Article 1, Section 9, Clause 1

Document 28

Joseph Story, Commentaries on the Constitution 3:§§ 1327--31


§ 1327. The corresponding clause of the first draft of the constitution was in these words: "No tax, or duty, shall be laid, &c. on the migration, or importation of such persons, as the several states shall think proper to admit; nor shall such migration, or importation be prohibited." In this form it is obvious, that the migration and importation of slaves, which was the sole object of the clause, was in effect perpetuated, so long, as any state should choose to allow the traffic. The subject was afterwards referred to a committee, who reported the clause substantially in its present shape; except that the limitation was the year one thousand eight hundred, instead of one thousand eight hundred and eight. The latter amendment was substituted by the vote of seven states against four; and as thus amended, the clause was adopted by the like vote of the same states.

§ 1328. It is to the honour of America, that she should have set the first example of interdicting and abolishing the slave-trade, in modern times. It is well known, that it constituted a grievance, of which some of the colonies complained before the revolution, that the introduction of slaves was encouraged by the crown, and that prohibitory laws were negatived. It was doubtless to have been wished, that the power of prohibiting the importation of slaves had been allowed to be put into immediate operation, and had not been postponed for twenty years. But it is not difficult to account, either for this restriction, or for the manner, in which it is expressed. It ought to be considered, as a great point gained in favour of humanity, that a period of twenty years might for ever terminate, within the United States, a traffic, which has so long, and so loudly up-braided the barbarism of modern policy. Even within this period, it might receive a very considerable discouragement, by curtailing the traffic between foreign countries; and it might even be totally abolished by the concurrence of a few states. "Happy," it was then added by the Federalist, "would it be for the unfortunate Africans, if an equal prospect lay before them of being redeemed from the oppressions of their European brethren." Let it be remembered, that at this period this horrible traffic was carried on with the encouragement and support of every civilized nation of Europe; and by none with more eagerness and enterprize, than by the parent country. America stood forth alone, uncheered and unaided, in stamping ignominy upon this traffic on the very face of her constitution of government, although there were strong temptations of interest to draw her aside from the performance of this great moral duty.

§ 1329. Yet attempts were made to pervert this clause into an objection against the constitution, by representing it on one side, as a criminal toleration of an illicit practice; and on another, as calculated to prevent voluntary and beneficial emigrations to America. Nothing, perhaps, can better exemplify the spirit and manner, in which the opposition to the constitution was conducted, than this fact. It was notorious, that the postponement of an immediate abolition was indispensable to secure the adoption of the constitution. It was a necessary sacrifice to the prejudices and interests of a portion of the Southern states. The glory of the achievement is scarcely lessened by its having been gradual, and by steps silent, but irresistible.

§ 1330. Congress lost no time in interdicting the traffic, as far as their power extended, by a prohibition of American citizens carrying it on between foreign countries. And as soon, as the stipulated period of twenty years had expired, congress, by a prospective legislation to meet the exigency, abolished the whole traffic in every direction to citizens and residents. Mild and moderate laws were, however, found insufficient for the purpose of putting an end to the practice; and at length congress found it necessary to declare the slave-trade to be a piracy, and to punish it with death. Thus it has been elevated in the catalogue of crimes to this "bad eminence" of guilt; and has now annexed to it the infamy, as well as the retributive justice, which belongs to an offence equally against the laws of God and man, the dictates of humanity, and the solemn precepts of religion. Other civilized nations are now alive to this great duty; and by the noble exertions of the British government, there is now every reason to believe, that the African slave-trade will soon become extinct; and thus another triumph of virtue would be obtained over brutal violence and unfeeling cruelty.

§ 1331. This clause of the constitution, respecting the importation of slaves, is manifestly an exception from the power of regulating commerce. Migration seems appropriately to apply to voluntary arrivals, as importation does to involuntary arrivals; and so far, as an exception from a power proves its existence, this proves, that the power to regulate commerce applies equally to the regulation of vessels employed in transporting men, who pass from place to place voluntarily, as to those, who pass involuntarily.

The Founders' Constitution
Volume 3, Article 1, Section 9, Clause 1, Document 28
The University of Chicago Press

Story, Joseph. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833.

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