The Constitution and Slavery

The Constitution as originally was too squeamish to actually call a slave a slave. It used a variety of euphemisms like contrasting "free persons" with "other persons" or a "person held to service or labor" or even "such persons" as the states wished to import.  Without actually using the "S" word, the Constitution upholds slavery in three places:

1. The three-fifths compromise including all free persons and three-fifths of all "other persons" (i.e., slaves);
2. The ban on any Congressional interference in slave trade until 1808;
3. The Fugitive Slave Clause, guaranteeing the return of any "person held to service or labor" escaping to another state.

At least, this is what I had long believed.  In law school, our Constitutional Law professors claimed that actually the Constitution as originally written upheld slavery not three, but six times!  Conceding these three, what are the other three?  Looking it over, I think I have found two.

 Article I, Section 9, Clause 4: "No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken."  Although the Constitution is normally written in remarkably clear and simple language, accessible to the layperson, and with very little legalese, this particular clause is a head-scratcher.  This is partly because it uses some obsolete terms and partly because it was deliberately written to obfuscate.  A "capitation" is a head tax.*  It was not usually charged on each individual "head," but on each adult male head of household.  A "direct" tax is a tax on individuals or property, as opposed to a "commercial" tax, which is a tax on a commercial transaction.  And "property" in these case would mean not just land, but all forms of wealth.  This appears to be a ban on a federal property tax, allowing Congress only commercial and head taxes.  But what about the census referred to?  That census is in Article I, Section 2, the section apportioning the House of Representatives, including the three-fifths compromise. A census is to be taken every ten years to establish population for purposes of representation and direct taxation.  This section says that "direct taxes" must be based on all free persons and three-fifths of all slaves, i.e., it forbids a burdensome property tax on slaves.

Article V.  This sets the amendment process.  Most of the Constitution is subject to amendment, but Article V makes a few exceptions.  The only one that is operative today is that no state may be deprived of equal representation in the Senate without its consent.  But it also provides that, "[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."  This, too, is a bit of legalese designed to obfuscate the meaning.  Looking back at Article I, Section 9, one will see that the first clause is the one that forbids Congress from interfering with the slave trade until 1808, and Clause 4 is the word ticket quoted above that forbids any burdensome property tax on slaves.  This section, along with the protection of slave trade, became obsolete in 1808.

So, three parts of the Constitution directly uphold slavery and two uphold it indirectly by reinforcing other sections.  What the sixth protection of slavery is, I have not been able to determine.

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*It is the same word as "per capita" and comes from Latin, caput, or head.