The Guarantee Clause of the U.S. Constitution

By William M. Wiecek | Go to book overview

5 Slavery in the American Republic

Chief Justice Taney Luther v. Borden opinion was anomalous in one respect. Taney was usually sensitive to the implications of cases before him regarding slavery, so much so that by the late 1840s his opinions reflected an almost morbid obsession with potential constitutional challenges to the states' exclusive control of slavery.1 Yet in the Luther case, Taney entirely missed any such implications in arguments on both sides though they fairly bristled with suggestive analogies to the problems of slavery and racial discrimination.

Although Taney's vigilance lapsed, John C. Calhoun's had not. In 1843 Calhoun perceived more clearly than most the threat posed to slavery as a system of race control by the constitutional issues raised in the Rhode Island controversy. Seizing an opportunity in the form of some queries from William Smith of Rhode Island, Calhoun in mid-1843 tried to impose a definitive interpretation on the guarantee clause that would forever preclude its being used to weaken

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1
See, for example, his strained concurring and dissenting opinions in the License Cases, 5 How. 504 (U.S., 1847), and the Passenger Cases, 7 How. 283 (U.S., 1849), where he doggedly insisted on the power of a state to control chattels and persons coming within its borders and elaborated a sweeping concept of state police powers to scotch any potential federal power over the domestic slave trade under the commerce clause.

-133-

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The Guarantee Clause of the U.S. Constitution
Table of contents

Table of contents

  • Title Page iii
  • Acknowledgments vii
  • Contents ix
  • Abbreviations xi
  • Introduction 1
  • Part I - Beginnings 9
  • I - Origins 11
  • 2 - Drafting And Ratification 51
  • 3 - Domestic Violence 78
  • 4 - Luther V. Borden (1849) 111
  • Part II - Fruition 131
  • 5- Slavery in The American Republic 133
  • 6 - Reconstruction: Crescendo, 1861-1867 166
  • 7 - Reconstruction: Diminuendo, 1867-1877 210
  • Part III - Desuetude 245
  • 8 - The Progressive Era 247
  • 9- Baker V. Carr (1962) 270
  • Epilogue 290
  • Suggested Secondary Readings 305
  • Index 315
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