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14 SLAVERY AND THE CONSTITUTIONAL CONVENTION subversive of their internal order or to be particularly burdensome to them. One should attempt in making such a union to minimize predictable sources of friction among the members. The open borders and the contiguousness of slave and free states produced likely threats to the harmony among the states. Moreover, since many of the new free states had become quite hostile to slavery, they might adopt the very provocative policy of declaring that all persons within their borders are free. Such is the prerogative of sovereign states to do—to declare or decide on the civil status of people within them. The Fugitive Slave Clause decrees as a matter of friendship or comity between the states that no state shall have the power to do that—that is, to declare escaped slaves free. That is why this clause is located in the part of the Constitution that deals with relations among the states. States have a duty not to become a refuge for fugitive slaves, just as under the extradition clause, they have a duty not to become a refuge for escapees from justice from other states. Moreover, and this is maybe a little more controversial, the Fugitive Slave Clause contains no grant of power to Congress to enforce it. In my opinion, the best reading of this clause is to say that, originally, they did not intend a congressional power to enforce the Fugitive Slave Clause. The clause imposes a duty on the states not to attempt to change the legal status of fugitives, and indeed to “deliver them up,” but it has no mechanism to enforce this other than the good faith of the states. Here is another place where history moved off in a different direction from what the Founders expected. In 1793, Congress passed a Fugitive Slave Act, which was upheld by the Supreme Court in 1842 in the case of Prigg v. Pennsylvania—in my opinion, wrongly upheld by the court. If the Fugitive Slave Clause had been left as originally intended, it would not have been as effective an instrument for aiding slavery as it turned out to be. But in light of the potentially disruptive results of leaving some of the states free to undermine the domestic institutions of other states, it was easy for the Convention to adopt the Fugitive Slave Clause, even without the prompting of threats of disunion. But the clause is not, I would
MICHAEL P. ZUCKERT 15 maintain, meant as a support for slavery; it is rather a support for comity between the member states in the federal Union. The Slave Trade Clause was a different matter. Here is a case where indeed some of the states did make threats about not joining the Union if they didn’t get their way. So the reason why the Slave Trade Clause was important was that under the Constitution, Congress would be given the power to regulate commerce with foreign nations, and that power would include the power to regulate the slave trade. So here was a place where because of a certain power given to Congress, a certain aspect of the institution of slavery was just put in the hands of the general government—the Union government—and something would have to be said about that policy. The Neo-Garrisonians concede that this was an area where threats of disunion were made. At the Convention, representatives of both South Carolina and Georgia demanded that some provision be made for them to keep the slave trade open and if not, they claimed they would be compelled not to join the Union. General Charles Cotesworth Pinckney of South Carolina insisted that “S[outh] Carolina and Georgia cannot do without slaves.” 5 Another South Carolinian was even more pointed: “South Carolina can never receive the plan [for a constitution] if it prohibits the slave trade.” 6 Neo-Garrisonians believe that they were bluffing. There are many good reasons, the Neo-Garrisonians say, why Georgia and South Carolina wanted to be, and needed to be, part of the Union. Perhaps it was a bluff. But a factor we need to keep in mind when we think about that is how people were thinking about the future of America if this effort at making a Constitution did not succeed. It was already being said that perhaps one big union of all 13 states was not possible, and that instead of that one big union, maybe three smaller, partial unions would be preferable, or at least more possible: one, a New England confederacy; another, a middle-states confederacy; and third, a southern states confederacy. This idea disturbed many people. One of the reasons it disturbed them was because it played into their fears that Britain and other European powers were looking for a way to get a toehold back in this part of the continent. If they did that, and if there were different and
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