Antebellum Federal Protections of Slavery

antebellum federal protections of slavery

by Joshua Mahorder.

When moving away from superficial cartoonish

and caricatured history,

the importance of context and distinctions becomes obvious.

Part of the task of responsible history

is to show how things are often more complicated

than first assumed.

The Civil War is an important historical event

in which this is evident.

Zooming in on just one aspect of the US

before the Civil War,

it is key to understand the role

of the federal legal protections of slavery.

While recognizing slavery's role in secession

and secession as a cause of the war,

it is often overlooked that the federal government,

not just slave states,

had implemented legal protections of slavery

by policy for decades.

Further without these federal protections,

slavery was arguably more vulnerable

in the slave states that seceded from the Union.

Historian Paul Johnson, who does not view secession

as a legitimate right of states, writes the following.

The most the Lincoln Republicans could do

and propose to do was to contain slavery.

To abolish it in the 1860s,

required a constitutional amendment

and a three-quarters majority.

As there were 15 slave states,

this was unobtainable,

a blocking majority of this magnitude

would still have been sufficient

in the second half of the 20th century.

It is worth noting that

at the time of secession,

Southerners and Democrats

possessed a majority in both houses of Congress,

valid till 1863, at least.

If protecting slavery was the aim,

secession made no sense.

It made the fugitive slave act a dead letter

and handed the territories over to the Northerners.

The central paradox of the Civil War

was that it provided the only circumstances

in which the slaves could be freed

and slavery abolished.

While some of Johnson's statements could certainly be debated,

and while he is known as a conservative historian

who is not comfortably in the mainstream,

he is no defender of secession.

He recognized, along with Alexander Stevens,

that the secession of certain slave states

threatened the institution of slavery

because it meant abandoning the protections of the federal government.

Stevens wrote in a letter July 10th, 1860,

I consider slavery much more secure in the union than out of it.

Why was this the case and why did many others

including key abolitionists of the time agree that slavery

was better protected in the federal union than out of it?

In short, it was because of federal fugitive slave laws,

a federal court decision, and the potential of a constitutional amendment,

which would have made federal tampering

with state domestic institutions,

including slavery permanently impossible.

Fugitive slave laws.

From the Constitution's fugitive slave clause, article four, section two,

the federal government obligated free states to return escaped slaves.

Congress implemented this through the fugitive slave act of 1793,

which authorized slaveholders to seize alleged fugitives

in free states for summary return.

In Prague versus Pennsylvania, 1842, the Supreme Court barred states

from obstructing rendition, but held they were not required to enforce it.

Prompt in many northern states to pass personal liberty laws with drawing cooperation.

The compromise of 1850 responded with a far stricter federal law,

creating commissioners denying jury trials, penalizing those who

aided fugitives, financially incentivizing judges to render a guilty verdict,

and requiring citizens to assist in captures.

This effectively socialized the enforcement costs of slavery,

shifting them from slave states to free states.

In fact, many of the abolitionists,

the most radical anti-slavery people of their time,

actually argued that the free states ought to secede from the union

in order to void the fugitive slave laws.

For example, the radical abolitionist leader, William Lloyd Garrison,

argued, December the 2nd, 1859,

I tell you our work is the dissolution of this slavery cursed union.

If we would have a fragment of our liberties left to us,

by the dissolution of the union, we shall give the finishing blow to the slave system.

Again, the abolitionists of American anti-slavery society,

at its regular anniversary in 1844, put forward a resolution that read, resolved,

that the abolitionists of this country should make it one of the primary objects of this agitation,

to dissolve the American union.

Wendell Phillips, another American abolitionist,

explained the abolitionist strategy in advocating for secession,

even if he did not entirely agree that that method should be pursued.

This union is a course by which a man or a state may immediately disconnect themselves

from the sin of sustaining slavery.

The distant hope of constitutional amendment not only allows, but makes it necessary,

that we should remain in the union, performing its sinful requirements while they continue the law

of the land in order to affect our object.

Historian Jeffrey Rogers Hummel, author of emancipating slaves and slaving free men,

has written on the profitability of slavery and dead weight loss,

as well as the economics of the fugitive slave laws.

He argues that slavery was allowed to survive longer than usual,

because it was propped up and socialized by policies,

which shifted the cost from slaveholders to non-slaveholders,

including those in free states through fugitive slave laws.

He further argues that the abolitionists who advocated for the secession of the free states

to put pressure on slavery may have argued for policy more economically effective than they realized.

He presents this case in his presentation why the north should have seceded from the south.

In his dissertation, dead weight loss and the American Civil War, he wrote,

Southern slavery was indeed profitable, but nevertheless inefficient.

