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Copyright (c) 2003 Barry University
Barry Law Review
Fall 2003
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LENGTH: 11642 words
CIVIL RIGHTS: LOOKING BACK - LOOKING FORWARD: THE ROOT OF THE PROBLEM: HOW THE PROSLAVERY CONSTITUTION SHAPED AMERICAN RACE RELATIONS
NAME: Paul Finkelman*
BIO:
* Chapman Distinguished Professor of Law, University of Tulsa College of Law. I thank my research assistants, administrative assistant, and librarian, Tracy Kort Roesle, Anna Kirtley, Rita Langford, and Melanie Nelson for their assistance on this article.
SUMMARY:
... It stemmed of course, from the existence of racially based slavery. ... Jefferson may have been the first southerner
to set out these ideas in such a careful analysis, and he surely articulated them with a greater sense of style and careful
thought than most southern slaveowners. ... When General Charles Cotesworth Pinckney returned to South Carolina
after serving as a delegate to the Convention, he told the state legislature, "In short, considering all circumstances, we
have made the best terms for the security of this species of property it was in our power to make. ... During a debate
over the slave trade, for example, Oliver Ellsworth of Connecticut refused to even consider the "morality or wisdom of
slavery," simply asserting that "what enriches a part enriches the whole. ... We can never know how the history of the
hemisphere would have turned out, but it is not hard to imagine that that half of the world would be a better place if the
United States had developed, early-on, a better relationship with Haiti. ... Late in the Convention during a debate over
the slave trade, General Charles Cotesworth Pinckney ob served that a prohibition of the slave trade would be "an exclusion of South Carolina from the Union." ...
TEXT:
[*1]
This symposium asks important questions about the relationship between race and the American constitutional order. Lawyers and legal scholars usually focus their attention on the present. What are the issues that we must address
today? How can we solve current problems? What are the legal policies and litigation strategies that will move us towards greater racial justice in the next year or the next decade? These are the questions that lawyers ask. They are good
questions and questions that must be considered. However, in seeking answers to these questions, a long historical perspective may also be helpful. The race problem in America did not begin recently. A century ago the great black scholar
W.E.B. DuBois predicted, "the problem of the Twentieth Century is the problem of the color line." n1 But, well before
1903, when DuBois was writing, the problem of race was already highly visible. It stemmed of course, from the existence of racially based slavery. The problems created by slavery-the moral and political legacies of slavery-were further
complicated by the fact that the national constitution protected slavery in a myriad of ways.
We should not be shocked or surprised that the Constitution protected slavery. n2 Slavery, after all, was a powerful economic institution. In 1787 the value of all the slaves in the United States exceeded that of any other form of
property except real estate. n3 In 1787 slavery was legal in all but two states, and in five southern states slavery was the
central economic institution. n4 Almost all the leaders in five states-including the largest state, Virginia-were slaveowners. n5 While a form of property found almost everywhere, slavery was also clearly a special, even peculiar, kind of
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property. Slaves were also people. They could resist their enslavement and try to escape from it; they were thinking
beings who could challenge, in a variety ways, their condition. Furthermore, many Americans and Europeans had begun
to question both the morality and wisdom of slaveholding. n6 Given its economic importance and its vulnerabilities, it is
not surprising that the southerners at the Constitutional Convention demanded, and won, huge concessions to protect
their "peculiar [*2] institution," as even they called it. n7 Slavery was the key to economic prosperity in the South,
and southerners could not imagine how their society would work without it. Thus, on purely economic grounds, we
should not be surprised to discover that an important and clearly unusual form of property received special protection in
a Constitution. But, slavery in the United States was more than simply an economic system designed to extract labor, at
a relatively low cost, from those who were enslaved.
Slavery was also a system of racial control. In a society predicated on the assumption that all people were "created
equal," slaveholders and their white non-slaveholding neighbors were certain they knew better; they were convinced,
that blacks were fundamentally inferior to whites. Illustrative of this position were the arguments set out by Thomas
Jefferson in his book, Notes on the State of Virginia. Jefferson claimed he had never found a black who "had uttered a
thought above the level of plain narration; never seen an elementary trait of painting or sculpture." He found "no poetry"
among blacks. Jefferson argued that blacks' ability to "reason" was "much inferior" to whites, while "in imagination
they are dull, tasteless, and anomalous," and "inferior to the whites in the endowments of body and mind." Jefferson
conceded blacks were brave, but this was due to "a want of fore-thought, which prevents their seeing a danger till it be
present." n8 He wrote:
In general, their existence appears to participate more of sensation than reflection. To this must be ascribed their
disposition to sleep when abstracted from their diversions, and unemployed in labour. An animal whose body is at rest,
and who does not reflect, must be disposed to sleep of course. Comparing them by their faculties of memory, reason,
and imagination, it appears to me, that in memory they are equal to the whites; in reason much inferior, as I think one
could scarcely be found capable of tracing and comprehending the investigations of Euclid; and that in imagination they
are dull, tasteless, and anomalous.
He speculated that blackness might come "from the colour of the blood." Absurdly, he suggested that blacks might
breed with the "Oran-ootan." n9
Jefferson may have been the first southerner to set out these ideas in such a careful analysis, n10 and he surely articulated them with a greater sense of style and careful thought than most southern slaveowners. But his ideas were
clearly acceptable to most southern whites. Throughout the Revolutionary period most southern leaders made it clear
that the only role they saw for blacks was as slaves. n11 A few [*3] enlightened southern leaders of the Revolution--General George Washington and Colonel John Laurens for example--were willing to accept blacks as free people
and comrades in arms. n12 But most were not. Thus, at the Constitutional Convention southerners-especially the delegates from South Carolina-jealously protected their interest in slavery.
By the time of the Constitutional Convention slavery had begun to evolve into a sectional institution. n13 Slavery
was still legal in most states. Only two, Massachusetts and New Hampshire, had actually abolished it. n14 But three
others, Pennsylvania, Connecticut, and Rhode Island, had passed gradual abolition acts, which meant they would eventually become free states. n15 The putative state of Vermont, which would become the fourteenth state shortly after the
ratification of the Constitution, incorporated a gradual abolition provision in its two prestatehood Constitutions. n16
Thus, it was clear to the southern delegates that they were entering a union that would be part slave and part free. Even
though most southerners at the Convention were convinced of the morality, justice, and necessity of slavery, they understood that many Americans, especially in the North, did not agree with them on this issue.
Thus, at the Convention the delegates from the South, especially the Deep South, fought tenaciously to protect
slavery in a variety of ways. In the end, they were enormously successful. When General Charles Cotesworth Pinckney
returned to South Carolina after serving as a delegate to the Convention, he told the state legislature, "In short, considering all circumstances, we have made the best terms for the security of this species of property it was in our power to
make. We would have made better if we could; but on the whole, I do not think them bad." n17 General Pinckney had
good reason to be proud of his role in Philadelphia. Throughout the Convention Pinckney and other delegates from the
Deep South tenaciously fought to protect the interests of slaveholders. In these struggles they were usually successful.
