Skip to main content


Last Updated: 2006

From the drafting of the Constitution in 1787 to the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments in the years following the end of the Civil War (1861–65), the jurisdiction over slavery was split between the federal and state governments. For nearly eighty years, this division of authority contained the contentious politics surrounding slavery, allowing the North and South to legislate on most aspects of the issue themselves. Ironically, it was partly because of the federal structure of slavery that the country was pushed toward the secession crisis, Civil War, and, finally, full national control over the legality of this racialized labor system.


Slavery became embedded in the federal structure of the Constitution when the Constitutional Convention convened in 1787. There was already a split in the country over its long-term existence; many northern states, spurred by both the principles of the American Revolution and an economic system that was not centered on the use of bonded labor, began the process of emancipating their slaves by the time the Constitutional Convention met. This led to conflicts as to the parameters of national and state authority over slavery. While no serious suggestion materialized that would have given the federal government the power over emancipation, the division between North and South was contentious enough for James Madison (1751–1836) to note on July 14 that “slavery and its consequences” created the main dividing line at the Convention.

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.

Many southern representatives to the Convention resembled their northern counterparts in their desire to change the Articles of Confederation; both viewed the document as creating a government incapable of defending the country or promoting national and foreign trade. Under the Constitution, they increased the powers granted to the federal government. Southerners were also intent on insuring that the federal government had little control over slavery within state borders. Some delegates declared that unless slavery was protected, they could not endorse the Constitution’s ratification. On the issue of representation, considerable debate occurred over whether slaves should be counted for representation in the House of Representatives as well as for direct taxation purposes. After much contestation, the delegates decided that each slave would be considered as three-fifths of a person; the agreement appeared in the Constitution under Article I, Section 2.

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.

While the compromise over slavery influenced how representation was assigned, two others directly affected the federal system’s structure. The first was the Slave Importation Clause. Placed into Article I, Section 9, it gave the federal government the right to regulate, tax, and even ban slave importation after 1808. This provision, supported by many southern states with a surplus of slaves, went into effect twenty years after the Constitution was drafted. It is important to note that it only referred to the international slave trade, not the movement or sale of slaves between states. The other provision appeared in Article IV, Section 2, which guaranteed slavery’s status by giving the federal government authority to assist in returning runaway slaves who cross state lines. These fugitives, euphemistically referred to as a “Person held to Service or Labour in one State,” were to be “delivered up on Claim of the Party to whom such Service or Labour may be due.”

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

These provisions left untouched many of the vital issues regarding federal and state powers on the subject. Indeed, slavery was a sensitive topic; when discussed at the Convention, it raised the specter of dissolution of the union between the states. As such, those at the convention failed to address many key areas that directly concerned the position of slavery in the federal system. For instance, left unresolved was the civic status of slaves and free blacks within a state as well as their legal standing when they lawfully traveled across state lines. Much about slavery remained unclarified at the Constitution in the hopes that all of these problems would be resolved within the newly developed federal framework. This worked for decades, but the inability to resolve the place of slavery often led to bitter conflicts in nearly every aspect of national and state relations.


A major legislative battle over slavery occurred in 1819 during the discussions to admit Missouri as a state. New York Congressman James Tallmadge put forth two amendments to the bill of admission. Although neither would immediately free slaves currently in Missouri, the first resolution declared that any further introduction of slavery into the state would be forbidden and that all slave children would be freed once they reached 25 years of age. The resolutions passed in the House of Representatives, where the North had a numerical majority, but it failed in the Senate, where the South retained parity. In the end, after much rancorous debate, a compromise was achieved. Missouri would be allowed entry as a slave state in return for a prohibition of slavery in the rest of the Louisiana Territory above the latitude 36° 30’N. A second part to the Missouri Compromise dealing with the proposed state constitution included a provision that forbade the entry of free blacks into the state. The Congress again intervened and only allowed the passage of the Missouri Constitution if the provisions were read in a way that would not infringe on free blacks’ right to travel.

The Missouri Compromise affected federalism in the following ways. First, it brought to the forefront issues dealing with congressional and state control over territories, citizenship, and individual rights. Those who supported the compromise staked their claim to Article IV, Section 3, which provided Congress the power to “make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” From this clause, they put forth a notion of federalism in which the federal government possessed the power to legislate on nearly all matters in the territories, including the legality of slavery in them. In addition, because of Article IV, Section 4, which gives the Congress the responsibility to “guarantee to every State in this Union a Republican Form of Government,” Congress retained control over new states’ provisions regarding citizenship, civil rights, and civil liberties when they entered the union.