It operated like other obvious practices, from piracy through monopoly to government subsidies,

where individual gains do not translate into social benefits.

In the terminology of economics, it was a system that imposed significant

dead weight loss on the southern economy, despite being lucrative for slaveholders.

A recognition of slavery's dead weight loss has major implications for the origins of the Civil

War. Slavery's survival required extensive subsidies from government at all levels.

A federal fugitive slave law was among the most crucial ways that the national government

socialized the system's enforcement. The Dred Scott case, 1857.

The Supreme Court escalated the conflict in the infamous Dred Scott versus Sanford, 1857.

Scott had lived with his master in Illinois and the Wisconsin territory,

both free jurisdictions, and later sued for his freedom after returning to Missouri.

He initially won his freedom in a Missouri trial court, but the Missouri Supreme Court

reversed that decision. Scott then filed suit in federal court and the case ultimately reached

the U.S. Supreme Court. Chief Justice Roger Taney's majority opinion held that persons

of African descent, whether free or enslaved, could not be citizens of the United States

and therefore lacked standing to sue in federal court. More dramatically,

the court ruled that Congress had no authority to prohibit slavery in the territories,

declaring the Missouri compromise unconstitutional. Because slaves were recognized as property

under state law, and because the Fifth Amendment protected property from deprivation without

due process, the court reason that slaveholders had a constitutional right to bring slave

property into federal territories. In effect, the court nationalized the protection of slave

property, placing it under constitutional protection beyond the borders of slave states and

further inflaming sectional tensions. The decision exposed the contradiction between slavery and

property rights. If human beings were legally property in some states, and if property rights were

constitutionally protected, then slavery could not be confined geographically without undermining

constitutional guarantees. Therefore, at some level, slave property had to be honored, even in

free states where slavery had been declared illegal. The Court Win Amendment

Even presidents attempted to reassure and protect slavery within constitutional limits,

including Abraham Lincoln. In his first inaugural address as president, March 4, 1861,

which took place in the context of the secession of several southern states following Lincoln's election,

Lincoln promised that he was no threat to slavery. I have no purpose directly or indirectly to

interfere with the institution of slavery in the states where it exists. I believe I have no

lawful right to do so, and I have no inclination to do so. In fact, Lincoln was, at first,

so opposed to using the federal government to extinguish slavery that he even mentioned his favorable

support for the little-known Corwin Amendment. Lincoln said, I understand a proposed amendment to

the Constitution, which amendment, however, I have not seen, has passed Congress to the effect

that the federal government shall never interfere with the domestic institutions of the states,

including that a person's held to service. To avoid misconstruction of what I have said,

I depart from my purpose not to speak of particular amendments so far as to say that holding

such a provision to now be implied constitutional law, I have no objection to its being made express

and irrevocable. This amendment promised that, whatever the states chose to do,

the federal government would never interfere with slavery in the slave states and would be kept from

doing so permanently. It was a last desperate attempt to coax the seceding states back into the

union. It read, no amendment shall be made to the Constitution, which will authorize or give to

Congress the power to abolish or interfere within any state with the domestic institutions there

of, including that of persons held to labor or service by the laws of said state. The House

approved the amendment by 133 to 65 votes, February 28, 1861. The Senate approved it on a vote of

24 to 12, March 2, 1861. President Buchanan endorsed and signed the joint resolution,

transmitting it to the states, though presidential approval is not constitutionally required for

amendments. After being elected, Lincoln announced that he believed that such protection of slavery

was already implied in the Constitution, but that he had no objection to making it explicit.

In fact, a few states, Ohio, Maryland, and Illinois ratified it. It was proposed as what would have

become the 13th amendment, though it never received the necessary ratifications. Conclusion

from these historical evidence is it is obvious that, unfortunately, slavery was not just

propped up by policy in the slave states, but federally. Through the fugitive slave acts,

the enforcement cost of slavery were nationalized and imposed upon free states.

Through Dred Scott, slave property was placed under constitutional protection in the federal

territories. Through the proposed core win amendment, the federal government stood ready to make

permanent its non-interference with slavery in the states. In short, the union contained and

protected slavery through law and policy for decades. Why did slavery and inefficient and costly

labor system benefiting only a few at the expense of everyone else last in the US? One answer to

this question is because it was protected by policy, including federal policy, privatizing the

benefits for slaveholders and socializing the costs. In other words, slavery was removed from

the realm of the free market, where competitive forces would have put pressure on the institution

of slavery. On this, Mises wrote, the abolition of slavery and serfdom could not be affected by the

free play of the market system, as political institutions had withdrawn the estates of the

nobility and the plantations from the supremacy of the market. For more content like this, visit

mises.org.