The clauses that Pinckney and other southerners worked hard to create set the stage for a government that both
protected slavery and was deeply influenced by it. This in turn shaped American race relations, not only in the antebellum period, but [*4] during Reconstruction and beyond. In addition, the jurisprudence of slavery had long-term implications for American constitutional law. To this day, inequities associated with race, racism, and racial separation
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trouble our society and our legal system. n18 Race remains America's greatest social problem, as it has been since before the founding of the nation. Since 1776 Americans have repeatedly failed to implement our national credo, that all
people "are created equal, that they endowed by their Creator with certain unalienable Rights, that among these are Life,
Liberty, and the Pursuit of Happiness." n19
I. Slavery in the Constitutional Structure
The word "slavery" appears in only one place in the Constitution--the Thirteenth Amendment, where the institution is abolished. In the main body of the Constitution, slaves are referred to as "other persons,"n20 "such persons,"
n21 or in the singular as a "person held to Service or Labour." n22 Why is this the case?
Throughout the Constitutional Convention the delegates talked about "blacks," "Negroes," and "slaves." n23 But
the final document avoided these terms. The final language was designed to make the Constitution more palatable to the
North. In a debate over representation, William Paterson of New Jersey pointed out that the Congress under the Articles
of Confederation "had been ashamed to use the term 'Slaves' & had substituted a description." n24
This argument was more than a little disingenuous. It is hard to imagine that the many slaveholders in the Continental Congress were truly "ashamed" over owning slaves. For example, during one debate in the Continental Congress
over taxation, Thomas Lynch of South Carolina asserted: "If it is debated whether our slaves are our property, there is
an end of the confederation." n25 Indeed, throughout the Confederation period slaveholders protected slavery in a
number of ways in the Congress. n26 Similarly, in the treaty ending the Revolutionary War, the southerners in Congress
were careful that their interest in slaves was made clear, demanding that the departing British Army refrain from "carrying away any negroes [*5] or other property of the American inhabitants." n27 Britain failed to comply with this
provision and also refused the return slaves taken when the Army left America. Thus "from 1783 onward, Congress
repeatedly instructed its diplomatic emissaries abroad to seek satisfaction for the thousands of slaves carried off in disregard of the treaty." n28 Clearly, the members of the Continental Congress were not embarrassed by slavery or afraid
to use the term--or simply to use the racial term Negroes--when it suited their purpose. However, when the Congress did
avoid a direct use of the term it was because the delegates in Congress understood that some people in America found
slavery distasteful, and that in Europe many who were naturally sympathetic to the revolutionary movement were also
opposed to slavery. Not a few Englishmen read the Declaration of Independence and wondered, as did Samuel Johnson,
"How is it that we hear the loudest yelps for liberty among the drivers of negroes?" n29 Thus, during the Revolution and
immediately after it, the politicians of the new nation understood that it made sense to sometimes avoid the word
"slave" and substitute a description for it.
Delegates to the Constitutional Convention understood that the word "slave" made some people uncomfortable,
even though they were not ashamed to use it. Similarly, many used the terms "Negro," "black," and "slave" interchangeably, illustrating the extent to which race was tied to slavery. Few made any apology for the institution. n30
James Madison, for example, in discussing how the president should be elected, told the Convention that "the people at
large" were "the fittest" to choose the president. n31 But he rejected this idea because the "right of suffrage was much
more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the
score of the Negroes." n32 Madison, who was as humane a slaveowner as one might find, was hardly embarrassed by
arguing that Virginia should get political power for its slaves. Indeed, almost none of the slaveholders at the Convention
felt any great shame over their human property. South Carolina's Charles Pinckney, the cousin of the more famous
General Charles Cotesworth Pinckney, declared that, "If slavery be wrong, it is justified by the example of all the
world." He then "cited the case of Greece Rome & other ancient States; the sanction given by France England, Holland
& other modern States." Pinckney reminded the Convention that "In all ages one half of mankind have been slaves."
n33
Nor were a number of leading non-slaveowners at the Convention embarrassed by slavery. Indeed, some of the
northerners were clearly uninterested in raising any questions about the morality of slaveholding. During a debate over
the slave trade, for example, Oliver Ellsworth of Connecticut refused to even consider the [*6] "morality or wisdom
of slavery," simply asserting that "what enriches a part enriches the whole." n34 Ellsworth asserted that because he "had
never owned a slave," he "could not judge of the effects of slavery on character." n35 Similarly, in the same debate,
Roger Sherman of Connecticut declared his personal disapproval of slavery and his desire to see it eradicated in his
home state, but he refused to condemn it in other parts of the nation. In opposing a prohibition of the African slave trade
he asserted that "the public good did not require" an end to the trade. n36 Noting that the states already had the right to
import slaves, Sherman saw no point in taking a right away from the states unnecessarily because "it was expedient to
have as few objections as possible" to the new Constitution. n37
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Indeed, in the end it was "expedient" behavior, not ideology or shame that led framers to avoid using the word
"slave" in the Constitution. This was made clear during the debates over the African slave trade. Under the proposed
Constitution, Congress would have had the power to regulate all foreign commerce, which meant that Congress could
have banned the African slave trade if it had chosen to do so. The delegates from the Carolinas and Georgia vigorously
demanded that the African trade remain open under the new Constitution. They wanted a specific exemption for the
trade from the normal operation of what became the Commerce Clause. Gouverneur Morris of Pennsylvania, furious at
what he considered an immoral compromise, suggested that the proposed clause read: the "Importation of slaves into N.
Carolina, S. Carolina & Georgia" shall not be prohibited. n38 Connecticut's Roger Sherman, who voted with the deep
South to allow the trade, objected, not only to the singling out of specific states, but also to the term "slave." He declared that he "liked a description better than the terms proposed, which had been declined by the old Congs & were not
pleasing to some people." n39 George Clymer of Pennsylvania "concurred with Mr. Sherman" on this issue. n40 When
he returned from the Philadelphia Convention, James Iredell explained to the North Carolina ratifying convention that
"The word 'slave' is not mentioned" because "the northern delegates, owing to their particular scruples on the subject of
slavery, did not choose the word 'slave' to be mentioned." n41
In the end the Convention avoided using the term "slave" or "Negro" because it was expedient to do so. Northern
delegates wanted to avoid antagonizing their own constituents, who might support a stronger Union but were hostile to
slavery; southerners were ready to acquiesce on this point because the description was clear and unmistakable. But, despite the circumlocution, the Constitution directly sanctioned slavery in five provisions: [*7]
Art. I, Sec. 2. Cl. 3. The "three fifths clause" provided for counting three-fifths of all slaves for purposes of representation in Congress. This clause also provided that, if any "direct tax" was levied on the states, it could be imposed
only proportionately, according to population, and that only three-fifths of all slaves would be counted in assessing what
each state's contribution would be.
