Judicial Review of State Court Decisions and Legislation

The Polity: Slaves, Women, and Indians

1. Slavery

   1. Three elements of existing constitution that refer indirectly to slavery

      1. 1808 Statute to bar importation of slaves

         1. There was no public protest or talk of defiance

         2. There were large numbers of slaves dying with poor medical conditions and the climate, but there was a large and violent slave rebellion in Haiti that caused the independence of Haiti from France.

            1. Successful slave insurrection

            2. Large black population increase – Haiti suggested that there could be a large increase in the number of slaves

         3. There was significant political risk and prevalent racism and fear that the racial makeup would change. Continuing the slave trade would be dangerous.

         4. Also thought about how you could emancipate slaves without changing the fundamental nature of the country – what to do with the idea of a free racially mixed population.

      2. 3/5 principle

         1. The origins of this was to measure wealth – how much to tax each state to raise money for the Confederation. It was first drawn into the Articles of Confederation

            1. The South argued that slaves were not as productive as freemen, since they had no wealth – did not generate as much wealth, and wanted a 2:1 ratio.

            2. The North was a 3:2 ratio, so they compromised on a 5:3 ratio.

         2. When the Constitution was being debated, the Convention got to the idea of proportional representation of the Houses.

            1. Many wanted it to be proportional to wealth and property and not people, since many people (women, indentured servants) did not represent wealth and could not vote (property qualifications).

            2. The South then reversed its position and wanted them counted as one person each, while the North did not want it.

            3. Wilson claimed that the 3/5 was difficult to support since it had no real basis.

            4. But the 3/5 ratio had already been ratified by 11 of 13 states in 1783, so it had become the language of America.

      3. Fugitive Slave Clause

         1. Came in at the Behest of South Carolina

         2. Was not initially thought that it would be a big issue

         3. Full Faith and Credit clause was already in effect and obligation to assist in protection of slaveholding property rights – reasonable and not large extension of the way in the which the states under a federal system would have to respect the judgments of each other’s courts

         4. Deep belief that gov’t existed to protect private property – fed gov’t had to protect private property, while state law created property interests – Northerners got from this the confidence that the gov’t was going to protect all forms of property

         5. Commerce clause

            1. The South was very worried during the Convention that it would be sued to outlaw or limit slavery.

            2. The slave trade clause would have banned Congressional regulation of the slave trade until 1808 – a 20 year ban. This represented northern concessions to the south in order to pass the Commerce clause as being federal power.

            3. Another part of it was that the clause could not be amended until 1808.

         6. Western Expansion

            1. Jefferson tried to get slavery banned in new Western states, but it failed.

            2. Party that was stronger advocate for expansion was the South – the Democratic party was aligning itself with Southern and slaveholding interests. The South wanted to expand slavery into the Western states.

         7. Jay Treaty after the Revolution

            1. Required compensation from Britain to pay slave owners in the south for the slaves that they had taken with them during the Revolution.

            2. The British didn’t pay, and the Congress tried to get the money, but it didn’t succeed, so this was a constant source of friction with the British.

   2. Anti-slavery movement and the constitution

      1. How could you make the compromises that the constitution required wrt slavery?

      2. How could you live in a country that combined strong interests of slaveholders and those who were morally opposed to it?

      3. Was the alternative to form two countries or to make concessions so that the Union survived?

      4. How crazy was it for anti-slavery interests to believe that slavery would gradually disappear by itself? - How did the economic projections for slavery look in the 1700s?

         1. Tobacco was the more important export crop than cotton, but cotton and tobacco were both labor intensive crops that benefited from the institution of slavery.

         2. But then the tobacco industry somewhat collapsed by the early 1800s and the cotton gin was invented in the early 1800s enabling mass production, so the cotton industry exploded and was no longer struggling. So in the late 1700s, it was not possible to see that cotton would be such an important crop dependent on slavery. Since the collapse of tobacco, along with expansion into the western states, it may have been believable to think that the economic foundations of slavery would collapse.

   3. North South division -A lot of mercantile interest in the slave trade in the North

      1. Rhode Island had a significant slaving fleet

      2. New York had a lot of commercial interest in the trade – it was not a pure North/South conflict.

         1. Between 1700 - 1775, 1700 slaves were imported. By 1750, blacks made up 20% of the population of the city.

         2. Slaves were used by the NY merchant population – placed on crews of merchant ships as crew members and employed as dock workers. They were also used in artisan shops.

         3. Half the households by 1775 held one or more slaves.

         4. Slaves and freemen were competing for jobs, so this influenced the anti-slavery movement – losing jobs to slaves. This led to years of racial violence between low-income white workers and black workers. Roediger has written much about this.

         5. Slavery was abolished in 1827.

   4. Revolutionary War and slavery

      1. Americans were deeply suspicious of using slaves as soldiers – arming slaves with weapons and ideas. The talk of liberty, liberating American from the British, meant that Patriots wanted slaves away from the soldiers and the fight for liberty.

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