Posted on 12/03/2017 6:25:07 AM PST by Jonty30
I'm just trying to understand the relationship between the United States and the individual states on the issue of the legality of slavery at the state level. I know after the Civil War, the federal federal law trumped state law, but what about prior to the Civil War? Somebody told me the federal government was always the primary government when federal laws and state laws conflicted.
So, why couldn't the federal government just outlaw slavery at the state level instead of launching a civil war against the states?
Cuz 80% of all taxes collected at the federal level came from
Virginia, the Carolinas, and Georgia.
90% of all Federal dollars went to infrastructure spending in the northern states.
Well for one thing slaves were regarded as property and the government could not take you property without due process and just compensation. But I guess that would not have prevented them from banning the acquisition of new slaves. I suspect the problem was more political than legal. There were several attempts to restrict slavery before the war. The Missouri compromise comes to mind. They did not work.
IIRC, the first drafts of the Declaration of Independence contained passages pointing out the slave trade as being one of the many complaints against King George that brought about the Independence movement. I believe the southern colonies refused to vote in favor of the declaration until the passages referring to slavery were removed.
Article 1, Section 9 of the Constitution says: “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, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.” This means that before 1808, there was a tax on the importation of slaves. In 1807, Congress passed, and President Jefferson signed, an act to prohibit the importation of slaves. It went into effect in 1808.
As we know, it was difficult to abolish slavery, but the Founding Fathers did what they could to abolish the practice.
Slavery wasn’t the real reason for the war. Lincoln did not want to lose the enormous taxes the south supplied to the federal government. He fell back on the issue of slavery as an excuse. Slavery in the north continued.
Excellent work on the subject: The Road to Disunion,
by Freehling.
Covers the complex master-slave relationships in the Border South and the Deep South;
the many attempts to deal with the slavery question, from Jefferson on;
the issues of “letting slavery die a natural death”,
to never ending it, to ending it immediately; etc.
They didn’t have the votes.
The addition of more states in the west where slavery wasn’t allowed is one of the things that led to the civil war, because each additional non slave state upset the balance in favor of outlawing slavery. Thus the need for things like the Missouri compromise.
Think of it this way. Today our government is nearly deadlocked on every major issue with republicans and democrats in basic equilibrium ... but what if California wanted to split into 3 state and give democrats 4 additional senators? and or add puerto rico as a state and give them 2 more? see? the balance is then upset.
That is what was happening as states were being added in the west.
> Slavery should have been abolished when the Constitution was drafted. <
So true, so very true. But it would have had to be phased out gradually. For financial reasons, the South would never have accepted a sudden abolition. Maybe something like: No person shall be held a slave after the year 1820.
> And abortion too. <
None of the Founders would have even considered that this type of killing would ever be legal.
The Constitution would not have been ratified if slavery was banned because the Southern colonies would not sign on. Slaves gave Southern colonies a labor cost advantage for exports, which created a cash cow for the Federal Treasury. The 3/5th rule on apportation of delegates was a compromise that allowed slaves to be fully counted in the census, but only 3/5 for delegates. 13 colonies became The United States.
This tension lasted about 60 years when all hell broke loose at Ft. Sumner. Secession essentially for taxation without representation, the Norths growing demand to end slavery, the South smuggling crop exports to avoid taxes, and so on.
> If Congress wanted to abolish slavery before the 13th amendment, it would have to have compensated the owners under the 5th amendment. <
Very good point. And looking back, it would have been wise had they done so. But who in 1787 could have predicted Antietam in 1862?
Federal law didn’t trump State Law “after the Civil War”.
The Constitution is NOT altered by war. Only by amendments.
The war gave no new powers to the federal. Nor did it remove any from the States.
And while we are at it, the Proclamation was not a legal document. If one viewed the Confederacy as still part of the Union, as Lincoln did, the President did not have lawful power to free any slaves. If another country the same is true. Even the role as commander in chief offered him no such power because it is Congress that set rules for the military respecting captures on land or sea (which would include slaves).
