John C. Calhoun Says, "Ouch!"

In March 1820, while the Missouri Compromise bill was awaiting his signature, President James Madison asked the members of his cabinet to provide their opinions on whether Congress could constitutionally prohibit slavery in a territory. The members of the cabinet unanimously opined that Congress had the right and power to do so. It is a delicious irony, in light of later arguments and events, that one of the cabinet members who so opined was none other than John Caldwell Calhoun, who responded as follows:

We are of opinion that Congress has a right under powers vested in it by the Constitution to make a regulation prohibiting slavery in a territory.

We are also of opinion that the eighth section of the act which passed both houses on the 3d instant [i.e., March 3, 1820] for the admission of Missouri into the Union is consistent with the Constitution, because we consider the prohibition as applying to territories only and not to states.

Wm. H. Crawford
J.C. Calhoun
Wm. Wirt, Attorney Genl. U.S.

Section Eight, to which the letter referred, provided in relevant part:

That in all that territory ceded by France to the United States, under the name of Louisiana, which lies north of thirty-six degrees and thirty minutes north latitude, not included within the limits of the state, contemplated by this act [i.e., the state of Missouri], slavery and involuntary servitude, otherwise than in punishment of crimes, whereof the parties shall have been duly convicted, shall be, and is hereby, forever prohibited . . ..

In the second paragraph of the letter, Calhoun was addressing the concern that the word "forever" might suggest that the act would prohibit slavery in states that might eventually be created out of the territory. He interpreted the language to ban slavery in the territory only so long as it remained a territory. Since it did not purport to ban slavery in states that might later be created from the territory, it was not necessary to address the question whether Congress might constitutionally do so.