American Eloquence, Volume 3: Studies In American Political History (1897)
History
American Eloquence, Volume 3: Studies In American Political History (1897)
Speeches, addresses, etc., American; United States -- History; United States -- Politics and government
It should not be overlooked that, by the Nebraska bill, the people of a
State, as well as Territory, were to be left "perfectly free," "subject
only to the Constitution." Why mention a State? They were legislating
for Territories, and not for or about States. Certainly, the people of
a State are and ought to be subject to the Constitution of the United
States; but why is mention of this lugged into this merely Territorial
law? Why are the people of a Territory and the people of a State therein
lumped together, and their relation to the Constitution therein
treated as being precisely the same? While the opinion of the court, by
Chief-Justice Taney, in the Dred Scott case, and the separate opinions
of all the concurring judges, expressly declare that the Constitution of
the United States permits neither Congress nor a Territorial Legislature
to exclude slavery from any United States Territory, they all omit to
declare whether or not the same Constitution permits a State, or the
people of a State, to exclude it. Possibly, this is a mere omission; but
who can be quite sure, if McLean or Curtis had sought to get into the
opinion a declaration of unlimited power in the people of a State to
exclude slavery from their limits, just as Chase and Mace sought to
get such declaration, in behalf of the people of a territory, into the
Nebraska bill--I ask, who can be quite sure that it would not have been
voted down in the one case as it had been in the other? The nearest
approach to the point of declaring the power of a State over slavery is
made by Judge Nelson. He approaches it more than once, using the
precise idea, and almost the language, too, of the Nebraska act. On
one occasion, his exact language is: "Except in cases when the power
is restrained by the Constitution of the United States, the law of the
State is supreme over the subjects of slavery within its jurisdiction."
In what cases the power of the States is so restrained by the United
States Constitution is left an open question, precisely as the same
question, as to the restraint on the power of the Territories, was
left open in the Nebraska act. Put this and that together, and we have
another nice little niche, which we may, ere long, see filled with
another Supreme Court decision, declaring that the Constitution of
the United States does not permit a State to exclude slavery from its
limits. And this may especially be expected if the doctrine of "care not
whether slavery be voted down or voted up," shall gain upon the public
mind sufficiently to give promise that such a decision can be maintained
when made.
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