Prohibition on Amendment: Slave Trade

...no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article....

Article V

Toward the end of the Constitutional Convention, after previous clauses concerning slavery had been settled, and in the midst of the discussion about the process of amending the Constitution, John Rutledge of South Carolina said that "he never could agree to give a power by which the articles relating to slaves might be altered by the States not interested in that property and prejudiced against it." An addition to the clause was immediately agreed to that forbade amending the so-called Slave Trade Clause (Article I, Section 9, Clause 1) and the Direct Taxes Clause (Article I, Section 9, Clause 4) prior to 1808, after which Congress could regulate the slave trade.

This provision calls attention to the delicacy and precariousness of the compromises involved in these two clauses. Protecting the Slave Trade Clause revealed Southern concerns about the strength of antislavery opinion (which was focused on stopping the slave trade) and the fact that outside of a few states, it would be hard to prevent a coalition of Northern and upper Southern states from changing the Constitution on this question by amendment. Likewise, shielding the Direct Taxes Clause was an indirect way to emphasize the "Three-fifths Compromise" (Article I, Section 2, Clause 3) concerning the apportionment of direct taxes, as well as adding "other taxes" to that ratio, reflecting significant fears that the power to tax could be used to undermine the institution of slavery. Underscoring the temporary nature of the compromise, language in Article V ties the Direct Taxes Clause to the clause's "implied invitation" to legislate on the slave trade after 1808. In fact, Congress accepted the invitation and, although the law underwent several modifications in subsequent years, passed a federal prohibition of the slave trade, effective January 1, 1808.

Interestingly, reference to the Fugitive Slave Clause (Article IV, Section 2, Clause 3) is not included here among the clauses protected from amendment. By omission, this signifies the broad consensus supporting the Fugitive Slave Clause and the fact that it was not at the time thought to be controversial.

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Matthew Spalding
Vice President, American Studies
Director, B. Kenneth Simon Center for Principles and Politics
B. Kenneth Simon Center for Principles and Politics
The Heritage Foundation