WI: No Slave Trade Clause in the Constitution?

[John Fredrick Parker]

In OTL, the compromise over slavery included the following, from Article 1, Sec. 9:

The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

What if this clause wasn't added, the rest of the document remained as OTL, but the power of Congress to restrict or regulate "the migration or importation of... persons" was left alone entirely.
How might the Convention have agreed to this? And assuming the necessary states still ratify it, how long would a ban on slave importation take, assuming it still happens?Finally, how does this affect the history of the institution in America?

(And yes, I've seen threads similar to this, but I still thought I'd float it)

 

[Bottlestein]

In OTL, the compromise over slavery included the following, from Article 1, Sec. 9:

The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

What if this clause wasn't added, the rest of the document remained as OTL, but the power of Congress to restrict or regulate "the migration or importation of... persons" was left alone entirely.
How might the Convention have agreed to this? And assuming the necessary states still ratify it, how long would a ban on slave importation take, assuming it still happens?

I'm a bit hazy on the Constitutional convention... The slave states may go through with this assuming they can catch escaped slaves, while after ratification the federal government can clamp down and say "no slave - catchers, Free States are free", and then proceed to tax and eventually ban importation of slaves. However, wasn't controlling Interstate trade, militia routes, etc a major part of the convention? If they didn't put this in, would Congress's other powers be compromised?

It is certainly a very good way of limiting and then stopping slavery if workable. Actually, our government often was very accomodating of Slave States until they began outright refusing to accept presidential candidates. I wish some New England/Northwest political bloc stopped the Calhoun-types before they grew as powerful as OTL.

 

[GreatScottMarty]

In OTL, the compromise over slavery included the following, from Article 1, Sec. 9:

The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

What if this clause wasn't added, the rest of the document remained as OTL, but the power of Congress to restrict or regulate "the migration or importation of... persons" was left alone entirely.
How might the Convention have agreed to this? And assuming the necessary states still ratify it, how long would a ban on slave importation take, assuming it still happens?Finally, how does this affect the history of the institution in America?

(And yes, I've seen threads similar to this, but I still thought I'd float it)

The Clause itself was a compromise between the pro and anti- slavery factions at the Convention. It was thought by some including Franklin that this meant that slavery was to be banned and manumission was to be begun by 1808. While on the other hand, the pro side saw it as a compromise towards the 3/5ths compromise. So there is that to consider.

As for the ability to regulate interstate commerce, well the interstate commerce clause takes care of that.

I don't know if the convention could agree without this clause. The whole issue of slavery was contentious and quite difficult to negotiate. This was very much an olive branch to anti-slavery faction. In effect saying, "we will deal with this just not now." As for the slave trade continuing, well it would be de facto stopped by the British Navy in the 1810s but as Robertp will tell you, they continued to import from Africa until the Civil War. An the slave continued domestically until the end of the war, so the ban was basically ignored. I think in terms of long term history without that clause than we will just go to war sooner.

 

[John Fredrick Parker]

Thanks for the comments ; one other thing I forgot to mention was that Maryland, Virginia, and North Carolina, though slave states, may well get on board with a strong slave tariff, or even a ban on the slave trade, seeing as they were net exporters of men in bonds.

It was thought by some including Franklin that this meant that slavery was to be banned and manumission was to be begun by 1808.

Now this could be an interesting PoD -- what if Franklin doesn't accept this understanding, and decides to hit on the issue. And, weird as this may seem, I can see this bringing Hamilton to object to the clause -- expressly, at any rate, on the grounds that the Government should not be restricted in regulating any particular commerce (to bring in the aforementioned Va and NC).

Now, as to how long it would take after this to ban the slave trade outright -- while I can see Hamilton urging Washington to support a heavy tariff on "unfree persons" (or some such term), I think any actual outright ban will have to wait for another President -- and John Adams strikes me as a good candidate (his wife being an abolitionist, etc).

And the institution of slavery itself? Well, in the short term, states like Virginia (and MD and NC) would benefit economically from these restrictions, seeing as states like SC and GA would then have no other place from which to buy laborers. From this, I can see President Jefferson, a Virginian, seeking to restrict slavery as much as possible from America's new territories.

What do you think?

