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Yanessa L. Barnard

Excerpted from: Yanessa L. Barnard, Better Late than Never: a Takings Clause Solution to Reparations, 12 Washington and Lee Journal of Civil Rights and Social Justice 109-151, 125-151 (Fall, 2005)(Student Notes)(278 Footnotes0

To establish slavery as a taking, one must recognize that slaves had a property interest in their persons. The Supreme Court itself, at the height of the U.S. slave trade, acknowledged that every man has a natural right to the fruits of his own labor. The fact that no one can deprive him of this fruit, and appropriate it against his will, is a necessary result of this admission. Philosophers recognized and relied upon by the Framers in developing the Constitution, such as Locke, have long discussed the idea that bodily integrity may be an independent right.

Locke stated that a man's property included his life, liberty, and estate. He included life and liberty as elements of property. For Locke, one primary purpose of establishing government was for the protection of this fundamental right to property, including self-ownership. Although the right of self-ownership is subject to limitations, one's property in one's self, stated Locke, is inalienable.

Nearly all the Framers owned slaves-Jefferson owned as many as 200 - slaves and Locke himself penned the pro-slavery Carolina constitution. But even James Madison argued that property "embraces everything to which a man may attach a value and have a right." He also stated that a man has an important property interest in the safety and liberty of his person, that he has an equal property interest in the free use and application of his faculties, and that as a man is said to have a right to his property, he may also be said to have a property interest in his rights.

Although legal scholars typically accept only a minimal definition of self-ownership, a more expansive perspective exists to define self-ownership as ownership of one's liberty. This ownership is less about the body and more about the ability to make decisions and control one's destiny. It is this perspective that relates to constitutional rights of privacy and integrity. Slaves possessed these rights under both the limited and expanded definitions of self-ownership.

B. Slavery Was Illegal Before 1865

As early as 1770, a colonial Massachusetts Superior Court found slavery, pursuant to state common law, to be unconstitutional. In 1783, the court took steps to further analyze whether slavery was legal under the Massachusetts Constitution. It found that nowhere did the State Constitution expressly enact or establish slavery. The Massachusetts court further held that the idea of slavery was inconsistent with the nation's own conduct and the Constitution. As a result, there could be no such thing as perpetual servitude, unless the individual forfeited his liberty as a result of criminal conduct or by personal consent or contract.

Prior to these cases, however, the colonies themselves had outlawed slavery. The Virginia colony, for example, stated that people in the colony "shall have and enjoy all liberties, franchises and immunities within any of England's other dominions, to all intents and purposes as if they had been abiding and born within the realm of England."

A number of other colonies wrote charters to the same effect. In fact, "there were no colonial enactments that authorized the holding of slaves, or defined the relation and condition of slavery." For example, the state of Georgia commenced under auspices decidedly hostile to slavery. General James Oglethorpe, a member of the British Parliament, created the colony with the idea of opening the area for England's poor and for persecuted Protestants of all nations. As a result, the colony's governing trustees strictly prohibited slavery, and declared it to be not only immoral, but contrary to the laws of England.

In the late 1700s and into the 1800s, a number of cases emanating from state courts again held that slavery was unconstitutional. In Commonwealth v. Jennison, the Massachusetts Superior Court found that slavery had not been expressly enacted or established. In fact, the court called it "a mere practice," and stated that the Constitution declared all men were born free and equal, thus slavery was totally repugnant to the nation's ideologies.

In 1837, the Ohio Supreme Court came to the same conclusion, albeit by different reasoning. The state arrested James Birney for knowingly harboring a fugitive slave. In his defense, Birney argued three points: 1) slavery is unconstitutional, so 2) he could not have harbored a slave, as it was a non-existent status in law, and 3) certainly could not have done it knowingly. The Ohio Supreme Court unanimously ruled in Birney's favor, on the basis that Birney could not be guilty of the alleged criminal acts without an averment that he in fact knew his actions were illegal. The court noted the issue of slavery was too important to discuss if it was not necessary to resolving the case.

Cases of this nature are prevalent through this nation's early history. The question then is how and why slavery persisted. Historians have proffered a number of arguments ranging from greed to Christian duty to explain the "Why" aspect of this conundrum. Indeed, the truth may never be known, however, the "How" portion of the mystery is clear.

