The Fugitive Slave Clause, State Action, and Congressional Power

Here are two related thoughts about the Fugitive Slave Clause.

State Action: It is often said that the Constitution only imposes obligations on government officials.  While that may be generally true, it is not clear that it is entirely true.  One famous example is the 13th Amendment, which simply prohibits slavery, rather than prohibiting the federal government or the states from imposing slavery. (“Neither slavery nor involuntary servitude . . . shall exist within the United States, or any place subject to their jurisdiction.”)

It is often argued that the 13th thus prohibits private persons from participating in slave relations.  While this is certainly a plausible interpretation of the Amendment, I genuinely don’t know if it is correct.

The other day, however, I came upon a couple of other clauses that may not have government action requirements.  The Fugitive Slave Clause provides that “No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.” 

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Next on Liberty Law Talk: A Conversation with Gordon Lloyd on the American Founding and Slavery

On the current podcast at Liberty Law Talk, I discuss with Gordon Lloyd the problem of slavery and the ratification of the Constitution. Much of the interview considers the historical scholarship that argues the Constitution is fundamentally compromised because of the protections it afforded slavery. Lloyd, however, provides interesting evidence from the Constitutional Convention and the state constitutional ratifying conventions that disputes the view that the "Constitution is a pact with the devil." We also consider the underpinnings of the Dred Scott decision and the Missouri Compromise.

Understanding Slavery and the American Founding: A Conversation with Gordon Lloyd

This new conversation in Liberty Law Talk is with Gordon Lloyd, a scholar of the American founding. Lloyd focuses on the debates in the Constitutional Convention of 1787 and the state constitutional ratifying conventions of 1788 in order to better understand the compromises leading framers made to accommodate the institution of slavery in the early republic.  Many, however, would dispute the term "compromises" and argue that it is an inaccurate understanding of the Constitution's relationship to slavery. Numerous historical arguments center on the protections the Constitution provided to slaveholders through the three-fifths clause, the fugitive slave clause, and the twenty-year…

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