States and Territories, Part 2

There were never many fugitive slaves. Akhil Reed Amar explains why the clause that actually broke the Union was the one giving Congress power over the western territories.

This lecture separates slavery into the distinct constitutional questions it actually comprised: the citizenship of free Black Americans, the three-fifths count in the House and the Electoral College, the international slave trade and the 1808 date, fugitives, slavery in the states, and slavery in the territories. Amar reads interstate privileges and immunities as a rule of equal treatment rather than portable rights, which is where Taney's reasoning in Dred Scott goes wrong, and covers full faith and credit for out-of-state judgments and the gap between civil and political rights that left women citizens without the vote. He treats the Fugitive Slave Clause as a partial compromise that Congress and the Taney Court then implemented in far more pro-slavery ways, culminating in the 1850 act. The territories are the heart of the lecture: Article IV gave Congress the choice, the first Congress chose free soil in the Northwest Ordinance, and Taney declared that choice unconstitutional. The lecture ends on the Republican Guarantee Clause, the sleeping giant that would become the most important provision in the document after the Civil War.