 

[GreatScottMarty]

Thanks for the comments ; one other thing I forgot to mention was that Maryland, Virginia, and North Carolina, though slave states, may well get on board with a strong slave tariff, or even a ban on the slave trade, seeing as they were net exporters of men in bonds.

They were but not until about a generation later. That is when their interests in the interstate slave trade became paramount to their state economies. So I don't think they would be hoping on board right away. But that is fundamentally sound

Now this could be an interesting PoD -- what if Franklin doesn't accept this understanding, and decides to hit on the issue. And, weird as this may seem, I can see this bringing Hamilton to object to the clause -- expressly, at any rate, on the grounds that the Government should not be restricted in regulating any particular commerce (to bring in the aforementioned Va and NC).

One thing, Franklin rarely spoke during the Constitutional Convention or any of the Continental Congresses he attended. In fact he usually appeared either bored or asleep or both. Another thing, During the Convention Franklin was stricken with Gout (something he was suffering from for several years) and was usually carried in on a sedan chair and as usual rarely spoke. However, Hamilton among others daily took lunch in Franklin's yard to discuss the issues that were discussed in Congress. So I could see Hamilton possibly objecting on Franklin's behalf (although I don't know Franklin to have ever used surrogates). I doubt Hamilton would have gone so far out onto the centralization limb that you have him out on. A week before this clause is discussed he brought a King and Senator's for life, so people would be viewing him suspicion if he brought this up too. Hamilton would certainly understand the need for regulating commerce but I think he would foresighted enough to let sleeping dogs lie and accept the Interstate commerce clause as enough.

Now, as to how long it would take after this to ban the slave trade outright -- while I can see Hamilton urging Washington to support a heavy tariff on "unfree persons" (or some such term), I think any actual outright ban will have to wait for another President -- and John Adams strikes me as a good candidate (his wife being an abolitionist, etc).

Agreed a tarriff like that would certainly go into his Assumption package. I don't think Adams would be able to do too much on the issue (especially if Europe proceeds at all like OTL) and a tariff would only prove that Washington had been taken in by that perfidious smooth-talker Secretary Hamilton. So this leaves the deal to Jefferson who is a slave owner and always in debt (oddly enough he never sold a single slave to pay a debt) so anything goes with him. Out of all the founders his IMHO hard to nail down. There are so many layers to his character and so many different outlets for his mind he is hard to nail down. I think if anyone could ban the slave trade it is Jefferson the question is would he? and I have to say I don't think so.

And the institution of slavery itself? Well, in the short term, states like Virginia (and MD and NC) would benefit economically from these restrictions, seeing as states like SC and GA would then have no other place from which to buy laborers. From this, I can see President Jefferson, a Virginian, seeking to restrict slavery as much as possible from America's new territories.

Jefferson wishing to restrict slavery is certainly likely, he fought for it in the Northwest Ordinance of 1787 and as early as the Declaration of Independence has advocated freeing the slaves but would/could he? I don't think so. There is to much in the political system weighted against him to make a move like that plausible.

 

[Shawn Endresen]

Leaving the clause out because consensus couldn't be reached is entirely plausible, and Hamilton and friends certainly would regard the interstate commerce clause as sufficient authority to tamper with slavery later. Like GSM, I think this accellerates the dividing of the nation.

With no national verbage on the matter, the Northern states move a lot more quickly to ban the importation of slaves and eventually slavery; recall, for example, that New York didn't outlaw slavery until 1827. It won't take that long here - New England, New York and Philadelphia are worried about an influx of slaves and will solve the matter locally. There's also nothing that says Congress can't act on the matter of slavery via interstate commerce, and I bet it will, soon. Hamilton was the only Abolitionist at the Constitutional convention, but there were plenty in the first Congress, and the Southern delegates weren't nearly as interested in fighting hard to defend the institution as their grandchildren would be. A ban on the importation of slaves would have cleared the Senate at any time before 1802, and would have been concievable after that; the House is harder, but still possible. I expect it would have happened in Adams' term, not that Adams would have had much to do with it really - so let's say the further importation of slaves is banned in 1798-9. The Federalists may make some concession on a lower tariff in exchange. Hamilton and company get their wish a year or two early, ironically (Hamilton argued for the same clause, with the year 1800 at the CC).

