Sunday, December 30, 2007
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.
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.
Mark: "More likely it was a special privilege given to the original states."
Right. 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.
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. :)
Jefferson didn't have much choice in his slave ownership. Before 1782, it wasn't legal for him to manumit his slaves; after 1782, he was in debt and couldn't legally do so.
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.
Replying (belatedly) to David Nierpont,
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.
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