Members Only | January 13, 2022 | Reading Time: 5 minutes

When it comes to slavery, the past isn’t past

We aren’t just fighting the historical legacy of slavery, but also the current political system that was always meant to uphold it.

Share this article

The Post released a database this week of every elected member of Congress who ever owned slaves. The article attached to the database includes important stories of individuals remembered as abolitionists but who also owned slaves. These large numbers and individual anecdotes only tell one part of the larger story of the effect of slavery on our political system. 

Why were over 1,700 slave owners elected to Congress? Why were 12 of the first 18 presidents slave holders? And why did so many people who didn’t own slaves, or freed their slaves, continue to support pro slavery laws? 

While there are of course obvious economic factors, owning slaves produced a lot of wealth, which maintained political power, there are also important structures imbedded in our political system that privileged slavery and today continues to privilege reactionary rural white politics.


While the word “slave” does not appear in the Constitution until the 13th Amendment, there are many provisions of the document that showed complicity in the perpetuation of slavery as an institution. 


While the word “slave” does not appear in the Constitution until the 13th Amendment, there are many provisions of the document that showed complicity in the perpetuation of slavery as an institution. 

When the Constitution was written in 1787, 25 of the 55 framers personally owned slaves at the time. Others had formerly owned slaves or had existing financial ties to slavery. Even those without any personal ties to slavery knew that the economy of the newly formed United States was deeply dependent on the institution of slavery. 

Excluding the word “slave” served to protect the institution by making slavery the purview of the states. The federal government only recognized slavery as a service status, not as right to property for the slave owner. In some ways this weakened a slave owners legal recourse in federal court, and made slavery a local policy not recognized as a national institution or where federal law governed, but it also weakened the federal government’s power to regulate slavery at all. However the federal government did have the power in Article 4 Section 4 of the Constitution to put down domestic insurrections, which would include slave insurrections.

The clause of the Constitution that likely protected slavery the most was the Three-Fifths Compromise in Article 1, Section 2. Even though this clause was superseded by the Reconstruction Amendments, we are still feeling its effects today. 


CLICK HERE TO SUBSCRIBE!


The Three-Fifths Compromise was an agreement reached between northern and southern delegates to count enslaved people as “three-fifths” of a person for the purposes of apportionment and representation. This compromise cemented the political power of the South by allowing slave owners to doubly benefit from owning slaves politically. 

Since enslaved people would count towards the represented population of a state, Southern slave owning states increased the number of representatives they would elect to the House. Additionally, this same population count was used for the Electoral College, directly increasing the slave holding influence on presidential elections, and therefore also the nomination of Supreme Court Justices. 

The Electoral College was explicitly created to appease Southern fears about direct elections for president. They knew that their political power would be more limited as Northern states were more populous but would be advantaged by the system devised for congressional representation. 

The Three-fifths clause has been repealed but we still use the Electoral College to elect the President and it still privileges rural white voters.

The Three-Fifths Compromise is one of the biggest reasons why the Post database found 1,715 members of Congress who owned slaves at one point in their lives. If states with a lot of slaves had increased political power, they were going to have a disproportionate number of Congresspeople. 


The clause of the Constitution that likely protected slavery the most was the Three-Fifths Compromise in Article 1, Section 2. Even though this clause was superseded by the Reconstruction Amendments, we are still feeling its effects today. 


The Three-Fifths Compromise also made the regional fights for political power in the country directly tied to slavery. While Northern states sent slave owners to Congress as well and were complict in the entire system, they also began passing gradual abolition laws in the 1780s, the last one was passed in 1804 in New Jersey. 

Because gradual abolition laws phased slavery out slowly, many Northern states had slaves until the Civil War. However, as a result of these laws the number of slaves in Northern states continued to lessen every year and the Three-Fifths Compromise was not a source of political power for them. 

Therefore, both the South and the North were invested in bringing new states into the union that would vote with their side on issues of economy and labor. 

There was a battle over almost every state brought into the union and unsuccessful compromises were attempted to keep the fight over slavery from boiling over and turning into the Civil War. 

The Missouri Compromise, passed in 1820, was meant to put the issue to rest by saying that every state above the 36°30’ parallel, except Missouri, would enter the union as a free state. 

The compromise was effectively repealed 34 years later when the Kansas-Nebraska Act brought Kansas and Nebraska into the union by popular sovereignty. Each territory could vote on being a free or slave state. None of these compromises worked and in fact the Kansas-Nebraska Act resulted in a mini-war called “Bleeding Kansas.”


CLICK HERE TO LEAVE A TIP!


The South was so scared of losing any political power that they pushed for harsher laws and Supreme Court decisions to limit Northern state’s rights and protect slavery. Angry that too many enslaved people were escaping to freedom, Southern representatives pushed for an extreme Fugitive Slave Act as part of the Compromise of 1850. 

The Constitution already included a Fugitive Slave Clause in Article 4, Section 2, which required that escaped enslaved people be returned to their owners. The new Fugitive Slave Law penalized anyone who didn’t assist in returning escaped slaves to their owners. 

Officials who aided in returning escaped slaves could be rewarded financially and people who aided escaped slaves with food or shelter could be punished. The act enforced Southern state interests on local authorities and circumvented local laws.

Our current racial disparities and political problems aren’t just the result of the legacy of slavery. They’re the result of a political system that privileged the political power of Southern rural whites. 

The politics of slave owners didn’t disappear after the Civil War and the end of Reconstruction gave much of their political power back. 

After 15 years of Black political power in the South, which helped pass the 13th, 14th, and 15th Amendments, the former Confederates and slave owners took their power back, still bolstered by the effects of the Three-Fifths Compromise and the Electoral College. 


Our current racial disparities and political problems aren’t just the result of the legacy of slavery. They’re the result of a political system that privileged the political power of Southern rural whites.


As the Post database shows, slave owners served in Congress until 1923 with almost 20 percent of Congress having owned slaves in 1879. In 1896, when the Supreme Court upheld racial segregation in Plessy v. Ferguson, not struck down until Brown v. Board of Education in 1954, all the justices had been born when slavery was still legal. 

One had fought for the Confederacy, and was connected to sugar plantations, and at least one other had owned slaves, though the slave owner was John Marshall Harlan, who wrote the dissent.

The voter suppression laws put in place by former slave owners in the South, and allowed by federal politicians, were ended by the now weakened Voting Rights Act in 1965. Until 2013, with Shelby v. Holder, former Jim Crow states were required to have any voter laws pass federal consideration. However, with the overturning of a key aspect of the Voting Rights Act, we are currently fighting voter suppression laws that wouldn’t have been able to pass since before 1965. 

Apportionment is no longer affected by the Three-Fifths Compromise but the way the Electoral College is structured, it still privileges whiter and less populated states. 

We aren’t just fighting the historical legacy of slavery, but also the current political system that was always meant to uphold it.


Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.

Leave a Comment





Want to comment on this post?
Click here to upgrade to a premium membership.

© 2022 The Editorial Board.. All Rights Reserved.