Sunday, May 27, 2007

Groves v. Slaughter XII: "Any power of congress is conservative in its character"

By way of a refresher, when we left off, Justice Henry Baldwin was examining the ramifications of his analysis that showed that states had the right to create (or not create) property in slaves. If they did so, the property rights they created were “property” under the Constitution. Having reviewed the consequence for under the Fifth Amendment and the Privileges and Immunities Clause, Justice Baldwin then penned a sentence that seems to come out of the blue:
It follows, likewise, that any power of congress over the subject is, as has been well expressed by one of the plaintiffs’ counsel, conservative in its character, for the purpose of protecting the property of the citizens of the United States, which is a lawful subject of commerce among the states, from any state law which affects to prohibit its transmission for sale from one state to another, through a third or more states.

I want to put aside for the moment the questions what this follows from and why it follows it. To answer those questions, we must first take a look at what the sentence actually says.

The sentence actually seems to contain two ideas. It begins by addressing the idea that there are limitations on the power of Congress; it ends, however, by suggesting that there are limitations on the power of states that do not recognize slavery.

On the issue of congressional power, Justice Baldwin gives us a clue in his reference to the argument of "one of the plaintiffs' [sic] counsel." The counsel to whom he was referring was none other than Henry Clay, who represented Slaughter. Clay argued in part:
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 [the indorsers], is on the abolition side of the question. The counsel for the defendant [in error, 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.

In short, Clay argued that that the term "regulate" meant regularize, make regular. By making commerce regular, one facilitated it. So understood, the term excluded prohibition.

This argument is not as farfetched as it might seem. At least one contemporary legal scholar has recently made a virtually identical argument. Professor Randy Barnett has asserted that at the time of the founding, the term regulate and its cognates were generally understood to mean regularize:
The power to regulate is, in essence, the power to say, "if you want to do something, here is how you must do it." . . . The power to regulate the making of contracts and wills [for example] is not the power to prohibit such activity, even though contracts or wills that do not conform to the regulation are necessarily unenforceable. A pure regulation of commerce, then, is a set of rules that tells people, "If you want to trade or exchange with others, here is how you must go about it."

Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton University Press 2004), at 303.

That said, Justice Baldwin’s reasoning, to extent we can discern it, appears different from Professor Barnett’s. Professor Barnett’s analysis is based primarily on lexicography. His review of dictionary definitions and usage of the word “regulate” and its cognates at about the time of the founding leads him to conclude that its primary meaning was “regularize” rather than “prohibit.” Accordingly, he reasons, when the Framers used the term, and when members of the state conventions read and analyzed the text, it is reasonable to expect that their understanding of its meaning reflected this common understanding.

Justice Baldwin, however, apparently thought that the “conservative” nature of Congress’s power somehow “follow[ed]” from what he had just said. I can only infer that he was not relying primarily on definitions of words, but rather on the structure of the Constitution and the interplay of responsibilities it implied. My best guess – and it is just a guess – is that the key lies in the fact that it was the states (in Justice Baldwin's view) that had the exclusive right to create “property” in slaves. If the states chose to exercise that power and create that property right, the federal government could not destroy that right.

Here, I think, we must return to Justice Baldwin’s earlier assertion that “rights of property” “do not consist merely in ownership; the right of disposing of property of all kinds, is incident to it.” If the “rights of property” include “the right of disposing of” it; and if the federal government may not destroy those rights, including the right of disposal; then as a practical matter (so the argument would go) the federal government can take no steps to impede interstate commerce in that property.

The portion of the sentence restricting the power of states to “affect[] to prohibit [the] transmission [of slave property] for sale from one state to another, through a third or more states” presumably relates back to Justice Baldwin’s premise about the scope of federal power over interstate commerce. Justice Baldwin early on asserted that Congress had exclusive power to regulate interstate commerce; the states have none. If laws of the sort that Justice Baldwin is describing are assumed to regulate interstate commerce, by definition the states have no power to enact them.

If I am reading Justice Baldwin correctly, there is a great irony here. On the one hand, the federal government apparently cannot restrict the interstate slave trade because it would infringe on the exclusive rights of the states to create that property, which the federal government must then protect. On the other hand, a state cannot restrict the interstate slave trade because it would infringe on the federal government’s exclusive right to regulate interstate commerce. Heads I win, tails you lose.

In the next post, Justice Baldwin will make himself painfully clear.

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