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14 U. St. Thomas L.J. 1 (2018)

handle is hein.journals/usthomlj14 and id is 1 raw text is: ARTICLE RACE, SLAVERY, AND FEDERAL LAW, 1789-1804: THE CREATION OF PROSLAVERY CONSTITUTIONAL LAW BEFORE MARBURY PAUL FINKELMAN* This article suggests three things about our early constitutional his- tory-the period before the Court decided Marbury v. Madison.' While most legal scholars think of constitutional law as being about the Supreme Court, this article shows that most constitutional law in this period was a result of actions by Congress and the executive, as those two branches of the government implemented the new constitution. This article demon- strates that, in this period, Congress and the executive branch implemented and interpreted the Constitution in a way that protected slavery and under- mined the liberty of free blacks. First, we see that constitutional law in this early period was not court- centered. This was true after Marbury as well as before. In the 1790s, Con- gress and the executive branch made constitutional law as they interpreted, constructed, and implemented the Constitution. It is perhaps too much to expect this will be taught in Constitutional law courses, which are almost always court-centered. But to the extent law schools train judges, legisla- tors, and policy makers, it would be valuable to teach future lawyers that the Constitution is not just a document for judges. Second, this article shows that slavery was a controversial constitu- tional issue from the very beginning of the nation. In a nation that struggles over monuments to the Confederate States of America-a putative nation * President of Gratz College, Melrose Park, Pa. I gave this as a paper for a symposium at the University of St. Thomas School of Law while I held the Ariel F. Sallows Chair in Human Rights Law at the University of Saskatchewan College of Law in 2016 and finished much of the work on it while John E. Murray Visiting Chair at the University of Pittsburgh School of Law and the Fulbright Chair in Human Rights and Social Justice at the University of Ottawa School of Law. I thank the librarians at all three institutions for their help. 1. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).