Art. I, Sec. 9, Cl. 1. The "slave trade clause" prohibited Congress from banning the "Migration or Importation of
such Persons as any of the States now existing shall think proper to admit" before the year 1808. Awkwardly phrased
and designed to confuse readers, this clause prevented Congress from ending the African slave trade before 1808, but
did not require Congress to ban the trade after that date. The clause was a significant exception to the general power
granted to Congress to regulate all international commerce. n42
Art. I, Sec. 9, Cl. 4. The "capitation tax clause" insured that any "capitation" or other "direct tax" had to take into
account the three-fifths clause. It ensured that, if a head tax were ever levied, slaves would be taxed at three-fifths the
rate of free people. The "direct tax" portion of this clause was redundant, because that was provided for in the
three-fifths clause.
Art. IV, Sec. 2, Cl. 3. The "fugitive slave clause" prohibited the states from emancipating fugitive slaves and required that runaways be returned to their owners "on demand."
Art. V. The amendment provisions prohibited any amendment of the slave importation or capitation clauses before
1808.
Taken together, these five provisions gave the South a strong claim to "special treatment" for its peculiar institution. The three-fifths clause also gave the South extra political muscle--in the House of Representatives and in the electoral college--to support that claim.
Numerous other clauses of the Constitution supplemented the five clauses that directly protected slavery. Some
provisions that indirectly guarded slavery, such as the prohibition on taxing exports, were included primarily to protect
the interests of slaveholders. Others, such as the guarantee of federal support to "suppress Insurrections" and the creation of the electoral college, were written with slavery in mind, although delegates also supported them for reasons having nothing to do with slavery. The most prominent indirect protections of slavery were:
Art. I, Sec. 8, Cl. 15, empowered Congress to call "forth the Militia" to "suppress Insurrections," including slave
rebellions. This clause would be implemented to help suppress Garbiels' rebellion, the Nat Turner Rebellion, and John
Brown's attempts to make war on slavery in Virginia.
Art. I, Sec. 9, Cl. 5, prohibited federal taxes on exports and thus prevented an indirect tax on slavery by taxing the
staple products of slave labor, such as tobacco, rice, and eventually cotton. n43 [*8]
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Art. I, Sec. 10, Cl. 2, prohibited the states from taxing exports or imports, thus preventing an indirect tax on the
products of slave labor by a nonslaveholding state. This was especially important to the slave states because almost all
slave states produced export products--tobacco, rice, and eventually cotton which were shipped out of Northern ports.
Art. II, Sec. 1, Cl. 2, provided for the indirect election of the president through an electoral college based on congressional representation. This provision incorporated the three-fifths clause into the electoral college and gave whites
in slave states a disproportionate influence in the election of the president. This clause had a major impact on the politics of slavery as well as American history in general. Thomas Jefferson's victory in the election of 1800 would be possible only because of the electoral votes the southern states gained on account of their slaves. Thus Jefferson, who spent
most of his career quietly and privately protecting slavery while publicly trying to avoid any conflict over slavery, was
elevated to the presidency in part because of slavery. n44
Art. IV, Sec. 3, Cl. 1, allowed for the admission of new states. The delegates to the Convention anticipated the
admission of new slave states to the Union.
Art. IV, Sec. 4, through this provision, known as the "guarantee clause," the United States government promised to
protect states from "domestic Violence," including slave rebellions.
Art. V required a three-fourths majority of the states to ratify any amendment to the Constitution. This Article ensured that the slaveholding states would have a perpetual veto over any constitutional changes. The power of this provision in protecting slavery was profound. It effectively prevented any normal constitutional end to slavery. Had all 15
slave states that existed in 1860 remained in the Union, they would to this day be able to prevent an amendment on any
subject. In a 50-state union, it takes only 13 states to block any amendment. n45
Besides specific clauses of the Constitution, the structure of the entire document ensured against emancipation of
slaves by the new federal government. Because the Constitution created a government of limited powers, Congress
lacked the power to interfere in the domestic institutions of the states. Thus, during the ratification debates only the most
fearful southern antifederalists opposed the Constitution on the grounds that it threatened slavery. Most southerners,
even those who opposed the Constitution for other reasons, agreed with General Charles Cotesworth Pinckney of South
Carolina, who crowed to his state's house of representatives: "We have a security that the general government can never
emancipate them, for no such authority is granted and it is admitted, on all hands, that the gen [*9] eral government
has no powers but what are expressly granted by the Constitution, and that all rights not expressed were reserved by the
several states." n46
From the perspective of modern constitutional analysis, it is of course possible to imagine numerous ways in
which Congress or the President might have undermined slavery. Under modern law Congress could have limited the
interstate movement or sale of slaves, or even the products of their labor. This would certainly have ended the institution, just as Congress was able to end child laborn47 or establish a minimum wage. n48 But, modern commerce clause
jurisprudence did not emerge until the 1930s. n49 In the Nineteenth Century it was impossible to imagine Congress
using its powers in this way and it is equally impossible to image the Supreme Court allowing it. Congress might also
have abolished slavery in the nation's capital, using its power to govern the District of Columbia. Indeed, during the
Civil War Congress would do this. It is of course doubtful that the Supreme Court under Chief Justice Taney would
have upheld an emancipation act for the District of Columbia, given the Court's position in Dred Scott. n50 But, even if
Congress had ended slavery in the District of Columbia, and the Court had allowed this to go forward, this would have
been just a minor victory affecting only a small number of slaves. Thus, when we consider how the Constitution protected slavery, it is vital to understand the Constitution within the context of the late eighteenth century and the period
up to the Civil War. In that context it is clear that the Constitution created in 1787 gave enormous protection to slavery
and made it impossible to end slavery within the existing constitutional structure.
Southerners understood this. At the Virginia ratifying convention, Edmund Randolph denied that the Constitution
posed any threat at all to slavery. He challenged opponents of the Constitution to show, "Where is the part that has a
tendency to the abolition of slavery?" n51 He answered his own question asserting, "Were it right here to mention what
passed in [the Philadelphia] convention... I might tell you that the Southern States, even South Carolina herself, conceived this property to be secure" and that "there was not a member of the Virginia delegation who had the smallest
suspicion of the abolition of slavery." n52 South Carolinians, who had already ratified the Constitution, would have
agreed with Randolph. As I noted earlier, in summing up the entire Constitution, General Charles Cotesworth Pinckney,
who had been one of the ablest defenders of slavery at the Convention, proudly told the South Carolina House of Representatives: "In short, considering all circumstances, we have made the best terms for the security of this species of
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[*10] property it was in our power to make. We would have made better if we could; but on the whole, I do not think
them bad." n53 On this point he was truly correct.
II. The Constitutional Legacy of Slavery
The protections about which Pinckney bragged set the stage for a proslavery national government and a proslavery
jurisprudence in the nineteenth century. The United States still lives with some of the legacy of these political decisions
and jurisprudential developments.
