The Anti-Slavery Examiner, Omnibus

by American Anti-Slavery Society

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POWER OF CONGRESS
OVER THE
DISTRICT OF COLUMBIA.

A civilized community presupposes a government of law. If that government be a republic, its citizens are the sole sources, as well as the subjects of its power. Its constitution is their bill of directions to their own agents—a grant authorizing the exercise of certain powers, and prohibiting that of others. In the Constitution of the United States, whatever else may be obscure, the clause granting power to Congress over the Federal District may well defy misconstruction. Art. 1, Sec. 8, Clause 18: "The Congress shall have power to exercise exclusive legislation, in all cases whatsoever, over such District." Congress may make laws for the District "in all cases," not of all kinds; not all laws whatsoever, but laws "in all cases whatsoever." The grant respects the subjects of legislation, not the moral nature of the laws. The law-making power every where is subject to moral restrictions, whether limited by constitutions or not. No legislature can authorize murder, nor make honesty penal, nor virtue a crime, nor exact impossibilities. In these and similar respects, the power of Congress is held in check by principles, existing in the nature of things, not imposed by the Constitution, but presupposed and assumed by it. The power of Congress over the District is restricted only by those principles that limit ordinary legislation, and, in some respects, it has even wider scope.

In common with the legislatures of the States, Congress cannot constitutionally pass ex post facto laws in criminal cases, nor suspend the writ of habeas corpus, nor pass a bill of attainder, nor abridge the freedom of speech and of the press, nor invade the right of the people to be secure in their persons, houses, papers, and effects, nor enact laws respecting an establishment of religion. These are general limitations. Congress cannot do these things any where. The exact import, therefore, of the clause "in all cases whatsoever," is, on all subjects within the appropriate sphere of legislation. Some legislatures are restrained by constitutions, from the exercise of powers strictly within the proper sphere of legislation. Congressional power over the District has no such restraint. It traverses the whole field of legitimate legislation. All the power which any legislature has within its own jurisdiction, Congress holds over the District of Columbia.

It has been objected that the clause in question respects merely police regulations, and that its sole design was to enable Congress to protect itself against popular tumults. But if the convention that framed the Constitution aimed to provide for a single case only, why did they provide for "all cases whatsoever?" Besides, this clause was opposed in many of the state conventions, because the grant of power was not restricted to police regulations alone. In the Virginia Convention, George Mason, the father of the Virginia Constitution, Patrick Henry, Mr. Grayson, and others, assailed it on that ground. Mr. Mason said, "This clause gives an unlimited authority in every possible case within the District. He would willingly give them exclusive power as far as respected the police and good government of the place, but he would give them no more." Mr. Grayson said, that control over the police was all-sufficient, and "that the Continental Congress never had an idea of exclusive legislation in all cases." Patrick Henry said, "Is it consistent with any principle of prudence or good policy, to grant unlimited, unbounded authority?" Mr. Madison said in reply: "I did conceive that the clause under consideration was one of those parts which would speak its own praise. When any power is given, its delegation necessarily involves authority to make laws to execute it.... The powers which are found necessary to be given, are therefore delegated generally, and particular and minute specification is left to the Legislature.... It is not within the limits of human capacity to delineate on paper all those particular cases and circumstances, in which legislation by the general legislature, would be necessary." Governor Randolph said: "Holland has no ten miles square, but she has the Hague where the deputies of the States assemble. But the influence which it has given the province of Holland, to have the seat of government within its territory, subject in some respects to its control, has been injurious to the other provinces." The wisdom of the convention is therefore manifest in granting to Congress exclusive jurisdiction over the place of their session. [Deb. Va. Con., p. 320.] In the forty-third number of the "Federalist," Mr. Madison says: "The indispensable necessity of complete authority at the seat of government, carries its own evidence with it."

Finally, that the grant in question is to be interpreted according to the obvious import of its terms, is proved by the fact, that Virginia proposed an amendment to the United States' Constitution at the time of its adoption, providing that this clause "should be so construed as to give power only over the police and good government of said District," which amendment was rejected.

The former part of the clause under consideration, "Congress shall have power to exercise exclusive legislation," gives sole jurisdiction, and the latter part, "in all cases whatsoever," defines the extent of it. Since, then, Congress is the sole legislature within the District, and since its power is limited only by the checks common to all legislatures, it follows that what the law-making power is intrinsically competent to do any where, Congress is competent to do in the District of Columbia. Having disposed of preliminaries, we proceed to state and argue the real question at issue.

IS THE LAW-MAKING POWER COMPETENT TO ABOLISH SLAVERY WHEN NOT RESTRICTED IN THAT PARTICULAR BY CONSTITUTIONAL PROVISIONS—or, IS THE ABOLITION OF SLAVERY WITHIN THE APPROPRIATE SPHERE OF LEGISLATION?

In every government, absolute sovereignty exists somewhere. In the United States it exists primarily with the people, and ultimate sovereignty always exists with them. In each of the States, the legislature possesses a representative sovereignty, delegated by the people through the Constitution—the people thus committing to the legislature a portion of their sovereignty, and specifying in their constitutions the amount and the conditions of the grant. That the people in any state where slavery exists, have the power to abolish it, none will deny. If the legislature have not the power, it is because the people have reserved it to themselves. Had they lodged with the legislature "power to exercise exclusive legislation in all cases whatsoever," they would have parted with their sovereignty over the legislation of the State, and so far forth the legislature would have become the people, clothed with all their functions, and as such competent, during the continuance of the grant, to do whatever the people might have done before the surrender of their power: consequently, they would have the power to abolish slavery. The sovereignty of the District of Columbia exists somewhere—where is it lodged? The citizens of the District have no legislature of their own, no representation in Congress, and no political power whatever. Maryland and Virginia have surrendered to the United States their "full and absolute right and entire sovereignty," and the people of the United States have committed to Congress by the Constitution, the power to "exercise exclusive legislation in all cases whatsoever over such District."

Thus, the sovereignty of the District of Columbia, is shown to reside solely in the Congress of the United States; and since the power of the people of a state to abolish slavery within their own limits, results from their entire sovereignty within that state, so the power of Congress to abolish slavery in the District, results from its entire sovereignty within the District. If it be objected that Congress can have no more power over the District, than was held by the legislatures of Maryland and Virginia, we ask what clause in the constitution graduates the power of Congress by the standard of a state legislature? Was the United States' constitution worked into its present shape under the measuring line and square of Virginia and Maryland? and is its power to be bevelled down till it can run in the grooves of state legislation? There is a deal of prating about constitutional power over the District, as though Congress were indebted for it to Maryland and Virginia. The powers of those states, whether few or many, prodigies or nullities, have nothing to do with the question. As well thrust in the powers of the Grand Lama to join issue upon, or twist papal bulls into constitutional tether, with which to curb congressional action. The Constitution of the United States gives power to Congress, and takes it away, and it alone. Maryland and Virginia adopted the Constitution before they ceded to the United States the territory of the District. By their acts of cession, they abdicated their own sovereignty over the District, and thus made room for that provided by the United States' constitution, which sovereignty was to commence as soon as a cession of territory by states, and its acceptance by Congress, furnished a sphere for its exercise. That the abolition of slavery is within the sphere of legislation, I argue,