Not a covenant with death

[michael curtis]

[I wrote this this morning at school but can't send from there, so some now 
repeats points Doug Laycock made.  Still, I will send it along. ]

The Framers assumed that Congress had commerce power that reached  trade in 
slaves.  Otherwise the 1808 provision would not have been
needed.  It is hard to see why a ban on the interstate slave trade would be 
different.  As to intrastate activities, the issue would be what to
make of Gibbions on affecting more states than one (yes) & pretext.  Of 
course some framers denied congress had any power over slavery.  Some
also denied it had any power over the press and then proceeded to pass the 
Sedition Act.  If a strongly anti-slavery bloc took over the
national government (and had the political power needed--very dubious 
without lots of change), then is it silly to assume a reconstituted court
could have upheld taxes or commercial regulations aimed at slavery?  Of 
course not.  Seeing the Constitution as a fixed in stone Covenant with Death 
on the
slavery issue assumes a static quality to constitutional interpretation that 
has never been there.  See, e.g.,  the entire history of the court.

One irony of the Covenant with Death approach.  Wendell Phillips ends up 
reading the Constitution and the Declaration much as the extreme Southern 
wing did.  As I recall, he thought Declaration had not relevance to blacks. 
But it is clearly the case that some in the Founding generation thought the 
ideals of liberty were quite relevant to slavery.  I would not push this too 
far, but to a degree the debate reminds me of approaches to fundamentalism. 
For some the only interpretation of the Bible is a literal one and they use 
that to reject it.  Others agree and use that to embrace literalism and 
fundamentalism.  But of course, these are not the only sincere  readings. 
The rejecters think the non literalists are cheating.  Phillips on the 
Declaration reminds me of that approach which is remarkably like Stephen 
Douglas.

I don't think the extreme anti-slavery reading of the Constitution--that it 
abolishes slavery before the 13th Amendment did-- works.  Still it made 
significant contributions.  The radical political abolitionists who insisted 
the Constitution was an anti-slavery document (e.g. Joel Tiffany) come up 
with some interpretations that look a lot like what the amended Constitution 
(e.g. the 14th Amendment) eventually became.  So I have always thought that 
those who simply dismiss them and embrace Phillips miss their 
contribution--which was to enlist the Bill of Rights and ideals of liberty 
in the battle against the great evil of slavery.

Michael Kent  Curtis
Wake Forst Univ. School of Law


----- Original Message ----- 
From: "Mark Graber" <MGRABER at gvpt.umd.edu>
To: <DLaycock at law.utexas.edu>; <paul-finkelman at utulsa.edu>
Cc: <CONLAWPROF at lists.ucla.edu>
Sent: Monday, April 03, 2006 7:54 AM
Subject: Re: Not a covenant with death


> My own sense of the universe is that commerce did not have a precise
> legal meaning in 1787 and that the main protection for the slave trade
> and for commercial overreaching by Congress was the structure of the
> national government, in particular arrangements that were thought to
> give a fairly united south a veto on national policy.  I develop this in
> a forthcoming book, though I confess this point is hardly original with
> me.  Thus, the point that a ban on the slave trade was political
> impossible might also be understood as expressing a framing intention
> that constitutional institutions make such a ban politically impossible
> until a fair percentage of southerners desired such a ban.
>
> MAG
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