Privileges of states "now existing" in contrast to other states, in importation of slaves

Question

Article I, Section 9, Clause 1 of the Constitution of the United States says:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

My question is about the implications of the phrase "now existing."

Would that mean that before the year 1808, Congress could forbid importation of slaves into states other than the 13 that existed when this was written? Did they?

Answer 1

This clause was included in order to attract the Southern states to join the union. For general context, see Federalist 42,¹ Federalist 38,² and Paul Finkelman, "How the Proslavery Constitution Led to the Civil War" (2013) 43:3 Rutgers Law Journal 405.³ It originally appeared as if the "now existing caveat... empowered Congress to block slave traffic to and from any newly formed states" (James Pfander & Elena Joffroy, "Equal Footing and the States 'Now Existing' Slavery and State Equality Over Time" (2021) 89:5 Fordham Law Review).

In 1819, John Jay wrote a letter saying:

I understand the sense and meaning of this clause to be, that the power of the Congress, although competent to prohibit such migration and importation, was not to be exercised with respect to the then existing States (and only them) until the year 1808; but that Congress were at liberty to make such prohibition as to any new State, which might, in the mean time, be established, and further, that from that period, they were authorized to make such prohibition, as to all the States, whether new or old.

However, in Dred Scott v. Sandford (1857), Chief Justice Roger Taney interpreted the clause such that it required new states to be admitted on "equal footing with the other states" (p. 447) thus rejecting the interpretation I presented above. He also discreted the Northwest Ordinance as being beyond the power of Congress (pp. 435-38, 490-91).

Four states joined the union between the ratification of the Constitution in 1790 and 1808: Vermont (1791), Kentucky (1792), Tennessee (1796), and Ohio (1803).

• Vermont had already outlawed slavery before joining the union.
• Ohio was only allowed to join the union on the conditions established in the Northwest Ordinance, one of which was to prohibit slavery.
• Slavery and slave trade was allowed to continue in Tennessee and Kentucky after joining the union.

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^{1. Note: the numbering on these has varied between the "Dawson" edition of the Federalist Papers and the now accepted numbering. In the Dawson edition, these were numbered 41 and 37. Federalist 42: "It were doubtless to be wished, that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation. But it is not difficult to account, either for this restriction on the general government, or for the manner in which the whole clause is expressed. It ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate forever, within these States, a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that period, it will receive a considerable discouragement from the federal government, and may be totally abolished, by a concurrence of the few States which continue the unnatural traffic, in the prohibitory example which has been given by so great a majority of the Union. Happy would it be for the unfortunate Africans, if an equal prospect lay before them of being redeemed from the oppressions of their European brethren! Attempts have been 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 from Europe to America. I mention these misconstructions, not with a view to give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government."}

^{2. Federalist 38: "It is a matter, both of wonder and regret, that those who raise so many objections against the new Constitution should never call to mind the defects of that which is to be exchanged for it. It is not necessary that the former should be perfect: it is sufficient that the latter is more imperfect. ... Is the importation of Slaves permitted by the new Constitution for twenty years? By the old it is permitted forever."}

^{3. "Given its economic importance and its vulnerabilities, it is not surprising that the Southerners at the Constitutional Convention demanded, and won, huge concessions to protect their 'peculiar institution,' as even they were beginning to call it. ... The clauses that Pinckney and other Southerners worked hard to create set the stage for a government that both protected slavery and was deeply influenced by it. ... In supporting a specific clause in the Constitution to prevent Congress from ending the African slave trade until 1800 (it was later amended to 1808), Sherman asserted that 'the public good did not require' an end to the trade."}

Answer 2

No

It was accepted by the early 19th century that a state was a state was a state. That is, there was legally no difference between original and subsequent states and that Congress could not make laws that (directly) discriminated on the states.

What this clause is saying, is that the Federal government would not have a role in immigration until after 1808.

In 1808, the only state still permitting international trade in slaves was South Carolina and the Federal government ended that as soon as it was able to.

Smuggling through Spanish Florida remained a problem until it was acquired by the US in 1821. After that, smuggling continued on a smaller scale until the Civil War. Of course, smuggling slaves, then and now, is illegal. Modern slavery is still a problem.