Not a covenant with death
SLevinson at law.utexas.edu
Sun Apr 2 15:22:46 PDT 2006
Though the majority opinion in Miln explicitly stated that "persons" couldn't be objects of commerce. I can't imagine that the Taney Court would have upheld a Commerce Clause-based prohibition of the slave trade. But, more to the point, it is clear that any such proposal, if enacted, would have invited secession. Even if it were constitutionally thinkable (about which I remain skeptical), it was politically impossible, at least if one cared about preserving the Union.
From: conlawprof-bounces at lists.ucla.edu on behalf of Douglas Laycock
Sent: Sun 4/2/2006 5:10 PM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: Not a covenant with death
It is probably true that the Wickard understanding of the commerce clause would have been incomprehensible in the antebellum era. But that is largely because of differences in facts on the ground. Transportation was much more expensive; the national economy was much less integrated; labor rules in the South had only an attenuated effect on labor economics in the North; it still made sense to distinguish local commerce from interstate commerce.
A law prohibiting the interstate shipment of slaves would not have been hard to explain as within the commerce power. The power to regulate foreign commerce is what made it necessary to provide that Congress could not ban the importation of slaves until 1808, and the power to regulate interstate commerce is entirely parallel. And a ban on interstate shipment would have powerfully disrupted the slave economy, greatly slowing the growth of slave labor in the new southern states in the west (and in Florida) and creating surplus slaves with steadily declining value in the old slave states along the Atlantic Coast. It would not have ended slavery, but it would have taken a lot of the profit out.
University of Texas Law School
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From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of DavidEBernstein at aol.com
Sent: Sunday, April 02, 2006 3:50 PM
To: jfnbl at earthlink.com; CONLAWPROF at lists.ucla.edu
Subject: Re: Not a covenant with death
Yes, but from 1789 through the 1850s (and beyond), if you would have told an informed individual that the scope of Congress' regulatory authority was Wickard-like, they would have assumed you were joking.
In a message dated 4/2/2006 4:48:18 PM Eastern Standard Time, jfnbl at earthlink.com writes:
Surely slave ownership is regulable under Wickard based on its effect on the interstate labor market,
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