The End of the International Slave Trade and the Commerce Power

JB

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 10:51 AM by JB [link]