Whoa. After the interminable list of powers of Congress, we get two doozy clauses in a row. Last week I barely hit the main points for the Necessary and Proper Clause. This week I’m looking at Article 1 §9.1, which is about immigration on the surface, and the importation of slaves in reality. I’m not sure I’m ready for this.

Article 1 §9.1

We’re still in Article 1, which deals with the legislative branch of government. Section 8 listed powers of Congress. A quick perusal of Section 9 looks like it’s going to be a grab-bag of assorted laws, the sort of thing committees come up with to make sure everyone’s pet issue gets addressed. But Clause 1 had some pretty massive moral repercussions for the fledging nation. It 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.

Surface Tension

This is one of those despicable statements that looks like it’s not about what it’s actually about. Without any context, it looks like it says the new federal government leaves immigration up to the states until 1808. It doesn’t say it will restrict the influx of people after 1808, but it can; and it can tax new additions to the population during the period leading up to 1808. But the use of the word “immigration” is misleading. The important word in this clause was “importation.” Because this clause that never uses the word “slave” is actually about the importation of slaves.

Importing Humans

According to the Annotated Constitution, this clause sanctions the importation of slaves for a period of 20 years after the adoption of the Constitution. Obviously they compromised just to pass the document, leaving the long-term question of slavery for a later discussion. But they made a profit off the compromise. Despite the built-in 20-year sunset of this clause, it was used to support the abominable decision in the Dred Scott case in 1857. Nearly 50 years after the expiration of a clause that never used the words “slave,” “black,” or “African,” Chief Justice Taney used it to show that blacks were not “citizens” under the Constitution.

Is this what they mean by dog-whistle politics?

Relevance

Even the usually excellent Annotated Constitution claims:

Today this ruling is interesting only as an historical curiosity.

I just finished reading the autobiography of Assata. With her story in my mind as I read these clauses, I can’t help but think about what reading those words must feel like to a person who was intentionally excluded from citizenship at the outset – and for roughly a century after – of this great experiment in democracy. If judges can use a clause 50 years after it expires to deny citizenship to an entire class of people, I doubt that the historical ripples of the Dred Scott case are unfelt today. How many of the problems America faces today trace back to the words in this curious historical clause?