Constitutional right to bring slaves anywhere?
Calvin Johnson
CJohnson at law.utexas.edu
Thu Oct 6 07:49:20 PDT 2005
Taney is working a wierd world in which he wants slavery protected so
bad he can taste it. After all , an entire nation, the Confederate
States of America, was built around that prime directive that slavery
would be protected. The Confederate Constitution followed the US
Constitution except that it provided that rights in Negro property shall
not be infringed by any legislation.
There is no doubt that Congress could have abolished slavery any
time it wanted to, before the 13th Amendment. Patrick Henry ran his
campaign against ratification first and overwhelmingly on the argument
that the Eastern States could and would abolish slavery. Ratify this
Constitution, he said, and they could tax slaves to manumission. A
stiff tax would lead to gradual manumission and a prohibitive one would
lead to immediate freedom. Congress could impose an excise (basically a
sin tax) on slaves, or apportion an internal tax among the states and
tell the states to pay it solely by a tax on their own slaves. The
ablitiy of the federal governmen to lay direct or internal was the
biggest issue of the 1787-88 ratification debates and the proponents of
the Constitution won it . Congress could also draft slaves under its
war power and free them (a Revolutionary war proposal). Or abolish
crossing state lines (ala Mann Act). Henry also said "they" could
declare slaves against the general welfare and abolish them, although
that was contrary to later Jeffersonian doctrine.
The only reason why the North did not come to grip with their
ability to abolish slavery is that they did not especially want to do
it. Lincoln ran as a moderate, beating his more abolitionist rivals
for the nomination, on the position that each state shall determine
internally what to do about slavery. That of course sounded a bit like
reassurance to the South, who heard not a word that Lincoln said, but it
really was calling for ignoring Dred Scott, and its doctrine that
slaveholders could take their property any place they damn well wanted
to, Vermont included. The South took the position that the best
defense for salvery was an offense. Which is why we had what might be
called "The War of Southern Aggression."
Calvin H. Johnson
Andrews & Kurth Centennial Professor of Law
The University of Texas School of Law
727 E. Dean Keeton (26th) St.
Austin, TX 78705
(512) 232-1306 (voice)
FAX: (512) 232-2399
Website: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf
For reviews, chapters, discounts and news on Johnson, Righteous Anger at
the Wicked States: The Meaning of the Founders Constitution (Cambridge
University Press 2005) see
http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/
________________________________
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of James G. Wilson
Sent: Wednesday, October 05, 2005 10:29 AM
To: Crispin Sartwell
Cc: conlawprof at lists.ucla.edu
Subject: Re: Constitutional right to bring property into a territory?
Dred Scott can be seen as the first "right to travel" case. For the
United States to have open internal markets, it is very important that
people be able to bring their property with them when they migrate from
one state to the other. But that right was not absolute. In American
Insurance Co. v. Canter, Chief Justice Marshall concluded that Congress
has the power to establish property laws in the Territories. Taney
solved this problem by concluding that Congressional power to regulate
property was constrained by the Constitution. Thus, Congress would
violate the due process clause by taking legitimate property away from
innocent people. Underlying this approach was Calhoun's claim that the
Territories belonged to the States and to the citizens of each State,
retained a right of equal access to the Territories.
Dred Scott articulates another doctrine that seems quite progressive,
once removed from the slavery context. Taney held that Congress could
not create permanent colonies: all Territories had to become States
eventually. Taney probably designed that doctrine to facilitate further
Southern expansion into the Carribean and Latin America. Many years
later, the Court in the Insular Cases minimized this long-standing,
pre-Revolutionary commitment to "equalilty throughout the republic" by
allowing Congress to set up permanent colonies that provided inhabitants
with less than full constitutional rights. The majority pointed out
Dred Scott's dubious reputation and than held that the needs of the
American "empire" prevailed over complete extension of Constitutional
rights. In other words, one can fashion an originalist argument,
supplemented by parts of Dred Scott that were not overruled by the
Fourteenth Amendment, to hold that Puerto Rico must be a State or must
be made independent.
These themes, along with many more, are explored in my The Imperial
Republic: A Structural History of American Constitutionalism from the
colonial era to the beginning of the Twentieth Century (Ashgate, 2002)>.
Crispin Sartwell wrote:
maybe it's an application of article 2, section 4? "the citizens
of each state shall be entitled to all privileges and immunities of
citizens of the several states.
