Slavery, Antislavery, and the Coming of the Civil War

Abstract

This essay argues that law worked on two levels during the antebellum era: below the radar, law facilitated the routine functioning of the slave system and mediated the tensions among slaves, slaveholders and non-slaveholders. Above the surface, law was the object of contest between Southern pro-slavery and Northern anti-slavery forces over the future of slavery in the Union. Through a succession of constitutional "crises" involving slaves who fled to Free states and migrants who brought slaves to new territories, competing views of the legality and constitutionality of slavery increasingly came into direct conflict in legal as well as political arenas. As slaves who resisted their masters or ran away pushed difficult issues of human agency into the courtroom, they also pushed the anomalous constitutional status of slavery into the forefront of political debate, adding to growing Northern fears of an ascendant "Slave Power" conquering not only political institutions but the Constitution itself. Increasingly central on both of these levels of legal activity was the ideology of race.