Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (20 page)

The premier Taney-era Commerce Clause case was 1851's Cooley v.
Board of Wardens. At issue was a Pennsylvania statute requiring every
ship entering or leaving the port of Philadelphia to hire a local pilot.
Aaron Cooley, who owned two ships named in the case, claimed that the
law violated the Commerce Clause.

The Court ruled in favor of the state, noting that Congress had explicitly recognized state pilot regulations in one of its own statutes. Striking
down this regulation as unconstitutional, the Court said, would mean
striking down an untold number of other state regulations. And it noted
that Congress had rarely intervened in this area. The Taney Court's moderate approach to the Commerce Clause's meaning for state legislative
power has been retained, essentially, ever since.

Lest one conclude that Taney and his associates always favored states'
rights, however, consider the 1843 case of Bronson v. Kinzie. Arthur Bronson attempted to foreclose on a property owned by his debtor, John
Kinzie. He ran afoul of two 1841 Illinois statutes restricting the coercive
power of creditors.

Bronson claimed that as the Illinois laws were retroactive, and as his
contract with Kinzie had been entered into before 1841, the laws violated
the Contracts Clause. Taney sided with Bronson, as he clearly should
have, as these were exactly the kinds of circumstances to which the Contracts Clause had been intended to apply. (Remember those stay laws
adopted by state legislatures during the American Revolution?)

States' rights did not mean to Taney-as they did not mean to Jefferson,
Madison, or Taylor-that states were free under the Constitution to do
whatever they wanted to do. In fact, the Constitution does prohibit certain
kinds of state behavior, and judges were obliged to enforce these prohibi tions, as Taney and his mainly Democratic colleagues did in Bronson v.
Kinzie. Illinois had adopted legislation reducing creditors' rights (that is,
impairing the obligation of a contract), and the Supreme Court held it to
be unconstitutional. As we shall see, faced with similar legislation a century later, Taney's successors would not be so quick to live up to their oath
to uphold the Constitution and to do equal justice to rich and poor.

Taney's term as chief justice is dominated in historical memory by the
legal disputes leading up to and arising out of the war of 1861-1865.
Before we can discuss those issues, we must first deal with the question
of what to call the war.

Nearly as soon as shots were fired, people in the Union began calling
it the "Civil War." This term is clearly misleading. A civil war is a war for
control of a single government, like the civil wars of seventeenth-century
England, twentieth-century Russia, and twentieth-century Spain. The
English Civil War, between monarchists and supporters of the legal
claims of Parliament, was for control of the English government, and
whichever side lost would necessarily be ruled by the other. The same
goes for the Russian Civil War between the Reds and the Whites and for
the Spanish Civil War between Francisco Franco's forces and the Republicans.

In the American war of 1861-1865, the Confederate states had no
desire to rule New York or Indiana. They wanted to separate from them,
to achieve independence. The Union, for its part, wanted to subjugate the
Confederacy, to force the seceded states to accept northern rule. In that
sense, the war was analogous to the war of 1775-1783, in which the
Americans had no desire to rule people in Yorkshire or Glasgow, while
the British wanted to subjugate the Americans. No one, I think, would
call the American Revolution a civil war.

What of "War of the Rebellion," which in some senses became the official Union name for the war? This title assumes the validity of the northern constitutional position of the day, which was that the Union of 1788
was not really a union of states but an amalgamation, a consolidation, and
so the southern war effort was a rebellion-a war against legitimate
authority. Yet, as we have seen, there was no point at which Virginia, for
example, agreed to join in a consolidation, to be amalgamated into one
American mass. Rather, the delegates to the Richmond Ratification Convention of 1788 were told that their state would remain one of thirteen
parties to a confederation, and that it could reclaim all its old powers if
the federal government should pervert those powers to Virginia's injury.
Doing so, then, was not a rebellion, but part of the constitutional system
that the 1788 convention in Richmond had agreed to accept. So "War of
the Rebellion" does not fit either.

On the other hand, many southerners, such as former Confederate vice
president Alexander Stephens of Georgia, have called it the War Between
the States. In some sense, it is true that the war was between the states,
and yet the war effort was waged on each side mainly by a federal government: the Union in the North, the Confederacy in the South. Thus,
that name, too, seems inaccurate. The most descriptive nonpartisan name
of the war I have seen is the War for Southern Independence. That was
the issue. (I suppose one might call it the War against Southern Independence with equal validity, but no one ever does.)

Taney's tenure on the Supreme Court is remembered mainly for its
relationship to the crisis leading up to, and for the Court's behavior during, the War for Southern Independence.

Slavery had been an issue of legal controversy from the very beginning
of the country. For example, in his original draft of Virginia's May 1776 Declaration of Rights George Mason asserted that all men are born equally
free and independent. But this was inadequate, because the Virginia
draftsmen recognized that they had to confront the existence of slavery.
So they amended that first American declaration of rights to say that all
men are born free and equal, and, when they enter into a state of society,
government has to protect their rights. Black slaves' exclusion from the
process of making the new republican society left the new government
without any responsibility to protect their rights. Thomas Jefferson and
his Virginian peers viewed the blacks in their midst not as "African
Americans," but as captive Africans, a foreign people.

Northern states felt freer to act against slavery because they faced fewer
social and economic complications from it. Thus Massachusetts's 1780
constitution, which today is the world's oldest constitution, said that all men were born
free and equal. Massachusetts courts in the
1780s declared slavery unconstitutional in
the Bay State on that basis. Generally, the
farther north a state was, the more at ease it
felt in acting against slavery immediately.

