Jaffa v. Bork: an exchange - philosophical debate between Claremont Institute Senior Fellow Harry V. Jaffa and former Judge Robert Bork over issues of constitutional law and Bork's review of 'Original Intent and the Framers of the Constitution' by Jaffa

National Review, March 21, 1994

Judge Bork has now admitted at least three conspicuous clauses of the Constitution of 1787 that recognize a right of slave ownership. But, he says,

How any of this adds up to justifying
 Taney's invention of a constitutional right

 to own slaves in federal territory remains a
 complete mystery.

Bork then asserts that

  Congress has legislative power over territories
  more complete than a state legislature
  has over its state, for the state legislature
  may not interfere with the exercise of
  federal power. There can be nothing
  constitutionally wrong, therefore, if Congress
  defines what may or may not be property
  within a federal territory. In the Missouri
  Compromise, Congress said that persons
  could not be property in a designated part of
  federal territory. That is why Dred Scott
  was a usurpation of congressional power
  accomplished, Mr. Jaffa to the contrary
  not-withstanding, through Taney's invention of
  substantive due process.

Judge Bork writes as if Taney's opinion in Dred Scott was merely a judicial idiosyncrasy. In fact, it was an outcome of the firestorm over slavery in the territories that began during the Mexican War and that culminated in the Civil War. Judge Bork says that there "can be nothing constitutionally wrong . . . if Congress defines what may or may not be property within a federal territory." That may be true today, but in the generation before the Civil War, no resolution to that effect could have passed Congress. In fact, during the Mexican War, just such a resolution the Wilmot Proviso-- repeatedly passed the House and just as repeatedly was defeated in the Senate. (The Wilmot Proviso--for Judge Bork's information--said that in all the territory acquired from Mexico as a result of the war, slavery would be prohibited. Abraham Lincoln said, somewhat hyperbolically, that as a member of Congress he had voted for the Wilmot Proviso "as good as forty times.") The 1862 law that finally banned slavery in all United States territories passed during the Civil War only because the representatives of 11 slave states had withdrawn from Congress.

Long before Taney joined the Supreme Court, the Missouri Compromise ban of 1820 was widely regarded in the South as unconstitutional. It was permitted to pass, however, as a concession necessary to have Missouri admitted as a slave state. Moreover, at the time it appeared to be a settlement of all outstanding constitutional questions in regard to slavery. With the acquisition of vast new territories conquered from Mexico, all previous concessions were rescinded. In the 1850 territorial laws for Utah and New Mexico, Congress could not agree either to permit or to ban slavery. It provided that any states formed from these territories might be admitted into the Union, with or without slavery, as their constitutions might prescribe. But the crucial question was: What would be the status of slavery in the territories before the time for adoption of a state constitution? This would determine whether such constitutions would or would not sanction slavery. And on this question Congress, like the country, was irreconcilably divided. Hence it was written into the territorial laws of 1850 that any dispute about the status of slavery in any territory could be appealed directly from the Supreme Court of the territory to the Supreme Court of the United States. In short, Congress itself, and not any gratuitous intervention by the Court, handed the Court the question of the constitutional status of slavery in the territories. Of all this, Bork appears to know nothing.