Constitutional racism

Three provisions of the Constitution of the United States, as adopted at Philadelphia in 1787, legalized slavery. These provisions, which provided a constitutional basis for treating those descended from Africans as inferior to those descended from Europeans, form the basis of what has come to be known as constitutional racism.

Some delegates at the constitutional convention wanted to abolish slavery, but the southern states, driven by economic dependency on the institution, insisted on retaining it. To ensure that the newly drafted constitution would be adopted by both northern and southern states, a compromise emerged between proslavery and antislavery delegates, and three specific clauses were included.

One provision, Article I, section 9(1), allowed the slave trade to continue until 1808 for existing states. The part of the Constitution dealing with amendments, Article V, stipulated that this provision could not be amended.

Another compromise involved the status of enslaved people. Because the number of seats allocated in the House of Representatives for each state was to be apportioned on the basis of population, southern states might have considerable power in the new national legislature. However, a segment of the southern states’ population was made up of enslaved people, who were not considered to have any civil rights and therefore could not vote. The compromise, provided for in Article I, section 2(3), was to calculate the number of persons in each state based on the decennial census, with each enslaved person counted as three-fifths of a White person. Indigenous Americans, who were not considered American citizens, were counted in the census, but their numbers were not used in calculating how many congressional seats were to be apportioned to the states.

A third provision, Article III, section 2(3), enabled slave owners to retrieve runaways even from states that had abolished slavery. Congress later implemented this provision by passing the fugitive slave laws (1793, 1850), which in turn were held to be constitutional by the US Supreme Court in Scott v. Sandford (1857). In this case, the owner of an enslaved person moved from Missouri to Illinois, taking along his property and his slaves. Because Illinois law prohibited slavery, Dred Scott, one of the enslaved men, sued to gain his freedom. The court ruled, however, that descendants of Africans, even those who obtained freedom from their former masters, were not citizens of the United States, had no civil rights, and therefore could not file a lawsuit or vote in an election. Scott v. Sandford provoked a constitutional crisis because laws in northern states that disallowed slavery and granted some civil rights to descendants of Africans were, in effect, nullified. The court’s decision did much to infuriate opponents of slavery and sowed the seeds for the Civil War.

With the adoption of the Thirteenth Amendment to the Constitution in 1865, slavery was abolished. The Fugitive Slave Laws, accordingly, were nullified. Southern states obtained additional seats in the House of Representatives, as they could count every former slave as one person instead of three-fifths of a person. Reapportionment based on the 1870 census gave equal weight to Black and White citizens but still excluded Native Americans.

The doctrine of “reason of state” has been used to discriminate against various minorities on several occasions. Under this doctrine, the preservation of the state is held to have priority over constitutional rights. One instance was associated with World War II, when the US Supreme Court upheld the constitutionality of military rule of Hawaii and the internment of Japanese Americans.

Bibliography

Aceves, William J. “Amending a Racist Constitution.” University of Pennsylvania Law Review Online, vol. 170, 2021, scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1259&context=penn_law_review_online. Accessed 11 Jan. 2026.

Anastaplo, George. Reflections on Slavery and the Constitution. Lexington, 2012.

Del Guercio, Gerardo. The Fugitive Slave Law in the Life of Frederick Douglass, an American Slave and Harriet Beecher Stowe’s Uncle Tom's Cabin: American Society Transforms Its Culture. Edwin Mellen, 2013.

Kaminski, John P. A Necessary Evil? Slavery and the Debate over the Constitution. Madison House, 1995.

Konig, David Thomas, et al. The Dred Scott Case: Historical and Contemporary Perspectives on Race and Law. Ohio UP, 2010.

Murphy, Angela F. The Jerry Rescue: The Fugitive Slave Law, Northern Rights, and the American Sectional Crisis. Oxford UP, 2015.

Spencer, Simeon. “Emancipation on the Ballot: Why Slavery is Still Legal in America – And How Voters Can Take Action.” Legal Defense Fund, 18 Oct. 2022, www.naacpldf.org/13th-amendment-emancipation/. Accessed 11 Jan. 2026.

VanderVelde, Lea. Mrs. Dred Scott: A Life on Slavery's Frontier. Oxford UP, 2009.