Prior to the 13th Amendment Could A Northern State Re-establish Slavery

Just wondering. I know the Ohio River and the Mason & Dixon Line were “boundaries” of sorts separating the free and slave section of the USA, but prior to the passage of the 13th Amendment was there anything to stop a “northern” state from having slavery.

Suppose Maine all of a sudden wanted to be a slave state. Or for that matter the flip side, supposing Florida wanted to free all of it’s slaves.

Obviously this wouldn’t have happened in real life, but I was just wondering


All of the northern states passed laws abolishing slavery by 1804. The new northwestern states that were created in the early 1800s were created as free states and had laws against slavery right from their start. All of this was done at the state level, though.

You’re right that it’s kinda silly to think that they would reverse their decisions and become slave states, but since the laws prior to the 13th Amendment were all state laws, if a state chose to change its laws there was nothing preventing it from doing so.

Maine, however, was bound by the conditions of the Missouri Compromise of 1820. Missouri, by its location, should have been admitted to the Union as a free state, but the pro-slavery factions felt that adding two new free states gave them too much political power. To resolve this conflict, Missouri was added as a slave state and Maine was added as a free state.

The Missouri Compromise was superseded by the Kansas-Nebraska act in 1854. This act doesn’t mention Maine, so I think they were off the hook by then, and could have possibly become a slave state if they had so chosen.

The Missouri Compromise also bound the extant northern states, plus Michigan, Iowa, Wisconsin and Minnesota as it prohibited slavery anywhere north of the 36th parallel. Until it was repealed by the Kansas-Nebraska Act, anyway.

Follow-up question: Were the restrictions in the Missouri Compromise and the Kansas-Nebraska Act on which states would and would not permit slavery constitutional? In other words, did Congress have the power to set those restrictions? Today’s understanding of the Commerce Clause would reach intra-state conduct, but back then perhaps not? And would it permit Congress to treat different states differently in this regard?

Presumably this is just theoretical, since I don’t think any court ever addressed these questions, but I thought it might be an interesting discussion.

The Missouri Compromise only applied in the Lousisiana Purchase territory, though, not to extant states. There were several slave states north of 36°30′ - Kentucky, Virginia, Maryland and Delaware.

I assume the starting point was that slavery was prohibited in the territories, that is non-state lands, where federal law applied. If you ccould not move into the area with slaves, odds are the type of voters living there when it became a state would not want that territory to become slave.

also, from Wikipedia:

IIRC the principle had not been established at that time that the state laws could be unconstitutional? That would allow states to bar slavery, but not the feds?

There was no theoretical prohibition against striking a state law on constitutional grounds, but almost none of the terms of the original constitution applied to states until the 14th amendment. No state law was struck on federal constitutional grounds until US v. Peters, 9 U.S. 115 (1809) when a Pennsylvania statute purported to bar enforcement of federal criminal sentences.

Thank you for the correction. New states only, of course.

Actually, the Missouri Compromise was tested in court, rather famously: Dred Scott v. Sandford, 1957.One of Sandford’s positions (other than that Scott was property, not a person with a right to sue) was that the Missouri Compromise which established certain states as fundamentally no-slavery zones was unconstitutional, an argument that was supported in the majority opinion:

Of course, the Missouri Compromise itself was already superseded by the Kansas-Nebraska Act, but the constitutional argument in Dred Scott pretty much guaranteed that the Federal Government couldn’t restrict slavery under normal legislation.

History rightly regards Dred Scott as a bad judgement, but as a ruling of the Supreme Court, it was authoratative until the whole issue was addressed by force.

I believe part of the process to achieve statehood is that the new state constitution had to be approved by Congress. Wisconsin, for example, could have submitted a constitution that allowed slavery. It would have been rejected due to the various compromises already established. Oregon’s first state constitution, as passed by Congress in 1859, actually excluded African-Americans from the State. It’s hard to cast this state as “anti-slavery”, they were anti-black … one could get thrown in jail just for have black skin.

Regarding slavery in territories, the first Congressional prohibition of same predates the constitution. Even the weaker Congress under the Articles of Confederation felt that it had the power to ban slavery in federal territories, and famously did so for the lands NW of the Ohio River via the Northwest Ordinance of 1787.

The 1787 Constitution grants Congress the power to adopt “all needful rules and regulations” for federal territories, which seemed to place the earlier slavery ban on solid ground. The new Congress under the Constitution repassed the Northwest Ordinance, with many framers including James Madison voting in favor, and George Washington signed it into law. Nobody raised constitutional objections.