These legislative developments disturbed many Southerners. With the Tallmadge Amendments’ nearly unanimous northern support and the national powers asserted by the various compromises, many Southerners grew concerned that the federal government could be used by the northern majority to further legislate on the issue of slavery. During the Missouri debates, they offered a different understanding of state and federal authority in regard to the territories. They contended that the federal government lacked the power to legislate on the internal affairs of territories and states. The Territory Clause, Southerners claimed, only permitted the federal government authority to facilitate structures of government and admission criteria, not everyday legislation. They also argued that because there was a clear division between state and national authority, whatever provisions given to newly admitted states by the federal government during the admission process could be changed if the state so desired. Each state was equal to every other one, and if there were not limitations put on the original 13 states, none could be foisted onto any other states.

In addition to the concerns raised by northern support of the Tallmadge Amendments, the Missouri debates also reinforced an existing fear that the federal government was gaining too much power. In the years after the War of 1812, the “War Hawks,” nationalists in the Democratic-Republican Party, were disturbed by the United States’ lack of preparation during the conflict. They pushed for a more active government to deal with these deficiencies, proposing a rechartering of the national bank, increased federal involvement in building roads and canals, and a larger tariff to protect American industry and pay for these programs. This plan, which included an effort to colonize free blacks to Africa, culminated into a nationalist agenda called the American System. One of their biggest victories was the Supreme Court’s ruling of McCulloch v. Maryland (1819), which affirmed the principle of implied powers allowing the Congress to utilize a broader reading of the Constitution. Under Chief Justice John Marshall’s (1755–1835) ruling, the Necessary and Proper Clause in Article I, Section 8, extended the authority of enumerated powers beyond what was explicitly written; as long as there existed a fundamental link to a power delegated in the Constitution, such acts were within the scope of the law.

McCulloch v. Maryland and the idea of implied powers raised many concerns, particularly among the “Old Republicans.” These Southerners, who were part of the states’ rights wing of the Democratic-Republican Party, advocated an ideology that held that under the American system of federalism, the states retain all powers not expressly granted to the Congress in the Constitution. This belief contained the conviction that the Constitution should be read strictly; even with the Necessary and Proper Clause, the Congress did not have much leeway to pass legislation that was not specifically given to the federal government. While arguments against banks and internal improvements hinged on skepticism of the need for such programs, many who resisted them on the national level did so mainly because they feared the powers that would be gained by the federal government. They were often much more concerned about insuring that states retained the authority to build or charter banks or roads than they were in denying that all governments lacked these powers. Hence, they contended that the authority over banks and internal improvements, and most authority pertaining to slavery, remained with the states.

During the 1820’s, because of the nationalist positions put forth by advocates of the American System and the fallout from the Missouri debates, many Southerners became more inclined to hold a states’ rights and dual federalist position. They contended that there were clear walls between national and state authority that could not be legally breached. While they were specifically concerned that the federal government would gain too much power, expressed ambivalence over banks and tariffs, and held the conviction that states were the best entities to build roads and canals, southern states’ rights advocates also feared that the federal government could use these policies as a means to abolish slavery. Old Republican John Randolph (1773–1833) of Roanoke, Virginia, best summed up this position. During his 1824 comments against the Survey Bill, he stated that “if Congress possesses the power to do what is proposed by this bill, they may not only enact a sedition law—for there is precedent—but they emancipate every slave in the United States.”

With the rise of the Democratic Party and the victory of Andrew Jackson (1767–1845) as president in 1828, the dual federalist–states’ rights viewpoint became dominant. Jackson’s vetoes of the Maysville Road Bill in 1830 and the Second National Bank in 1832 helped solidify the boundaries between the national and state governments. The federal government’s authority over road and canal projects was reduced to the general power of appropriation, where funds could be given to the states to do what they wished. In regard to banking, the states were given the main authority to charter and regulate such entities.

Even though the states’ rights position was on the rise, the structure of dual federalism was also challenged by those within this perspective. John Calhoun (1782–1850), a former War Hawk and nationalist turned states’ rights champion, led his fellow South Carolinians against the national tariff, stating that it was against the original agreement that the states made when drafting the Constitution. This idea of state dominion over the Constitution was known as the compact theory of government. From this rationale, Calhoun put forth the doctrine of nullification, contending that states could, within their own borders, void a national law if it conflicted with the rationale of the constitutional agreement. President Jackson opposed this reasoning and threatened to use force to settle the matter. South Carolina, with the tariff ’s reduction and without any additional state support, withdrew its claim.

The nullification controversy was a pivotal event in the development of American federalism and the politics around slavery. Even though the issue ostensibly dealt with the tariff, it was also about insuring that the states—not the federal government—would have control over slavery. As South Carolina Governor James Hamilton Jr. (1786–1857) stated in a letter appearing in the Charleston Mercury on September 28, 1830, the nullification controversy was “a battle at the out-posts” where if they won, “the citadel [of slavery] would be safe.” The nullification crisis established the extremes that some Southerners would utilize to insure that national powers were limited; the fervor behind these arguments set the groundwork for the rationale used in latter years to precipitate the secession of southern states from the union.


