An introduction to the main themes of the American Constitution—popular sovereignty, separation of powers, federalism, and rights.
States and Territories, Part 2
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States and Territories
Article 4 of the Constitution outlines the interrelationship between States and territories. In order for this emerging country to succeed, the framers knew states would need to start thinking of themselves as parts of the same whole. To achieve this, rules needed to be set in place for interstate trade and travel. Prof. Amar will introduce the concept of Horizontal Federalism, looking specifically at how the Constitution accounts for the differences between state laws on slavery and voting rights. Finally you'll learn about the Taney-led Supreme Court, whose rulings on racial laws would help set America down the path to civil war.
與講師見面
Akhil Reed AmarSterling Professor of Law and Political Science
Yale Law School
Welcome back.
We're in the middle of a discussion of Article Four in the Constitution and
we left off talking briefly about the famous case of Dred Scott v Sandford,
a case from 1857, in which the US Supreme Court held, among other things, that
free blacks could never be citizens, even if their state called them citizens.
And even if they voted in their states and their
father voted and was and their fathers voted in states
and their grandfathers, didn't matter, said, said Taney, because he
said, Constitution presupposed that only whites, in effect, could be citizens.
Or at the very least, people descended from African slaves
couldn't be Citizens, no, the Constitution doesn't say that all.
Taney basically is making some of that stuff up.
What arguments did he give? Well, he gave some historical arguments
that of course the framers for the Constitution did not
contemplate, blacks as, as equal citizens, but that's just false.
They absolutely did and actually in, in Massachusetts they made a
big deal of the fact that blacks were, were equal citizens.
And they rejected a state constitution, a proposed
constitution in 1778 precisely because it had race tests.
Well, here's another thing that he said.
Gee, if blacks were citizens that would mean that they could come
from the north down to the South and they would be entitled
to all the privileges and immunities
of citizens and those privileges and immunities
would include, for example, freedom of speech, freedom of assembly the
right of freedom of religious worship, the right to have guns and carry them around.
In other words he thought that the privileges and immunities of citizens
basically included stuff that today we would call the Bill of Rights.
Stay tuned on that
one, we're going to talk a lot about the Bill of Rights and how
it originally applied only against the
federal government and eventually came to be
applied against the states, thanks to the fourteenth amendment that uses the same
words that you first see in Article
Four, privileges, immunities, citizens, so stay tuned.
But the thing to remember about Article Fouris it didn't
quite tell you that if you went from one state
to another and you were a citizen that you got
to carry with you all the rights of your home state.
Not quite.
What did it say?
It said that the new state, the state that
you were traveling into, couldn't treat you as an outsider.
They had to treat you as an insider.
But treating you as an insider doesn't necessarily
mean that you're going to get everything you want.
Here's what it does mean. That if if
a person who's just, say I'm, I'm a Connecticut person.
I go to New York.
If a person who's just like me happens to be from New York,
can own a piece of property, then I can own that piece of property.
If they can open up a business, then I can open up a business.
If they can have free speech, or religious worship, then I can do that.
New York has to treat me, when I'm visiting New York, basically
as a New Yorker for almost all purposes, for purposes of civil rights.
There's a limit.
They don't have to let me vote in a New York election
or serve in a New York legislature or a jury or militia.
Political rights are excluded from the privileges and
immunities that New York has to give me.
Civil rights, yes.
Political rights like voting, no.
But what civil rights do they have to give me?
Equal Civil Rights with their own folks.
So for example, if a woman, let's, let's imagine that a state that,
that, a woman goes from Connecticut to New York.
Now does she get to vote in New York?
Of course not.
Because, actually no one just visiting New York gets to vote, but also
because New York women don't get to vote in, in the the 19th Century.
If the rule, for example, is that married women
in New York don't get to own real property in
their own name, because they're, they're, they're married, well, then
a Connecticut woman who goes to New York wouldn't get to
own real property in her own name if she were married,
because she just has to be treated as a New Yorker.
