Institution by which, in the United States, blacks were held in service as the chattels of other people.

The institution of slavery came to the colonial United States in the seventeenth century. Blacks were taken from Africa, enslaved, and brought to the New World. The majority of the slaves were taken to the southern colonies, where they performed agricultural work, especially labor-intensive tobacco farming.African AmericansAfrican Americans

From the time the United States was formed, slavery was a contentious political issue. A draft of the Declaration of Independence contained a critical reference to slavery that caused tension at the Continental Congress. In order to gain agreement among the colonies, that passage was removed and the debate regarding slavery was postponed.

At the Constitutional ConventionConstitutional Convention (1787), the essential question regarding slavery whether it should exist was postponed as part of a compromise. The compromise can be seen in the three references to slavery in the U.S. Constitution. The first reference, regarding the enumeration of residents, states that the apportionment of representatives be determined by adding the number of free persons, indentured servants, and “three-fifths of other persons.” “Other persons” does not include free African Americans but those held in slavery. This passage was a compromise because the South wanted to count slaves as whole persons while the North opposed counting slaves for fear that such a provision would encourage slavery.

The second reference to slavery stated that “the migration of such persons as any of the states now existing think proper to admit, shall not be prohibited by the Congress prior to the year 1808.” In other words, Congress would not be permitted to ban the importation of slaves for at least thirty years. This was significant because some, including James Wilson, who was a prominent member of the Constitutional Convention, thought that abolishing the slave trade was the first step in ending slavery in the United States.

The final passage refers to the return of fugitive slaves,Fugitive slaves although again the word “slavery” is not used. In all these references, slavery was not explicitly mentioned because some Framers did not want the word in the document because that would give greater legitimacy to slavery. The Constitution, as it was originally written, did protect slavery, and the Supreme Court had to interpret its provisions.

In 1841, former president John Quincy Adams served as an attorney for the Amistad defendants.

(Library of Congress)

The Constitution did not outlaw slavery until the adoption of the Thirteenth Amendment in December, 1865. That provision reads: “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 Supreme Court addressed issues related to the slave trade in several cases. The earliest such case was The Antelope[case]Antelope, The[Antelope] (1825). In this case, Chief Justice John Marshall asserted that the African slave trade was “contrary to the law of nature,” but it was not piracy in itself if foreigners whose nations permitted it participated in slave trade. The case involved the capture of a pirate ship that had earlier captured a Spanish slave ship called The Antelope. Marshall ruled that the slaves were to be returned to the Spanish owners of The Antelope. This decision maintained the U.S. prohibition on slave trade while recognizing the practice elsewhere. The Court also upheld the conviction of secret owners of a vessel that was involved in African slave trade in United States v. Gooding[case]Gooding, United States v.[Gooding, United States v.] (1827).

The best-known case involving the African slave trade was made famous by the 1997 film Amistad. The Amistad[case]Amistad[Amistad] was a Spanish ship that had drifted into U.S. waters after the enslaved Africans on the ship mutinied. The U.S. government sought to convict the slaves for murder. Once it was prevented from doing that, the government tried extraditing the slaves to Spain. The controversy regarding this ship made it to the Supreme Court. In United States v. The Amistad (1841), former President John Quincy Adams served as one of the attorneys on behalf of the slaves. The Court ruled that the slaves were to be set free because slavery was illegal in Spain.

Groves v. Slaughter[case]Groves v. Slaughter[Groves v. Slaughter] (1841) involved the sale of slaves in Mississippi in 1835-1836. Mississippi’s 1832 constitution had banned the importation of slaves into Mississippi for sale. The state may have included this provision in its constitution to protect its white residents against a slave uprising because free residents barely outnumbered slaves at the time. In violation of the state constitution, Slaughter, a slave trader, sold slaves to Groves and others. Groves then defaulted on the promissory notes that he had put forward in order to purchase the slaves.

