Friday, July 27, 2007

Rich on The Rise, Fall and Revival of Pro-Slavery Federalism

William J. Rich, Washburn University, has posted an article, Lessons of Charleston Harbor: The Rise, Fall and Revival of Pro-Slavery Federalism. It appeared in the McGeorge Law Review. Here's the abstract:
Traces conceptions of sovereignty and federalism especially as shaped by events that took place in and around Charleston Harbor. Eighteenth century understanding of sovereignty drew sharp lines between state and national authority, and the Eleventh Amendment reflects that division. The belief that state sovereignty retains force even within the context of supreme federal authority did not exist when the Constitution was drafted, arose in part as a defense of slavery in the 1820s, and framed the classic debates in the 1830s between Massachusetts Senator Daniel Webster and South Carolina Senators John C. Calhoun and Robert Y. Hayne. Following the Civil War (which began when shots were fired in Charleston harbor), Congress adopted the Fourteenth Amendment Privileges or Immunities Clause to resolve prior debates and put to rest state claims of a right to resist federal authority. By focusing attention on the history of Charleston Harbor, the author explains why Congress sought to bury the pro-slavery conception of federalism, and how recent Supreme Court decisions (including the decision immunizing South Carolina from federal administrative proceedings involving ships that dock in Charleston Harbor) revived that conception. The author concludes by discussing how nineteenth century lessons apply to development of a credible twenty-first century framework for federalism.

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