J. W. Fox to Frederick Douglass, November 21, 1856

FOR FREDERICK DOUGLASS' PAPER.

POWER OF CONGRESS OVER SLAVERY.

BRO. DOUGLASS:—I see that my last piece has been copied and criticised. I propose to notice those strictures, because, other minds may be affected by similar difficulties. "If Congress can control the entire subject when a State applies for admission, why not at any time."

The powers of Congress are not defined by the usages of Legislative bodies, but by the express provisions of the Constitution. See Art. 1st, Sec. 1st, and also Art. 10th. of the amendments. When a State applies for admission, the 4th Art. makes it the duty of Congress to judge of the character of such State Constitution. But where has a given Congress the power to review the action of a previous one, and determine whether such action was Constitutional? Especially where an act like the reception of a State needs a review. Reviews and questions of law are, by the Constitution, referred to the Judiciary.—Art. 3rd, Sec. 2nd. Then what would be the effect, on the question, whether such State, was still in the Union, of a supplementary act, concerning the Constitution of such State?

The only question, that can be raised in regard to slavery, in any State, is whether the Constitution by which it is protected, is opposed to the Constitution of the U. S.? Any action of Congress would be deemed valid, only on the supposition that such action, agreed with the Constitution of the State and its reserved rights as a State. In fact, the U. S. Constitution nowhere contemplates the right of Congress to act on any such question, in regard to a State, already in the Union. But the Judiciary may review the question whether the Congress, in receiving the State, did secure to such State a Republican form of Government. Here we can find plain, straightforward Constitutional power. To abolish slavery, by a direct act of Congress, in the States, now in the Union, would be revolutionary. Because it would throw such State back to its position as a Territory. For the only Congressional action, supposable, must be an act touching the provisions of the State's reception. An act, amending the one, by which they were received,should be referred back to the people for their adoption. For Congress may not force a Constitution upon the people of a State without their own action. But the Judiciary, could decide a Constitutional question, and they must submit. For when they ask admission, they

agree to abide by the Constitution as Interpreted by the Judiciary.*

The allusion of the objector to a church, is not in point, because a church has entire and unlimited control, in all matters, pertaining to the objects of a church. But Congress, is a Legislature, with limited powers. Hence, an argument, drawn from any supposed analogy, is only a sophism.

Our critic, claims that Liberty Party President would issue his proclamation (!) and thus abolish slavery in the States !! If the Southern States should rise in rebellion, then, as an act of martial law, this might be done. But as a plan for the Constitutional abolition of slavery in the States, it betrays the greatest conceivable ignorance of executive powers.—Radical Abolitionists have objected to the plan of the Garrisonians, on the aknowledged ground that it is revolutionary. But what is this revolution? The French general so considered it, when he found the slaves of St. Domingo in this way. This is the only view that can be taken of such a mode of reaching slavery in the States. But we were describing a Constitutional mode and not one to be executed and justified only under military rule.—But some men, greatly prefer, or at least seem to rely more, upon some powder and ball way of reforming our nation, than they do upon a more peaceable and Constitutional mode of operation. What is said in regard to the position of the Republicans, I shall not notice. First—because no proof was presented. Second—because what was siad, was not said in view of the platform of the party.

Allow me to say, that a successful reply to my position, must show where, in the Constitution, Congress is authorized to legislate, in regard to the Constitution of a State already in the Union. Short of this, I think the issue will not be reached.

Yours,

J. W. FOX.

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*Whatever the notion of Congress in regard to their admission that action may be brought before the Judiciary and its argument with the law, or laws settled. Just so any and every act of Congress. Hence, the Judiciary is the only body, beyond the local State, that can ever abolish slavery, according to law. And that only on the supposition that slavery is on outlaw.