The three-fifths clause is the most obvious example of how Constitutional arrangements protected slavery. Starting
with the debate over the Missouri Compromise the South won a series of close Congressional votes on issues involving
slavery. Supporters of slavery were usually able to muster a majority in the Senate. Until 1850 there was almost always
an equal number of slave and free states. For a brief time in the 1840s there were actually more slave states than free
states, as Texas and Florida achieved statehood before Iowa and Wisconsin were admitted to the Union. Representation
in the House, however, was based on population. The free population of the South was vastly smaller than that of the
North. From the first census on the South was in the minority in the House of Representatives. Without the three-fifths
clause the South would have been overwhelmingly outvoted in the House. But, with its representation augmented by the
three-fifths clause, the South was often able to hold its own in the House with the help of a few allies from the North.
If the South had not had its extra representation based on the three-fifths clause the outcome of many of these
votes would have been different. The South simply would not have been able to muster enough northern support to get
its way. Counterfactuals are of course impossible to prove, but possible scenarios seem plausible. In 1820 Missouri
might have come into the Union as a free state, or with a gradual emancipation scheme built into its new Constitution.
This might very well have altered the whole trajectory of national politics. The debate over slavery in the West might
have been stopped before it could begin. The annexation of Texas as a vast territory for the expansion of slavery might
similarly have been thwarted, either by not annexing the Republic or by forcing some gradual end to slavery. It is similarly difficult to imagine the passage of the draconian fugitive slave law of 1850 if the three-fifths clause had not provided so many members of Congress for the slave states. That law squeaked through the House only because the master
politician, Stephen A. Douglas, was able to persuade a number of northern representatives to stay away from Congress
on the day of the vote. With fewer southerners in the House, it would probably have been impossible for Douglas to
accomplish this victory. n54 Other votes, not directly related to slavery, might also have been changed. Southerners
generally opposed internal improvements, federal sup [*11] port for railroad development, protective tariffs, the national bank, and a uniform bankruptcy law. A substantially smaller southern delegation in the House of Representatives
might have led to quite different policies in these areas. From the late 1820s until the Civil War the South dominated the
Democratic Party. With fewer southerners in the House, northern Democrats would have had more power within their
own party. At the same time, the total number of Democrats in the House might have been reduced, thus making the
Whig Party more competitive.
Perhaps the most obvious example of southern power in the House of Representative concerns the "gag rule," first
adopted by the House in 1836. n55 In the early 1830's the emerging abolitionist movement embarked on a strategy of
flooding Congress with antislavery petitions. n56 These were designed to both express the petitioners' disgust with
slavery and to stimulate public debate on the institution. In 1836 the House adopted a "gag rule," requiring that all petitions over slavery be tabled without being read or debated. The rule remained in effect until 1844, when southerners
could no longer muster enough northern support to push it through the House. Without the three-fifths clause it is unlikely such a rule could ever have been adopted.
The gag rule symbolized the danger of slavery to the body politic. Many northerners found the rule oppressive because it so blatantly and directly denied their constituents the constitutional right "to petition the government for a redress of grievances." n57 The policy ultimately backfired, by allowing opponents of slavery to link their cause to fundamental constitutional rights and to simultaneously make the obviously correct claim that slavery threatened the civil
liberties of whites as well as blacks. The rule also closed off opportunities to debate slavery and prevented southerners
from hearing how deeply many northerners felt about slavery. Most of all, the rule encouraged southern arrogance in
Congress that damaged sectional harmony.
It is unlikely-indeed it seems impossible to imagine-that it would have ever been possible to achieve a peaceful
political solution to the problem of slavery. But, it is possible to imagine a government that was less protective of the
institution.
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Another example of the importance of the southern power in House and the Democratic Party concerns the suppression of the African slave trade. In 1807 Congress passed legislation prohibiting the importation of foreign slaves.
n58 Many southerners, including almost all Virginia politicians, agreed with this legislation. The Virginian support for
this legislation is complicated. Collectively, Virginia had more slaves than it needed, and had become a net exporter of
slaves. It would [*12] remain so until the Civil War. Thus, unlike their counterparts in Georgia and South Carolina,
few, if any, Virginians had a personal interest in importing slaves from Africa. Those Virginians who did own more
slaves than they needed understood that closing the African trade would increase the value of their own surplus slaves.
Thus, narrow economic self-interest put Virginians and Marylanders (who also had excess slaves) firmly in the camp of
those wished to end the trade. Many Virginians, including Thomas Jefferson, believed that blacks were inherently dangerous, and thus ending the trade would help the nation by setting the stage for a reduction in the percentage of blacks in
the society. n59 Others believed that people recently enslaved and freshly imported from Africa were more likely to
rebel than those raised as slaves in the United States. Thus, stopping the trade was a wise move. Finally, some Virginians and other southerners undoubtedly believed that the African trade was truly immoral. They could make a moral distinction between owning people who were born into slavery, and enslaving those who were captured in Africa and
brought here. n60 Thus, for a variety of reasons, Members of Congress from Virginia and other slave states joined their
northern counterparts in voting to end the African slave trade. The Three-Fifths Clause had no effect on this outcome.
However, banning the slave trade did not end it. Slaves were still available in Africa and were being brought to the
New World. They remained a valuable commodity and demand for them was high, especially as the cotton kingdom
expanded west from the Carolinas into Georgia, Alabama, the Mississippi Delta and beyond. There was always market
for illegally imported slaves, and incentives for smuggling them were high. While southerners had voted to ban the
trade in 1808, they were never fully committed to actually suppressing it. Thus, from 1808 until the Civil War the illegal
trade continued. Under its own statutes as well as international agreements, the United States was obligated to help suppress the trade. But, Congress never properly funded the Africa Squadron, and thus smugglers were rarely intercepted.
Had the South not had its extra muscle from the three-fifths clause, it is likely that Congress would have provided sufficient resources to suppress the trade.
As already noted, the three-fifths clause affected presidential elections through the electoral college. The electors
created by slaves provided Jefferson's margin of victory over Adams in 1800. n61 This outcome had a profound effect
on our relationship with Haiti, and most likely on that nation's subsequent history. On the eve of the election of 1800 the
United States was on the verge of extending full diplomatic relations to Haiti. The United States was already Haiti's
most important trading [*13] partner. n62 Had Adams been reelected, the United States and Haiti would have remained close friends. The United States would not only have provided a market for Haiti's goods, but could also have
provided a model for Haiti to emulate. In the century-and-a-half before Independence the American colonists had been
involved in their own governance, run elections, and held public office. Thus, the people of the new American nation
were superbly prepared for self-government. They were arguably the best prepared colonial population in the history of
the world. The Haitians, on the other hand, had been slaves up to the time they threw off their French masters and
French rule. n63 As slaves they had no experience with voting, holding office, or government. They were perhaps the
most ill-prepared people to ever gain their independence from an imperial master. The Haitians looked to the United
States for guidance. They wanted to do more than trade with us; they wanted to learn from us. Had Adams been
reelected this might have occurred. In addition, diplomatic recognition of Haiti would have brought to the United States
a diplomat who was a person of color-a black or mulatto. This would have been at least a minor blow to the white supremacy endemic to official Washington in the nineteenth century. But, the election of Jefferson changed all this.
