The Supreme Court and the Interstate Slave Trade: A Study in Evasion, Anarchy, and Extremism

Abstract

Opponents of slavery often argued that the federal government possessed the constitutional authority to outlaw the interstate slave trade. At its founding in 1833, the American Anti-Slavery Society declared that Congress “has a right, and is solemnly bound, to suppress the domestic slave trade between the several States.” The idea had been endorsed earlier, during the Missouri controversy of 1819–1820, by both John Jay and Daniel Webster. Later on, in the 1840s and 1850s, it was supported by such prominent politicians as John Quincy Adams, Salmon P. Chase, and Charles Sumner. Defenders of slavery were, of course, horrified by the suggestion that the South's peculiar institution might be attacked in this way, and they vehemently denied that the Constitution permitted any such action. The prolonged debate over the issue focused on two key provisions of the Constitution. One was the Commerce Clause (Article I, Section 8, Clause 3), which says that Congress has the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The other was the 1808 Clause (Article I, Section 9, Clause 1), which says that the “Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight.” Abolitionists held that the Constitution sanctioned congressional interference in the domestic slave trade both generally, by virtue of the Commerce Clause, and specifically, by virtue of the 1808 Clause. They argued that since slaves were routinely bought and sold, they obviously were articles of commerce, and therefore Congress had unlimited authority over interstate slave trafficking. Furthermore, they said, the words “migration or importation” in the 1808 Clause meant that as of January 1, 1808 Congress had acquired the right not only to ban the importation of slaves, but also to prohibit their migration from one state to another. Defenders of slavery replied that Congress could not interfere in property rights and that the power to regulate commerce did not include the power to destroy it. They also said that the word “migration” in the 1808 Clause referred, not to the domestic movement of slaves, but to the entry into the United States of white immigrants from abroad.1