After enjoying his tome on the Dred Scott Case, I read Don Fehrenbacher's final work (completed by a former student) entitled The Slaveholding Republic: An Account of the United States Government’s Relation to Slavery. Though I usually don't do this sort of thing, except for a few favorites, I am re-reading it, since it has been awhile. The theme of the book is that the U.S. Constitution is largely neutral of slavery, but that U.S. policy -- for various reasons -- later made it a slaveholding republic. Thus, when Republicans wanted to change the tone -- even if honestly assured people that they did not want to ban slavery in the states -- it was a serious threat to the South. And, even the path to "the slaveholding republic" was a complicated matter, not just some slave power conspiracy.
This sort of thing is inherently interesting, especially to some people, but still has bite given the place of race in our history and current understanding of our nation. It also has implications in other areas. To deal with that briefly, LGM again took its "absurdity of anti-abortion rights rhetoric" campaign into the federalism question. [I'd think he succeeds more when focusing on the arbitrary and pointless nature of regulations.] Since abortion, like slavery, was once largely a state matter -- even if the national government dealt with it in various respects -- one can see a connection. In fact, before 1973, the states as a whole had individual discretion to regulate/ban abortion. Congress had little to do with the matter. The "throw it back to the states" crowd is not just fantasizing here, right?
[The post starts with a poll number. In it, 39% said that they wanted abortion to be a state issue. This is a significant number and in no way truly suggests the majority thinks federalism is an "unprincipled dodge." They just don't think it is an issue for the states! Surely, that is how I interpret it, and to assume otherwise seems quite questionable.]
The fact that a small subset want to protect fetuses under the national Constitution (with an amendment, if necessary) does not change the fact. Sure, some will then want Congress to do more partial birth abortion deals. Overruling Casey would serve as a wedge, allowing Congress to seriously limit abortion rights. But, this is a subset of the class who want to leave the matter to the states. This is shown in the gay marriage area -- even many conservatives opposed a national amendment. It is not an "all or nothing" deal -- if some national regulation is involved, federalism issues do not disappear. Surely, federalism is often a fair weather ideology, not followed when it would let states do things you don't like. But, the gay marriage deal underlines that this can be overblown. Many subjects are largely left to the states. We are talking fundamental rights here ... that is the bottom line.
Back to the book. The book begins underlining that the pro-slavery nature of the Constitution is overblown. For instance, the 3/5 compromise is not a particularly racist provision. This provision counts five slaves ("other persons") as three persons for purposes of apportionment of the House of Representatives and direct taxes. Direct taxes were never a major source of revenue, though that part of the provision reflects the clause's origins as an earlier proposal to apportion taxes among the states. [As an aside, direct taxes were early on basically seen as those against land and slaves, so the later implication that income taxes were included was dubious.] Taxes were to be a reflection of wealth (shades of progressive taxation), which was hard to determine ... early on, some makeshift land rule was set forth.
Later, a rough determinant was to be population, but what about slave? Didn't slaves produce less? Are we to count them as full persons? This would only help slave states as the second clause of the Fourteenth Amendment suggests by allowing Congress to reduce House delegations in proportion to the blacks disenfranchised. Not count them at all? Count them using a different ratio? The final determination was a compromise, one that if anything spoke of slaves as "persons," complicating things for slave owners. In fact, when a few people petitioned Congress for loss of value to slaves, their claims were rejected ... unlike those connected to clear property. Wood ... yes ... harm to or loss of slave ... no. This was deemed a delicate question -- avoidance of such issues was often the path taken. Or, the path of least resistance ... toss in some united efforts by the slave states, and this had pro-slavery implications as shown by slavery in the national capital -- which early on a majority, if a soft/divided one, wanted somewhere further North.
Slave "property" was an issue. This is shown by the decades long attempts to obtain redress for slavery losses growing out of the wars with Great Britain, plus (failed) attempts to get Canada and Mexico to accept some sort of international fugitive slave law. Relatedly, American foreign policy, including policy affected by dislike of GB, was more important than slavery per se. This had a pro-slavery consequence. It is important to note that there was a clear distaste for the slave trade, involvement in the foreign slave trade partially banned as early as 1794. And, the moment the Constitution allowed it, trade to this country was banned -- this when any suggestion Congress could even regulate slavery was liable to get slave owners very nervous. Illegal importation was not really an issue after 1820.
But, even the likes of John Quincy Adams formally claimed that "freedom of the seas" was more important than a strong united effort with the Royal Navy to stop American involvement in the foreign slave trade. This blocked an attempt to make slave trade a clear violation of international law, one in which any nation had the right to search ships to stop such "piracy." And, attempts to use our own navy for such a purpose were often quite lackluster. This has implications today when cries of “American sovereignty” trump fighting human rights violations. It again is not just, if even primarily, a matter of supporting the promotion of human rights violations, but the assumption other issues are more important. Of course, this often has the same de fault result, sending a message again that we are hypocrites.
The book also discusses the fugitive slave issue plus the troublesome (though not in real numbers) issue of slavery in the territories. The former issue also underlined that the Constitution did not compel the path taken, including the assumed necessity (or even authority) to pass federal fugitive slave laws and the alleged absence of state power to protect their innocent black citizens via "personal liberty laws." [Ah, federalism.] We also see the perils of assumed "original intent," including the compelling "necessity" of a fugitive slave clause that was tossed in late in the game without much thought. And, the almost amusing suggestion that pro forma hearings were not problematic, since the seized putative slaves could appeal to the states where they are taken back to.
Interesting stuff.