So Taney was afraid that if blacks went down to the
South, they'd have to be able to the right to have guns
because if they had the right to have guns in Massachusetts and
free speech in Massachusetts and, and
religious liberty in Massachusetts or Connecticut
when they went down to South Carolina that they get all those rights.
No what they would get is the rights of
South Carolina free blacks, which might not be very extensive.
So they would basically have the right
be treated as South Carolinians, and be treated,
and, and so Article Four was basically
a ban on discriminating against out-of-staters as such.
Discriminating against someone one just because they
were from Connecticut rather than New York.
So, Article Four when it talks about privileges and immunities
of citizens, is just a kind of of inter-state equality idea.
There's some other inter-state ideas in Article Four, somewhat similar if
a state court renders a judgment between two people in, in Connecticut.
A sues B, A wins, B has to pay up.
Then New York is supposed to give that state judgment full faith and credit, and
especially after Congress implemented that in a
statute, and Article Four provided for Congressional implementation.
That meant that if, if A sued B and A won, and B basically
doesn't have very much, very many assets in New York, excuse me, in Connecticut.
A sues B in
Connecticut and B loses, but all of B's money and, and,
and property is in almost all of it is in New York.
A can go over and get New York courts to, to basically follow that judgment
and, and, and use B's assets in New York to satisfy that Connecticut judgment.
New York is supposed to give Connecticut judgments full faith and credit.
Treat a Connecticut judgment the same way, in effect, it would treat a New York
judgment, in which it would generally give that New York judgment full
effect, full faith and, and credit. Okay.
So we've begun to talk about race and who counts as a citizen.
Unfortunately, the Constitution isn't crystal clear on what it means to be
a citizen.
And the 14th amendment is going to solve that problem in its first sentence
by saying everyone born in the United States is a citizen, whether you're born
black or white, Jew or gentile, male or female gay or straight.
We're all born Equal citizens and that's going to be an
important idea, that the Fourteenth Amendment's going to add, because the
Constitution talked about citizenship but wasn't completely clear on what it meant.
Women for example, and here's what it didn't mean, it didn't
mean, in order to be a citizen, you didn't have to vote.
Women, for example, didn't vote at the founding,
but they were treated as citizens under Article Four.
They got to sue and be sued in court under diversity jurisdiction which
is a provision of Article III that says citizens of one state can sue
citizens of another state, and women were always counted for that purpose.
So, to be a citizen doesn't mean you get to vote.
You're born a citizen if you're born in the United States on
the day of your birth, but that doesn't mean you're a voter.
You get, in effect, civil rights, but not political rights.
You have all sorts of rights but not necessarily rights to to vote
or to hold office, or to serve in a jury or a legislature.
Those political rights are, are treated as different from
the general civil rights of citizens.
Think about a woman, an unmarried white woman has all sorts of rights to, in most
states, of, of religious worship, of free speech
she can own property in her own name.
But she has all sorts of civil rights, but not political rights.
Not yet.
Stay tuned, we're going to figure out, we're going to find out how and
when women did get political rights later in, in our lecture series.
So we've
been talking about race and slavery a little bit.
Slavery and race is not one issue, it's six or seven or eight.
It's the status of free blacks, and whether they
can be citizens, so we've been talking about that.
It's a question of how slaves are
going to be counted for the House of Representatives.
We talked about that, the 3/5th clause, how
slaves are going to be accounted for presidential elections.
Well, the same 3/5ths
clause feeds into the electoral college.
It's about runaway slaves, what happens if people from
one state where slavery is legal, escape and, and venture
into another state, the fugitive slave issue, and we're about
to talk about that, because Article Four talks about that.
It's slavery, also we're going to need to talk about slavery in the territories.
That's a different issue and in fact,
that's going to be the issue over which the
Union basically breaks in the 1850s and
60s, the issue of slavery in the [UNKNOWN].
It's about an international slave trade.
And remember, Congress can't prohibit the importation of slaves before 1808,
but is allowed to prohibit the importation of slaves after 1808.
So, slavery, again, isn't one issue.
It's a whole series of issues and it's kind of connected, and my big claim is
going to be that the Framers failed in a way by by not using the 1808 idea more.
