Those “Other Persons” in the Constitution

The last days of August in 1787 were not our Founding Fathers’ “finest hour.”  First, in the Constitutional Convention in Philadelphia, they pushed back the year in which Congress was allowed to interfere with — to outlaw — the slave trade from 1800 to 1808.  In sum, Congress was forbidden to legislate against America’s importation of slaves for an additional eight years.  That meant many thousands of additional Africans would suffer the indignity and ill treatment that resulted from human bondage.

It also meant America’s slave states would have additional political power for years to come.  Why?  Because earlier in the convention a compromise, the “Three-Fifths Clause,” was reached between southern and northern states in which, for the purpose of determining a state’s representation in the U.S. House of Representatives based on its population, slaves would count as three-fifths of a white human being.  So additional slaves imported into southern states would result in additional members of Congress from those states.

But this week (Aug. 29) our Founders shamed themselves even more when Pierce Butler, a delegate from South Carolina, introduced at the convention what we know today as the Fugitive Slave Clause.  It said that if any slave in bondage in one (slave) state escaped to another (free) state, that slave must be returned to its original owners.

It is arguably the most morally bankrupt language in the entire Constitution because the slave-trade extension provision, bad as it was, merely required the mostly northern free states to passively acquiesce to the reality of slavery in the South.  Yet the “Fugitive Slave Clause” required free states to be actively complicit in keeping slaves in bondage by forcing those states to capture fugitive slaves in their midst and return them to their owners in slave states.

Even sadder, the language was adopted without a single convention delegate objecting or even calling for debate.

But perhaps saddest of all is the fact that the Founders were, to varying degrees, aware of the evil they were perpetrating because they made sure the word “slave” never appears in the Constitution.  In the Three-Fifths Clause slaves are called “other persons,” in the slave trade extension language they are “such persons as,” and in the Fugitive Slave Clause they are “any person bound to service or labor.”

It has been argued that the devil’s bargain the Founders made with the evil of slavery was a necessary one.  First, compromise on slavery to bring the North and South into one Union.  Next, let that Union grow and become strong, and then deal with slavery.

On balance I accept the argument.  But the cost in blood and treasure down the road (in 1861, to be specific) would be unprecedented.