When the Philadelphia Convention of
1787 got around to discussing slavery, opinion was divided. Delegates from northern
states like Gouverneur Morris lamented the existence of slavery in the
United States in the harshest terms and did not want it protected in the
new constitution.

George Mason argued in favor of ending the importation of slaves
immediately. He too argued that slavery was a moral blight, and said that
nothing good could come from importing more slaves.

From the Deep South states of Georgia and South Carolina came a completely different kind of argument. The Palmetto State's leading revolutionary politician, future Supreme Court chief justice John Rutledge, insisted on protection for slavery. He wanted to leave individual states
able to continue to import slaves at their discretion, and he wanted states
into which slaves escaped to be required by the new constitution to
return them to their masters. Without significant protection for slavery,
he thundered, South Carolina would never ratify any new federal charter. His South Carolina colleagues, as well as all the Georgians, agreed.

It Wasn't a Civil War

The war of 1861-1865 was not a civil war,
because the southern states did not want
to rule the North.

The Deep South's delegates were a minority, yet they proved adept at
political maneuver. Virginia's Mason, representing the export-producing
southern states, held that Congress should not be given a power to levy
tariffs-taxes on imports-by mere majority vote, and New Englanders,
whose states were home to the great shipping companies that stood to
benefit from differential duties on domestically and foreign-owned ships,
disagreed.

Finally, Connecticut's Roger Sherman approached Rutledge with a
deal: support the right of a bare congressional majority to levy tariffs, he
said, and we will go with you on importing slaves for twenty more years.
Rutledge happily agreed. To boot, the Constitution gave Rutledge the
Fugitive Slave Clause on which he had insisted; it also counted each
slave as three-fifths of a person for purposes of apportioning the House
of Representatives, which also affected apportionment of the electoral
college, which gave slaveholders more say in choosing all appointed officials. Thus the Constitution was full of pro-slavery provisions.

As the Philadelphia Convention met, the old Confederation Congress
was adopting the Northwest Ordinance to establish how the Northwest
Territory could enter the Union as several states. Among the provisions
of the Northwest Ordinance was one "forever" prohibiting slavery from
the Territory.

Opponents of slavery in Taney's day pointed to the Northwest Ordinance's geographic restriction of slavery as evidence that the men who
guided the Revolution and the federation of 1788 opposed slavery in the
abstract, on moral grounds. This idea is given the lie by the correspon dence of Virginia congressman William Grayson (then president of Congress). The night Congress passed the Northwest Ordinance, Grayson
wrote a letter boasting that it was a wonderful development for Virginia,
because it guaranteed that the Northwest would never be able to compete
with Virginia tobacco production. In other words, he saw the banning of
slavery in the Northwest Ordinance as an economic benefit to the South,
not a moral victory for slavery's opponents.

In 1789, in the first Congress under the new Constitution, a proposal
was made in the House to tax the importation of slaves. South Carolina
congressman Aedanus Burke countered that any such tax would mean
the end of the Union, as South Carolina would sooner secede than see
such a tax implemented. Moreover, as we have already seen, leaders of
the 1790s Jeffersonian opposition like Virginia's John Taylor of Caroline
warned that one implication of the Hamiltonian reading of congressional
powers behind adoption of the carriage tax, one ground on which that tax
must be opposed, was that a mere majority in Congress could tax property in slaves. Slavery was a touchy subject, then, from the beginning.

The Jeffersonian revolution of 1800 put an end to this fear until 1819.
But fear that Congress might act against slavery, reawakened by the Missouri Controversy, underlay South Carolina's growing opposition to the
tariffs favored by the New England states in the 1820s. In addition,
because tariffs hit the agricultural South harder than the industrial North,
South Carolinians could see tariffs as a partisan measure threatening their
slave-based agricultural economy.

The matter reached a crescendo in the 1840s and 1850s over the issue
of the United States' westward expansion. In 1836 Texas had declared and
won its independence from Mexico. Texas wanted to be annexed by the
United States, but Democrats in control of the federal government in
Washington refused. The Democrats feared inflaming anti-slavery feeling
by adding so enormous a slave territory to the Union. President John Tyler,
however, finally did annex Texas in 1845, through some constitutional legerdemain: when the Senate refused to ratify an annexation treaty with
the Lone Star Republic, he persuaded Congress to accept Texas into the
Union by concurrent resolution-the mechanism long used to elevate
American territories to statehood.

As the Mexicans had warned, the Mexican War (1846-1848) soon followed. Its
importance for us here is that even before
the war had been won, Pennsylvania congressman David Wilmot proposed legislation barring slavery from any territory
wrested from Mexico. Congress could not
decide whether to accept Wilmot's idea.
South Carolinian John C. Calhoun had seen
this coming and had opposed the Mexican
War because he feared that disputes over slavery in the new territories
would destroy the Union.

Henry Clay managed to paper over the differences for a moment. The
Compromise of 1850 (the year Calhoun died) immediately admitted California to the Union as a free state, but also included a new fugitive slave
law, which gave teeth to the Constitution's Fugitive Slave Clause.

Northern opposition to implementation of the Constitution's Fugitive
Slave Clause had already been growing. In 1843 Vermont and Massachusetts had adopted laws nullifying the 1793 Fugitive Slave Act, and they
adopted similar measures against the Fugitive Slave Act of 1850. In 1854,
the Wisconsin Supreme Court followed suit in In re Booth. The same
political interests that had opposed South Carolina's nullification of an
arguably unconstitutional protective tariff now supported nullification of
the Fugitive Slave Clause of the Constitution itself.