Haiti was Jefferson's-and the South's-worst nightmare. Immediately after his election, Jefferson withdrew all
American diplomatic personnel from Haiti. Any chance of diplomatic recognition was over. Then, with "implacable
malice" toward the black republic, n64 Jefferson did everything in his power to undermine the Haitian Revolution, including banning trade with the island and offering to aid the French in re-conquering the island. n65 In 1806 Congressman John Wayles Eppes, Jefferson's son-in-law, declared he would "pledge the Treasury of the United States that the
Negro government should be destroyed." n66 On this issue Eppes was clearly the spokesman for his father-in-law, the
President. n67 Once in office Jefferson instituted an embargo against Haiti, which was designed to crush the young nation's economy. n68 While not wholly successful, Jefferson's actions surely harmed the struggling country.
Because of Jefferson's hostility to Haiti, and the proslavery tenor of American politics in the next six decades, the
United States did not grant diplomatic recognition to Haiti until the Lincoln administration. n69 We can never know
how the history [*14] of the hemisphere would have turned out, but it is not hard to imagine that that half of the
world would be a better place if the United States had developed, early-on, a better relationship with Haiti. Today, when
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the United States deports desperate Haitian refugees, seeking an escape from their dire poverty, we can only wonder
what their world, and our world, would be like if proslavery compromises at the Constitutional Convention had not sent
John Adams into retirement in 1801.
III. Slavery and Constitutional Jurisprudence
From the adoption of the Constitution until 1861 slavery was an enormously important economic institution. The
aggregate value of all the slaves in the nation exceeded that of any other from of property except real estate. Not surprisingly, slavery affected constitutional jurisprudence.
The jurisprudence of slavery has often been ignored by most legal and constitutional scholars. In recent years a
few constitutional law casebooks have begun to take note of slavery, but usually it is isolated into a separate section on
slavery or civil rights. n70 Such an approach misleads students (and professors) because it implies that slavery is either
a dead issue, which is only of historical interest, or that slavery needs only to be understood in the context of American
race relations. Surely we cannot understand American race relations without understanding slavery. That alone is
enough of a reason for studying slavery as part of a law school curriculum. How, we might properly ask, can we possibly imagine what the purpose of the 13th Amendment was if we do not understand the institution it was abolishing?
How can we understand the 14th Amendment without understanding the racism of Dred Scott v. Sandford n71 that the
Amendment overturned.
The jurisprudence of slavery goes well beyond race, however, it shows up in cases that were not directly about
slavery. The development of American federalism was greatly influenced by slavery. The slave states insisted on limitations on the national government precisely because they were afraid (correctly as it turned out) that some day despite all
the proslavery aspects of the Constitution, a national administration deeply hostile to slavery might take power. As I
noted elsewhere in this article, after the Convention South Carolina's General Charles Cotesworth Pinckney told his
state legislature: "We have a security that the general government can never emancipate them, for no such authority is
granted and it is admitted, on all hands, that the general government has no powers but what are expressly granted by
the Constitution, and that all rights not expressed were reserved by the several states." n72 Pinckney's point illustrates
the importance of slavery to federalism, and federalism to slavery. No other institution was so vulnerable to hostile
[*15] legislation at the national level, and so no other institution needed the protections that federalism created.
In large part to protect slavery, the Supreme Court developed the notion of state police powers. The doctrine was
first articulated in Mayor of New York v. Miln, n73 an 1837 case decided during Roger B. Taney's first term as Chief
Justice. On the surface the case had nothing to do with slavery. It was about the regulation of immigrants. A New York
law required all vessels docking in the state to provide a list of passengers and further required that the owners of the
ship post security in the event any of these passengers became public charges. As such, the statute was aimed at white
immigrants, especially poor Irish immigrants. Miln, the master of a ship bringing immigrants into New York, had failed
to provide a list of passengers and also did not post a bond. The city then sought to collect the statutory penalty for his
failure to file the report. Miln argued that the state law violated the Commerce Clause, which vested all powers over
interstate and foreign commerce in the Congress. In upholding New York's law, the Court carved out an exception to
the Commerce Clause argument, invoking, for the first time, what later came to be called the state police power--the
right of a sovereign to take all necessary steps to protect the health, safety, and welfare of its citizens. Thus, the Court
held that New York was competent "to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convicts, as it is to guard against the physical pestilence, which may arise from unsound and infectious articles imported." n74
While not readily apparent to modern readers, Miln was directly tied to the growing sectional tension over slavery
and the rights of free blacks. In the 1820s South Carolina and other states adopted laws restricting free blacks from entering their jurisdictions. Known as "black seamen's laws," the acts provided for the incarceration of free black sailors
who entered the state. South Carolina's law required that black sailors entering the state be kept in jail as long as their
ship was in port. They would be released to the custody of their ship captain when the ship was to depart, but only if the
black sailor or his captain paid the cost of the incarceration. n75
These laws, and the issue of regulating the interstate movement of people, first emerged in the United States Circuit Court for South Carolina as Elkison v. Deliesseline. n76 Sheriff Francis G. Deliesseline of Charleston, South Carolina had arrested and jailed Henry Elkison, a British subject, under the state's 1822 "black seamen's act." Elkison turned
to the federal courts for relief. Justice William Johnson, while riding circuit, declared in dicta that the South Carolina
law violated the Commerce Clause. However, for procedural reasons Johnson did not order Elkison's freedom. [*16]
Counsel for South Carolina argued that his state had as much right to "quarantine" free blacks as New York had to
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quarantine immigrants who might enter the country with diseases. n77 The constitutional questions in this case were
about states rights, federal powers, federalism, the Tenth Amendment, and the meaning of the Commerce Clause. But
the heart of the case was about slavery and race relations. In essence, Elkison raised the question of whether the states or
the federal government could control the movement of people in and out of states. Justice Johnson avoided the question
in this case and the Supreme Court never faced it with regard to free blacks. n78 But, in Miln the Court gave the answer
the South wanted: the states were free to regulate who could enter their domains. n79 By the time the Court decided
Miln almost all legal scholars, jurists, and politicians understood the value of uniform rules for international commerce.
Better regulation of international and interstate commerce was one of the main goals of the Constitutional Convention.
Any state laws, which interfered with international or domestic commerce clearly infringed on the powers of Congress.
Statutes like South Carolina's black seamen's act or the act at issue in Miln threatened such commerce. Thus, the logical
approach of the Court in Miln would have been to overturn the New York law, holding that Congress had plenary power
over international commerce and that, in the absence of any federal law, the states could not ban or regulate citizens of
one country (or another state) from entering their ports. Such a decision would have been consistent with the Court's
very popular decision in Gibbons v. Ogden n80 and would have created a uniform rule for ships entering American
harbors. But, a decision striking down the New York law on Commerce Clause grounds would also have threatened
slavery and the ability of the southern states to regulate race relations. Therefore, the Court developed the "police powers doctrine," which allowed states to regulate commerce at the local level if it was necessary for what the Court called a
"police power." Preventing poor immigrants or free blacks from entering a state fit into this analysis.
