View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by University of St. Thomas, Minnesota University of St. Thomas Law Journal Volume 14 Article 1 Issue 1 The Pre-Marbury Constitution 2018 Race, Slavery, and Federal Law, 1789-1804: The Creation of Proslavery Constitutional Law Before Marbury Paul Finkelman Bluebook Citation Paul Finkelman, Race, Slavery, and Federal Law, 1789-1804: The Creation of Proslavery Constitutional Law Before Marbury, 14 U. St. Thomas L.J. 1 (2018). This Article is brought to you for free and open access by UST Research Online and the University of St. Thomas Law Journal. For more information, please contact
[email protected]. \\jciprod01\productn\U\UST\14-1\UST101.txt unknown Seq: 1 10-APR-18 12:01 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.1 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.