Later Congresses continued to ban slavery in territories, down through and beyond the Missouri Compromise of 1820. None of the above prevented Roger Taney, via tortured reasoning, from finding such a ban unconstitutional in 1857. After the South seceded, Congress nonetheless told Taney to shove it and repassed a ban on slavery in all territories in 1862, and three years later the Thirteenth Amendment made the matter moot.

Regarding reestablishing slavery in a state–no state ever did this, but they certainly could have. Illinois was first settled mostly by Southerners, and after Illinois was admitted in 1818 there was a loud and active movement to convert Illinois to a slave state. The movement failed, but it was a close-run thing.

So did this implicitly disallow any of the free states’ right to ban slavery? If so, no wonder the country fell apart.

…by force and then by constitutional amendment.

And there’s a good answer to a good question in the OP. Thanks.

I don’t think Scott was a bad decision. It simply acknowledged the truth - that the U.S. Constitution embraced slavery, and racism, and the evil that entails. And the decision may have hastened the Civil War and therefore the end of slavery.

Yes, but once a state is admitted, it can change its constitution. So there wasn’t really anything to stop a free state from instituting slavery.

It was a bad decision. The meat of it was dicta, it was factually wrong, it overturned a lot of established law and precedent, and it was the result of ex parte pressure by the President.

And, beyond the legal problems with it, there was an obvious moral problem, but even if you ignore that, there were fundamental practical problems. It exacerbated an already bad political situation, and caused an economic panic.

Yeah, it was a very bad decision. For example:

Before the adoption of the Fourteenth Amendment, the Constitution didn’t really define who the “Citizens of the United States” were, but it did state that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States”, and the most logical position, and the one that most respected the powers of the states under a federal constitution, would be that the “Citizens of the United States” were simply the citizens of the several states collectively.

Well, many states had abolished slavery before the Civil War; Massachusetts abolished slavery before the adoption of the U.S. Constitution. But according to Roger Taney, even if a state chose to not only abolish slavery but to guarantee its freed slaves the full and equal rights of citizenship of that state, or chose to extend citizenship to lawfully manumitted slaves from slave states who moved to that free state, the Constitution somehow–without anything which actually said so–ruled that such a person, a “citizen of Massachusetts”, could nonetheless never be “a citizen of the United States”. (I’m carefully excluding any case of a fugitive slave escaping from a slave state to a free state and being declared to be a citizen by that free state, where–regardless of the moral merits of the case–antebellum constitutional law arguably would declare the free state’s actions in extending citizenship to the escaped slave to be improper.)

This claim doesn’t appear to have any grounding in the Constitution–even the antebellum Constitution–and was basically made by Chief Justice Taney ex culo.

Mind that those laws didn’t actually abolish slavery in 1804 though. New Jersey was the last one to pass such a law and individuals still legally owned slaves in 1865–in fact New Jersey was one of the states whose last slaves were actually freed by the Thirteenth Amendment.

Anyone born after the 1804 law wasn’t born into slavery, however if they were born to slave mothers they were considered indentured servants of their mother’s master until age 25 (21 for women.) Anyone born before the law was a full slave, so the small number still present in 1865 would have been in their 60s.

Taney was basically almost universally respected as a jurist. The decision was such a departure from that, and I can’t remember the quote here, but someone famous said it basically undid a lifetime of great work as a legal thinker and jurist in one instant and permanently blackened Taney’s name beyond all redemption. If he had been a hack his whole life it wouldn’t have been so much of a shock, but he was arguably an Oliver Wendell Holmes style respected figure in the field prior to the Dred Scott decision.

How would you have ruled?

The moral problem goes without saying, but it was far beyond the capability of the court to solve. The decision basically said “The constitution embraces slavery, and you have to deal with that one way or the other.”

Thank God. It probably helped end slavery alot faster.

The idea that property can be a citizen or have rights was not grounded in the Constitution. A state can pretend that a thing, a piece of property, a two-legged farm animal, is a citizen if it wants, but the U.S. Constitution only mentions that property as property and never as citizen. Blacks, even free ones, are still blacks, and part of the slave class–things–rather than humans with rights.

That was Taney’s basic argument, and it was both pretty good legally at the time and morally horrible - simply because it was a reflection of the moral failings of the Constitution. Taney just told people the truth about their own deeply flawed Constitution. He may not have intended it, but he did good for slaves, and all blacks, by affirming how terrible their plight was.

No, it was not good legal reasoning. Taney pulled it out his ass.

The Constitution said that slavery existed. But there is nothing in the Constitution, explicit or implied, that equated being black with being a slave. The Constitution divided people into free and slave not black and white.