Decades ago, I read Don Fehrenbacher's book on the Dred Scott case. I was intrigued and it opened up a huge field of interest for me in the Court and antebellum history. When I recently stumbled across another Fehrenbacher book that purported to discuss the relationship between federal and state responsibility for slavery, and given the number of authors arguing that the Constitution of 1789 provided the underpinning for slavery, I had to find a copy. Ironically, Miller's classic Arguing about Slavery and Waldstreicher's Slavery's Constitution don't mention Somerset or Warwick or the extensive debate surrounding those and several other episodes that would lead up to Taney's catastrophic decision in Dred Scott. Just what was the federal role in promoting slavery?
We often remember the Civil War as a clash of bayonets and bugles, but the real street fight started decades earlier in the courtroom. This was a high-stakes legal tug-of-war over the very soul of the American legal system: were enslaved people "persons" under the law, or were they "property" that could be owned anywhere? This wasn't just a moral debate; it was a strategic battle between two incompatible visions of the country. On one side was the "Freedom National" philosophy, which argued that liberty was the default state of the human race. On the other was the "Slavery National" doctrine, which aimed to make human ownership a federally protected right that didn't stop at state lines.
To understand how the U.S. eventually tore itself apart, we have to look at two competing legal doctrines. The Somerset doctrine treated slavery as a "local" quirk—something that only existed if a specific state law said it did. In contrast, the Southern/Taney doctrine eventually claimed that the Constitution protected a master’s "property" regardless of geography. This conflict didn't start in Washington, however; it began with a single, "odious" ruling in an English courtroom.
In 1772, a legal "Mansfieldian moment" rocked the British Empire. James Somerset, an enslaved man brought to England, escaped his master. When he was recaptured and held in chains on a ship bound for Jamaica, his case went before Lord Mansfield, the Chief Justice of the King’s Bench. Mansfield didn’t just decide Somerset’s fate; he forced a truth-telling about the future of the Empire. His ruling established a "Common Law Default" that changed the game for abolitionists, i.e., under natural law and common law, freedom is the standard state of being. Slavery is an artificial creation that is so "odious" (repulsive) that it can only exist if a local government passes a specific, written statute—known as "positive law"—to support it.
By labeling slavery "odious," Mansfield stripped it of its status as a natural right. He turned slavery into a fragile, local exception to the rule of freedom. This meant that if an enslaved person crossed a border into a place without a specific "positive law" for slavery, their status as "property" simply dissolved. They were free. Decades later, American anti-slavery activists like Joshua Giddings would weaponize this logic, arguing that because the U.S. Constitution had no federal "positive law" for slavery, the nation was, by default, a "Freedom National" zone.
When the U.S. Army under Andrew Jackson impressed an enslaved man named Warwick along with a cart, horse, and timber to build fortifications for the Battle of New Orleans in 1814, Warwick was shot through the left eye and arm, leaving him permanently disabled. In 1826, his owner, New Orleans planter Marigny D’Auterive, petitioned Congress for $1,094 in financial reimbursement, demanding payment not only for his damaged cart and wood but also for Warwick’s medical expenses and lost labor. The claim touched off a fierce 1828 congressional debate that forced lawmakers to confront whether the national government was constitutionally bound to recognize state-level property rights in human beings. While Southern representatives argued that the Fifth Amendment obligated the federal government to compensate owners whenever state law defined an enslaved person as property, Northern lawmakers countered that slavery was purely a municipal creation of state law and that federal funds could not be used to recognize "property in man." Congress ultimately struck out the claim for Warwick's injuries while approving reimbursement solely for the lost timber and cart, establishing an early precedent where the federal government refused to explicitly endorse a constitutional right to compensation for damaged human "property."
Joshua Giddings, a fiery Whig from Ohio, realized that the anti-slavery movement needed to stop making moral pleas and start winning budget fights. Using the Somerset doctrine, he argued that if slavery was merely a "local" institution, the federal government had no business spending a single dime to support it.
Giddings’s strategy was put to the test during the Creole case (1842). When enslaved people aboard the ship Creole revolted in international waters and sailed to the British Bahamas, they were declared free under British law. Southern politicians were furious and demanded the U.S. government get them compensation. Giddings stood his ground: he argued that once the Creole left Virginia’s waters, Virginia's "local" slave laws vanished. On the high seas, "Freedom National" was the rule.
He doubled down during the Antonio Pacheco case (1848–1849). Pacheco, a slaveholder, wanted federal tax dollars because his slave was "damaged" (killed) while impressed into military service. Giddings led the charge to deny the claim.
Giddings’s argument was brilliant in its technicality. He pointed out that since the Constitution never uses the word "slave," the federal government has no authority to recognize "property in man." He framed the Constitution as a "cordon of freedom"—a legal boundary where slavery could exist inside states, but was invisible to federal law. To pay Pacheco would be to "nationalize" slavery. This tactical use of the Framers' own language brings us to the carefully managed tension of the 1787 Convention.
The delegates at the 1787 Federal Convention were locked in a strategic cage match. They needed the South to join the Union, but delegates like Gouverneur Morris were disgusted by the "curse of heaven" that was slavery. Meanwhile, men like John Rutledge of South Carolina practiced "cool calculation," warning that the South would bolt if their interests weren't protected.
