III. Slavery and Constitutional Jurisprudence


From the adoption of the Constitution until 1861 slavery was an enormously important economic institution. The aggregate value of all the slaves in the nation exceeded that of any other from of property except real estate. Not surprisingly, slavery affected constitutional jurisprudence.

The jurisprudence of slavery has often been ignored by most legal and constitutional scholars. In recent years a few constitutional law casebooks have begun to take note of slavery, but usually it is isolated into a separate section on slavery or civil rights. Such an approach misleads students (and professors) because it implies that slavery is either a dead issue, which is only of historical interest, or that slavery needs only to be understood in the context of American race relations. Surely we cannot understand American race relations without understanding slavery. That alone is enough of a reason for studying slavery as part of a law school curriculum.How, we might properly ask, can we possibly imagine what the purpose of the 13 th Amendment was if we do not understand the institution it was abolishing? How can we understand the 14 th Amendment without understanding the racism of Dred Scott v. Sandford that the Amendment overturned.

The jurisprudence of slavery goes well beyond race, however, it shows up in cases that were not directly about slavery. The development of American federalism was greatly influenced by slavery. The slave states insisted on limitations on the national government precisely because they were afraid (correctly as it turned out) that some day despite all the proslavery aspects of the Constitution, a national administration deeply hostile to slavery might take power. As I noted elsewhere in this article, after the Convention South Carolina's General Charles Cotesworth Pinckney told his state legislature: "We have a security that the general government can never emancipate them, for no such authority is granted and it is admitted, on all hands, that the general government has no powers but what are expressly granted by the Constitution, and that all rights not expressed were reserved by the several states." Pinckney's point illustrates the importance of slavery to federalism, and federalism to slavery. No other institution was so vulnerable to hostile legislation at the national level, and so no other institution needed the protections that federalism created.

In large part to protect slavery, the Supreme Court developed thenotion of state police powers. The doctrine was first articulated in Mayor of New York v. Miln, an 1837 case decided during Roger B. Taney's first term as Chief Justice. On the surface the case had nothing to do with slavery. It was about the regulation of immigrants. A New York law required all vessels docking in the state to provide a list of passengers and further required that the owners of the ship post security in the event any of these passengers became public charges. As such, the statute was aimed at white immigrants, especially poor Irish immigrants. Miln, the master of a ship bringing immigrants into New York, had failed to provide a list of passengers and also did not post a bond. The city then sought to collect the statutory penalty for his failure to file the report. Miln argued that the state law violated the Commerce Clause, which vested all powers over interstate and foreign commerce in the Congress. In upholding New York's law, the Court carved out an exception to the Commerce Clause argument, invoking, for the first time, what later came to be called the state police power--the right of a sovereign to take all necessary steps to protect the health, safety, and welfare of its citizens. Thus, the Court held that New York was competent "to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convicts, as it is to guard against the physical pestilence, which may arise from unsound and infectious articles imported."

While not readily apparent to modern readers, Miln was directly tied to thegrowing sectional tension over slavery and the rights of free blacks. In the 1820s South Carolina and other states adopted laws restricting free blacks from entering their jurisdictions. Known as "black seamen's laws," the acts provided for the incarceration of free black sailors who entered the state. South Carolina's law required that black sailors entering the state be kept in jail as long as their ship was in port. They would be released to the custody of their ship captain when the ship was to depart, but only if the black sailor or his captain paid the cost of the incarceration.