This is, of course, merely law, not the Constitution. It can be found unconstitutional (but it won't, with Marshall running the SCOTUS); it can be repealed later. But once the British get serious about restricting the trade, repealing it will seem to be needlessly antagonizing them for no domestic gain, so I expect it will stick.

By my math, this cuts the number of African-Americans in half, which from a personal perspective strikes me as likely to impoverish American culture down the road, as well as make them less able to take personal action to assert their rights. Yes, half - that many slaves were imported in the last decade before the ban, since everyone knew there would be very few coming after.

With fewer slaves, they don't get exported into the new territories as much - the planters on the seaboard try as hard as they can to keep that labor for themselves. Texas and maybe even Mississippi have low slave populations (10-90, like Missouri, instead of 50-50 like Georgia); Actually, Texas will probably be a free state, since with that many fewer slaves and slave-owners, there wouldn't be good reason to push Santa Anna on it, and who exactly would be fighting hard to annex Texas to the USA if it was free soil? Hmmm. The slavers in Missouri are weakened enough that that state goes "free" in the 1850s or maybe even 1840s; whether and how a Civil War erupts is actually kind of questionable, with so many fewer people willing to fight to defend slavery.

It would be an interesting TL to write. Tricky though.

 

[John Fredrick Parker]

I doubt Hamilton would have gone so far out onto the centralization limb that you have him out on. A week before this clause is discussed he brought a King and Senator's for life, so people would be viewing him suspicion if he brought this up too.

Yeah, that monarchy suggestion always struck me as a little nutty ; maybe ITTL, he decides against bringing it up, and feels more confident bringing up a more substantial point the following week.

Agreed a tarriff like that would certainly go into his Assumption package. I don't think Adams would be able to do too much on the issue (especially if Europe proceeds at all like OTL) and a tariff would only prove that Washington had been taken in by that perfidious smooth-talker Secretary Hamilton.

Well, by 1796, this was pretty established in Republican circles anyways. Similarly, I'm also curious how Adams' trouble with the French would stop him from taking action against the slave trade; he certainly had the disposition, and its not like doing insanely unpopular things was contrary to his nature.

Hamilton was the only Abolitionist at the Constitutional convention, but there were plenty in the first Congress, and the Southern delegates weren't nearly as interested in fighting hard to defend the institution as their grandchildren would be. A ban on the importation of slaves would have cleared the Senate at any time before 1802, and would have been concievable after that; the House is harder, but still possible. I expect it would have happened in Adams' term, not that Adams would have had much to do with it really - so let's say the further importation of slaves is banned in 1798-9. The Federalists may make some concession on a lower tariff in exchange. Hamilton and company get their wish a year or two early, ironically (Hamilton argued for the same clause, with the year 1800 at the CC).

Makes sense to me. Even if it's not done by 1800, though, there's still Jefferson...

So this leaves the deal to Jefferson who is a slave owner and always in debt... so anything goes with him... There are so many layers to his character and so many different outlets for his mind he is hard to nail down. I think if anyone could ban the slave trade it is Jefferson the question is would he?

Well, given the opportunity in 1808 OTL, he did -- I wouldn't rule it out.

Jefferson wishing to restrict slavery is certainly likely, he fought for it in the Northwest Ordinance of 1787 and as early as the Declaration of Independence has advocated freeing the slaves but would/could he?

Well, obviously we're talking about a different set of circumstances -- the slave trade has been outlawed, so the deep south is now much more reliant upon the upper south for slave importations. That means, within a few years, these states are going to find themselves occupying a very profitable niche, and not eager for competition.

It can be repealed later. But once the British get serious about restricting the trade, repealing it will seem to be needlessly antagonizing them for no domestic gain, so I expect it will stick.

Hadn't thought of that; looks like this is getting more plausible by the minute.

By my math, this cuts the number of African-Americans in half, which from a personal perspective strikes me as likely to impoverish American culture down the road, as well as make them less able to take personal action to assert their rights. Yes, half - that many slaves were imported in the last decade before the ban, since everyone knew there would be very few coming after.

I had not thought of that either.

 

[John Fredrick Parker]

Still considering doing a timeline on this; let me ask, would it be considered cheating if, in addition to what was discussed so far (up through Jefferson) Eli Whitney didn't get that tutor job in South Carolina, and the CG wasn't invented for another 15 or 20 years (1808, 1813, thereabouts)? Or would this be piling on too much?