When the Framers of the Constitution met to mold the principles of this nation, the issue of slavery arose to confront them, forcing them to reconcile it with their philosophical ideals of human rights and personal dignities. Whereas they could have followed English common law, colonial charters, colonial courts, and the principles that stated they themselves, as Whites, could not be enslaved, they chose instead to compromise their principles for the sake of political support and regional peace. It was this newly established federal regime that instituted and protected slavery. It was the Founders, who proclaimed themselves and all men free of English tyranny, who created the basis on which states and private citizens would declare their right to buy and sell other humans like chattel. The federal government laid the foundation for slavery, for violations of human rights, for the subsequent discrimination that persists today, for the sake of politics, federal revenues, and personal comfort of its political leaders.

C. Federal Responsibility

Slavery, as would be defined and practiced by the American colonists, was virtually non-existent in England in the 18th century. In fact, a mere fifteen years before the Constitutional Convention, the King's Bench, an early English equivalent to the modern U.S. trial court, presided over by one of the most important and well-regarded judges of the time, found that slavery could not be held to exist without positive law. Since none existed in England, slaves had to be freed. Despite the fact that Somerset v. Stewart should have become a part of American common law, the absence of institutionalized slavery in England served only to motivate the colonial governments to pass statutes that created slavery as a legally protected practice.

The federal government went so far as to institutionalize slavery in its most precious document, even though these provisions would create incongruence in the document. For example, Article I, 9 of the Constitution permitted the federal government to obtain monetary benefits from slavery. The article states that "a tax or duty may be imposed on such importation not exceeding ten dollars for each person." The plain meaning of this language indicates that the federal government intended to derive monetary benefits from the slave trade. The logical extension of this is that the government, by retaining the authority to tax the traders' property, recognized the slaves as property, with its authority enforceable under the Constitution.

Furthermore, Article IV, 2, clause 3, the Fugitive Slave Clause, recognized the individual property rights of a slave owner in a slave, indicating a constitutional protection of slave property. Article IV implicitly sanctioned the product that flowed from slave property, namely, slave labor.

The Constitution's endorsement of slavery is clear. Just as clearly, the Fifth Amendment made it a violation to take property without compensation. Existing together, the two concepts are in conflict with one another. Unless we are to deny the plain meaning of the document's words as they pertain to slavery or to deny that the Fifth Amendment requires compensation, it can only mean that the slaves' constitutional rights to own property were violated and that they are owed compensation for the taking of their property.

The federal government even used the geographical expansion of the country as a vehicle for increasing the number of slave states, and ultimately the number of slaves. The government did this through the Missouri Compromise, which admitted Missouri as a slave state and Maine as a free state. This behavior continued into the mid-19th century: between 1821 and 1848 every free state (Michigan, Iowa, and Wisconsin) was countered with a slave state (Arkansas, Florida, and Texas); the Compromise of 1850 admitted California as a free state in exchange for stricter fugitive slave laws; and the Kansas-Nebraska Act divided the territory such that the former was a slave state and the latter was a free state. The government actively ensured the longevity of slavery.

After the federal government adopted slavery, government actors conducted auctions, included slaves as probate property, allowed them to be seized as assets, and passed regulations facilitating the recapture of runaway slaves. The language of the Fugitive Slave Clause itself indicates that slavery was a creature of statute and regulation.

Finally, the Supreme Court itself recognized slavery, stating that the Framers directly sanctioned slave property. This is notable, and when considering the outcome of Harry v. Decker, supports an argument that the Court proceeded based on personal biases. In Decker, a case with issues identical to those in Dred Scott, the Mississippi Supreme Court granted the slave his freedom. The fact that the highest court of a slave state would come to such a conclusion is incredible, but also an indication that even those states steeped in slave culture could and did recognize limitations to the institution already prescribed as unconstitutional.

Despite this, the Supreme Court protected the institution pursuant to the Fifth Amendment. The Fifth Amendment prohibits the federal government from depriving a property owner of their property without due process. The Court reasoned that slave property was similar to other forms of property and was thus entitled to the same constitutional protections. The Court subsequently recognized the property right of slave owners.