Constitutional right to bring slaves anywhere?

Thu Oct 6 08:17:09 PDT 2005

Didn't the Court's ruling in Dred Scott preclude Congress from abolishing slavery prior to the 13th Amendment?

Rebecca E. Zietlow 
Charles W. Fornoff Professor of Law and Values
University of Toledo College of Law 
(419) 530-2872 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Calvin Johnson
Sent: Thursday, October 06, 2005 10:49 AM
To: conlawprof at lists.ucla.edu
Subject: Constitutional right to bring slaves anywhere?

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/

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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" <  <mailto:mgraber at gvpt.umd.edu> mgraber at gvpt.umd.edu>
To: <  <mailto:tgrey at law.stanford.edu> tgrey at law.stanford.edu>; <  <mailto:hartneed at shu.edu> hartneed at shu.edu>
Cc: <  <mailto:conlawprof at lists.ucla.edu> 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" <  <mailto:tgrey at law.stanford.edu> 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
>  <mailto:tgrey at law.stanford.edu> tgrey at law.stanford.edu
> 
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