Two issues were involved in this case. First, the Court had to determine whether this prohibition was valid according to Mississippi law. The Court ruled that Mississippi needed to have enabling legislation to make this provision valid. However, the state had no statute regarding punishments for importing slaves until 1837. The second, more important issue was whether the Mississippi prohibition on importation of slaves violated the constitutional provision that gives Congress the power to regulate interstate commerce. The Court ruled that slaves were to be treated differently from other articles of commerce such as agricultural and manufactured goods. Justice Smith Thompson in his opinion in the case said that a state “may establish or abolish slavery within her limits; she may do it immediately, or gradually and prospectively.” If a state may abolish slavery within its boundaries, it is a logical extension that the same state may abolish the importation of slaves. Thompson further stated that “these state laws are not regulations of commerce, but of slavery.” In his reasoning regarding the commerceCommerce, regulation of clause, Thompson drew on the examination of commerce in Gibbons v. Ogden[case]Gibbons v. Ogden[Gibbons v. Ogden] (1824), which also distinguished slaves from other types of commerce.

The Court also addressed issues related to fugitive slaves. Article IV of the U.S. Constitution contained a clause requiring the return of fugitive slaves. Congress passed the Fugitive Slave Act in 1793 indicating procedures for returning escaped slaves. At the same time, the New England states and Pennsylvania and New Jersey had either abolished slavery or were in the process of doing so. These states were concerned that southerners and bounty hunters might take advantage of the 1793 law regarding fugitive slaves and come to northern states and forcibly take free blacks. With that in mind, most of the states that had abolished slavery passed laws requiring strong evidence that an African American was in fact an escaped slave and therefore subject to being forcibly returned.

In Prigg v. Pennsylvania[case]Prigg v. Pennsylvania[Prigg v. Pennsylvania] (1842), because the standards for evidence were greater in the state laws than in the federal laws, Justice Joseph Story struck down the state laws. At the same time, Story said that the federal structure of the government meant that the federal government could not force the states to comply with the 1793 statute. Chief Justice Roger Brooke TaneyTaney, Roger Brooke agreed with the validity of the 1793 Fugitive Slave Act but rejected Story’s argument that the federal government could not force state governments to comply with the act.

Jones v. Van Zandt[case]Jones v. Van Zandt[Jones v. Van Zandt] (1847), Ableman v. Booth[case]Ableman v. Booth[Ableman v. Booth] (1859), and Kentucky v. Dennison[case]Kentucky v. Dennison[Kentucky v. Dennison] (1861) also involved fugitive slaves. In Jones, Van Zandt contested the fine brought against him for transporting an escaped slave through Ohio. Lawyer Salmon P. Chase, who later became chief justice, argued before the Court that because Ohio banned slavery, Van Zandt could assume that all African Americans in Ohio were free and therefore was unaware that he was transporting escaped slaves. The Court was not persuaded and upheld the fine. In Ableman, Taney overruled the Wisconsin supreme court’s invalidation of the federal Fugitive Slave Act. Taney stated that the federal government “must be supreme and strong enough to execute its own laws by its own tribunals.” Therefore, states must enforce the federal Fugitive Slave Act. Kentucky v. Dennison involved the refusal of Dennison, the governor of Ohio, to extradite from a free state to a slave state a free black who had helped a slave. Taney ruled that the federal government could not force extradition, but that states should extradite as a matter of good will.

Although the cases dealing with the slave trade and fugitive slaves are significant, the most important case regarding slavery was Scott v. Sandford[case]Scott v. Sandford[Scott v. Sandford] (1857). This case involved Dred Scott, a slave who lived with John Emerson in Illinois and in a part of the Missouri territory that later became Minnesota. Upon Emerson’s death, Scott sued for his freedom, claiming that he was a free man because he had lived in free areas although he had returned to the state of Missouri. In 1850 a lower court granted Scott freedom. In 1852 the Missouri supreme court overruled the lower state court, making Scott a slave again. Because Scott was legally a slave again, he was the “property” of John Sanford (the name was misspelled on the suit), a resident of New York. Scott sued again in federal court because his case was now a suit between residents of two different states.

