difficulty of amending Constitution a result of the slave trade?

[Mark Stein]

One issue not referenced in the article abstract I circulated earlier tonight is whether the Constl Convention proposal to require two-thirds of the states to ratify amendments (instead of three-fourths, as eventuated) was defeated by a coalition intent on protecting the slave trade.  Following is what I say on pp. 57-58.  The issue is not central to my argument, but I'd be interested in any reaction

...





            At
the Constitutional Convention of 1787, James Wilson of Pennsylvania proposed that approval by
two-thirds of the states should suffice for amendments.[1]  Wilson’s
motion was defeated by a vote of only six to five.[2]  The six states voting against the motion were
Massachusetts, Connecticut,
New Jersey, North
 Carolina, South Carolina, and Georgia.[3]  Wilson
then moved to require approval of three-fourths of the states, which was
adopted unanimously.[4]   

            It
appears that much or most opposition to Wilson’s
initial two-thirds proposal was related to the protection of the African slave
trade.  The three deeper-South states
that were interested in protecting the slave trade – North
 Carolina, South Carolina, and Georgia
– voted as a bloc against the two-thirds proposal.[5]
This vote occurred before a provision was inserted in Article V making the
protection of the African slave trade until 1808 completely unamendable;[6]
that provision was inserted later on the same day.[7]  Moreover, Massachusetts
and Connecticut,
two of the three Northern states that voted against the two-thirds proposal,
had allied themselves with the deeper-South states on matters concerning the
African slave trade, in order to gain approval for what became the Commerce
clause.[8]  The votes of Massachusetts
and Connecticut
against the two-thirds proposal may have represented a continuation of their
support of the slave-trading interest, although these states may also have had
other concerns.   

            In
any event, the bloc vote of the deeper-South states suggests that the
Constitution would have been a little easier to amend if it were not for the
interest of some states in protecting the slave trade.[9]









[1] 2 The Records of the Federal Convention of 1787,
at 558 (Max Farrand ed., 1911).





[2] Id.
at 558-59.





[3] Id.





[4] Id.
at 559.





[5] Id.
at 558-59.





[6] “[N]o
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…”  U.S. Const. art. V.





[7] Farrand,
2 Records of the Federal Convention,
supra note 149, at 559.





[8] See Finkelman, Slavery and the Founders, supra note 9, at 27-31; David
Brian Robertson, The Constitution and America’s Destiny 180-81
(2005).





[9] To my
knowledge, this history has not previously been discussed in connection with
the originalism debate.  Finkelman
mentions the three-fourths requirement in Article 5, Finkelman, Slavery and the Founders, supra note 9 at 8, but he does not
discuss it in detail.






...

Mark


 		 	   		  
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