” For everything from the land, to the buildings, to the furnishings, to the workers, slave and free, had been purchased on credit. And English merchants held those notes. But debt to the American masters of tobacco was not the same as debt to the British masters of trade. Debt was an expected part of the lifestyles of the rich and famous. They sent hogsheads of tobacco to British merchants, and they ordered linens, and drapes, and silver, and china, and carriages, and fine clothes in return. But rarely did the profits from the hogsheads meet the desires of the planters for those fine trappings of aristocracy, so the merchants extended them credit, and extended them credit, and extended them credit, until shortly before the Revolutionary War the merchants had no credit left to extend.
“There are but few of them that have a turn for business, and even those are by no means expert at it,” said Burnaby of the Virginia patricians. “In matters of commerce they are ignorant of the necessary principles that must prevail between a colony and the mother country; they think it a hardship not to have an unlimited trade to every part of the world.”10
For British merchants, on the other hand, debt was part of doing business. And when their credit ran dry in the eighteenth century, they had nowhere to turn except calling in their debts from the planters. The planters, then, with little “turn for business,” saw this dunning not as business practice but as a breach of social etiquette. How dare British merchants cut off access to a lifestyle to which American planters had grown accustomed. Some planters, like Washington and Jefferson, preached greater frugality and thriftiness in response, even as they spent right up until their credit was maxed out. The Founders saw this “credit squeeze” as an affront not only to their tobacco trade but also to their view of themselves as autonomous, independent, free men.
Patriots were bred only from the ranks of those with “independent Circumstance,” said Founder Richard Henry Lee. Independence was “the foundation on which liberty can alone be protected,” said patrician planter Landon Carter, heir to his family’s wealthy slave estate at Nomini Hall. And if those sound like sentiments that found their way into the call for independence and revolution, and the founding documents of this country, that’s because they did.11
But the independence of the Founders was always hollow, for reasons which agitated them in the run-up to war. They were utterly and wholly beholden to the good graces and good credit of British merchants. Even more important, though rarely discussed, the Founders had the privilege of viewing themselves as independent precisely because they held hundreds on their plantations enslaved. Without slaves to produce tobacco, there was no basis for the Founders to consider themselves free. Without slaves, the Founders would not have had the luxury of time to pursue such lofty ideas of liberty and equality. They would have been bound to the land and the cycle of cultivating tobacco, just like the slaves whose labor allowed these men the fiction of seeing themselves as free.
It’s surprising to hear these patricians talk of their fears of enslavement to British merchants, when they themselves held so many slaves. Writing in the Virginia Gazette, in 1771, an anonymous planter lamented, “it is not through any regard the merchant hath for the planter that he gives his note, or advanceth cash on his behalf, but in the end to serve himself, and enslave the other.”12
Fear preceded war. Strapped for cash, some planters turned on each other, calling in their own debts. Others railed against the merchants. Still others simply begged. An association of planters attempted to stop importing the English goods they’d grown so accustomed to and fond of—that didn’t last long. Another group tried to squeeze merchants by withholding shipments of tobacco—that didn’t last long either. Many lost their estates and their fortunes. Washington, in crisis at Mount Vernon, switched from tobacco to wheat, which actually turned out to be an astute move. The General Assembly closed county courts to debtor suits brought by British merchants.13 In the end, none of this worked. Debt ate away at the Founders’ estates, but they didn’t go to war over debt. Debt also ate away at the Founders’ sense of autonomy, independence, liberty, nobility, honor, and freedom. And those principles were worth the fight.
* * *
Virginia’s tobacco planters played an oversize role in drafting the Declaration of Independence. Jefferson chaired the committee. He worked on the Declaration while ensconced at the home of Jacob Graff, on the outskirts of Philadelphia, away from the Pennsylvania State House, now Independence Hall, where the Congress met. In drafting that foundational document, he used not only his own writing but also documents written by planters, and slaveholders, George Mason, George Washington, and Thomas Ludwell Lee.
