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America's Constitutional Abominations [1]
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Date: 2025-04-28
Several Constitutional provisions have fundamentally shaped the American experience. Let’s focus here with the abominations. The first and most notorious is the Three-Fifths Clause. This provision awarded states an additional three-fifths of a person for every slave when counting the population to determine Congressional representation: “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 [i.e., slaves].”
Slave-holding states thus received a great reward for their terrible sin: an outsized influence in Congress. And because the Constitution’s Electoral College appoints states’ electors based on Congressional representation, slave-holding states also got a leg up with presidential elections. The Three-Fifths Clause may even have handed Virginia’s Thomas Jefferson (a major slaveholder himself) the presidency in 1800. Indeed, the Three-Fifths Clause didn’t just protect slavery; it dramatically incentivized the practice: the more slaves southern states acquired, the more government power they amassed.
The Three-Fifths clause wasn’t the only provision emblazing slavery into America’s founding document. The founders also included the Slave-Trade Clause. This Constitutional requirement was chilling: no prohibition could be placed on the fundamental right of Americans to import slaves into the country for twenty years: “The Migration or Importation of such Persons [i.e., slaves] 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.”
Unlike many other topics important to the nascent country, the slave trade was so critical to the founders that they enshrined it into the Constitution. In the eighty years that followed, the importation of slaves cast a dark and bloody shadow over the emerging nation.
Both of these Constitutional provisions are a vile stain on America’s past. One of human history’s worst practices was not just prevalent in America, was not just condoned, was not just encouraged, but was so essential that the founders gave it protections and advantages in the nation’s founding document and highest law. It ultimately took a civil war to end slavery in America. And in the war’s aftermath three constitutional amendments addressed the subject.
• The 13th Amendment abolished slavery unless it resulted from conviction for a crime:
o “Section 1: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
• The 14th Amendment made former slaves and their lineage United States citizens and thereby entitled to the rights and protections afforded by citizenship:
o “Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
• The 15th Amendment granted former slaves the right to vote and prohibited limiting the franchise because of race:
o “Section 1: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
Enacting these amendments was a necessary and important step in atoning for the past. And America has consistently broadened the rights and protections of its citizens. Still, the Civil-War amendments do not lessen, let alone erase, all the horror that preceded them. And post-Civil-War Reconstruction was blighted by racial atrocities, as southern states resisted the Amendments’ dictates. Indeed, white racists consistently perpetrated horrific, gratuitous crimes against Black people well into the twentieth century.
During the 1921 Tulsa Race Massacre, for example, a white mob destroyed the predominantly Black Greenwood neighborhood in Tulsa, Oklahoma. Hundreds of people were killed and thousands left homeless. Yet at the time of the massacre, news reports were largely suppressed and few Americans knew about this atrocity for nearly a century.
Several decades later, on August 28, 1955, a Black child from Chicago named Emmett Till was brutally murdered in Money, Mississippi. He allegedly flirted with a white woman. The murderers were the woman’s husband and his brother. They ordered Emmett to carry a 75-pound cotton gin fan to the Tallahatchie River and forced him to take off his clothes. Then they beat him, gouged out his eye, and shot him in the head. Then they tied his body to the cotton gin fan with barbed wire and threw it into the river.
Moreover, Jim Crow—the system of express legal discrimination against Black people—long prevailed in the American South. Named after a Black minstrel show character, Jim Crow lasted a century—from the post-Civil War era until the 1968 Civil Rights Act. The legal system denied Black people numerous fundamental rights, including the right to vote, to hold a job, and to get an education. Those who dared to violate Jim Crow’s laws (or who were merely accused of doing so) were often arrested, fined, imprisoned, and even murdered.
The wounds from this recent history are still fresh. Tensions are still high. And race is still “the fault line in American politics,” according to Barack Obama, America’s first Black president. Recent trends are disappointing. A July 2021 Gallop poll reveals that “U.S. adults’ positive ratings of relations between Black and White Americans are at their lowest point in more than two decades of measurement. Currently, 42% of Americans say relations between the two groups are ‘very’ or ‘somewhat’ good, while 57% say they are ‘somewhat’ or ‘very’ bad.”
Two momentous factors contribute to this recent nadir in race relations. The first is Obama’s presidency. While in hindsight many forget his long odds, Obama’s victories in both 2008 and 2012 were shocking triumphs in American history: a nation deeply scarred by its abuse of Black people elected a Black man as its head of state. Twice. The second factor is the reaction to Obama—and his name is Donald J. Trump. Obama’s presidency deeply unsettled and angered millions of Americans not ready for a Black president. And Trump’s hostility to minorities (sometimes subtle, sometimes overt, always cunning) drives his popularity among many Republicans, particularly in southern states.
Some commentators think little has changed since before the Civil War. Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, for example, puts it this way: “We have not ended racial caste in America; we have merely redesigned it … Indeed, a primary function of any racial caste system is to define the meaning of race in its time. Slavery defined what it meant to be black (a slave), and Jim Crow defined what it meant to be black (a second-class citizen). Today mass incarceration defines the meaning of blackness in America: black people, especially black men, are criminals. That is what it means to be black.”
Others downplay and rationalize slavery’s central role in America’s past. Republican Senator from Arkansas Tom Cotton, for example, called slavery a “necessary evil”: “We have to study the history of slavery and its role and impact on the development of our country because otherwise we can’t understand our country. As the founding fathers said, it was the necessary evil upon which the union was built, but the union was built in a way, as Lincoln said, to put slavery on the course to its ultimate extinction.”
Both versions are far too simple. American slavery was every bit as horrific as the harshest critics assert. Allowing slavery wasn’t necessary—it was a choice the founders elected to make. And there are no excuses, countervailing considerations, or subsequent redemptions that soften America’s profound culpability. Yet this stain does not permeate into and define every dimension of America and its history. Neither persons nor nations should be categorically defined by their worst acts, especially when their best acts have been highly consequential. And while mass incarceration is a truly abhorrent American failure, race relations in America have improved since before the Civil War ended slavery—obviously—and have not been “merely redesigned.”
America’s history with slavery and racism doesn’t nullify its achievements promoting the arts, furthering the sciences, and, yes, fundamentally expanding the realm of human freedom. America’s original sin isn’t justified by its subsequent contributions to human flourishing; but neither does that sin render those contributions void. Rather, the positive and negative elements of America’s past all coexist together—the whole damn thing—in bitter and uncomfortable contradiction, irony, pain, and truth.
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