Only seven Supreme Court justices participated in the decision in Groves v. Slaughter. (One justice was “indisposed” and another “died before the case was decided.")The first concurrence, by Justice John McLean, is a textbook example of Commerce Clause incoherence.
After admitting that his constitutional ruminations were “not necessary to decision of the case," Justice McLean began his discussion of the substance by forcefully asserting “that the power to regulate commerce is exclusively vested in congress, and that no part of it can be exercised by a state.” This was so even if the federal government had not exercised its power as to a particular subject. A contrary rule “would be as fatal to the spirit of the constitution, as it is opposed to its letter.” What letter, Justice McLean declined to identify.
Next, Justice McLean sketched out what sounded like a narrow reading of the police powers exception. A state may pass laws to guard the health and protect the rights of its citizens, “[b]ut these laws must not be extended so as to come in conflict with a power expressly given to the federal government.”
Having laid out a super-nationalist position – federal exclusivity, narrow state police powers – Justice McLean then took half of it back. It turns out that power over international commerce may somehow be different from power over interstate commerce. The following sentences must be among the more bizarre constitutional pronouncements ever written:
The power to regulate commerce among the several states is given in the same section, and in the same language [as the power to regulate foreign commerce]. But it does not follow, that the power may be exercised to the same extent.
Got it?
The paragraphs that follow relate to slavery, and it becomes clear that Justice McLean’s odd conclusion arose from the collision of two propositions that appeared to him otherwise unreconcilable. The first proposition was that Congress had power (and therefore exclusive power) over “[t]he transportation of slaves from a foreign country.” The fact that the Constitution expressly barred Congress from prohibiting the importation of the slaves before 1808 proved that Congress otherwise had the power to do so, because “this exception to the exercise of the commercial power, may well be considered as a clear recognition of the power in the case stated.”
At the same time, Justice McLean was convinced that the states must have, and therefore did have, the power to control, or prohibit, the entry of slaves into their individual borders. But if the states had this power, the federal government could not have it, because the federal government’s commerce power was always exclusive (“If a state may admit or prohibit slaves at its discretion, this power must be in the state, and not in congress”). Strangely enough, the provision that barred the federal government from banning the importation of slaves until 1808 also supported this proposition (“Some of the states, at that time, prohibited the admission of slaves, and their right to do so was as strongly implied by this provision, as the right of other states that admitted them”).
Justice McLean reasoned that, since the federal government must have exclusive control over the international slave trade, and since the states must have exclusive control over the domestic slave trade, there must be some difference in the Constitution between the two, and it seems to have had something to do with equality among the states:
The United States are considered as a unit, in all regulations of foreign commerce. But this cannot be the case, where the regulations are to operate among the several states. The law must be equal and general in its provisions. Congress cannot pass a non-intercourse law, as among the several states; nor impose an embargo that shall affect only a part of them.
If you understand what this means, or why it supports Justice McLean’s conclusion, please let me know!
Justice McLean then veered off into a discussion of whether slaves were “persons.” According to the justice, “[t]he constitution treats slaves as persons” and “acts upon slaves as persons, and not as property.” “By the laws of certain states, slaves are treated as property,” but this character given by local law “cannot divest them of the leading and controlling quality of persons.”
The last (quite long) paragraph of the opinion at least had a purpose. Justice McLean returned to the proposition that states must have the power to regulate the introduction of slaves within their borders. To support this assertion, he cited, first, the fact more than half the states have “abolished or prohibited” slavery. “And in these states, a slave cannot be brought as merchandize, or held to labor, in any of them, except as a transient person.”
Can it possibly be, for example, that the constitution of Ohio, which prohibits slavery, violates the Commerce Clause? Nay!
[N]o one doubts [Ohio’s] power to prohibit slavery. And what can more unanswerably establish the doctrine that a state may prohibit slavery, or, in its discretion, regulate it, without trenching upon the commercial power of congress?
The final paragraph presents an odd mix of half-digested ideas that support the idea that slavery was somehow more “local” and less “commercial” than commerce in products. While Ohio can prohibit slavery, it could not prohibit the importation of “the cotton of the south.” Why not? Because the Commerce Clause “was designed to prevent commercial conflicts among” the states. Slavery, on the other hand, “is local in its character, and in its effects; and the transfer or sale of slaves cannot be separated from this power. It is, indeed, an essential part of it.”
The concluding sentences give the game away. Here is the true source of Justice McLean’s conflict. Ultimately, a principle “higher and deeper than the constitution” required the states to be able to control slavery: “the law of self-preservation.” Consider that the following language comes from the pen of a Justice of the Supreme Court of the United States:
Each state has a right to protect itself against the avarice and intrusion of the slave-dealer; to guard its citizens against the inconveniences and dangers of a slave population. The right to exercise this power, by a state, is higher and deeper than the constitution. The evil involves the prosperity, and may endanger the existence of a state. Its power to guard against, or to remedy the evil, rests upon the law of self-preservation; a law vital to every community, and especially to a sovereign state.
Coda I: I've intentionally left you in the dark about Justice McLean's political views. Even so, you may have guessed. Portions of his opinion suggest the later Republican theme that freedom was national, slavery local. He hailed from Ohio, dissented in Dred Scott, and his anti-slavery views were so pronounced that he was a potential Republican presidential nominee in both 1856 and 1860. Before the War, anti-slavery men were entirely capable of holding radical states-rights views in support of the rights of northern states to reject slavery. In this respect, Justice McLean's opinion reminds me of the opinions of Justice Abram D. Smith of the Supreme Court of Wisconsin in Ableman v. Booth (discussed in a number of earlier posts; click on the appropriate tags).
Coda II: According to Professor Currie, Justice McLean "concluded that slaves were not articles of commerce because the Constitution referred to them as 'persons.'" I suppose that is fair guess at one of the points that Justice McLean was struggling to make, but the fact of the matter is he never quite drew that distinction. What he wound up saying was that slaves were subject to the Commerce Clause for purposes of international trade, but not subject to it for purposes of interstate trade -- a very strange position. The general view of Justice McLean is that he simply lacked the mental horsepower and writing ability to be a first-rate judge. His opinion here certainly bears out that assessment.
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