The Declaration is, first and foremost, a document affirming the sanctity of certain self-evident principles—independence, life, liberty, and the pursuit of happiness—and the sacrilege of others: usurpation of those self-evident principals, taxation without representation, a capricious use of authority and law. While those principles resonated throughout the colonies, they held special significance for the men from Virginia. They were not only philosophical ideas, they represented a way of life. Beneath those vaunted principles lay the stench of debt, from which the Founders from Virginia recoiled. Beneath that debt lay the sweet aroma of prized tobacco and a way of life these Founders wished to reclaim. But beneath the debt and the tobacco lay the pungent odor of sweat from the bodies of thousands of Black slaves.
Tobacco, and the culture around it, was never far from these Founders’ hearts or minds. Though research casts doubt on whether George Washington actually wrote, “If you can’t send money, send tobacco,”14 tobacco was used by the colonies to finance the Revolutionary War. French sympathizers, notably Beaumarchais, in 1775, set up a secretive shell company in Spain, Roderigue Hortalez and Company, to funnel French and Spanish arms to the American colonies in exchange for tobacco, all shipped through the ports in Santo Domingo (present-day Haiti).15 The Revolutionary War was also known as the “Tobacco War,” in part because tobacco, so valuable to the economic health of England and the royal treasury, made the colonies worth fighting for. But why stop there? If the Revolutionary War can be called the Tobacco War, then it can also be called the “First War Over Slavery,” since tobacco and slavery were so inextricably linked.
* * *
Jeffersonian disingenuity lies beneath any ambivalence about slavery that might have worked its way into the Declaration of Independence. Some point to the Declaration’s “missing clause” as proof of slaveholder Jefferson’s anti-slavery desires. In enumerating King George’s usurpations and offenses, Jefferson wrote,
He has waged cruel war against human nature itself, violating its most sacred rights of life & liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of infidel powers, is the warfare of the Christian King of Great Britain, determined to keep open a market where MEN should be bought & sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce: and that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms against us, and to purchase that liberty of which he has deprived them by murdering the people upon whom he also obtruded them: thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of another.16
That clause did not survive the final edit; still the slaveholder from Virginia “doth protest too much, methinks.” Jefferson’s protest is not really against slavery, but against the slave trade. The Virginia Assembly sought to regulate the market in slaves by restricting the importation of new Africans into the colony, so the value of the slaves already there would rise. This way, men like Jefferson and Washington and the other planters could make more profit from buying and selling slaves on a growing domestic market. King George, in ruling against American action to regulate the slave trade, struck down those measures—i.e., “prostituted his negative”—to prevent such restrictions. Finally, the closing lines of this missing clause might possibly be the most disingenuous.
By the time the Declaration of Independence was written the Revolutionary War was well underway. On November 7, 1775, John Murray, the Fourth Earl of Dunmore, and royal governor of the Virginia colony, issued a proclamation, known as Dunmore’s Proclamation,17 declaring freedom to all slaves who left their owners and aligned with the British royal forces. This enraged slave owners like Jefferson, hence his words in the Declaration about the king “now exciting those very people to rise in arms against us.”18 Fear of an armed insurrection by slaves struck terror in the hearts of these men, as it had in the hearts of their forefathers shortly after Bacon’s Rebellion. Dunmore was soon forced from his post, and took three hundred former slaves with him.
In reading the Declaration of Independence, it takes some discernment to unearth the role Blacks played in preparing the firmament from which sprang Jefferson’s lofty words and high-minded, self-evident ideals. But that effort brings with it the rewards of peering behind those words and ideals into the reasons why this document, and the war it wrought, came about. A similar discernment is necessary in approaching the other founding documents, especially the Constitution. Overt references to negroes, Blacks, or slaves are rarely used. But the presence of Blacks, free and slave, at the birth of the nation is keenly felt in how the documents were written, and from the institutions that arose as a result.
Biblical zeal attends discussions of constitutional interpretation. “Strict constructionists” contend that judges must focus solely on the text of the US Constitution as it was written 250 years ago, avoiding any interpretations, or inferences, from constitutional clauses, lest they be considered “judicial activists.” But those labeled judicial activists bristle at the term, contending it is merely code for decisions that someone else does not like. They prefer to think of themselves as interpreters of a “living Constitution,” a dynamic document whose meaning must grow and change over time. It’s often a bitter fight breaking along a conservative and liberal divide, with strict constructionists on the conservative side and living constitutionalists occupying far more progressive ground.
