Slavery and the Constitution

by William I. Bowditch

In order, therefore, that the end of the Constitution may be accomplished, that it may really be the supreme law of the land, it must have provided a way in which its only true meaning may be ascertained and definitively settled. Unless it has provided a final interpreter of its meaning, it is the merest folly to style it the supreme law of the land, or to call on us to obey its requirement. Is the Constitution thus deficient? Does it demand uniformity, and at the same time deny the use of those means which are absolutely necessary to produce such uniformity? Does it present a variable, ever-changing standard of duty, and yet demand complete uniformity in practice?

There are three departments in the Government, namely, the Executive, the Legislative, and the Judicial. The first two of these are each, to some extent, supreme in its own sphere; and its acts are incapable of revision elsewhere. "Thus, in measures exclusively of a political, legislative, or executive character, it is plain, that, as the supreme authority as to these questions belongs to the legislative and executive departments, they cannot be re-examined elsewhere. Thus, Congress having the power to declare war, to levy taxes, to appropriate money, to regulate intercourse and commerce with foreign nations, their mode of executing these powers can never become the subject of re-examination in any other tribunal. So, the power to make treaties being confided to the President and Senate, when a treaty is properly ratified, it becomes the law of the land, and no other tribunal can gainsay its stipulations. Yet cases may readily be imagined, in which a tax may be laid, or a treaty made, upon motions and grounds wholly beside the intention of the Constitution. The remedy, however, in such cases is solely by an appeal to the people at the elections, or by the salutary power of amendment provided by the Constitution itself.

"But, where the question is of a different nature, and capable of judicial inquiry and decision, there it admits of a very different consideration. The decision then made, whether in favor or against the constitutionality of the Act, by the State or by national authority, by the legislature or by the executive, being capable in its own nature of being brought to the test of the Constitution, is subject to judicial revision. It is in such cases, as we conceive, that there is a final and common arbiter provided by the Constitution itself, to whose decisions all others are subordinate; and that arbiter is the supreme judicial authority of the courts of the Union" (Story, Comm. Const. sec. 374, 375); for the Constitution declares, Art. 3, sec. 2, that "the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority," &c. And Art. 3, sec. 1: "The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish."

These constitutional provisions are clear. The Constitution and laws and treaties of the United States are declared to be the supreme law of the land. To expound what the law is, is a judicial act. The judicial power extends to all cases arising under the Constitution, laws, and treaties of the United States. It therefore extends to the exposition of the Constitution, laws, and treaties, when the case before the court properly calls for such exposition. This judicial power, and consequently this power of exposition, it is declared, shall be vested in one supreme court, &c. Most obviously, the exposition given by this one supreme court cannot be overruled by any other constitutional power; else the court is not supreme, else the Constitution is nullified. The decision of the supreme court is the decision of the only constitutionally authorized expounder of the meaning of the Constitution; and such exposition, to be supreme, must be final.

What, then, has this final interpreter declared the meaning of these clauses of the Constitution to be?

Apportionment of Representatives. (Const. Art. 1, sec. 2.)

On the 5th of June, 1794 (Stat. 1794, c. 45), was approved an Act of Congress, "laying duties upon carriages for the conveyance of persons." The duty was uniform throughout the States. One Hylton, in Virginia, refused to pay the duty; alleging that the Act was unconstitutional, because the tax was a direct tax within the meaning of the Constitution, and therefore should have been apportioned among the States according to their federal numbers. He was sued by the United States, and finally the case came before the supreme court of the United States for decision. The following extracts are taken from the opinion of Justice Paterson (Hylton versus the United States, 3 Dallas's Reports, p. 177; 1796):—

"I never entertained a doubt that the principal, I will not say the only, objects that the framers of the Constitution contemplated, as falling within the rule of apportionment, were a capitation-tax and a tax on land. Local considerations, and the particular circumstances and relative situation of the States, naturally lead to this view of the subject. The provision was made in favor of the Southern States. They possessed a large number of slaves; they had extensive tracts of territory, thinly settled, and not very productive. A majority of the States had but few slaves; and several of them, a limited territory, well-settled, and in a high state of cultivation. The Southern States, if no provision had been introduced in the Constitution, would have been wholly at the mercy of the other States. Congress, in such case, might tax slaves at discretion or arbitrarily, and land in every part of the Union. After the same rate or measure, so much a head in the first instance, and so much an acre in the second. To guard them against imposition in these particulars was the reason of introducing the clause in the Constitution which directs that representatives and direct taxes shall be apportioned among the States, according to their respective numbers."

Page 178: "The rule of apportionment is of this nature: it is radically wrong; it cannot be supported by any solid reasoning. Why should slaves, who are a species of property, be represented more than any other property? The rule, therefore, ought not to be extended by construction."