This result is striking. In the 1830s it was well understood, as it is today, that the regulation of immigrants is an
issue of national concern as well as a marker of national sovereignty. By ceding this power to the states in Miln the
Court set the stage for vastly different rules for ships involved in interstate and international commerce. The Court understood quite well that the issues here were tied to slavery. In Miln counsel argued that the regulation of immigrants
was similar to state laws banning the African slave trade before the federal ban in 1808. n81 Implicit in these cases was
the Court's recognition that the South had a special interest in pro [*17] tecting its slaves from the "corruption" of
free blacks from other places. Some of the opinions in these cases refer directly to this problem.
The Court continued this jurisprudence in the License Cases, n82 which allowed for state bans on liquor. Here
again a decision was affected by slavery, even though issues involving slavery were not directly before the Court.
Northerners and southerners alike recognized that banning certain commercial products from interstate commerce might
be necessary for both the protection of the slave states and the free states.
Many other aspects of modern constitutional law are also rooted in slavery. The preemption doctrine emerged
from Prigg v Pennsylvania, n83 where the Court struck down state laws that protected free blacks from being kidnapped
as fugitive slaves. In that case Justice Story also articulated the first constitutional principle of unfunded mandates. The
Fugitive Slave Law of 1793 authorized state magistrates to implement the law. In his opinion, Story concluded that state
officials were free to enforce the law if they wished to do so, and that in fact they had a moral obligation to do so under
the Constitution. He further argued that the states were equally under a moral obligation to enforce the law. But, since
the federal government did not employ the state judges, Story also agreed that the states could refuse to enforce the law.
That is, the federal government could not impose an unfunded mandate on state officials to enforce a federal law. Thus
Story suggested "it might well be deemed an unconstitutional exercise in the power of interpretation, to insist that the
states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or intrusted to them by the Constitution." n84
The great fear among some people over the power of the central government and the meaning of the Tenth
Amendment is also tied to slavery. Obviously, states' rights theory, as it developed in the 19th century and as it has been
used ever since, was deeply rooted in debates over slavery. As early as 1790 southern states began to articulate claims
of states' rights in controversies involving slavery. n85 By the end of the antebellum period both southern and northern
states had made assertions of states rights in the context of slavery. n86 Modern states rights [*18] arguments, sometimes framed in 10th Amendment jurisprudence, are often a recycling of these older arguments about slavery.
Finally, of course, the doctrine of substantive due process was first articulated by the Supreme Court in Dred Scott
v. Sandford. n87 In that case the Court also asserted that blacks had no rights under the Constitution and could never be
citizens of the nation, even if they were free. The Fourteenth Amendment was adopted in part to reverse that decision.
But, the legacy of racism and pain caused by Chief Justice Taney's decision remains part of our culture and our legal
heritage.
IV. The Founding and Slavery: The Memory of Our Original Sin
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4 Barry L. Rev. 1, *
Many Americans are uncomfortable with the connection between slavery and the founding of the nation. Over the
years politicians, judges, lawyers, teachers, and even professional historians offered us a comfortable myth. The myth
asserts that after the Revolution slavery was dying and that, had it not been for the cotton gin, slavery would have died
out easily and simply. If the Founders truly believed this, then they were correct in doing nothing about slavery at the
Constitutional Convention. The myth further tells us that the Founders saw slavery as a potential powder keg--which
might explode if they tried to deal with it. Their strategy was to ignore slavery and wait for it to collapse under its own
economic dead weight. They could safely secure the Union knowing the evil would just go away. Thus, the myth tells
us, the Framers rightly ignored slavery.
Under this analysis, the Founders did not betray America by failing to face up to America's greatest problem; instead, history betrayed the Founders, by allowing the cotton gin to save slavery from economic collapse. It is not the
failure of the framers, or the unwillingness of all Americans to face the enormity of the problem, that set the stage for
secession and civil war. Rather, in an ironic twist for a society that has always been driven by invention and "progress,"
it is technology that doomed the United States to civil war.
Serious historical scholarship demonstrates that slavery was profitable throughout the colonial period and that
slavery remained profitable in the wake of the Revolution. Robert McColley, for example, found that in the 1780s and
1790s, before the invention of the cotton gin, slave prices in Virginia were high. n88 Similarly, in Maryland, where cotton could not be grown, the trade in slaves was brisk both before and after the invention of the gin. n89 In Baltimore,
throughout the early national period, slaves were in high demand as servants, skilled laborers, and for various jobs in the
maritime industry. n90 The Framers did not need such analysis however. They had the words of their fellow delegates.
Late in the Convention during a debate over the slave trade, General Charles Cotesworth Pinckney ob [*19] served
that a prohibition of the slave trade would be "an exclusion of South Carolina from the Union." As he had made clear at
the beginning of his speech, "S. Carolina and Georgia cannot do without slaves." John Rutledge and Pierce Butler of
South Carolina added similar sentiments, as did Abraham Baldwin of Georgia and Hugh Williamson of North Carolina.
n91
In the end we cannot ignore the fact that the Framers in 1787 built a government that protected slavery at every
turn. They left their children and grandchildren with a proslavery legacy that was not easily eradicated. During the ratification struggle a number of Antifederalists complained about the Constitution's concessions to slavery. A New Yorker
complained that the Constitution condoned "drenching the bowels of Africa in gore, for the sake of enslaving its
free-born innocent inhabitants." A Virginian who was skeptical about slavery thought the slave trade provision was an
"excellent clause" for "an Algerian constitution: but not so well calculated (I hope) for the latitude of America." n92 But
the slave trade was only part of the problem. Three opponents of the Constitution in Massachusetts noted that the Constitution bound the states together as a "whole" and "the states" were "under obligation. . . reciprocally to aid each other
in defense and support of every thing to which they are entitled thereby, right or wrong." n93 Thus, they might be called
to suppress a slave revolt or in some other way defend the institution. They could not predict how slavery might entangle them in the future, but they did know that "this lust for slavery, was portentous of much evil in America, for the cry
of innocent blood, . . . hath undoubtedly reached to the Heavens, to which that cry is always directed, and will draw
down upon them vengeance adequate to the enormity of the crime." n94
The events of 1861-1865 would prove the three Massachusetts antifederalists of 1788 correct. Only after a civil
war of unparalleled bloodshed and three constitutional amendments could the Union be made more perfect, by finally
expunging slavery from the Constitution. As we enter the 21st Century it is clear that the cost of slavery for our national
culture--and our Constitution--has perhaps not yet been paid. Perhaps some of the debt must still be paid in the coin of
the realm, with investments in education, cultural institutions like museums and monuments, and in the creation of real
economic opportunity for all Americans. But, before we contemplate such payments, we must first come to terms with
our history, our culture, and the proslavery origins of our Constitution and our nation.
FOOTNOTES:
n1 W.E.B. Dubois, Souls of Black Folk: Essays and Sketches 13 (A.C. McClurg & Co., 1903).
n2 Infra part I of this article.
