Ableman v. Booth VIII: The Fugitive Slave Clause As Compact Between the States

My earlier post on Prigg v. Pennsylvania will provide some background that may be useful to understanding why Associate Justice Smith believed that the Fugitive Slave Act of 1850 was unconstitutional.

Justice Smith began by reviewing the debates at the Constitutional Convention that resulted in the various provisions contained in Article IV of the Constitution, including but not limited to the Fugitive Slave Clause. He argued that the debates showed that, in Article IV, when the Convention delegated powers to Congress, it did so explicitly. For example, Section 1 of Article IV, the Full Faith and Credit Clause, specifically provided that “the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”

Justice Smith argued that, except to the extent that it explicitly granted powers to the federal government, Article IV was simply a series of compacts among the states about how to handle certain matters among themselves. Those compacts did not authorize or contemplate any involvement by the federal government:

“The history [of the Constitution Convention debates relating to Article IV] is important, as it not only justifies and requires a distinction to be taken between grants of power and articles of compact, but it clearly demonstrates that the convention all along discriminated between grants of power to the government, and articles of compact between the states, and was extremely jealous and cautious in making such grants, and only did so when it was deemed absolutely necessary.”

One of those compacts was the Fugitive Slave Clause contained in Section 2 of Article IV, which stated:

"No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."

This clause, Justice Smith asserted, was the result of a quiet agreement “that the states would deliver up such fugitives from labor. No power was asked for the federal government to seize them; no such power was dreamed of; the proposition that the states should respectively deliver them up, was acquiesced in without any dissent."

Later, Justice Smith quoted all of Section 2 of Article IV – the Privileges and Immunities Clause, the Extradition Clause and the Fugitive Slave Clause. “Here is the whole of the section, without one word from which a grant may be inferred or implied.”

Although Justice Smith had made a strong case for the proposition that the Fugitive Slave Clause granted the federal government no power, he still had to deal with several counter-arguments. I will turn to those next.

Ableman v. Booth VII: "I Want My Skirts to be Clear"

Associate Justice Smith had rebuked Booth and his lawyer for trying to force him to rule on the consitutional issue and then held that technical defects in the warrant entitled Booth to discharge. At this point, there was no need for Justice Smith to rule on the constitutionality of the Fugitive Slave Act of 1850.

But at this point, Justice Smith does something strange. Having escaped the need to resolve the constitutional issue, he does so anyway. I will not pause to review his reasoning for doing so, which is unpersuasive, except to the extent it implicates his understanding of the relationship between the federal and state governments.

In the course of explaining himself, Justice Smith turns back to the issue of his own jurisdiction. In effect, he suggests that he, as a state judge, rather than a federal judge, should decide the constitutional issue, because the sovereignty of the states is at issue and the federal government should not determine the extent of its own powers. I quote the following passage at some length because it is a truly remarkable summary of federalist theory given its source:

"The judicial department of the federal government is the creature by compact of the several states, as sovereignties, and their respective people. That department can exercise no power not delegated to it. All power not delegated and not prohibited to the states, the states have expressly reserved to themselves and the people. To admit that the federal judiciary is the sole and exlusive judge of its own powers, and the extent of the authority delegated, is virtually to admit that the same unlimted power may be exercised by every other department of the general government . . .. But I solemnly believe that the last hope of free representative and federative government rests with the states. Increase of influence and patronage on the part of the federal government naturally leads to consolidation, consolidation to despotism, and ultimate anarchy, dissolution and all its attendant evils.

"If the sovereignty of the states is destined to be swallowed up by the federal government; if consolidation is to supplant federation, and the general government to become the sole judge of its own powers . . ., as an humble officer of one of the states, bound to regard the just rights and powers both of the union and the states, I want my skirts to be clear, and that posterity may not lay the catastrophe to my charge. . .

"Without the states there can be no union; the abrogation of state sovereignty is not a dissolution of the union, but an absorbtion of its elements. He is the true man, the faithful officer, who is ready to guard every jot of power rightfully belonging to each, and to resist the slightest encroachment or assumption of power on the part of either."

