Article 1, Section 9, Clause 1: Slave Trade Clause

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.

Article 1, Section 9, which restricts the powers of Congress, opens with one of the three clauses in the Constitution which tacitly admit the existence of slavery in some of the states. It is an unfortunate start to an important section.

The federal government was intended to be granted few and enumerated powers, with all broad police powers left to the individual states. In principle, it was only necessary to enumerate these powers to restrict Congress from acting tyrannically. Any act exceeding the authorized powers would be unconstitutional. However, the Constitution has multiple firewalls and levels of containment against tyranny, and so this section spells out specific restrictions that rule out certain actions by Congress even in the exercise of its enumerated powers. So important was this to the Founder’s generation that an additional firewall, the Bill of Rights, was demanded before some states were willing to ratify the Constitution.

The Slave Trade Clause is unique in having an explicit expiration date, 1808. On the first of that year, the clause expired and so became moot. And, interestingly, the slave trade was prohibited by Congress almost as soon as it had the authority to do so. Thomas Jefferson, in his December 1806 message to Congress, said:

I congratulate you, fellow-citizens, on the approach of the period at which you may interpose your authority constitutionally to withdraw the citizens of the United States from all further participation in those violations of human rights which have been so long continued on the unoffending inhabitants of Africa, and which the morality, the reputation, and the best interests of our country have long been eager to proscribe.

It is difficult for many modern American to understand how Jefferson, a lifelong slave owner, could have said such a thing. The Founders were, we believe, aware of the contradiction between the vision of the Declaration of Independence and the Constitution on the one hand, and the continued existence of slavery on the other. Jefferson was not crossing his fingers behind his back when he wrote that “All men are created equal”; we believe he believed it.  Defense of slavery as a positive good was not noticeably a part of that generation. But the slaveholding Founders did not know how to catch the monkey on their back. This was the great tragedy that led to the catastrophe of the Civil War and continued to echo through the era of Jim Crow and into the debates today about what America is.

Regardless, from a strictly legal perspective, the clause became irrelevant after 1808 and is of only historical interest today.