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
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
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The importation of negroes of the African race from any foreign country other than the slaveholding States or Territories of the United States of America, is hereby forbidden; and Congress is required to pass such laws as shall effectually prevent the same.
Congress shall also have power to prohibit the introduction of slaves from any State not a member of, or Territory not belonging to, this Confederacy.
[These clauses, in conjunction with Article IV, section 2, clause 1, preserve the status quo before the Civil War regarding the international and interstate slave trade. The status quo consisted of (1) the 1808 ban on importing slaves into the United States (which might lower their market value); and (2) protection of the interstate slave trade (guaranteed by the Confederate Constitution's Article IV, section 2, clause 1). Article I section 9 clause 2 also gives the Confederate Congress the power to ban importation of slaves from border states still in the Union if Congress so chooses.]
Article I, section 9, clause 4:
No bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves shall be passed.
[This specifically guarantees the right to hold negro slaves, but not slaves of any other race. The slavery protected by the Confederate Constitution depends on the race of the slave. Thus, although white slavery might be banned, negro slavery must be preserved. This is consistent with Vice-President Alexander Stephens' famous Cornerstone Speech, which argued that although enslavement of whites was contrary to natural law, the enslavement of blacks was consistent with their inferior nature.]
Article IV, section 2, clause 1:
The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States; and shall have the right of transit and sojourn in any State of this Confederacy, with their slaves and other property; and the right of property in said slaves shall not be thereby impaired.
[This rewrites the Comity Clause of the U.S. Constitution's Article IV, relied on by abolitionists before the Civil War, and turns it into a specific protection of slavery; it also preserves the interstate slave trade. Finally, the Confederate Constitution's version of Article IV prohibits any state from attempting to prevent slaveholders from entering with their slaves. In this way it goes even further than the Dred Scott decision, which only protected the rights of slaveholders in federal territories]
Article IV, section 3, clause 3:
The Confederate States may acquire new territory; and Congress shall have power to legislate and provide governments for the inhabitants of all territory belonging to the Confederate States . . . In all such territory the institution of negro slavery, as it now exists in the Confederate States, shall be recognized and protected be Congress and by the Territorial government; and the inhabitants of the several Confederate States and Territories shall have the right to take to such Territory any slaves lawfully held by them in any of the States or Territories of the Confederate States.
[This clause once again makes clear that negro slavery-- premised on the natural inferiority of one race to another--and not slavery in general, is protected by the Confederate Constitution. It places one of the key holdings of Dred Scott v. Sanford into the text of the Confederate Constitution.]
I am sure that Governor McDonnell of Virginia will want to include careful study of these provisions as part of his celebration of Confederate History Month. Surely we cannot understand why the Confederacy was such a noble and glorious cause worth commemorating without understanding the values and visions of the framers of the Confederate Constitution.