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4 Barry L. Rev. 1, *
n3 See generally the discussion in Chapter I of Robert McColley, Slavery and Jeffersonian Virginia 24-25
(2nd ed., U. Ill. Press 1973).
n4 Maryland, Virginia, North Carolina, South Carolina, and Georgia.
n5 These leaders included such prominent slaveowners as George Washington, Thomas Jefferson, James
Madison, George Mason, James Monroe, and Patrick Henry in Virginia.
n6 See generally, David Brion Davis, The Problem of Slavery in Western Culture (Cornell U. Press 1966)
and David Brion Davis, The Problem of Slavery in the Age of Revolution 1770-1823 (Cornell U. Press 1975).
n7 See Kenneth M. Stampp, The Peculiar Institution; Slavery in the Ante-bellum South (Knopf 1956).
n8 Thomas Jefferson, Notes on the State of Virginia 138-43 ( William Peden ed., U. of N. C. Press 1954).
n9 Id. at 162, 138-39. As a scientist, Jefferson might have, but failed, to investigate his assumptions. On
Jefferson as a scientist, see Silvio A. Bedeni, Thomas Jefferson: Statesman of Science 89-124 (Macmillan 1990).
n10 See Paul Finkelman, Defending Slavery: Proslavery Thought in the Old South 19-22, 24-25, 47-54
(Bedford/St.Martins 2003).
n11 See e.g. Jefferson, supra n. 8.
n12 See Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson (2d ed. M.E.
Sharpe 2001); Henry Wiencek, An Imperfect God: George Washington, His Slaves, and the Creation of America
(Farrar, Straus, Giroux, 2003).
n13 At the time of the Revolution slavery was legal in all 13 states. During and immediately after the Revolution Massachusetts (1780) and New Hampshire (1783) abolished slavery through their constitutions while
Pennsylvania (1780), Connecticut (1784), and Rhode Island (1784) passed gradual abolition laws, under which
the children of all slaves would be born free and no new slaves could be brought into the state, thus guaranteeing
that slavery would die out as the present generation of slaves died. NewYork (1799) and New Jersey (1804)
adopted similar laws after the Constitution went into effect. Arthur Zilversmit, The First Emancipation: The
Abolition of Slavery in the North (U. Chi. Press 1967); Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (U. of N. C. Press 1987).
n14 Zilversmit, supra n. 13; Finkelman, supra n. 13.
n15 Zilversmit, supra n. 13; Finkelman, supra n. 13.
n16 Vermont Constitution, 1777, Chap. I, Sec. I; Vermont Constitution, 1776, Chap. I, Sec. I. This provision also appeared in its first statehood Constitution. Vermont Constitution, 1791, Chap. I, Sec. I.
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4 Barry L. Rev. 1, *
n17 4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 286 (Jonathon Elliot ed., Burt Franklin 1987) (originally published 1888) [hereinafter Debates].
n18 Compare Regents of California v. Bakke, 438 U.S. 265 (1978)(Saying that affirmative action will be
gone in 25 years) with Grutter v. Bollinger, 123 S. Ct. 2325 (2003)(making the same point).
n19 Declaration of Independence [P 1] (1776).
n20 U.S. Constitution, Art. I, Sec. 2, Par. 3 ("Representatives and direct Taxes shall be . . . determined by
adding to the whole Number of free Persons . . . three fifths of all other persons").
n21 U.S. Constitution, Art. I, Sec. 9, Par. 1. ("The Migration or Importation of such Persons as any of the
States no existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight. . .").
n22 U.S. Constitution, Art. IV, Sec. 2, par. 3 ("No person held to Service or Labour in one State. . .").
n23 For example on June 11 the delegates used all three words in debate over representation. Elbridge Gerry
used both black and slave in the same speech. 1 The Records of The Federal Convention of 1787, 196-208 (Max
Farrand ed., rev. ed., Yale U. Press 1966) (originally published 1911) [hereinafter Records].
n24 1 Records, supra n. 23, at 561.
n25 Lynch quoted in Don E. Fehrenbacher, The Slaveholding Republic: An Account of the United States
Government's Relations to Slavery 22 (Ward M. McAfee ed., Oxford U. Press 2001).
n26 See generally, Donald Robinson, Slavery in the Structure of American Politics: 1765-1820 (Harcourt
Brace Jovanovich 1971).
n27 24 Journal of the Continental Congress 249 (Worthington C. Ford, et al. eds., Govt. Prtg. Off.
1904-1937).
n28 Fehrenbacher, supra n. 25, at 25.
n29 Robinson, Slavery in the Structure of American Politics, supra n. 26, at 80.
n30 See text, Records, supra n. 23.
n31 2 Records, supra n.23, at 56.
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4 Barry L. Rev. 1, *
n32 Id. at 57.
n33 2 Records, supra n. 23, at 371.
n34 Id. at 364.
n35 Id. at 370-71.
n36 Id. at 369.
n37 Id.
n38 Id. at 415.
n39 Id.
n40 Id.
n41 4 Debates, supra n.17, at 176.
n42 U.S. Const. art. I, § 8, cl. 3.
n43 See R.C. Nash, South Carolina and the Atlantic Economy in the Late Seventeenth and Early Eighteenth
Centuries, 45 Econ. Hist. Rev. 677-7-7 (1992).
n44 Finkelman, supra n. 12 (on Jefferson's election); see Paul Finkelman, The Proslavery Origins of the
Electoral College, 23 Cardozo L. Rev. 1145 (2002). It is important not to misunderstand Jefferson's role in the
federal law ending the African slave trade. Jefferson thought the importation of more slaves was dangerous to
the nation, but like many other slaveowners, he could make a moral and prudential distinction between supporting slavery (which he did) and oppose the importation of new slaves from Africa; see Garry Wills, Negro President: Jefferson and the Slave Power (Houghton Mifflin 2003) for further discussion of these issues.
n45 Finkelman, supra n. 12, at ch. 1(for other clauses that touched on slavery).
n46 4 Debates, supra n. 17, at 286.
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4 Barry L. Rev. 1, *
n47 See Hammer v. Daggenhart, 247 U.S. 251 (1918) and Bailey v. Drexel Furniture Co., 259 U.S. 20
(1922), both overturned in United States v. Darby Lumber Co., 312 U.S. 100 (1941)(upholding the Fair Labor
Standards Act, 52 Stat. 1060 (1938)).
n48 Fair Labor Standards Act, 52 Stat. 1060 (1938), upheld in United States v. Darby Lumber Co.(1941).
n49 See Wickard v. Filburn, 317 U.S. 111 (1942); United States v. Darby Lumber Co., 312 U.S. 100
(1941); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).
n50 Scott v. Sandford, 60 U.S. 393 (1857); see Paul Finkelman, Dred Scott v. Sandford: A Brief History
With Documents (Bedford Books 1997) (for a more extensive analysis of the case).
n51 3 Debates, supra n. 17, at 598.
n52 Id.
n53 4 Debates, supra n.17, at 286.
n54 See David Morris Potter, The Impending Crisis, 1848-1861 (Don E. Fehrenbacher ed., Harper & Row
1976) (for a discussion of the politics surrounding the passage of this law).
n55 Gilbert Hobbs Barnes, The Antislavery Impulse 1830-1844, (1933, reprint ed., Peter Smith Publg.