Okay, we're going to concede all sorts of things
to pro-slavery folks today, but after 1808 or
1828 or 1876 or 1878 or whatever, after a certain point no more concessions, no more
slave importations, no more slavery in the West, no
more fugitive slave rendition, no more extra credit for extra
slaves in the house, no more extra credit for
extra slaves in the electoral college et cetera, et cetera.
And maybe at some point no more slavery after a certain point.
Slavery shall end, even in the States, because yet another issue is slave,
slavery in the states and does Congress have the power to, to regulate that.
And the answer is not quite
under the original Constitution.
So, slavery isn't one issue, it's a series.
And let's talk about a couple of the other
issues that are front and center in Article Four.
One is the fugitive slave clause. So, under that clause
if someone runs away is a, is a lawful
slave in, in one state, say South Carolina, runs away,
escapes into a free state, say
Massachusetts, what does Massachusetts have to do?
And the Articles of Confederation didn't have an answer to this.
English law basically said, in effect, could be
read to say, well, once you make it
to free soil, once you make it to
England, basically, we're not going to enforce the slavery.
Maybe we're not going to declare you completely free and if somehow you went
back to, to South Carolina, maybe slavery might reattach.
But while you're in English soil, we're not going to let you be in chains.
Maybe, you owe an apprenticeship or something, but
no slavery will be allowed on English soil.
It won't be hereditary, maybe apprenticeship or something like that,
or indenture, but no slavery, because English soil is free soil.
So said a famous English case,
Somersett's case, and that would have been the rule I think in the United States.
The background rule of, of choice of law, of conflicts in law.
What's the general rule?
The general rule is when in Rome do as the Romans, the law of the place.
In Wyoming, you're allowed to drive 80 miles an
hour, maybe, but when you come to Connecticut, it's 55.
so, and if you want to drive 80, go back to Wyoming.
Slavery might be legal in some places but not in others, and if a slave
escapes, you know, then, then, to a free place then it's the law of freedom.
That's what the background rule might have been understood to
provide, but Article Four says no, a slave state, a a
free state, not first can't free the fugitive slave, can't
declare the person officially free, they have to give basically they
have to respect the slave state's law on this.
Not only can't they officially free the fugitive, they have to actually
send the fugitive back to the slave jurisdiction if they're
convinced that the person is really a fugitive slave, as opposed
to a free black person in the case of mistaken identity, or
someone whom been previously freed,
previously emancipated in the slave jurisdiction.
So they only have to send them back, if they really are, a fugitive slave.
And in that way, it could be seen as a bit
of a compromise between slave state interest and free state interest.
The slave states, basically, get their slave back but the free
states get to apply their own procedures for
determining whether this person really is an alleged fugitive.
And, by the way
if you didn't have that provision, there's another provision of
Article Four that says, anyone charged with a crime by
one state has to be extra, who's found in another
state has to be extradited back to the charging state.
And, and, and, and if you didn't have fugitive slave clause, maybe the South
could have said, okay, fine, we are going to charge this person with a crime.
We are going to charge the person with the crime of having stolen
the horse that he escaped on, because that was the
master's horse, having stolen the clothes and the shoes that he
was wearing because that was the master's clothes and the
master's shoes, having stolen himself, because he himself is slave property.
And it, it, and, and, and, under the, fugitive
from justice provision, the criminal justice provision, the Northern
state would've just had to send them back down
South for adjudication as to whether to they really committed
those crimes.
But the fugitive slave class, I think, fairly read, said no, actually the
Northern states are going to get a little bit more as part of this bargain.
They're going to be able to decide for themselves whether
the person is truly a fugitive slave or not.
At least that how you could have read the
Constitution, in a, in, in pro-freedom ways, anti-slavery ways.
The Taney court is going to read these provisions in very pro-slavery ways.
They're going to actually insist that Northern states send people, alleged
fugitive slaves, sort of back without being able to follow fair procedures.
They're going to uphold Congressional laws, implementing
the fugitive slave clause, even though there's
no express power in Article Four for
Congress to implement the fugitive state clause.
