The Constitution, Race, and Renewed Relevance of Original Intent: ...

For him and other radical abolitionists, this defect could be accounted for only by dissolving the union. Competing with Garrison’s analysis was the notion that the federal government had no power over slavery in the states and must disassociate itself from any support for the institution.⁸ Other theorists, described as “constitutional utopians,” considered the due process and privileges and immunities clauses, notwithstanding their operation against federal power, as potential reference points for an antislavery charter or at least a theory of review favoring liberation.⁹

Multiplying perspectives of what the Constitution did or did not require were consistent with the expanding contours of debate beyond the original question of whether Congress had the authority to ban slavery in the territories. Congress’ territorial powers, if analyzed without the distorting frictions of the time, may not have presented such difficult questions or been so susceptible to competing interpretation. The exercise of such power during and after the Constitution’s drafting, with southern participation and support, suggests that the federal interest and role were largely uncontroversial. This impression is reinforced by characterizations of territorial power in circumstances unrelated to slavery. In American Insurance Co. v. Canter, the Supreme Court had determined that “[i]n legislating for the territories, Congress exercises the combined powers of the general, and of a state government.”¹⁰ Despite recognition of broad federal power over the territories, reflected by jurisprudence and by actual practice, slavery’s advocates sought to cast congressional authority more narrowly. The debate thus accelerated beyond the issue of federal neutrality and toward an eventual constitutional showdown.

Like territorial governance, the status of fugitive slaves evolved into a significant lightning rod. The fugitive-slave clause and its enabling legislation initially generated little attention or debate. As controversies arose over the disposition of fugitive slaves, the protection of slave-owner interests would move from the margins to the center of debate. Even if the actual number of slave renditions was relatively few, fugitive-slave legislation, more discernibly than territorial compromise, manifested congressional aiding and abetting of the institution.