1985).
n56 Id. at 149-146,177-98 (has what I believe remains the best description of the petition campaign. A more
recent discussion is found in William Lee Miller, Arguing about Slavery; The Great Battle in the United States
Congress ( Knopf 1996)).
n57 U.S. Const. amend I.
n58 Slave Trade Prohibition Act of March 2, 1807, ch. 22, 2 Stat. 205. See generally, W.E.B. DuBois, The
Suppression of the African Slave Trade to the United States of America, 1638-1870 (Harvard U. Press 1896).
n59 See Finkelman, supra n. 12, at chaps. 6-7.
n60 See Howard Jones, Mutiny on the Amistad: The Saga of a Slave Revolt and its Impact on American
Abolition, Law and Diplomacy (Oxford U. Press 1987); John T. Noonon, Jr., The Antelope: The Ordeal of the
Recaptured African in the Administrations of James Monroe and John Quincy Adams (U. of Cal. Press
1997)(American law accepted such distinctions as well. The Supreme Court made distinctions between Africans
legally enslaved, who would remain slaves, and Africans who had been taken out of Africa in violation of international law, and were thus released from their bondage).
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4 Barry L. Rev. 1, *
n61 Finkelman, supra n. 12.
n62 Tim Metthewson, Jefferson and Haiti, J. of S. Hist. 216 (1995); Finkelman, supra n. 12, at 121-23;
Rayford Logan, Diplomatic Relations of the United States with Haiti, 1776-1891, 177-78 (U. of N. C. Press
1941); Michael Zuckerman, Almost Chosen People: Oblique Biographies in the American Grain, 188 (U. of Cal.
Press 1993).
n63 See Davis, The Problem of Slavery, supra n. 6, at 72-83; DuBois, Suppression of the African Slave
Trade to the United States of America, 1638-1870, 70-71, 82-82 ( Dover Publg. 1970).
n64 See Zuckerman, supra n. 62, at 188.
n65 Id. at 175-218; see also Douglas Egerton, Gabriel's Rebellion: The Virginia Slave Conspiracies of 1800
and 1802, (U. of N.C. Press 1993).
n66 Charles Callan Tansill, The United States and Santo Domingo, 1798-1873: A Chapter in Caribbean Diplomacy, 104-05 (Johns Hopkins Press 1938).
n67 Id.
n68 Zuckerman, supra n. 62, at 188; DuBois, supra n. 58, at 92-93; Matthewson, supra n. 62.
n69 "In June 1862 the United States formally extended diplomatic recognition" to Haiti "and Benjamin
Whidden became U.S. commissioner and counsel general." Michael Kren, "Haiti," in 2 Paul Finkelman, ed.,
Encyclopedia of the United States in the Nineteenth Century 14 (Charles Scribners' Sons, 2001).
n70 See generally, Paul Finkelman, Teaching Slavery in American Constitutional Law, 34 Akron L. Rev.
261 (2000).
n71 60 U.S. 393 (1857).
n72 See 4 Debates, supra n. 17, at 286.
n73 36 U.S. 102 (1837).
n74 Id. at 142-143.
n75 An Act for the better regulation of Free Negroes and Persons of Color, and for other purposes, Act of
Dec. 21, 1822, No. 2277, 7 Stat S.C.461 (1822). For a discussion of this act the litigation surrounding it, see
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4 Barry L. Rev. 1, *
Paul Finkelman, Slavery in the Courtroom: An Annotated Bibliography of American Cases, 256-63 (Lib. of
Cong. 1985, reprinted ed., Lawbook Exch. 2001).
n76 8 Fed. Cas. 493 (1823).
n77 Benjamin Faneuil Hunt, The Argument of Benj. Faneuil Hunt, in the case of the arrest of the person
claiming to be a British seaman, under the 3d section of the State Act of Dec 1822, in relation to Negroes,
&c.before the Hon. Judge Johnson, Circuit Judge of the United States, for 6th Circuit (A.E. Miller,
1823)(reprinted in Paul Finkelman, ed., Slavery, Race, and the American Legal System, 1700-1872, Series IV,
Free Blacks, Slaves, and Slaveowners in Civil and Criminal Courts: The Pamphlet Literature 13 (Garland,
1988)).
n78 Elkison v. Deliesseline, 8 F. Cas. 493 (C.C.D. S.C. 1823)(No. 4,366).
n79 36 U.S. 102 (1837).
n80 22 U.S. 1 (1824).
n81 Miln, 36 U.S. at 111.
n82 46 U.S. 504 (1847).
n83 41 U.S. 539 (1842). For a discussion of this case, see Paul Finkelman, Story Telling on the Supreme
Court: Prigg v. Pennsylvania and Justice Joseph Story, Judicial Nationalism, 1994 Supreme Court Rev. 247-94
(1995); Paul Finkelman, Sorting Out Prigg v. Pennsylvania, 24 Rutgers L.J. 605-65 (1993).
n84 Id. at 616.
n85 Finkelman, supra n. 12, at chap. 4 (discusses at length a controversy between Virginia and Pennsylvania
over the extradition of persons accused of kidnapping a free black. This controversy led to the adoption of the
first federal extradition law and the first fugitive slave law, "An Act respecting fugitives from justice, and persons escaping from the service of their masters," Act of February 12, 1793, 1 Stat. 302. Virginia based it refusal
to return the kidnappers on states rights arguments).
n86 Paul Finkelman, States' Rights, Federalism, and Criminal Extradition in Antebellum America: The New
York-Virginia Controversy, 1839-1846, in Hermann Wellenrueter & Claudia Schnurmann, German and American Constitutional Thought: Contexts, Interaction, and Historical Realities 293-327 (Hermann Wellenreuther &
Thomas Kurger eds., Berg 1990); Paul Finkelman, States Rights North and South in Antebellum America, in,
An Uncertain Tradition: Constitutionalism and the History of the South 125-158 (Kermit Hall & James W. Ely,
Jr., eds., U. Ga. Press 1989); Paul Finkelman, The Protection of Black Rights in Seward's New York, 34 Civ.
War Hist 211-234 (1988).
n87 60 U.S. 393 (1857).
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4 Barry L. Rev. 1, *
n88 McColley, supra n. 3, at 24-25.
n89 T. Stephen Whitman, The Price of Freedom: Slavery and Manumission in Baltimore and Early National
Maryland 14-15, and generally, 8-32 (U. Press of Ky, 1997).
n90 Id. at 33-60.
n91 2 Records, supra n. 23, at 371-75.
n92 Letters from a Countryman from Dutchess County (letter of Jan. 22, 1788), in Herbert Storing, Murray
Dry, ed., 6 The Complete Anti-Federalist, 62 (U. Chi. Press 1981); Essays by Republicus (essay of Mar. 12,
1788), in Storing, ed., 5 Complete Anti-Federalist 169.
n93 Consider Arms, Malichi Maynard, and Samuel Field, Reasons for Dissent, in Storing, ed., 4 Complete
Anti-Federalist 262-263.
n94 Id.