In the days leading up to the 1987 bicentennial celebration of the US Constitution, esteemed Supreme Court Justice Thurgood Marshall spoke eloquently of this divide. Marshall, a Black man who, as a lawyer for the NAACP in 1954, had argued the seminal Brown v. Board of Education case, striking down “separate but equal” in front of the high court he now sat on, said to a meeting of lawyers in Hawaii, “I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention. Nor do I find the wisdom, foresight and sense of justice exhibited by the Framers particularly profound.”19
There is probably no person better suited than Marshall to speak of the role Black folks played, albeit in absentia, in the design and draft of that foundational document of the United States. Through his eyes, and brilliant legal mind, what comes across, once again, is that in this land of the free, some have the great privilege of freedom because many bear the great burden of bondage.
For Marshall, this privilege and this burden begin with the Constitution’s opening three words, “We the People.” “When the Founding Fathers used this phrase in 1787,” he said, “they did not have in mind the majority of America’s citizens.”20 Article 1, Section 2 makes clear whom they did have in mind.
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.21
Further along in that esteemed document is a clause often referred to as the Fugitive Slave Clause, which affirmed the rights of slaveholders to have any state return their runaway slaves. On a sweltering July 4, 1854, William Lloyd Garrison spoke out against it. Garrison stood in front of a Framingham, Massachusetts, crowd of thousands, twenty miles from where the first shots of revolution were fired on Lexington’s green. Above him hung an inverted US flag, draped in black. Beside him were Sojourner Truth and Henry David Thoreau. An abolitionist crowd had gathered to mark the birthday of a young nation—only seventy-eight years had passed since the Declaration of Independence, not even seventy years since the writing of the Constitution; it would be another ten years before the Emancipation Proclamation. Garrison spoke toward the end of the event, a copy of the US Constitution trembling in his hand. “A covenant with death,” he declared it. “An agreement with hell.” Then he set the Constitution ablaze, proclaiming, “So perish all compromises with tyranny!”22
The disingenuous words Marshall drew attention to, the compromises Garrison railed against, are many, evidence of the direct and indirect ways that the pillars of the Constitution, and hence of the nation, were erected on the unrepresented presence of Black slaves in the midst of White men who were unable and unwilling to forge a covenant with truth, so they opted instead for a covenant with death.
The word slave never appears in the body of the Constitution, but only once, in the Thirteenth Amendment, passed in 1865, when slavery was abolished after the Emancipation Proclamation. Even then with an exception for slavery as a punishment for crimes. The words slave, negro, and Black were not included in the Constitution in deference to the sensibilities of northern delegates, while allowing the objectives of southern states to be achieved.
It’s hard to know how many of those who profess to carrying pocket-size copies of the Constitution with them have carefully read the document they carry around. If they have, then perhaps they already know that in the body of the Constitution, as it was drafted and ratified in 1788, there are six clauses dealing directly with slavery without ever mentioning the word:
Preamble. “We the People.” Does not include a majority of American citizens.
Article I, Section 2, Paragraph 3. “Three-fifths clause,” which Thurgood Marshall protested.
Article I, Section 9, Paragraph 1. “Import and export clause.” Allows southern states to continue importing slaves, and northern states to continue shipping them.
Article I, Section 9, Paragraph 4. “Capital taxation clause.” Any taxation based on the “three-fifths clause.”
Article IV, Section 2, Paragraph 3. The “Fugitive Slave Clause,” which Garrison protested.
Article V. Prohibits any changes to the importation or taxation clauses until 1808.
Seven clauses indirectly protecting slavery:
Article I, Section 8, Paragraph 15. “Domestic insurrections clause.” Congress empowered to call out the militia to put down insurrections, including slave insurrections.
Article I, Section 9, Paragraph 5. Prohibits indirect taxation on slavery through taxing southern products such as tobacco and rice, later cotton.
Article I, Section 10, Paragraph 2. Prohibits indirect taxation on slavery through taxing imports or exports.
Article II, Section 1, Paragraph 2. “Electoral college clause.” Incorporates the “three-fifths clause” into presidential elections.
Article IV, Section 3, Paragraph 1. “New states clause.” Anticipates admission of new slave states to the Union.