Thanks for posting.
2 volumes. Just reserved Vol 1 at local library.
Thanks.
I tend to compare slavery to abortion. Someday natural law will prevail in this case as it has slavery. Right now you have half the country plus the government in power (not Trump’s government, the old government, which has not yet ceded power to the Trump government) worshipping or dependent on abortion and all the power it brings.
Triple all of that when you consider that societal normalization of evil birth control is the root, and the seeming impossibility of getting rid of such a destructive cultural norm is obvious
Slavery must have been the same way
Bingo!
That's it in a nutshell, Jonty30!
They simply couldn't have gotten enough votes to pass any such legislation, because the South still had too many senators in the Senate and too many Representatives in the House of Representatives. (That changed when they temporarily lost all representation due to the Rebellion, thus allowing the North to pass any legislation they liked.)
Not to mention that, if all else failed, the Supreme Court could still then have ruled that it would have been a violation of property rights to deprive slave-owners of their (until that time) rightful property.
Regards,
They would have created a problem with the surplus.
Slavery was expressly recognized, and to a certain degree protected in the Constitution. Recognition can be found in Art I with the 3/5 comprise dealing with population for the purposes of congressional representation. It is also referenced, and protected in Article I section 9 where Congress is prohibited from interfering with the slave trade until 1808. However imported slaves could be taxed at a rate of up to $10 per person. The importation of slaves was formally outlawed after this protection expired, but the prohibition was widely ignored and rarely enforced until the South seceded. The next reference is found in Article IV section 2 which is the fugitive slave clause. This required slaves who may have fled to other jurisdictions had to be returned to their masters. Given the language of this clause and the two previously cited references, it can be fairly said that slavery was a constitutionally protected institution and Congress could not outlaw it. In addition to which there is of course the 10th Amendment already cited.
The Constitution did not ban slavery, it was silent on this issue.
At least even the abolitionists in Congress had enough respect for the Constitution then:
The 10th amendment says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
That was before progressive judges started re-writing the meaning of the Constitution to expand federal powers at whim, like for things like Obamacare.
Federal legislation did start to truncate slavery. Banning the importation of slaves in 1807 (international trade) and making slave trading a capital offense (1820).
Anti-slavery efforts in Congress bonged down after the Missouri-Compromise of 1820, which attempted to legislate a balance between free and slave states. The attempts became part of the ongoing legal and constitutional debates that did not resolve the issue and saw the political tensions over it rising. You know what eventually followed.
Funny, that wasn't what all those southerners were saying.
‘s the way it happened and there isno going back.”... trying to understand the relationship between the United States and the individual states on the issue of the legality of slavery at the state level. .. Somebody told me the federal government was always the primary government when federal laws and state laws conflicted. ... why couldn’t the federal government just outlaw slavery at the state level ...?”
Contrary to what many traditionalists believe, law (and societal custom) were not static, absolute, timeless, nor unchanging - neither before 1860 nor after. Especially not in the USA.
The British colonies that in the 1770s/1780s agreed to enter into the entity which became the USA called themselves “states” and were thought of as independent nations (that’s what “free and independent state” means): sovereign national entities possessed of all powers and prerogatives other countries enjoyed - including the freedom to enter into a unified nation with the other states, and the opposite side of that coin - the freedom to depart from “the union” when it suited.
That aspect of the United States’ self-concept dominated law and politics until ACW ended in a victory for “the Union” - the non-slave-holding states. “The Union” decided the question - not by reason, logic, appeal to Divine authority, nor anything save by force of arms.
A giant page of history had been turned. Law, societal custom, and religious understanding adapted.
The change was described more poetically and succinctly by author Shelby Foote in the ACW documentary by Ken Burns, right there in the first segment. Foote said these words on camera (approximately): “Before the war, people said ‘The United States are;’ after the war, they said ‘The United States is.’ “
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.