Chief Justice Taney wrote the majority opinion. The first major argument in his decision was whether Scott had standing to sue. To sue, one had to be a citizen,Citizenship and Taney ruled that no African American could be considered a citizen of the United States because the Constitution of 1787 did not include African Americans. Taney wrote that African Americans were “not included and were not intended to be included, under the word ’citizens’ in the Constitution, and can therefore claim none of the privileges which that instrument provides and secures to the citizens of the United States.” Without standing to sue, Scott could not obtain his freedom.

Taney could have stopped right there, but he insisted that the Court could correct mistakes made by lower courts. The mistake he sought to correct was the Court’s earlier acceptance of the constitutionality of banning slavery in the territories. Taney argued that Article IV of the Constitution, which gave the federal government power over territories, applied only to territories held at the time of the adoption of the Constitution. Therefore, Scott was never free, even when he was in the Missouri territory.Territories and new states

Because of the Civil War and the adoption of the Thirteenth AmendmentThirteenth Amendment in 1865, slavery ceased being a major issue before the Court. After the Thirteenth Amendment’s passage, however, the Court made some significant decisions interpreting its meaning. In the Civil Rights Cases[case]Civil Rights Cases[Civil Rights Cases] (1883), which dealt with a section of the Civil Rights Act of 1875, the Court ruled that the Thirteenth Amendment prevented only slavery, not discrimination against African Americans. In Plessy v. Ferguson[case]Plessy v. Ferguson[Plessy v. Ferguson] (1896), the Court made essentially the same argument, saying the Thirteenth Amendment was “intended primarily to abolish slavery as it had been previously known in this country and that it equally forbid Mexican peonage or the Chinese Coolie trade, when they amounted to slavery or involuntary servitude.”

• James Oliver Horton and Lois E. Horton’s Slavery and the Making of America (New York: Oxford University Press, 2004) examines the central role that slavery played in the development of the American political system and the rise of sectional interests. Robert McCloskey’s The American Supreme Court, revised by Sanford Levinson (3d ed., Chicago: University of Chicago Press, 2000) includes a useful discussion of the Taney court and its decisions on slavery. Timothy S. Huebner’s The Taney Court: Justices, Rulings, and Legacy (Santa Barbara, Calif.: ABC-Clio, 2003) is a comprehensive reference work on the Court that passed down the Dred Scott decision. Don E. Fehrenbacher’s The Dred Scott Case: Its Significance in American Law and Politics (New York: Oxford University Press, 2001) examines that ruling more closely. Thomas West’s Vindicating the Founders: Race, Sex, Class, and Justice in the Origins of America (Lanham: Rowman & Littlefield, 1997) has a chapter on slavery and the founding in which the author argues that the Taney court misinterpreted the Framers on slavery. Africans in America by Charles Johnson and Patricia Smith (New York: Harcourt Brace, 1998) is a fascinating history of slavery in the United States. Helen Kromer’s Amistad: The Slave Uprising Aboard the Spanish Schooner (Cleveland, Ohio: Pilgrim Press, 1997) provides an excellent account of The Amistad and the case that went before the Court. Historian John Hope Franklin provides a detailed account of slavery in the United States and discusses the impact of Supreme Court decisions on slavery in his From Slavery to Freedom: A History of African Americans (New York: McGraw-Hill, 1994). For an in-depth study of the Dred Scott case, consult “Dred Scott v. Sandford”: A Brief History with Documents, edited by Paul Finkelman (New York: St. Martin’s Press, 1997).

Ableman v. Booth

The Antelope

Constitutional Convention

Fugitive slaves

Groves v. Slaughter

Jones v. Van Zandt

Kentucky v. Dennison

Peonage

Plessy v. Ferguson

Prigg v. Pennsylvania

Scott v. Sandford

Taney, Roger Brooke

Thirteenth Amendment