Ableman v. Booth VI: "A Wicked and Cruel Enactment"

Having duly chastised Booth's tactics, Associate Justice Smith addressed the claimed technical defects in the warrant and proceeded to find the warrant lacking in respects that are, let us say, trivial at best. They are not worth lingering over, except to see a judge engage in hypertechnicality in order to reach a particular result. For example, the warrant stated that Booth had aided the escape of Glover, who was held in service to Garland, but it did not state that Garland had "claimed" Glover. The warrant also stated that Glover was in custody when Booth aided his escape, but it did not state that Glover "was in such custody as a fugitive from labor."

Justice Smith then explained why he was prepared to rely on such trivialities:

"No greater strictness is applied to this warrant than the law applies to all process of that class; though a much stricter rule might be justified; for this is a wicked and cruel enactment, and those who feel compelled to execute it, may well require of those who demand official service at their hands, that in taking their 'pound of flesh' they shall not 'shed one drop of christian blood.'"

(Emphasis added)

For these reasons, Justice Smith concluded that the warrant was "clearly, substantially and radically insufficient, and the petitioner is therefore entitled to a discharge."

Table Shot!

Better late than never: here's a picture of the Christmas table.

Ableman v. Booth V: Booth's Trial Strategy

As I have explained, Booth's initial habeas corpus petition alleged that his detention was illegal for two reasons: the Fugitive Slave Act of 1850 was unconstitutional, and the warrant contained technical defects.

At the hearing before Associate Justice Smith, however, Booth's attorney, Byron Paine (pictured), sought to withdraw the second objection, based on technical defects. He was presumably acting on the intructions of his client, Booth, who was trying to force Justice Smith to rule on the constitutional issue.

This drew an angry rebuke from Justice Smith:

". . . I do not admit the right of the citizen to complain to me of illegal imprisonment, and apply for a writ of habeas corpus for his discharge therefrom, and then waive or decline his discharge except upon such grounds only as he shall see fit to prescribe. While I am willing faithfully to discharge my duty in every instance when called upon, and to extend the protection of the law to every person entitled to its protection, I do not admit the right of any one to devise a fictitious imprisonment, merely to experiment upon my opinions or research in regard to particular questions of law which may chance to be deemed of more or less interest in the community. . ..

"I shall take this case, therefore, as the petition and the return too the writ present it for adjudication."

Ableman v. Booth IV: Smith on Jurisdiction

The proceedings in Wisconsin actually involved a number of cases and a number of decisions. The first of those decisions, In re Booth, 3 Wis. 1, 1854 WL 100 (1854), is by our friend, Associate Justice Abram D. Smith (pictured). It addresses a writ of habeas corpus that Sherman Booth filed after he was arrested but before he was indicted. To place the opinion in context, I must briefly describe what seems to have happened, in somewhat simplified form.

After Booth and others freed Glover on March 11, 1854, Booth was arrested on the basis of an order of Winfield Smith, "a commissioner duly appointed by the [federal] district court of the United States for said district [of Wisconsin]." In other words, Winfield Smith was not a state official or a federal judge, but rather an appointed federal "commissioner" under the Fugitive Slave Act of 1850. As such, Section 1 of the Act gave him the powers of "arresting, imprisoning or bailing" "offenders for any crime or offense" under the Act.

To make a long story short, Booth was bailed, rearrested, rebailed and rearrested. Ultimately, on May 26, 1854, he was jailed to await indictment and trial.

Booth immediately petitioned the Wisconsin Supreme Court for a writ of habeas corpus. He argued that he should be freed for two reasons: first, the Fugitive Slave Act of 1850 was unconstitutional; and second, that the warrant that served as the basis for his arrest contained technical defects (such as the fact that it described Glover as "property" rather than using the statutory phrase "person held to service or labor").

Because the full court was not then in session, Associate Justice Smith heard the case alone on May 29 and 30, and issued his decision on June 7.

