Constitutional right to bring slaves anywhere?
Paul Finkelman
paul-finkelman at utulsa.edu
Fri Oct 7 13:35:51 PDT 2005
Douglass was totally wrong; you only need to read Madison's notes. If
you want a detailed discussion of the debates try chapters 1 and my book
SLAVERY AND THE FOUNDERS (2001). Douglass made these kind of arguments
as a rhetorial attack on salvery in the 1850s (after he abandoned
Garrisonian views of the Cosntitution). Theymay have been useful
political arguments but it was lousy history.
Francisco Martin wrote:
> I've been enjoying the remarks by everyone on this thread. I have a
> question for those who are more familiar with the original
> understanding of the purported "Fugitive Slave Clause" in Article IV.
> Frederick Douglass made the argument that this clause was not designed
> to cover slaves -- only indentured apprentices and redemptioners.
> Indeed, the proposal that the clause include slaves was rejected at
> the constitutional convention. He also argues that slaves cannot be
> bound to service or labour because chattel slaves cannot enter into
> contracts by which such service or labour could be due. What do folks
> think about this argument?
>
> Francisco Forrest Martin
> President
> Rights International, The Center for International Human Rights Law, Inc.
>
>
>
> ----- Original Message -----
> From: Calvin Johnson <mailto:CJohnson at law.utexas.edu>
> To: conlawprof at lists.ucla.edu <mailto:conlawprof at lists.ucla.edu>
> Sent: 10/6/2005 10:51:08 AM
> 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 rat! ification 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
> progress! ive, 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.
>
> &nb! sp;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.&nb! sp; 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 tra! ns-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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>>
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>>
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>
>
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--
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK 74104-3189
918-631-3706 (office)
918-631-2194 (fax)
paul-finkelman at utulsa.edu
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