In the three decades before the Civil War, the question of citizenship and individual rights for slaves and free blacks challenged the integrity of the federal system, infusing additional tension around the issue. The root of this conflict was the inability for the federal system to resolve the differences in a country fundamentally split over the issue of slavery. Both constitutional clauses at issue came from Article IV. Known as the Comity Clauses, the first is the Full Faith and Credit Clause, which provides recognition of the legal status of citizens in one state when they travel or reside in another. Hence a person’s marriage from one state would be legal in another. The other clause is the Privileges and Immunities Clause, which recognizes the individual rights of citizens emigrating or traveling from one state to another. When it came to issues of slavery and freedom, states on both sides of the issue utilized separate interpretations of these clauses, fostering vigorous conflicts between free and slave states.

In the North, although many states were unreceptive to granting many civil and legal rights to African Americans, there was little sympathy in supporting the institution of slavery. From the 1830’s through the 1860’s, northern legislatures and courts passed laws and enacted rulings that impeded the ability for Southerners to travel in free states with their slaves. These personal liberty laws declared that slaves would become free if they, depending on the legislation, either entered into or remained for a fixed period of time in the particular jurisdiction.

The personal liberty laws greatly limited the ability of Southerners to travel in the North—in particular with their slaves since they ran the risk that the slaves would be declared free if they spent any time in a northern state. They argued that they were being denied the privileges and immunities guaranteed under the Constitution. Southerners contended that they had the right to the ownership of slave property and this could not be infringed upon. The personal liberty laws did just this. Southern courts reacted to these provisions themselves by denying that they had any effect. Slaves brought to the North and freed remained slaves; if said slaves traveled back into the South, they could be expected to be placed back into bondage. Any legal claims that freed slaves had in regard to an estate left to them in a will was null and void, since slaves, regardless of their civic status in other parts of the country, had no legal right to make such claims. Many Northerners thought that these southern rulings violated the Full Faith and Credit Clause because it denied northern free blacks their rightful civic status.

In the end, the Comity Clauses failed. Tensions on this issue rose further when determining the status of fugitive slaves. Southerners, adamant that their fugitive slaves be returned to them, worked into the Compromise of 1850 a stronger fugitive slave law that gave the federal government more power to find and bring back fugitive slaves to their owners. Northerners did not feel that these laws gave their citizens due process. Because there was no formal way to adjudicate whether or not a person was a fugitive, Northerners claimed that the fugitive slave law ostensibly promoted kidnapping. As such, northern states refused to comply with the federal marshals’ demands for giving up those suspected of being fugitive slaves.

There existed an uncomfortable stasis around the issues of the civic status of free blacks, and when the laws conflicted over whether escaped or free blacks remained slaves, local jurisdiction won over the principle of nationalism promised in the Comity Clauses. The Supreme Court’s attempt to resolve these issues made things worse. In 1857, in the Dred Scott v. Sandford decision, the Court’s majority proslavery opinion eschewed the states’ rights strategy of previous decades in favor of slave nationalism. In the decision, Chief Justice Roger Taney (1777–1864) proclaimed that slave property was a fundamental right regardless of state or national law. Taney also declared that the Missouri Compromise was unconstitutional because the federal government could not legislate on the issue. In addition, Taney argued, any claims for citizenship made by slaves or free blacks were without standing because they were not citizens when the Constitution was drafted. A clear subtext to the Dred Scott ruling was that neither the national nor state government could limit slave property; it enjoyed protection throughout the United States.

Chief Justice Taney’s decision did not gain much traction in the North, which continued to abide by its personal liberty laws. The case further divided North and South. It helped galvanize the North into supporting the newly formed Republican Party’s candidate, Abraham Lincoln (1809–65), for president. Lincoln’s election in 1860 led to southern declarations of secession. When Lincoln refused to acknowledge the legitimacy of this claim, the nation entered into civil war. After the war, the Thirteenth, Fourteenth, and Fifteenth Amendments took the first step in instituting national control over slavery, citizenship, and voting rights. While these provisions failed to secure complete civil equality for African Americans, they did fully resolve that the federal government, not the states, had the power to insure that slavery was illegal within the United States.

SEE ALSO: Civil WarDred Scott v. SandfordFourteenth AmendmentFugitive Slave ActsFugitive Slaves and American FederalismMissouri Compromise of 1820


Don E. Fehrenbacher, The Dred Scott Case (Oxford: Oxford University Press, 1978); Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill: University of North Carolina Press, 1981); Thomas D. Morris, Free Men All: The Personal Liberty Laws of the North 1780–1861 (Baltimore: John Hopkins University Press, 1974); Donald L. Robinson, Slavery in the Structure of American Politics (New York: Harcourt Brace Jovanovich, 1971); and Rogers Smith, Civic Ideals (New Haven, CT: Yale University Press, 1997).