"
On Oct 4, 2005, at 6:26 PM, Marty Lederman wrote:
It just so happens that I'm currently teaching Dred
Scott in my ConLaw class, and this was one thing (apart from the obvious
candidates) that really struck me as counterintuitive. (Please excuse
my ignorance if the answer to this is obvious.)
Putting aside the question of whether the question is
properly viewed as one of "due process," and the question of treating
slaves as the equivalent of ordinary property (and the question of
Congress's power under Article IV to make needful rules . . . etc.), how
is it that Taney, McLean and Lincoln all agree that there is some
constitutional (or other) "right" to bring property from one
jurisdiction, where it is lawful, into another, where it is not? The
scenario is, of course, common: Jurisdiction A permits the possession
of X (e.g., drugs, liquor, diseased livestock, etc.); Jurisdiction B
does not. There's a constitutional right for a property holder of X
residing in State A to possess it -- indeed, to make public use of it --
in State B? >From the 21st Century perspective, this sounds very, very
weird. Forget the Due Process Clause -- why would there be any sort of
common-law, statutory or constitutional right to bring contraband into
Jurisdiction B just because it was not unlawful in the possessor's home
state? But hey, Lincoln and McLean agreed . . . so perhaps I'm missing
some obvious historical understanding that has long since faded from
view. As Mark notes, it was a "completely different universe." (Did
it have something to do with the special status of territories, as
opposed to states?)
Thanks in advance for any clarification.
----- Original Message -----
From: "Mark Graber" <mgraber at gvpt.umd.edu
<mailto:mgraber at gvpt.umd.edu> >
To: <tgrey at law.stanford.edu
<mailto:tgrey at law.stanford.edu> >; <hartneed at shu.edu
<mailto:hartneed at shu.edu> >
Cc: <conlawprof at lists.ucla.edu
<mailto:conlawprof at lists.ucla.edu> >
Sent: Tuesday, October 04, 2005 6:07 PM
Subject: Re: Explaining 'what process is due' in
'substantive dueprocess' (cont.)
> To provide a little more support for Tom Grey (and to
note that the
> historical research is being done by scholars on the
left and right,
> proponents and opponents of judicial policymaking).
Both the Republican
> Platform of 1860 and the southern democratic platform
clearly endorsed a
> version of substantive due process. Indeed, both
Lincoln and McLean
> believed that the due process clause protected the
right to bring
> ordinary property in the territories. One finds a
substantive use of
> the due process clause in Bloomer v. McQuewan (sp) in
Taney's opinion.
> No one objected (of related interest is Rice v.
Railroad co. where
> everyone apparently agrees the contracts clause limits
federal power.
> The big lesson is what we think are the natural
meaning of words were
> not their natural meaning before the Civil War. It's
a completely
> different universe back there. The only problem is
that it is so
> different that it does not make sense to import their
meanings to our
> time, even if we could recover them.
>
> Mark A. Graber
>
>>>> "Tom Grey" <tgrey at law.stanford.edu
<mailto:tgrey at law.stanford.edu> > 10/04/05 5:26 PM >>>
> Thanks to Ed Hartnett for coming up with the cite to
the Risinger
> article.
> I'd had a vague recollection of reading something good
on this subject
> many years ago --- and I'm quite sure now that this
was it! The
> right/remedy distinction is indeed quite different
from our contemporary
>
> view of substance/procedure -- what remedy one can
obtain, say specific
> performance or damages, we think of as part of the
substantive law of
> contracts, not the trans-substantive law of civil
procedure. The really
> interesting thing to me is that there simply is no
term or phrase
> corresponding to our notion of "substantive law"
before Bentham, who I
> think of as inventing the distinction -- the concept
seems not to have
> been part of the mental equipment of lawyers. And it
wasn't until
> Bentham-Austin-Holmes style positivism became orthodox
(or at least
> broadly familiar) among lawyers -- which wasn't really
until the very
> late
> 19th century -- that this concept came into general
use. I think the
> earliest characterizations of Lochner-style decisions
as "substantive
> due
> process" (aka, oxymoron) date from the decade
1900-1910.
>
> Thomas C. Grey
> Sweitzer Professor of Law
> Stanford Law School
> tgrey at law.stanford.edu <mailto:tgrey at law.stanford.edu>
>
> _______________________________________________
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