Judge Wright, ironically, voted in favor of freeing the eight slaves by insisting that the Constitution strictly limited the powers of the federal government to those specifically enumerated. Conversely, Judge Clerke voted to reverse by looking to the broad purposes of the Constitution as he perceived them rather than focusing on specific clauses or powers. In many ways, Judge Clerke's opinion is a remarkably "loose" and “liberal” one.
Judge Clerke agreed that the New York statute applied to the situation and, but for constitutional considerations, required freeing the slaves. “But it is a question of much greater difficulty, whether the Legislature had the constitutional power to do so.”
The Constitution, Judge Clerke asserted, “not only establishes a confederacy of States, but also, in regard to its most material functions, it gives this confederacy the character of a homogeneous national government.” The framers “evidently designed to incorporate this people into one nation, not only in its character as a member of the great family of nations, but also in the internal, moral, social and political effect of the Union upon the people themselves.”
From this, Judge Clerke in effect derived what we would today call the right to travel:
“It was essential to this grand design that there should be as free and as uninterrupted an intercommunication between the inhabitants and citizens of the different states, as between the inhabitants and citizens of the same State.”
20 N.Y. at 634.
In the remainder of the paragraph, Judge Clerke repeatedly invoked the “more perfect union” language of the Preamble and listed many of the provisions of the Constitution (including the Interstate Commerce Clause and the Privileges and Immunities Clause) that were designed “better to secure and perpetuate mutual friendship and intercourse among the people of the different States.” Based on this review, he concluded as follows:
“Most assuredly, the people who adopted the present Constitution did not intend that the intercourse between the people of the different States should be more limited or restricted than the States, in their corporate capacity, provided in the Articles of Confederation. On the contrary, they contemplated, as we have seen, a more perfect union, and a more perfect and unrestricted intercourse; and they amply secured it by the provisions to which I have referred.”
20 N.Y. at 635-36.
In the next post, we will see how Judge Clerke uses this foundation.
Judge Clerke agreed that the New York statute applied to the situation and, but for constitutional considerations, required freeing the slaves. “But it is a question of much greater difficulty, whether the Legislature had the constitutional power to do so.”
The Constitution, Judge Clerke asserted, “not only establishes a confederacy of States, but also, in regard to its most material functions, it gives this confederacy the character of a homogeneous national government.” The framers “evidently designed to incorporate this people into one nation, not only in its character as a member of the great family of nations, but also in the internal, moral, social and political effect of the Union upon the people themselves.”
From this, Judge Clerke in effect derived what we would today call the right to travel:
“It was essential to this grand design that there should be as free and as uninterrupted an intercommunication between the inhabitants and citizens of the different states, as between the inhabitants and citizens of the same State.”
20 N.Y. at 634.
In the remainder of the paragraph, Judge Clerke repeatedly invoked the “more perfect union” language of the Preamble and listed many of the provisions of the Constitution (including the Interstate Commerce Clause and the Privileges and Immunities Clause) that were designed “better to secure and perpetuate mutual friendship and intercourse among the people of the different States.” Based on this review, he concluded as follows:
“Most assuredly, the people who adopted the present Constitution did not intend that the intercourse between the people of the different States should be more limited or restricted than the States, in their corporate capacity, provided in the Articles of Confederation. On the contrary, they contemplated, as we have seen, a more perfect union, and a more perfect and unrestricted intercourse; and they amply secured it by the provisions to which I have referred.”
20 N.Y. at 635-36.
In the next post, we will see how Judge Clerke uses this foundation.
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