Article I, Section 4. “Domestic violence clause.” Requiring federal protection of states against domestic violence, including slave rebellions.
Article V. “Ratification clause.” Requiring three-fourths majority to ratify amendments gives southern states an ongoing veto of constitutional changes.
And, an additional six clauses used to protect slavery:
Article I, Section 8, Paragraph 4. “Naturalization clause.” Congress to prohibit the naturalization of nonwhites.
Article I, Section 8, Paragraph 17. “Federal district clause.” Congress to regulate institutions, including slavery, in the federal district, Washington, DC.
Article III, Section 2, Paragraph 1. “Diversity jurisdiction clause.” Allows only citizens of the states to sue in federal courts; slaves were considered property and not citizens.
Article IV, Section 1. “Full faith and credit clause.” Requires states to recognize the laws of other states, thereby coercing free states to recognize the laws of slave states, which also supported the Fugitive Slave Clause.
Article IV, Section 2, Paragraph 1. “Privileges and immunity clause.” Requires states to grant equal privileges and immunities to citizens of other states, but not applied to free Blacks.
Article IV, Section 3, Paragraph 2. “Territorial regulation clause.” Allows Congress to regulate territories. But the Supreme Court ruled in its 1857 Dred Scott decision that this regulation of slavery did not extend to banning it.
The total number of clauses within the Constitution varies somewhere between 75 and 85, depending upon what is, or is not, considered a clause. That means a staggering amount of the Constitution, between 20 to 25 percent, is devoted directly or indirectly to supporting slavery, and excluding Black Americans from the benefits conferred to “We the People.”23
How could this happen?
Nearly every major debate over the Constitution had slavery at its core, even though the word never found its way into the text. And, let us just take a moment to remind ourselves that by slavery, we are not just talking about holding a person against their will, but forcing that person to produce the goods, and deliver the services, that generate power and wealth for the slaveholder.
For most of the Revolutionary War, the thirteen original states united under a document called the Articles of Confederation. But with growing awareness of the limitations of those articles, a Constitutional Convention, for the purpose of amending them, was called for May 1787 in Philadelphia. Held, once again, in Philadelphia’s Pennsylvania State House, where the Declaration of Independence had first been drafted. Delegates from every state in the fragile, new union, except Rhode Island, met from May 14 to September 17. After a little over one hundred days, what emerged was not an amended set of articles, but an entirely new constitution.
Within two weeks of the convening, the fate of Black Americans, slave and free, took center stage in the debates and deliberations.24 The issue had to do with the nature of the new Congress and how representatives would be determined. Virginia’s governor, Edmund Randolph, the scion of a well-established family of tobacco planters, proposed a legislative branch with two chambers, one composed of younger members to serve three years, the other composed of older members to serve seven years, both using a state’s population to apportion the number of seats.
And the fight over slavery was on!
Northern delegates objected to using population as the basis for representation because southern delegates intended to count slaves as well, giving the south a big advantage in both the House of Representatives and the Senate. Southern delegates rejected the idea proposed by the north of counting only the number of “free” men because southern states, like Virginia, were more populous than, say, Pennsylvania precisely because of their slaves. From late May until early July 1787, the debate on representation ping-ponged back and forth between northern and southern delegates, with each side threatening, more than once, to scrap the Union rather than give in to the other’s demands.
Slowly the shape of a compromise emerged; so, too, the shape of an unlikely alliance. The new nation would have two legislative bodies: a lower one, the House of Representatives, based on population count; and an upper one, the Senate, based on equal representation of two senators from each state. That still left an open question of how to count the population for representation in the House—by “quotas of contribution,” the polite phrase the gentlemen in Philadelphia used to mean “include the slaves”; or by “numbers of free inhabitants,” which meant to exclude slaves. In either case, both northern and southern camps were in agreement that Blacks, slave or free, would not have the vote, they just couldn’t agree on whether slaves should be included in the count for the House of Representatives.
During the second week of June, James Wilson of Pennsylvania, soon to sit on the first Supreme Court, proposed a compromise that had first surfaced, years earlier, in debate around a formula for taxation in the amended Articles of Confederation: count slaves as three-fifths of a person. Of course, in that earlier debate, the south rejected the idea because it meant that southern states like Virginia and South Carolina, with the greatest number of slaves, would pay a larger share of taxes. As the basis for taxation, the formula failed, and the amendment was never passed. But the general idea of counting slaves as three-fifths of “free Whites” remained alive, only to surface again when the issue became representation, and the document the new Constitution. Charles Cotesworth Pinckney, slaveholder and delegate from South Carolina, seconded Wilson’s motion.