Before reaching the merits, Associate Justice Smith had to decide whether he even had jurisdiction to do so. Booth was in federal custody, but Smith was a state judge. Smith concluded that his exercise of jurisdiction would not impinge on the rights of the federal government because the warrant was issued by a commissioner and not by a federal judge. The commissioner was not independent and did not have true judicial powers:

"The warrant, by virtue of which the petitioner was held, was not issued by a federal judge or court, but by a commissioner of the United States. No exclusive or ultimate jurisdiction can be claimed for an officer of this kind. As one of the justices of the highest judicial tribunal of this state . . . I could not deny to any citizen or person entitled to the protection of the state, the proper process by which the validity of a warrant issued by such authority, could be examined. Nor can I admit, that a court commissioner, holding his appointment at the will of the court, responsible only to such court -- in fact, irresponsible and unimpeachable -- has the right or power to issue any process by which a citizen of the state may be imprisoned, that may not be examined, and its its validity tested, by the proper judicial authority of the state. . ..

" . . . [T]he States will never submit to the assumption, that United States commissioners have the power to hear and determine upon the rights and liberties of their citizens, and issue process to enforce their adjudications, which is beyond the examination or review of the state judiciary. . ..

"Every jot and tittle of power delegated to the federal government will be acquiesced in, but every jot and tittle of power reserved to the staes will be rigidly asserted, and as rigidly sustained."

Ableman v. Booth III: Abram D. Smith

Let's take a brief look at the first judge we're going to encounter. Abram D. Smith was born in 1811 in Lowville, New York. He became a lawyer and in 1842 moved to Milwaukee, Wisconsin, where he opened a practice.

When the Supreme Court of Wisconsin was reorganized in 1853, he was elected an Associate Justice. He served on the court until June 1859, when he was defeated. He was replaced, ironically enough, by Byron Paine, who had served as Sherman Booth's attorney in the various proceedings before the Wisconsin Supreme Court. He died in 1865.

A bit more about Associate Justice Smith may be found here.

Ableman v. Booth II: Joshua Glover

Joshua Glover was the fugitive slave whom Sherman Booth and others freed on March 11, 1854. What do we know about him? The drawing to the right is supposedly of him, although I would guess it is entirely imaginative.

The little we know about Glover emerges from recitations in the opinions describing the affidavit made by his master seeking his return. The master, Benammi S. Garland, was "a farmer and carried on a farm about four miles from" St. Louis, Missouri. In March 1854, Glover was "forty-four or forty-five years of age," so he was born in about 1810. Garland purchased Glover "as a slave for life" in Missouri on January 1, 1849. Garland used Glover "as foreman on his said farm from the time of said purchase to the time of the escape" and "had seen the said Joshua daily" until then. Glover "ran away" "in the Spring of 1852" and had thus been at liberty for two years.

Physically, Glover was "about five feet, six or eight inches high, spare built, with rather long legs, very prominent knuckles, had large feet and hands, had a full head of wool, eyes small and inflamed, was of dissipated habits, was of rather an ashy black color, had one of his shoulders stiff from dislocation, and had stooping shoulders, and a slow gait."

Ableman v. Booth I

I haven't finished with Lemmon v. People yet, but I'm enjoying reading and writing about pre-War state court opinions that shed light on attitudes about slavery and the roles of the state and federal governments. I thought another interesting project would be to look into the state court decisions underlying the United States Supreme Court decision in Ableman v. Booth, 62 U.S. 506 (1859).

Very briefly (at this point), the Supreme Court case arose out of an incident in Wisconsin, in which Sherman M. Booth (pictured above), among others, freed a fugitive slave, Joshua Glover, who had been taken into custody by a Deputy United States Marshal pursuant to a warrant issued by a United States Federal District Judge. Booth was indicted and criminally convicted in federal court for aiding and abetting an escape in violation of the Fugitive Slave Act of 1850. A description of events is available here.

Notwithstanding that the federal court was exercising jurisdiction, the Supreme Court of Wisconsin heard Booth's petition for habeas corpus, determined that the Fugitive Slave Act of 1850 was unconstitutional and Booth's incarceration therefore unlawful, and ordered him set free.