 

[robertp6165]

As for the slave trade continuing, well it would be de facto stopped by the British Navy in the 1810s but as Robertp will tell you, they continued to import from Africa until the Civil War. An the slave continued domestically until the end of the war, so the ban was basically ignored. I think in terms of long term history without that clause than we will just go to war sooner.

Actually, the 1808 ban on the import of slaves into the USA was pretty effective. While in the period from 1800-1808 about 115,000 were imported (over 10,000 a year), during the 52 year period between 1808 and 1860, an estimated 50,000, or less than 1,000 a year, came into the country. The dramatic increase in the number of slaves between 1810 and 1860 was almost all natural increase, and had almost nothing to do with continued illegal importation of slaves. You really can't say the ban was "ignored," as the ban was clearly quite effective in reducing the number of slaves imported. (Statistics from here).

It is interesting to note that the Northern shipowners who profited from the slave trade really didn't get out of it after 1808. They just stopped carrying the slaves to the American South and instead carried the slaves to the Caribbean and South America (to the tune of 300,000 of them).

 

[John Fredrick Parker]

Thanks to Robert for the statistics! Much obliged.

 

[GreatScottMarty]

Still considering doing a timeline on this; let me ask, would it be considered cheating if, in addition to what was discussed so far (up through Jefferson) Eli Whitney didn't get that tutor job in South Carolina, and the CG wasn't invented for another 15 or 20 years (1808, 1813, thereabouts)? Or would this be piling on too much?

if it is after the POD of the Constitutional Convention than it isn't and falls within in the realm of the Butterfly.

For an interesting take on this, check my TL we are in throws of Compensated Manumission as we speak and things are getting a bit interesting.

 

[John Fredrick Parker]

Here's another question -- say the broad outlines of the TL discussed so far happened -- no ST clause, high slave tariffs under Washington, the trade abolished by 1800, say, and Jefferson restricts slavery in the Louisiana Territory north of the 33rd Parallel* -- and also that the Cotton Gin was wasn't invented until 1808 (15 years after OTL) -- what do you think would the effect be on slavery specifically west of the south, in Kentucky, Tennessee, and the Yazoo Lands (what would be Alabama and Mississippi)?

I'd love to know, for example, how slavery can die off there before the end of Jefferson's Presidency -- I would think that if that happened, in these circumstances, that would just isolate the institution even further.

*State of Louisiana's northern border, OTL; I thought it stretched plausibility to have Jefferson fight against established French plantation owners, but north of the parallel settlement was sparse

 

[GreatScottMarty]

Here's another question -- say the broad outlines of the TL discussed so far happened -- no ST clause, high slave tariffs under Washington, the trade abolished by 1800, say, and Jefferson restricts slavery in the Louisiana Territory north of the 33rd Parallel* -- and also that the Cotton Gin was wasn't invented until 1808 (15 years after OTL) -- what do you think would the effect be on slavery specifically west of the south, in Kentucky, Tennessee, and the Yazoo Lands (what would be Alabama and Mississippi)?

I'd love to know, for example, how slavery can die off there before the end of Jefferson's Presidency -- I would think that if that happened, in these circumstances, that would just isolate the institution even further.

*State of Louisiana's northern border, OTL; I thought it stretched plausibility to have Jefferson fight against established French plantation owners, but north of the parallel settlement was sparse

For Kentucky and Tennessee just make their state constitutions forbid the institution. I think the votes were rather close. Most people who moved to Kentucky and Tennessee were trying to avoid the Tidewater elites of Viriginia and the Carolinas so just have more of these movers (think Daniel Boone and his ilk) be there and more influential rather than the second sons and such who settled the area.

As for the Yazoo lands, have the Federal Govt. enforce their treaties with the Cherokee and that would keep the Georgians out of the Yazoo.

I agree with your point about Louisiana.

 

[John Fredrick Parker]

For Kentucky and Tennessee just make their state constitutions forbid the institution. I think the votes were rather close. Most people who moved to Kentucky and Tennessee were trying to avoid the Tidewater elites of Viriginia and the Carolinas so just have more of these movers (think Daniel Boone and his ilk) be there and more influential rather than the second sons and such who settled the area.

