Thursday, April 15, 2010
In response to Virginia's celebration of confederate history month, and in connection with teaching takings this week, yesterday I had my property class read Henry Clay's argument against the emancipation of humans held as slaves. Clay's argument was that if emancipation were to occur, it would constitute a taking, and thus was impermissible under the 5th Amendment without just compensation. Since the government was not prepared to provide such compensation, emancipation would be an illegal and unconstitutional act.
Anticipating the rejoinder that there could be no taking if the thing taken were not property, Clay said, "That is property which the law declares to be property." For at least 200 years, he said, both before and after the ratification of the Constitution, humans of African descent had been recognized as private property. They were not just uncompensated labor; they could be alienated, possessed exclusively, and used like other forms of private property, including as security for debt. Generations had relied on the law, and the law told them that slaves were property.
Now, I was not about to ask first-year law students to argue the position that the emanicpation of slaves without full compensation of their former owners was a legally wrong, unconstitutional act. So, I took that position (and, in case there is any misunderstanding here, I'll say now what I said to my class: of course I don't think emancipation was wrong, and I'll kick the @*&%$ of anyone who says otherwise). I then told my class to explain, if they thought I was wrong, why.
I made them focus on whether slaves had ever really been property, as the law had said they were. I did not let them argue too long that the emancipation was not a taking (in the sense that it was merely a regulation that didn't go 'far enough'), or that compensation had already been provided through the slave's labor. There are good arguments for those positions, perhaps, but they also allow us to dodge Clay's provocative claim. So I insisted they tell me: is that property which the law declares to be property?
It was a fascinating discussion, particularly in light of the typical skepticism with which my students had regarded the idea of unenumerated rights the week before when discussing zoning. I'm as skeptical of 'natural law' as the next product of the Enlightenment, and yet . . . . try as we might, we just could not accept that humans had ever legitimately been property simply because the law had declared it. But if that's true, then what is the source of authority that says otherwise? Something greater than the Constitution? And if we say yes, aren't we acknowledging and defending the existence of unenumerated rights, whether implied in the Constitution or not? Isn't that the essence (so to speak) of natural law?
Regardless, it was a fascinating exercise, and one I highly recommend for your property classes.
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