Sunday, May 20, 2007

Groves v. Slaughter II: Slaughter's Arguments

In their appeal to the Supreme Court, the indorsers argued that that the transaction was null and void because it violated the provision of the Mississippi constitution that prohibited the importation of slaves into the state for sale. In response, Slaughter made essentially two kinds of arguments.

The first was not a federal constitutional argument. Instead, Slaughter argued that Mississippi law did not, in fact, forbid the importation of slaves into the state. The provision of the Mississippi Constitution was, in effect, an expression of the convention's belief that the Mississippi legislature should prohibit the importation of slaves. But, rightly or wrongly, the legislature had never passed such a law. Instead, it had passed laws implicitly recognizing that it was lawful to import slaves for sale, such as the law taxing imported slaves. Because the Mississippi legislature had not made the importation of slaves for sale illegal, Slaughter had violated no law, and the transaction was legal and certainly not null and void.

Slaughter’s second argument, however, did directly implicate the federal Constitution. Assuming that Mississippi law did make the importation of slaves for sale illegal, Slaughter argued, that law was itself void because it violated the Commerce Clause. That Clause, he urged, gave Congress the exclusive right to regulate commerce among the states.

In his argument on Slaughter's behalf, Henry Clay couched the argument in the following terms:
The last question in the case is, whether the provision of the constitution of the United States, which gives to congress, exclusively, the right to regulate commerce between the states, is opposed by the constitution of Mississippi. The argument for the plaintiffs in error [i.e., the indorsers], is on the abolition side of the question [i.e., they would permit states to abolish interstate commerce in slaves]. The counsel for the defendant [in error, i.e., Slaughter] sustain the opposite principle. The object of prohibition in the constitution of the United States is to regulate commerce; to sustain it, not to annihilate it. It is conservative. Regulation implies continued existence-life, not death; preservation, not annihilation; the unobstructed flow of the stream, not to check or dry up its waters. But the object of the abolitionists is to prevent the exercise of this commerce. This is a violation of the right of congress under the constitution.

The right of the states to regulate the condition of slaves within their borders, is not denied. It is fully admitted. Every state may, by its laws, fix the character and condition of slaves. The right of congress to regulate commerce between the different states, which may extend to the regulation of the transportation of slaves from one state to another, as merchandize, does not affect these rights of the states. But to deny the introduction of slaves, as merchandize, into a state, from another state, is an interference with the constitution of the United States. After their introduction, they are under the laws of the states. Nor is the power, given by the constitution of the United States, to regulate commerce, one in which the states may participate. It is exclusive. It is essentially so: and its existence in this form is most important to the slave-holding states.

Note how tight a rope Clay is walking. First, he must assert that Congress has the exclusive right to regulate commerce in slaves among the states; but at the same time he goes out of his way to suggest that Congress could not use that power to abolish that commerce, only to “regulate” it in order to conserve, preserve and sustain it.

Second, he must deny that the states have the power to regulate commerce in slaves among the states, but at the same time he must concede that states have the right “to regulate the condition of slaves within their borders.” Earlier cases had held that states had the right to bar or impose conditions on people entering their territory. For example, in Miln v. New York, 22 U.S. 1 (1824), the Court had upheld a New York statute relating to arriving ship passengers because the state had a right to protect itself against “the moral pestilence of paupers, vagabonds, and possibly convicts,” who might impose a tax burden, as well as against “the physical pestilence” that they might present. Clay also presumably recognized that it was unthinkable (and political suicide) to deny slave states the power to regulate and control the slaves within their borders. He was therefore forced to make the awkward suggestion that the Mississippi constitutional provision was null and void because it was specifically aimed at commerce (it denied the introduction of slaves “as merchandize”) and did not purport to be an exercise of police powers such as quarantine and inspection.

The constitutional argument of Clay’s co-counsel representing Slaughter, Daniel Webster, was, if anything, even more awkward. After demonstrating that the Constitution granted the federal government the exclusive right to regulate interstate commerce, he admitted that “interior rights, not commercial, may be regulated by the states.”

In an attempt to establish that the interstate transportation and sale of slaves was “commerce,” Webster then dealt with the uncomfortable issue whether slaves were “property.” He argued that both state law and the Constitution recognized slaves as property:
The powers conferred on congress, are duties; and they are to be exercised for the good of the states. What is the foundation of the right to slaves? There is no law declaring slaves property any more than land. Slaves are property by the term “slaves.” The master has a right to their services and labor. This is property. The constitution recognises slaves as property. Slaves escaping from the state in which they are held to service and labor may be arrested in other states, and carried back to the state from which they escaped. The right to take them up, is an acknowledgment of the right of property in them.

But this only created a further morass, because Webster was morally and politically bound to deny that states that abolished slavery could be forced to accept slaves. He therefore argued that the Commerce Clause did not authorize Congress to compel free states to take slaves. With all due respect to Webster, his argument as summarized is more conclusory than persuasive. Presumably, Webster was struggling to suggest that a state’s decision to abolish slavery within its borders was not a commercial decision, or that when a state abolished slavery, slaves ceased being property within that state’s borders:
While the right and duty in congress, under its power and duty to regulate commerce between the states, extends to slaves, as articles of commerce between the states, so long as slavery exists in the states, when slavery is abolished in a state, congress has no privilege to interpose; in such states, congress has no power to interfere with the state regulations as to slavery.

Webster thus settled on the odd proposition that a state that abolished slavery could constitutionally refuse the importation of slaves, but a state that recognized slavery violated the Commerce Clause if it did so:
If the right in states recognising slavery exists, to prohibit trading in them, it will allow non-intercourse between the states of the Union by the legislative enactments of the states; and will authorize retaliation. This is negatived by [earlier Supreme Court decisions]; and the question is closed.

Webster then provided an analogy to illustrate his position:
The court are called upon to say that the state of Mississippi may prohibit the transportation into that state of any particular article. The court will be obliged to find out something in the introduction of slaves, different from trading in other property. This will be difficult. Suppose, under some excitement, the introduction of cotton into the state of Massachusetts had been prohibited, and this was retaliated by a prohibition of the introduction into a cotton-planting state of cotton fabrics. Would not this be an interference with the power of congress to regulate commerce? Slaves are as much property in Mississippi and in Carolina, as cotton. All the states have not slaves, nor do all the states plant cotton. Can states interfere with the introduction of articles which congress have left free? There are exceptions; such as quarantine regulations, pilotage; but the subject of this inquiry is different. The prohibition of the constitution of Mississippi is a regulation of commerce, intercourse, merchandize.

It is fair to say, I think, that the analogy did not advance the ball at all. What if Massachusetts simply passed a law declaring that its citizens could not own cotton, and that the state did not recognize cotton as “property”? What if the cotton-planting states then passed laws declaring that their citizens could not own cotton fabrics, and that those fabrics were not “property”?

Webster’s peroration sounds like the conclusion of a man who has tied himself totally in knots:
The strongest motives to establish the constitution of the United States, was the regulation of commerce and intercourse between the states, and with foreign states; to make the United States, in this respect, a unit. It may not be easy to draw the line, so as to distinguish what may, and what may not, be an interference with the provisions of the constitution of the United States. But this is not such a case. This is a clear case. In any matters of the sale and purchase of property, the states cannot interfere.

I will turn next to the arguments made by the attorneys for the indorsers.

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