But, but Congress passes laws, and the Law
of 1850 is going to say the alleged fugitive,
he's only alleged, can't testify in
the Northern proceeding, can't call witnesses, doesn't
have a lawyer, and, and the judge who decides that, the magistrate will
be paid more if he decides the person's a fugitive slave then if
he decides the person is free, in a case of mistaken identity something.
So it's a dreadful law, the North is really going to rebel against it.
It's going to be one of the precipitating
factors in the civil war, the fugitive slave
clause, which gets implemented in pro-slavery ways.
It's, it's pro-slavery in it's bones to some extent, but it gets implemented
in even more aggressively pro-slavery ways by Congress and the Taney court.
But the real issue that precipitates the Civil War, the real race and slavery
issue, isn't the fugitive slave issue. There are not that many fugitive slaves.
It's the issue of slavery in the territories.
Before I say, and, and, and that's an
issue that was involved in the Dred Scott case.
In the Dred Scott case, the slave,
Dred Scott from Missouri, is taken by his master to free
soil in the North, Union territory and
then returns to Missouri and he says he's been
freed because his master took him onto free soil.
Now you might wonder why the fugitive
slave clause didn't apply in this situation.
Dred Scott didn't run away.
He wasn't a fugitive.
So, so his master voluntarily took him onto Northern free soil.
And so the fugitive slave clause.
So that's yet another issue the issue we talk
about all of the issues of slavery, here's another one.
What about some one voluntarily, a master voluntarily
taking a slave from slave soil to free soil.
Well, here is what the Constitution says about that in Article Four.
Congress has sweeping power to regulate the federal territories.
And Congress, exercising that power in the first Congress, said no, no slavery
in the Northwest Territory, north of the Ohio River, that's federal territory.
It's not yet a state, but there won't be slavery allowed there.
And and everyone who voted for the
Constitution understood that that could happen, anticipated that.
People like James Wilson actually bragged that that's what, what would happen.
That's what did happen.
So there's no rule in the Constitution that
Congress has to allow slavery in the territories.
Basically, Congress gets to choose it could have been even more pro-freedom.
It could have said no slavery in the territories will be permitted, no slavery
after 1808 will be permitted or after 1828 in the territories, it didn't say that.
It said Congress
can choose.
But in the Dred Scott, and that, and
Congress did choose to eliminate slavery from the
Northwest Territory in one of the very first
statutes Congress ever passed, the Northwest Ordinance Act.
I guess the seventh or eighth statute passed by Congress in 1789.
And Congress will later exclude slavery from an area north of a certain
line in the Missouri Compromise but Taney's going to come along in Dred
Scott and say you know what those free soil laws are unconstitutional.
Congress cannot basically prohibit slavery in the territories.
The territories have to be places
where Southern slaveholders can take their slaves.
Now, this was preposterous.
It was just making all that up, and Lincoln
thought it was preposterous.
Now, Congress doesn't even have the power to exclude slavery from the territories.
Presumably, Congress doesn't even have the power to let
the territories decide for themselves,
Stephen Douglas's popular sovereignty solution.
So in one stroke, in 1857, the Supreme Court basically says, Abe Lincoln
and the Republican Party's idea of excluding
slaves from the territories, that's unconstitution, unconstitutional.
It affects Stephen Douglas' strategy of
letting the territories decide for themselves.
That's unconstitu, pop so-called Populist sovereignty, that's unconstitutional.
This is going to precipitate a civil war.
but, blame Tawney for that. Don't blame Article Four because Article
Four actually doesn't say that. It gives Congress sweeping power over
their territories, and Congress originally exercises that in very pro-freedom
ways, free soil for the Northwest Territory.
The Northwest Territory is worth remembering
for yet another reason, because it
sets a template for how the West is going to be treated.
It says these territories will eventually become states,
admitted on equal terms with the, the 13 original states.
So, this idea which is also provided for in Article Four, that Congress is going to
have power to admit new states, is one
of the, the radically Democratic features of the Constitution.
