Article 1, Section 9, Clause 1, is one of a handful of provisions in the original Constitution related to slavery, though it does not use the word “slave.” This Clause prohibited the federal government from limiting the importation of “persons” (understood at the time to mean primarily enslaved African persons) where the existing state governments saw fit to allow it, until some twenty years after the Constitution took effect. It was a compromise between Southern states, where slavery was pivotal to the economy, and states where the abolition of slavery had been accomplished or was contemplated.
There is a sense in which the Clause is no longer constitutionally relevant since it expired in 1808. At the time the Constitution was adopted, there was no guarantee whether or when the federal Congress would act to prohibit the importation of slaves. So there is a legitimate inquiry about what took place in the political realm over the 20-year period between the adoption of the Constitution and 1808. During that time period, popular support for the abolition of the slave trade and slavery itself increased both in the United States and in other countries. There was more support for restricting the slave trade initially than slavery itself in this time period. In the 1790s, Congress passed statutes regulating the trade in slaves by U.S. ships on the high seas. The United Kingdom and other countries also passed legislation restricting the slave trade, increasing international pressure on the United States to likewise curb the practice.
In December 1806, President Thomas Jefferson’s annual message to Congress anticipated the upcoming expiration of Article 1, Section 9, Clause 1. His message 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.” Does it seem odd that a slave owner was supporting this legislation?
In 1807, the U.S. Congress passed a statute prohibiting the importation of slaves as of the first constitutionally-allowable moment of January 1, 1808. This act was signed by President Jefferson and entered into force in 1808, rendering this part of the Constitution irrelevant except as a historical curiosity.
This in itself is a fascinating exception to constitutional change, in which a provision came with a built-in expiration date, after which the powers of the federal government would no longer be restricted. Note also that the Clause itself does not grant Congress the power to restrict the slave trade, but Congress presumably used the foreign and interstate commerce powers it had been given in Article 1, Section 8, to do so.
In an important sense, there is a settled meaning of the Clause: it is no longer relevant in the same sense, for example, that the First Amendment is still constitutionally relevant. But the Clause, although constitutionally inoperative for over 200 years, still remains there for all to see and read. It is in the Constitution. And so the Clause, in a larger sense, has a continuing cultural and political constitutional relevance in the discourse of the morality and profitability of the international trade in human beings. People rightfully wonder today, and earlier, why is such a Clause there in the first place and to whom does it refer? We do know the Framers are talking about the slave trade, right? How attentive should we be to the specific language of the Clause or does the language actually inform us about what is trying to be conveyed? And why is this Clause the opening clause of Article 1, Section 9 of the Constitution?