Saturday, May 26, 2007

Groves v. Slaughter XI: "I feel bound to consider slaves as property"

Justice Henry Baldwin delivered the third and final concurring opinion in Groves v. Slaughter. As we shall see (although not in this post), it is in Justice Baldwin’s opinion that contains language that the Supreme Court might have used to reverse Lemmon v. People.

Like both Justice McLean and Chief Justice Taney, Justice Baldwin began by admitting that his separate opinion on the constitutional issues was unnecessary and irrelevant. He blamed both of his colleagues for forcing him to write (“since a different course has been taken by the judges who have preceded me, I am not willing to remain silent, lest it may be inferred, that my opinion coincides with” theirs).

Justice Baldwin then immediately declared himself a federal exclusivist on the Commerce Clause: “the power of congress ‘to regulate commerce among the several states,’ is exclusive of any interference by the states.”

I warned in an earlier post that the term “exclusive” often has an odd meaning in the Commerce Clause context. Here is an example. Having announced that Congress had exclusive authority over interstate commerce, Justice Baldwin then attempted to define the difference between “commerce among the states” and “[p]olice” and to draw a line between them.

The line that Justice Baldwin drew appeared to allow the states ample room to affect interstate commerce, so long as they did not explicitly regulate it. Nonetheless, the Mississippi constitution failed even that generous test. By its terms, it did “not purport to be a regulation of police, for any defined object connected with the internal tranquillity of the state, the health of the people.” To the contrary, it was specifically “aimed at the introduction of slaves, as merchandize, from other states.” The exemption given to settlers only confirmed that its purpose was unrelated to domestic peace or welfare, for it imposed no limits on the introduction of diseased, convicted, insurgent or otherwise dangerous slaves.

For these reasons, Justice Baldwin concluded that Section 2 of the Mississippi constitution (if it were the law of Mississippi) would have been an improper “regulation of commerce among the several states,” subject, however, to one significant proviso: the question still remained whether "slaves are the subjects of such commerce, according to the true meaning of the constitution of the United States, as expounded by this court.”

Justice Baldwin did not explicitly say so, but he seems to have assumed that, if slaves were persons, and not property, then they would not be “subjects of commerce.” His announcement of his position was oddly defensive:
[I] feel it a duty to . . . speak plainly and explicitly, however unsuited to the spirit of the times, or prevalent opinions anywhere, or by any persons, my views may be. That I may stand alone among the members of this court [note that Justice Baldwin apparently believed that every other justice was of the view that slaves were not “subjects of commerce”], does not deter me from declaring that I feel bound to consider slaves as property, by the law of the states, before the adoption of the constitution, and from the first settlement of the colonies; that this right of property exists independently of the constitution, which does not create, but recognises and protects it from violation, by any law or regulation of any state, in the cases to which the constitution applies.

After reviewing the history that he contended supported his conclusion, Justice Baldwin made clear that (unlike Justice McLean) he regarded slaves as articles of commerce “among the several states” as well as “with foreign nations.”

Having staked out his position, Justice Baldwin was apparently concerned that his position created uncertainty about the rights of the states. If slaves were “articles of commerce,” did that not suggest that slavery existed independent of states? The answer was no. Each state, using its local law, had the power to create a “right of property in the owner of a slave.” By the same token, each state had the right and power not to do so, or to abolish slavery. This was “a matter of internal police, over which the states have reserved the entire control.”

However, once the states created this “right of property,” it became subject to the Commerce Clause:
As each state has plenary power to legislate on this subject, its laws are the test of what is property; if they recognise slaves as property of those who hold them, they become the subjects of commerce between the states which so recognise them, and the traffic in them may be regulated by congress, as the traffic in other articles; but no further.

The fact that the states had the right and power to create “property” in the constitutional sense had several other constitutional ramifications, Justice Baldwin argued. First, slaves were also “property” for purposes of the Fifth Amendment. It is not clear to me whether Justice Baldwin was referring simply to the “takings” clause of the Fifth Amendment. His broad definition of “rights of property,” and his conclusion that “congress cannot touch” them, suggested that he had something broader in mind:
Being property, by the law of any state, the owners are protected from any violations of the rights of property by congress, under the fifth amendment of the constitution; these rights do not consist merely in ownership; the right of disposing of property of all kinds, is incident to it, which congress cannot touch.

Second, although the common law of the states thus regulated “[t]he mode of disposition,” in exercising that power the states were subject to the Privileges and Immunities Clause. Justice Baldwin apparently understood that clause to require states not to discriminate, in matters of commerce, against citizens of other states. If a state permitted its own citizens to trade in or dispose of slave property, it must “put[] the citizens of all [other states] on the same footing as their own.”

Indeed, as Justice Baldwin later explained, slavery, one created, became "property in every constitutional sense, and for every purpose:"
[W]herever slavery exists, by the laws of a state, slaves are property in every constitutional sense, and for every purpose, whether as subjects of taxation, as the basis of representation, as articles of commerce, or fugitives from service.

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