So you think an early sizable tariff on the slave trade can plausibly butterfly into Kentucky and Tennessee banning slavery in their states? I have to say I like the idea, but I'm still working out how it happens in my head. If the votes really were close, then it sounds solid.

As for the Yazoo lands, have the Federal Govt. enforce their treaties with the Cherokee and that would keep the Georgians out of the Yazoo.

This... may be trickier.

 

[John Fredrick Parker]

OK, here's roughly what I have so far:

1787 -- Constitutional Convention finishes document for ratification [same as OTL, only without clause regarding slave trade]

1789-92 -- a bill imposing high tariffs on imported slaves

1792 -- Kentucky passes a constitution banning slavery, becomes 15th state
-- a young Eli Whitney takes a tutoring job in New York [South Carolina OTL, invents cotton gin]

1795 -- Tennesse, following Kentucky's lead, passes a state constitution banning slavery

1798 -- President Adams signs a law banning the importation of slaves to the United States

1804 -- following Louisiana Purchase, Jefferson issues an executive order restricting slavery in the territory north of the 33rd Parallel; later withdraws it on constitutional grounds, and as Congress is presenting him with legislation to the same effect

1808 -- invention of the Cotton Gin

At this point you have one territory, South Louisiana, and an isolated package of states from Maryland down to Georgia along the seaboard, where slavery is legal. (And slave holders in Louisiana, I think, would largely be French, so there's that...)

So now my question is -- what happens next? I've seen a couple of predictions earlier in the thread that this would result in the nation splitting sooner, but if anyone still thinks so I'd like to know how?

 

[Lord Grattan]

Your POD does little to bring about the end of slavery in Kentucky & Tennessee so early. Maybe by the 18-teens if you make it an unprofitable endeavor,

 

[John Fredrick Parker]

Your POD does little to bring about the end of slavery in Kentucky & Tennessee so early.

Yeah, I'm still in the rough phases of this TL -- that said, I was told that the votes were close OTL, and I had to figure if slaves cost more (because of the tariff) settlers would be less keen on transporting that much property into the wilderness. It might have tipped the balance, anyway.

 

[GreatScottMarty]

ok I can fix this, I think. In OTL, at the Confed. Congress of 1787 they passed the Northwest Ordinance. In that Ordinance (it could have been the Land Ordinance of 1785) there was a motion to forbid slavery in the new territories (this would include Kentucky and Tennessee) so I think if you move your POD up several months or possibly two years, it passes. Perhaps a more idealistic Jefferson leaves Paris in 1785 (he was ill during those years IIRC) and returns to Monticello and is appointed Viriginia's delegate to the Confed. Congress and is in the right place to pass the motion.

 

[John Fredrick Parker]

ok I can fix this, I think. In OTL, at the Confed. Congress of 1787 they passed the Northwest Ordinance. In that Ordinance (it could have been the Land Ordinance of 1785) there was a motion to forbid slavery in the new territories (this would include Kentucky and Tennessee) so I think if you move your POD up several months or possibly two years, it passes.

I was about to say "Love it!", when I stopped myself -- because wasn't the territory for Kentucky and Tennessee part of the states of Virginia and North Carolina (at least as late as 1789)? So they wouldn't even considered "territories", would they?

EDIT ADD: Btw, what would you think, plausibility wise, of a Federal program for aid to state manumission programs (i.e. if a state wants to abolish slavery and compensate the owners, the feds will help foot the bill)?

 

[GreatScottMarty]

I was about to say "Love it!", when I stopped myself -- because wasn't the territory for Kentucky and Tennessee part of the states of Virginia and North Carolina (at least as late as 1789)? So they wouldn't even considered "territories", would they?

You still should see as the Northwest ordinance came to control the admission of ALL new states. So yes I believe Kentucky and Tennessee still count.

EDIT ADD: Btw, what would you think, plausibility wise, of a Federal program for aid to state manumission programs (i.e. if a state wants to abolish slavery and compensate the owners, the feds will help foot the bill)?

Plausible I believe, that is certainly where the money will come from, I don't know why they would however. and IMHO how are the slaves going to be relocated? I think relocation for freedmen is essential to a successful program. No I think the drive has to come from the Federal govt, if we want a systematic mess, but if you want it to be messier much messier than I go ahead. I certainly think it is more plausible and less of an overreach if the state govt went for it.