On article 4 and the 5th amendment re: slavery

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    One of the chief disagreements around slavery in the territories involved article 4 of the Constitution which states that the congress can regulate the territories and the 5th amendment which states “[…]deprived of life, liberty, or property, without due process of law.” with the concern being that if the congress abolished slavery in the territories, this would be a 5th amendment breach on slave holders right to their property (i.e. slaves) in the territories ,which were seen as common property to all in the United States.

    My question has to do with “without due process of law.” What exactly would this mean? Wouldn’t the law passed by congress (presumably elected by the people from the states) which would outlaw slavery be considered due process of law?



    “Due process” from my understanding typically meant going through a trail process. So, for example, someone commits a crime, they go to court, the jury convicts them, and then the go to jail/prison. Now, I could be a bit off, but after watching most of the lectures and reading the professors’ books, that’s what “due process” entailed.

    To further that point, if “due process” meant what your second paragraph asks: “Wouldnt the law passed by Congress (presumably elected by the people of the states which outlawed slavery (in the territories) be considered due process of law?” The problem that arises with that is with Congress potentially passing an unconstitutional law. The proponents of the Consitution continually reassured the States that laws that are unconstitutional are not law at all. So, just because Congress passes a law doesn’t mean “due process.”

    While I don’t know enough about the arguments being made about slavery in the territories regarding the 5th amendment to answer your question with confidence, I do know that one of the key arguments was that outlawing slavery was unconstitutional because it prevents slave owners from moving into these new territories that were, as you mentioned above, common property of the United States. Take, for example, the end of the Mexican American War. A political battle erupted after that regarding slavery in the newly acquired territory with the argument by Southern States being along the lines of this, “We fought and died and bled for that land as much as the Northerners, so why are we not allowed equal access to the land?” While I’m paraphrasing, I happen to agree with this argument and believe the Southerners had a very strong case constitutionally against outlawing slavery in newly acquired territory.

    I’m sure the professor will clear anything up and/or correct anything I might be a bit off on.

    Hope this helps,



    Dred Scott v. Sandford (1857) is sometimes said to be the first Substantive Due Process case, as in his opinion for the Court Chief Justice Taney read a substantive protection — the right to take one’s slaves into the territories — into a procedural provision of the Constitution. If it doesn’t make sense to you now, it didn’t make sense to a good many people then, either.

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