an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The End of the International Slave Trade and the Commerce Power
This op-ed by the distinguished historian Eric Foner reminds us that January 1st we celebrate the 200th anniversary of a law banning importation of slaves into the United States. President Jefferson signed the law on March 2, 1807, to take effect January 1, 1808. Trade in slaves within the United States continued until slavery was abolished by the Thirteenth Amendment.
Foner points out that the abolition of the international slave trade reduced the supply of slaves in the United States, increasing the price of slaves and preventing widespread democratization of slave ownership. If more and more Southerners could have afforded to own slaves, Foner points out, that might have greatly increased Southern representation in the House (and the Electoral College) because of the three-fifths rule. This, in turn, might have perpetuated the institution far longer, and promoted the American conquest of the Caribbean.
Why did Congress wait until 1808 to ban the international slave trade? Because Article I section 9 stated that Congress could not prohibit "[t]he migration or importation of such persons as any of the states now existing shall think proper to admit . . . prior to the year 1808." And just to make sure that Congress didn't try to amend the Constitution to make possible an earlier ban on the international slave trade, Article V states that "no amendment which may be made prior to the year 1808, shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate."
What gave Congress the power to ban the slave trade after 1808? (Remember this was during the second Jefferson Administration, a time when the dominant party, the Republicans, were arguing for strict construction. So no arguments based on the logic of 1936 decision in Curtiss-Wright!). The most likely source of the power to ban the interstate slave trade in the early days of the Republic was the Commerce Clause, which gives Congress the power "[t]o regulate commerce with foreign nations, and among the several states,and with the Indian tribes."
The Commerce Clause theory, however, would suggest that the movement of slaves within the United States was also commerce "among the several states" and thus subject to regulation under the Commerce Power. This would have given the federal government power to regulate slavery within the United States, a position that was anathema to many Southerners. (Indeed, fear that the Commerce Power would allow Congress to ban the international slave trade was one reason for the provision in Article I, section 9). During the period before the Civil War, many people argued that regulation of the movement of persons (including slaves) both between states and from outside the United States was governed by the Commerce Clause, and that the Commerce Clause was the source of the federal government's power to regulate immigration. (Remember that Article I section 8 of the Constitution specifically gives Congress the power to regulate naturalization, not immigration).
The Supreme Court avoided the question of Congress's power to regulate slavery under the Commerce Clause in 1841 in Groves v. Slaughter, although several Justices discussed it. In the 20th century, the Court has tended to treat the power to regulate immigration as part of the federal government's plenary authority in foreign affairs (itself a product of the Chinese Exclusion Cases), and the debate over the commerce clause has largely (although not completely) been forgotten. Posted
by JB [link]
The commerce power involving movement of people did continue to have some relevance in the 20th Century, as suggested by Edwards v. California (anti-Okie law) and its use to uphold the Civil Rights legislation of the 1960s. In both cases, Justice Douglas, shades of Justice McLean, was uncomfortable with that approach.
Off-topic, but if the indexical "now existing" language refers permanently to 1787-89, then we have grounds for thinking that the Constitution views itself as permanently speaking at the time of its enactment, not the time at which it is applied.
By 1807, Jefferson, who had long promoted the idea of "strict construction" had also long abandoned it as a practice during his presidential terms,pretty much from the get go, to the consternation of some in his own party. Lip service to principals was a Jefferson specialty.
Jefferson is often given way to much credit for combatting slavery. His own ownership, his passing his slaves down to his heirs, his refusal to support the Haitian revolution, and other acts leads me to the conclusion that he may have been among, and probably was "the" most hypocritical of presidents. The argument that this is pressing modern views upon 19th century leaders carries no weight, as can be seen by reading Jefferson imself as well as other forefathers. They knew slavery to be an abomination, but made every excuse to continue its existence and with it the Southern slave power.
if the indexical "now existing" language refers permanently to 1787-89, then we have grounds for thinking that the Constitution views itself as permanently speaking at the time of its enactment, not the time at which it is applied.
More likely it was a special privilege given to the original states.
And if the provision grants a special privilege to the original states, then "now" refers to the time of enactment, not the (post-enactment) time of interpretation and application.
There's no way to test this, because the new states admitted before 1808 were all landlocked and never, to my knowledge, tried to import slaves from overseas. But I agree that this particular clause should be interpreted to require interpretation as of 1787.
This means, of course, that the other clauses which do NOT use the word "now" should therefore NOT be interpreted as of the time of enactment. :)
after 1782, he was in debt and couldn't legally do so.
That's not much of an excuse AFAIC. Jefferson, after all, did have a good deal of control over his lifestyle and could have done a great deal more to pay off his debts. He was living beyond his means and he knew it. But he didn't stop.
But, David, that is precisely the type of rationalization we always apply to Jefferson, and would never apply to a Himmler or Napolean.
Jefferson oversaw the annexation of the entire Louisiana Purchase although he was convinced it was not constitutional. He made it clear during his term in office that the law would get in the way of doing what he thought needed to be done during the embargo.
What was less legal than the American Revolution (which Jefferson himself understood)? Slavery was an abomination, recognized as so by him and many others, which he could have, probably uniquely, save Washington, taken a great hand in ending, particularly during his tenancy as president. Perhaps he would have sacrificed his popularity with many Southerners, but that perhaps would have made him the great man who deserves his place on Mt. Rushmore.
Would not it have been easier for slavery to have been ended by the efforts of a popular Southern president, than by the Northern President who eventually did it decades later (and gave Jefferson too much credit, in my book). It would have avoided a horrific war with its 600,000 dead, and saved unknown thousands of slaves from horrific servitude. At least Patrick Henry, also recognizing the injustice of slavery, had the courage to acknowledge he participated in it as a matter of his personal convenience.
Jefferson hid behind laws that did not stop others from manumission, cravenly asserting that he could not free his slaves, in part, for their own benefit.
No, I can't see Jefferson, fully aware of what he was doing, and always singing the song of liberty, as enjoying the reputation he does, when he alone had a unique opportunity to change the world, even if by example, and free his slaves. If the man could go into debt buying wine and property, he could have done so paying his slaves for the labor they performed, at the very least.
Last, I would argue with you that slavery is a far greater natural crime than any of those that King George imposed on America that Jefferson listed for us as causes for the revolution and its abolition far outweighed any petty legal niceties that can be raised to justify Jefferson's behavior. There may have been a time when the wrongness was not recognized by man in general, but it was not the 19th century in America.
I don't know if you will receive this late reply, but I would enjoy knowing your thoughts on the above.