The Constitution and the Migration of Slaves

The Yale Law Journal 78:2 (December 1968), 198–228; reprinted in Walter Berns, In Defense of Liberal Democracy (Regnery Gateway, 1984).


Shortly after the adoption of the Constitution, the South came to see the power granted to Congress to regulate commerce as a major threat to its domestic tranquility, for this power extended, or might reasonably be seen to extend, to the regulation of the slave trade, domestic as well as foreign. The question of the extent of federal power over commerce was, in the minds of Southerners, simply coincident with the question of the extent of federal power over slavery. As Charles Warren puts it,

the long-continued controversy as to whether Congress had exclusive or concurrent jurisdiction over commerce was not a conflict between theories of government, or between Nationalism and State-Rights, or between differing legal construction of the Constitution, but was simply the naked issue of State or Federal control of slavery.

American Enterprise Institute