Article Four doesn't quite require doesn't, doesn't have a detailed
regulation on how these new states are going to be admitted,
but, but the rest of the Constitution says every state gets two senators.
So if that's true of the 13 old ones it's going to be true of the new ones too.
And every state's going to be represented in the House
of Representatives and part of the Electoral College and so on.
So, the rest of the Constitution's deep structure basically says
eventually, when these territories are admitted
as states, they're going to be admitted in
effect on equal footing, and that's a
phrase that appears in the Northwest Ordinance.
The new states are going to appear on equal footing.
We are not going to be Lord over the west as, as colonizers.
They won't be perpetual colonists.
We will not treat the West the way Britain treated us.
A deep anti-imperialist
anti colonial vision in Article Four, as implemented by the Northwest
Ordinance, that these territories are going to come in on equal terms.
And
and here we see the geography idea of the nation's going to
need to expand westward, and that's going to give us a, a, buffer.
But the democratic idea as well.
They're going to come in ultimately on equal terms.
And the slavery issue weren't, the Congress is going to repent on that.
Congress will, will have the power to decide.
One other feature of Article Four, and then I'll sum up.
Article Four gives Congress the power to insist, to guarantee
that each of the existing states be, have a republican form of government.
Now by that they don't mean Republican as opposed to Democratic, that
it has to have a state legislature as opposed to initiative and referendum.
No, they mean Republican as opposed to monarchical and aristocratic.
Republican and Democratic are two different
ways of saying basically the same thing.
The party that we call the Democrat party,
Jackson's party, was founded by Jefferson and and
Madison and they refer to it originally
as the Republican party, or the Republican Democrats.
Pretty much the same thing, democratic republican mean pretty
much the same thing, republican is Latin, democratic is Greek.
They basically mean rule by the people.
Article Four says in two big things that the new territories
are going to eventually be treated as equal states, a very republican idea
no kind of colonial hierarchy, and that Congress will have the power
to ensure that the existing state never lapse into monarchies and aristocracies.
Why?
because if they do, they're going to tyrannize their own people and this
is a federal guarantee actually that we won't allow that to happen.
They're going to be threats to their neighbors because, tyrannical regimes are
not only threats to their own people but to their neighbors.
Think Saddam Hussein, think Adolf Hitler and also
if these states don't have proper republican governments, then the
building blocks of the Federal regime are going to be compromised.
Because, these states are going to have
to elect Senators and Presidential electors and
if Florida has crummy elections that's going to
affect the electoral, the continental electoral college.
So, Each state is going to have
to be, maintain minimum standards of republicanism.
This clause in the Constitution is going to,
become the most important clause of the entire document after the Civil War.
It's going to be the clause by which the North is
going to reconstruct the South and rebuild them in to republican governments.
It's going to in effect treat the South the way it has treated the West
making sure that the west has proper
republican governments before it's admitted into the Union.
Well, when the South lapsed because of the Civil War,
the North is going to sort of rebuild it and make
sure they had proper republican governments before they were readmitted.
So, this clause of the Constitution, the Republican Government
clause, has been called the sleeping giant of the Constitution.
It's going to reawaken and be the most important provision after the Civil War.
I promised I was just going to say a word
or two about this political cartoon at the end.
We see the great themes.
We see the idea of geostrategy, Join or Die.
America at, these, these colonies border on
each other; they actually have to work together.
This is, a vision of the colonies sort of working together.
So you see the geographic idea, and the
national security idea very powerfully in, in this image
of course and that's Franklin's image.
Remember, of course, the other two great themes that we've
been talking about in addition to this national security idea.
The slavery idea.
Can South Carolina really get along with New England given
that New England is anti-slavery and South Carolina is pro-slavery?
That's going to be a big question. And the Democratic idea.
Will this union hold,
if it's really divided against itself?
If it's, if some parts of
it are pro-slavery and fundamentally anti-republican that,
that don't respect equality and free
speech and free press and religious liberty.
That's ultimately going to be the crisis of the house divided.
We're going to talk a lot about that in later lectures, so stay tuned.
[MUSIC]
