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Supreme Thoughts of Commerce - Early Republic Edition


The Constitution, famously, did not mention slavery. But it did acknowledge “the peculiar institution” not only in apportionment of representatives to Congress, but also in Section 1, Art. 9 which states,

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.

Early in the life of the Republic, Congress barred American ships from engaging in international slave trade. This may have been modeled on the Virginia law that prohibited the international slave trade in the Commonwealth since 1777 and had been adopted in some form by nearly every other state. The Slave Trade Act of 1800 banned the participation of United States citizens from investing in the international slave trade and made it illegal for any American citizen to be employed by ships engaged in the international slave trade.

Eager to craft a law criminalizing the international slave trade in all its form in the United States, in his 1806 State of the Union address, President Jefferson declared,

I congratulate you, fellow citizens, on the approach of the period at which you may interpose your authority constitutionally to withdraw the citizens of the United States from all further participation in those violations of human rights which have been so long continued on the unoffending inhabitants of Africa, and which the morality, the reputation, and the best of our country have long been eager to proscribe. Although no law you may pass can take prohibitory effect until the 1st day of the year 1808, yet the intervening period is not too long to prevent by timely notice expeditions which can not be completed before that day.

Speaker of the House, Joseph Bradley Varnum (of Dracut, Massachusetts - there's always a Massachusetts connection) put forth a bill to abolish the slave trade which Congress dutifully passed, and President Jefferson signed. The Act Prohibiting the Importation of Slaves took effect on January 1, 1808, the earliest possible date under the Constitution. As history has demonstrated, this did not end chattel slavery. In truth, it did not even end the international slave trade. Texas and Florida, not yet part of the United States, continued to traffic in human beings. Along with one of the United States. Looking at you, South Carolina.

For reasons known only to South Carolina itself, it persisted in the international slave trade both openly while it could and surreptitiously when it could not, smuggling in thousands and thousands of captured Africans and fitting out boats and ships for engagement in the international slave trade.

And so it was that in 1824, the federal government sought to seize two ships under both the 1794 Act and the 1807 Act in South Carolina. The charging document argued both statutes in the alternative as theories for the forfeiture of the vessels. Further, the government averred that even if neither ship set sail, there were steps in furtherance taken to outfit them in such a manner as to violate the law. The government declared that it need not wait for the parties to consummate the act in order to be subject to forfeiture.

The Supreme Court agreed with the government noting that the law looks to intent – based on the testimony at trial and the evidence presented, the intent was to use these vessels in the slave trade. As that was prohibited both by the Act of 1794 and the Act of 1807, forfeiture was upheld in The Emily and the Caroline, 22 U.S. 381 (1824). It is unclear what happened to these ships once they were confiscated by the United States Government.

The Caroline rabbit hole: It is unclear if this is the same ship The Caroline that was seized in 1824, but there is a historical incident often called The Caroline Affair involving a steamship called The Caroline in 1837. The allegation is that Americans were supplying rebel Canadians by use of this steamship. The British government seized the ship, set it on fire, and sent it down the Niagara River. Because the ship was American, many people in Northern states bordering Canada wanted the United States Government to declare war on Great Britain. We didn't.

Estimates claim that roughly 50,000 more Africans were smuggled into the United States and sold as slaves after prohibition of the international slave trade. Millions of people from Africa and of African descent suffered under the horrors of chattel slavery on these shores from well before the ban and for decades after, part of our complicated and often terrible history. Many who wished to end the slave trade and who spoke forcefully against the institution continued to enslave people. Many who participated in trafficking never owned another human being and may also have been personally opposed to the institution while profiting from it. Most who wished to end slavery harbored significant racial bias and did not favor equality even if they wished to ban slavery itself. The idea that everyone felt the same way, or looked the other way, or that there was no conflict on this issue is fantasy. Slavery and racism and economics and idealism and liberty and freedom were all ideas in the mix of political thought from the inception of our nation to this very day.

As late as 1824, people in South Carolina were uninterested in trade regulation by the federal government. That did not stop the federal government from enforcing its laws restricting the importation of people to be enslaved on American soil and the participation of United States citizens in the international slave trade. Much to the shipowners' chagrin, the Court ruled that these two laws could be charged together in the alternative without violating principles of due process. It further affirmed that the offenses could be inchoate and still allow for seizure and forfeiture of goods and equipment.

In the same time period that the little-known Emily and Caroline was decided in favor of the federal government’s power to seize property, the Supreme Court decided one of its most famous cases, Gibbons v. Ogden, 22 U.S. 1 (1824). That case dealt with boat travel between New York and New Jersey. New York had granted a monopoly license to steamboat travel to Robert Fulton and Robert Livingston. They, in turn, granted permits to operators and seized any boats they had not sanctioned. Aaron Ogden was granted a permit for the route. At the same time, the federal government had granted a permit for Thomas Gibbons. Challenged by Ogden, Gibbons sought, and was denied, a permit from New York for the route. He sued Ogden claiming federal supremacy based on the Commerce Clause.

The Commerce Clause grants power to Congress to, “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” US Const. Art. 1 Sec 8.

The Court sided with Gibbons, ruling that the federal government has supremacy in matters of commerce between the states. Because it was not germane to the case at bar, left unsaid was whether the Commerce Clause allowed Congress to regulate interstate actions regarding chattel slavery.

But, in his concurring opinion, Justice Johnson indicated that it most certainly could. Justice Johnson was a complicated man – he was a South Carolina native and an enslaver opposed to abolition, but vocal about humane treatment (which seems diametrically oppositional – both to own other human beings and to believe in humane treatment of all people). At the same time, he believed that the federal government should have complete control over all interstate commerce including the commerce of trafficking in enslaved people, presumably even if that meant a federal abolition of slavery. While sitting in a Circuit Court, one year prior to Gibbons, he found a South Carolina law that discriminated against free Blacks to be unconstitutional and in violation of the Commerce Clause. See, Elkison v. Deliesseline, 8 F. Cas. 493, 497 (C.C.D.S.C. 1823).

In Gibbons, he wrote in concurrence,

The great and paramount purpose [of the Constitution] was to unite this mass of wealth and power, for the protection of the humblest individual, his rights, civil and political, his interests and prosperity, are the sole end; the rest are nothing but the means. But the principal of those means, one so essential as to approach nearer the characteristics of an end, was the independence and harmony of the States that they may the better subserve the purposes of cherishing and protecting the respective families of this great republic.

The first clause of the 9th section not only considers the right of controlling personal ingress or migration, as implied in the powers previously vested in Congress over commerce, but acknowledges it as a legitimate subject of revenue. And, although the leading object of this section undoubtedly was the importation of slaves, yet the words are obviously calculated to comprise persons of all descriptions, and to recognise in Congress a power to prohibit where the States permit, although they cannot permit when the States prohibit. 

Justice Johnson was saying that the Commerce Clause grants this power to Congress – it may create a prohibition that applies to the states even when the states would otherwise allow certain commerce, i.e. the Commerce Clause could be a vehicle to abolish slavery even if states wanted to permit this economic system. But, he declared, if the state government prohibits certain commerce, the federal government cannot force the state to participate. This is not the view the Court took then or takes now; there is an entire canon of law on the Commerce Clause, including it being the basis for the draconian federal anti-drug laws. But, just think about that interpretation as it relates to slavery. In 1824. When Congress was, indeed, acting to limit and restrict the trading of enslaved people. How different our history may have been.


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