Groves v. Slaughter XII: "No law of either state could affect his right of property"

Without further ado, Justice Baldwin explained precisely what he meant by the sentence discussed in the last post. For readablity, I am going to break up Justice Balwin's overlong paragraph:

Thus, in Ohio, and those states to which the ordinance of 1787 applies, or in those where slaves are not property, not subjects of dealing or traffic among its own citizens, they cannot become so, when brought from other states; their condition is the same as those persons of the same color already in the state; subject in all respects to the provisions of its law, if brought there for the purposes of residence or sale. If, however, the owner of slaves in Maryland, in transporting them to Kentucky or Missouri, should pass through Pennsylvania or Ohio, no law of either state could take away or affect his right of property; nor, if passing from one slave state to another, accident or distress should compel him to touch at any place within a state, where slavery did not exist. Such transit of property, whether of slaves or bales of goods, is lawful commerce among the several states, which none can prohibit or regulate, which the constitution protects, and congress may, and ought, to preserve from violation.

The remainder of the paragraph consists of a somewhat defensive justification:

Any reasoning or principle which would authorize any state to interfere with such transit of a slave, would equally apply to a bale of cotton, or cotton goods; and thus leave the whole commercial intercourse between the states liable to interruption to extinction by state laws, or constitutions. It is fully within the power of any state to entirely prohibit the importation of slaves, of all descriptions, or of those who are diseased, convicts, or of dangerous or immoral habits or conduct; this is a regulation of police, for purposes of internal safety to the state, or the health and morals of its citizens, or to effectuate its system of policy in the abolition of slavery. But where no object of police is discernible in a state law of constitution, nor any rule of policy, other than that which gives to its own citizens a 'privilege,' which is denied to citizens of other states, it is wholly different. The direct tendency of all such laws is partial, antinational, subversive of the harmoney which should exist among the states, as well as inconsistent with the most sacred principles of the constitution; which on this subject have prevailed through all time, in and among the colonies and states, and will be found embodied in the second resolution of the Virginia legislature, in 1785. (1 Laws U. S. 53.)

It is hard to imagine that Justice Baldwin could have been much clearer. Free states could not constitutionally "take away or affect [the] right of property" in slaves passing through in transit from one slave state to another.

Justice Baldwin's paragraph does contain at least one subtle shift worth noting. You will recall that in his preceding paragraph Justice Baldwin concluded that the federal government could use its commerce clause power only "for the purpose of protecting" slave property. The clear implication was that Congress could not properly pass a law banning interstate commerce in slaves. Here, however, Justice Baldwin is a little less sure. "[C]ongress may, and ought, to preserve" the interstate transit of property "from violation." He does not use the word "must."

Professor Currie summarized Justice Baldwin's career as follows:

Baldwin managed to write almost nothing of interest for the Court in a constitutional case, largely confining himself to a series of mostly tardy concurrences I have already described as long and boring.

The conclusion at the Oyez site is remarkably similar:

Baldwin wrote almost nothing of interest for the Court on the Constitution and there is little evidence of a coherent constitutional vision in the totality of his work. In the words of one scholar, "His influence on American law was negligible and his presence on the Supreme Court was probably counterproductive."

How different these assessments might have been if the Supreme Court had had an opportunity to consider Lemmon v. People or some other, similar case. It is certainly true that the opinion was pure dictum. It is equally true that no other justice, including Chief Justice Taney, joined the opinion. But the Chief Justice could plausibly claim, if he chose, that nothing in his concurrence directly addressed or contradicted Justice Baldwin's key assertions. It was a rare instance in which a member of the court had erected the framework of an argument that the court might adopt at any time if it chose to do so.

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.

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.