| Chapter 1: | Constitutional Law and Slavery |
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The issue was not directly addressed but at least was implicated in a lower court decision in 1823 and in an attorney general’s opinion in 1824. Both rulings determined that a South Carolina law prohibiting entry of black sailors into the state’s ports was precluded by exclusive federal power over interstate and foreign commerce and foreign relations.21 Confrontation of the question in terms of citizenship or freedom, however, was avoided.
Several years later, following the adoption of similar restrictions by other southern states, another attorney general’s opinion depicted race-dependent exclusions as a legitimate exercise of state power under the Tenth Amendment.22 Although it did not address specifically the status or rights of free African Americans, the issue was addressed by Roger Taney in yet another attorney general’s opinion in 1832. Taney’s affirmation of state power was a precursor of his opinion in Dred Scott v. Sandford twenty-five years later. He thus observed that
The exclusion of black sailors from southern ports surfaced as a congressional issue during the early 1840s. A House report maintained that such state action was contrary to the supremacy clause and the privileges-and-immunities clause.24 The report, although suggesting an expanded potential for the privileges and immunities clause, had no practical impact. Congress enacted no legislation that would have enforced or effectuated the terms of article 4, section 2, in a racially significant way.Such inaction was consistent with the dominant northern sentiment that, even if opposed to slavery and supportive of broad federal power in the field of commerce, assumed the legitimacy of racial differentiations and classifications.