These laws, and the issue of regulating the interstate movement of people, first emerged in the United States Circuit Court for South Carolina as Elkison v. Deliesseline. Sheriff Francis G. Deliesseline of Charleston, South Carolina had arrested and jailed Henry Elkison, a British subject, under the state's 1822 "black seamen's act." Elkison turned to the federal courts for relief. Justice William Johnson, while riding circuit, declared in dicta that the South Carolina law violated the Commerce Clause. However, for procedural reasons Johnson did not order Elkison's freedom. Counsel for South Carolina argued that his state had as much right to "quarantine" free blacks as New York had to quarantine immigrants who might enter the country with diseases.The constitutional questions in this case were about states rights, federal powers, federalism, the Tenth Amendment, and the meaning of the Commerce Clause. But the heart of the case was about slavery and racerelations. In essence, Elkison raised the question of whether the states or the federal government could control the movement of people in and out of states. Justice Johnson avoided the question in this case and the Supreme Court never faced it with regard to free blacks.But, in Miln the Court gave the answer the South wanted: the states were free to regulate who could enter their domains. By the time the Court decided Miln almost all legal scholars, jurists, and politicians understood the value of uniform rules for international commerce. Better regulation of international and interstate commerce was one of the main goals of the Constitutional Convention. Any state laws, which interfered with international or domestic commerce clearly infringed on the powers of Congress. Statutes like South Carolina's black seamen's act or the act at issue in Miln threatened such commerce. Thus, the logical approach of the Court in Miln would have been to overturn the New York law, holding that Congress had plenary power over international commerce and that, in the absence of any federal law, the states could not ban or regulate citizens of one country (or another state) from entering their ports. Such a decision would have been consistent with the Court's very popular decision in Gibbons v. Ogdenand would have created a uniform rule for ships entering American harbors. But, a decision striking down the New York law on Commerce Clause grounds would also have threatened slavery and the ability of the southern states to regulate race relations. Therefore, the Court developedthe "police powers doctrine," which allowed states to regulate commerce at the local level if it was necessary for what the Court called a "police power." Preventing poor immigrants or free blacks from entering a state fit into this analysis.

This result is striking. In the 1830s it was well understood, as it is today, that the regulation of immigrants is an issue of national concern as well as a marker of national sovereignty. By ceding this power to the states in Miln the Court set the stage for vastly different rules for ships involved in interstate and international commerce. The Court understood quite well that the issues here were tied to slavery. In Miln counsel argued that the regulation of immigrants was similar to state laws banning the African slave trade before the federal ban in 1808. Implicit in these cases was the Court's recognition that the South had a special interest in protecting its slaves from the "corruption" of free blacks from other places. Some of the opinions in these cases refer directly to this problem.

The Court continued this jurisprudence in the License Cases, which allowed for state bans on liquor. Here again a decision was affected by slavery, even though issues involving slavery were not directly before the Court. Northerners and southerners alike recognized that banning certain commercial products from interstate commerce might be necessary for both the protection of the slave states and the free states.

Many other aspects of modern constitutional law are also rooted in slavery. The preemption doctrine emerged from Prigg v Pennsylvania, where the Court struck down state laws that protected free blacks from being kidnapped as fugitive slaves. In that case Justice Story also articulated the first constitutional principle of unfunded mandates. The Fugitive Slave Law of 1793 authorized state magistrates to implement the law. In his opinion, Story concluded that state officials were free to enforce the law if they wished to do so, and that in fact they had a moral obligation to do so under the Constitution. He further argued that the states were equally under a moral obligation to enforce the law. But, since the federal government did not employ the state judges, Story also agreed that the states could refuse to enforce the law. That is, the federal government could not impose an unfunded mandate on state officials to enforce a federal law. Thus Story suggested "it might well be deemed an unconstitutional exercise in the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or intrusted to them by the Constitution."

The great fear among some people over the power of the central government and the meaning of the Tenth Amendment is also tied to slavery. Obviously, states' rights theory, as it developed in the 19th century and as it has been used ever since, was deeply rooted in debates over slavery. As early as 1790 southernstates began to articulate claims of states' rights in controversies involving slavery. By the end of the antebellum period both southern and northern states had made assertions of states rights in the context of slavery. Modern states rights arguments, sometimes framed in 10th Amendment jurisprudence, are often a recycling of these older arguments about slavery.

Finally, of course, the doctrine of substantive due process was first articulated by the Supreme Court in Dred Scott v. Sandford. In that case the Court also asserted that blacks had no rights under the Constitution and could never be citizens of the nation, even if they were free. The Fourteenth Amendment was adopted in part to reverse that decision. But, the legacy of racism and pain caused by Chief Justice Taney's decision remains part of our culture and our legal heritage.