As historian Sean Wilentz notes, the Framers made a deliberate, strategic choice: "they would tolerate slavery where it already existed, but they would not validate it in national law." [1] This is why James Madison famously insisted it would be "wrong to admit in the Constitution the idea that there could be property in men." They chose to define slaves as "persons held to service," not "chattel property." This wasn't just emotional shame; it was a legal firewall designed to prevent slavery from becoming a national standard.
To secure the Union, they struck a "Dirty Compromise": New England delegates traded their support for a twenty-year extension of the Slave Trade (until 1808) in exchange for the South dropping a requirement that navigation laws need a two-thirds supermajority.
This "technical linguistic sense" was a vital tool. By refusing to label humans as property, the Framers left the door open for later leaders like Abraham Lincoln to argue that the federal government could legally "cordon off" slavery and put it on the path to extinction. However, Chief Justice Roger B. Taney was determined to blow that door shut.
In 1857, Chief Justice Roger B. Taney attempted to settle the tug-of-war once and for all by protecting Southern interests through a radical doctrine called "Proslavery Constitutionalism." In the Dred Scott v. Sandford decision, Taney didn't just rule against one man’s freedom; he attempted to nationalize the very "property" label the Framers had tried to keep local.
Taney effectively "inverted" the Somerset principle through a three-pronged attack. He claimed the Fifth Amendment protected slaveholder property rights above all else. If a slave was "property," the government couldn't take that property away without "due process." He argued that a slaveholder didn't lose their rights just by crossing a border into a free territory. Property, he said, was property everywhere. He claimed the right to "property in a slave is distinctly and expressly affirmed in the Constitution," turning the Framers' careful silence into a loud, national endorsement.
This ruling rendered the Somerset doctrine null and void in federal lands. It fueled Northern fears of a "Slave Power" plot to override state-level abolition. Taney tried to "fix" the 1787 paradox by forcing "Slavery National" on a country that had functioned on the assumption of "Slavery Local."
The transformation of the Somerset doctrine from an English precedent into an American cause for war represents the ultimate breakdown of the legal system. The Civil War wasn’t just a battle over the existence of slavery; it was an irreconcilable struggle over whether the U.S. Constitution recognized "property in man" or only "persons" held to labor.
The ultimate "Unintended Consequence" of this history is that the Supreme Court’s attempt to settle the "property" question through the Dred Scott case actually destroyed the possibility of any legal solution. When the law could no longer bridge the gap between human personhood and human property, the system collapsed. The "terrible paradox" created in 1787—a nation half-slave and half-free—could no longer be debated in courtrooms.
The shift from a “Slavery Local” to a “Slavery National” doctrine eliminated all legal middle ground in the United States. Using the same legal history, Giddings argued that freedom was natural and universal, while Taney reinterpreted it to argue that the national constitution required the protection of human property. This was the full circle of the Property Paradox. There were no federal laws, so Giddings argued for freedom. Taney created a new positive law of property in the Constitution that was national. The Supreme Court ruled that Congress did not have the constitutional power to ban slavery in the territories. That meant that anyone could own slaves in the territories and the idea of “Free Soil” was thrown out in those areas. Northerners were very afraid of a " Slave Power " plot . They saw it as a Southern plot to use the federal courts to eventually overturn state level abolition laws as well . Ultimately, the legal realities created by Mansfield’s bench and Taney’s court could not be reconciled, and the conflict could not be resolved through judicial reasoning or legislative compromise. These competing constitutional narratives would unravel, and the legal paradox would not be resolved until the advent of the Civil War.
The Founding Paradox, in the end, left a fragile legacy. In practice, the Constitution was a protector of slavery, but in theory, it was not. This “terrible paradox” provided the Constitution with the legal foundation to abolish slavery in the future. Some who fought for slavery, like John C. Calhoun and Roger Brooke Taney, had to say that the Constitution did recognize property in people, which was a direct and desperate change to what the framers had written. In the long run, the failure of the 1787 Convention to nationalize the legitimacy of human chattel provided future leaders with the power they needed. Abraham Lincoln made a good point in his Cooper Institute address when he said that the framers purposely called slaves "persons" to exclude the idea of property in man. Frederick Douglass was once opposed to the “covenant with death,” but later he realized that the document still leans toward freedom because it excludes this important part.** The framers moved from a standard of state-defined chattel to a standard of federal personhood, leaving behind a framework that could outlive the destruction of its most “exceptional parts.” In 1865, the political forces of freedom were finally able to keep the promise of the language of the Constitution about people.
* https://constitutioncenter.org/education/classroom-resource-library/classroom/12.3-primary-source-abraham-lincoln-cooper-union-address-1860
**Delivered in Rochester, New York, Douglass explicitly rejected the proslavery interpretation of the text:
"Fellow-citizens! there is no matter in respect to which the people of the North have allowed themselves to be so ruinously imposed upon, as that of the pro-slavery character of the Constitution. In that instrument I hold there is neither warrant, license, nor sanction of the hateful thing; but, interpreted as it ought to be interpreted, the Constitution is a GLORIOUS LIBERTY DOCUMENT."
Sources:
Finkelman, Paul, States’ Rights, Southern Hypocrisy, and the Crisis of the Union, 45 Akron Law Review 449-478 (2012)
Finkelman, P. (2014). Slavery and the founders: Race and liberty in the age of Jefferson. Routledge.
[1] Wilentz, S. (2019). No property in man: Slavery and antislavery at the nation's founding. Harvard. p. xi