On July 12, the issue came to a head. Delegates from Virginia, North Carolina, and South Carolina issued an ultimatum: count our slaves, or lose your Constitution. A vote was called. Results were tallied. The three-fifths formula prevailed. The south won a crucial battle, in the course picking up surprise support from New England delegates, which presaged a coming alliance between the “carrying trade” of the north and the “slave trade” of the south. A trade in which a New England–based shipping industry carried goods produced by slave labor in the south for markets around the world, and those same ships carried slaves from Africa, for sale on southern auction blocks.
With this first Faustian bargain consummated, other clauses in the “covenant with death” seemed to follow more easily. A three-fifths formula had been established for incorporating slaves into the Constitution, and that formula found its way into other important clauses such as taxation and the election of the Executive.
So what? It’s a great story and a pity the Founders treated slaves so poorly. But that all happened long ago. Get over it! Slavery no longer exists. Black Americans are not counted as three-fifths of a person. They can vote. So can women. You’re living in the past. How can any of this possibly affect us now?
These are popular refrains spoken by many, blind to the impact of the decisions this group of White men made over the course of one hundred days in Philadelphia in 1787. These men determined how the institutions of power and wealth in America would be shaped, for centuries to come, based on the presence of Black men and women, who could not vote but whose presence was still keenly felt.
Without the three-fifths compromise, there’s a good chance we would not be facing the climate crisis. Without the three-fifths compromise, there’s a good chance far fewer Americans would have died from complications of COVID-19. Without the three-fifths compromise, there’s a good chance we would not be a country as divided by race now as we were when the Founders acquiesced to that compromise.
Of course, we cannot know any of this for sure. But what we can know for sure is that without the three-fifths compromise, every four years when we pull the levers at a polling station, or seal the envelope of a mail-in ballot and drop it in a mailbox, we would be electing a president based on “We the People,” not based on “We the Electors,” a group known as the Electoral College.
America does not hold popular democratic elections for a president. Since the ratification of the Constitution, the country never has. Instead, the country elects a president through an Electoral College, wherein each state is allocated a certain number of electors. This means, as we have seen far too often, a presidential candidate can lose the popular vote but still win the election in the Electoral College. The “will of the people” has no meaning. While the Electoral College is sometimes touted as a means of leveling the field between small states and large states, slavery was actually the complicating factor that brought the Electoral College into being.
Five days after the three-fifths compromise had been voted on, and approved, the Constitutional Convention took up the election of the president.25 A debate unfolded on now familiar grounds. Direct election of the Executive by the people was flatly rejected by southern delegates because they had fewer White men to vote. James Madison, champion of the people, was concerned. Though Madison favored the idea of direct election of the president, he was troubled that it would weaken the power of southern states. So, the Electoral College was created, which allowed the three-fifths clause to increase the number of presidential electors the south held on to because the three-fifths clause determined the number of representatives they began with in the House.
Even White men, who could vote, had the value of their votes diminished. Southern states rejected the direct election of the president because they desired to hold on to slavery. As “We the People” became more inclusive, through amendments to the Constitution that expanded suffrage to people of color and to women, the inherently undemocratic Electoral College still remained as an enduring legacy of a racist past; a legacy that renders the true meaning of “by the people” null and void in terms of electing a person to the highest office in the land.
With the ratification of the Constitution in 1788, the die of a new nation had been cast, forged in battle, ripened with history, filled with promise, yet haunted by an unspoken, powerful dark presence. Black folks, the Founders’ reliance on them and fear of them, were behind the creation of American institutions of governance and political power articulated in the Constitution, even though they were not allowed to vote, and the Founders never mentioned them in that hallowed document. Within this American die, the lives of Black men and women had been cast, and cast well; a cast given them ever since Anthony and Isabella first set foot on Virginian soil: work to ensure the creation of the institutions of power and wealth for White America, but never ask, and never expect, anything in return.