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Excerpted From: Jeffrey Schmitt, Slavery and the History of Congress's Enumerated Powers, 74 Arkansas Law Review 641 (2022) (297 Footnotes) (Full Document)


JeffreySchmittIn his first inaugural address, President Abraham Lincoln declared, “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.” Like virtually all Americans before the Civil War, Lincoln believed in what historians call the “national consensus” on slavery. According to this consensus, Congress's enumerated powers were not broad enough to justify any regulation of slavery within the states. Legal scholars who support the modern reach of federal powers have thus conventionally argued that the Constitution is a living document that changes over time outside the formal amendment process. Bruce Ackerman, for example, contends that the constitutional moment of the New Deal effectively amended the Constitution by expanding the reach of implied powers.

A growing number of revisionist scholars, however, argue that the modern reach of federal powers can be justified without resorting to a living Constitution. Scholars like Richard Primus and David Schwartz look to the history of the founding, early congressional debates, and Marshall Court decisions to argue that no subject is off-limits from federal regulation. Moreover, progressive originalists like Jack Balkin contend that the historical purpose underlying Congress's enumerated powers is to empower the federal government to regulate any subject that the states cannot. Many of the most influential scholars in the field thus contend that constitutional history supports virtually unlimited federal power.

This Article argues that the revisionist account of federal powers is inconsistent with the constitutional history of slavery. In sum, the national consensus--the idea that Congress had no power to regulate slavery within the states--was a litmus test for constitutional meaning prior to the Civil War. The Founders, early Congress, and federal courts all rejected any interpretation of federal powers that could have justified the regulation of slavery within the states. In particular, the Commerce Clause, which is the basis for most federal regulation today, did not empower Congress to regulate intrastate economic activity. This was not because, as is sometimes argued, the economy was less interconnected in the early republic. Instead, Congress and the courts rejected the modern approach to the commerce power precisely because southern plantations produced cash crops for interstate and internal trade. In fact, constitutional objections to federal power blocked federal initiatives that would be at the core of the commerce power today, such as the construction of interstate roads and canals. In the constitutional debates over these projects, slavery always lurked in the background.

Although legal scholars often distinguish historical practices from constitutional meaning, no such legal sleight of hand can save the revisionist accounts of federal powers. The revisionist scholars present their theories as being consistent with the principles of the original Constitution, early congressional practice, or landmark Marshall Court decisions. In doing so, they ignore or minimize slavery's pervasive influence on the original Constitution. Especially at this time of racial reckoning, legal scholarship should present an accurate account of how slavery shaped constitutional history.

In fact, slavery's ubiquitous influence on the Constitution of 1787 demonstrates why history should not be dispositive in matters of constitutional interpretation. However, as Justice Amy Coney Barrett's confirmation hearings vividly demonstrate, the revisionist account threatens to provide moral cover for those who pretend that originalism is a neutral and bipartisan theory. Legal scholars thus should stop advancing implausible historical arguments in a vain attempt to convince conservative justices to abandon federalism. Instead, any convincing defense of federal power requires scholarship that justifies a living Constitution and convinces the legal community (and public at large) to reverse the rising influence of originalism. By arguing that slavery was central to the structure of the Constitution of 1787, this Article attempts to accomplish the latter.

This Article is divided into five Parts. Part I examines how the national consensus on slavery shaped federal powers at the Founding. Part II explores how slavery influenced Congress's understanding of its powers prior to the Civil War. Part III argues that the national consensus profoundly shaped the Marshall and Taney Courts' jurisprudence on federal powers. Part IV summarizes the revisionist history of federal powers and argues that it is inconsistent with the constitutional history of slavery. Part V discusses why this debate is important and explores how the constitutional history of slavery should shape constitutional interpretation today.

[. . .]

Abolitionist William Lloyd Garrison famously condemned the Constitution as a “covenant with death” and an “agreement with Hell.” As Garrison recognized more than 150 years ago, slavery exerted a profound influence on the structure of the Constitution and its subsequent interpretation. In fact, from the founding period until the Civil War, there was a national consensus that the federal government had no power to interfere with slavery in the states. Because slavery was a central component of the country's economic and social order, the national consensus dictated that Congress's powers were far more limited in the past than they are today. In particular, American elites agreed that Congress had no power to regulate local activities merely because they had an effect on interstate commerce. If Congress could regulate working conditions, wages, or production, it could abolish slavery as well. Any theory of constitutional interpretation that looks to original intent, underlying principles, or early constitutional history therefore must account for the national consensus on slavery.

There is an obvious injustice to using the national consensus on slavery to interpret the Constitution. After all, slavery was profoundly unjust, and the country fought its bloodiest war to see it formally eliminated in the Thirteenth Amendment. Whitewashing constitutional history, however, is not the answer. Instead, legal scholars should plainly acknowledge that the Constitution's basic meaning has changed over time. The living Constitution should be celebrated and defended, not obscured by a revisionist history that minimizes the Constitution's complicity with slavery.

Professor of Law, University of Dayton School of Law.

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