Constitutional Equality
Arguments Before the
Constitution Mentioned
Equality
Declaration of
Independence
“We hold these truths to be selfevident, that all men are created
equal, that they are endowed by their
Creator with certain unalienable rights,
that among these are life, liberty, and
the pursuit of happiness.”
[A description of natural law; most
agreed that slavery violates natural
law – see, e.g., Blackstone]
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Natural Law v. Positive
Law
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If positive law trumps natural law, first
we must determine what positive law
provides:
International Law (La Eugenie; the
Antelope; Amistad)
State constitutions (“All men are born
free and equal and have certain
unalienable natural rights . . . .”)
The U.S. Constitution?
The Three-Fifths Clause:
“Representatives and direct Taxes shall be
apportioned among the several States which
may be included within this Union, according
to their respective Numbers, which shall be
determined by adding to the whole Number of
free Persons, including those bound to Service
for a Term of Years, and excluding Indians not
taxed, three fifths of all other Persons. . . .”
(Article I, section 2)
The Importation Clause:
“The Migration or Importation of such Persons as any
of the States now existing shall think proper to admit,
shall not be prohibited by the Congress prior to the
Year one thousand eight hundred and eight, but a tax
or duty may be imposed on such Importation, not
exceeding ten dollars for each Person. . . .”
(Article I, section 9)
The fugitive clause:
“No Person held to Service or Labour in one State, under the
Laws thereof, escaping into another, shall, in Consequence of
any Law or Regulation therein, be discharged from such Service
or Labour, But shall be delivered up on Claim of the Party to
whom such Service or Labour may be due. . . .”
(Article IV, section 2)
Arguing About Slavery,
by William Lee Miller
“[T]he object of this clause was to secure
to the citizens of the slaveholding states
the complete right and title of ownership in
their slaves as property in every state in
the into which they might escape. . . .
“[The fugitive slave clause] was so vital . .
. that it cannot be doubted that it
constituted a fundamental article, without
the adoption of which the Union could not
have been formed. . . .
“We have not the slightest hesitation in
holding that under and in virtue of the
Constitution, the owner of a slave is
clothed with entire authority, in every state
in the Union, to seize and recapture his
slave . . . .”
Article III
“The [federal] judicial Power shall extend
to all Cases . . . between Citizens of
different States . . . .”