In the Supreme Court, Chief Justice Taney wrote for a unanimous Court that the Supreme Court of Wisconsin lacked jurisdiction and reversed. In one of the many ironies of antebellum jurisprudence, Justice Taney endorsed in ringing language the principle of federal judicial supremacy:

"The Constitution was not formed merely to guard the States against danger from foreign nations, but mainly to secure union and harmony at home; for if this object could be attained, there would be but little danger from abroad; and to accomplish this purpose, it was felt by the statesmen who framed the Constitution, and by the people who adopted it, that it was necessary that many of the rights of sovereighty which the States then possessed should be ceded to the General Government; and that, in the sphere of action assigned to it, it should be supreme, and strong enough to execute its own laws by its own tribunals, without interruption from a State or from State authorities."

"The language of the Constitution, by which this power is granted, is too plain to admit of doubt or to need comment. It declares that 'this Constitution, and the laws of the United States which shall be passed in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.'

"But the supremacy thus conferred on this Government could not peacefully be maintained, unless it was clothed with judicial power, equally paramount in authority to carry it into execution; for if left to the courts of justice of the several States, conflicting decisions would unavoidably take place, and the local tribunals could hardly be expected to be always free from the local influences of which we have spoken. And the Constitution and laws and treaties of the United States, and the powers granted to the Federal Government, would soon receive different interpretations in different States, and the Government of the United States would soon become one thing in one State and another thing in another. It was essential, therefore, to its very existence as a Government, that it should have the power of establishing courts of justice, altogether independent of State power, to carry into effect its own laws; and that a tribunal should be established in which all cases which might arise under the Constitution and laws and treaties of the United States, whether in a State court or a court of the United States, should be finally and conclusively decided. Without such a tribunal, it is obvious that there would be no uniformity of judicial decision; and that the supremacy, (which is but another name for independence,) so carefully provided in the clause of the Constitution above referred to, could not possibly be maintained peacefully, unless it was associated with this paramount judicial authority."

"[A]fter . . . the State judge or court [is] judicially apprized that the party is in custody under the authority of the United States, they can proceed no further. They then know that the prisoner is within the dominion and jurisdiction of another Government, and that neither the writ of habeas corpus, nor any other process issued under State authority, can pass over the line of division between the two sovereignties. He is then within the dominion and exclusive jurisdiction of the United States."

62 U.S. at 517-18, 523.

Although this language seems startling coming out of the mouth of Chief Justice Taney, it seems clearly correct. How, then, did the Supreme Court of Wisconsin justify its position and claim jurisdiction? On what grounds did that court determine that the Fugitive Slave Law of 1850 was unconsitutional? And was it correct? In future posts, I look at the decisions of the Wisconsin Supreme Court and discuss these and related issues.

Name That Court: A Clue

Here's a clue to help you answer the "name that court" quiz in the post immediately below. The man pictured was the Chief Justice of the state supreme court and the author of the opinion from which the quote was taken.

Don't cheat by right-clicking on the picture, which will reveal the source of the picture and the name of the state in question!

Guess the Antebellum Court

Here is a quote from a state supreme court, written in the early 1850s. You get to guess which court wrote it:

"[L]et it be constantly borne in mind, that notwithstanding we may have different governments, a nation within a nation, imperium in imperio, we have but one people; and that the same people which, divided into separate communities, constitute the respective State governments, comprise in the aggregate, the United States Government; and that it is in vain to shield them from a blow aimed by the Federal arm, if they are liable to be prostrated by one dealt with equal fatality by their own.

" . . . .

"From such State rights, good Lord deliver us! I utterly repudiate them from the creed of my political faith!"

(The italics are in the original.)

Lemmon v. People XI

Having established his foundation, Judge Clerke began building on it by asking a rhetorical question:

"Is it consistent with this purpose of perfect union, and perfect and unrestricted intercourse, that property which the citizen of one State brings into another State, for the purpose of passing through it to a State where he intends to take up his residence, shall be confiscated in the State through which he is passing, or shall be declared to be no property, and liberated from his control?"

20 N.Y. at 636.

In order to answer the question, Judge Clerke first turned to the "the law of nations" for support. Under that law, he asserted, "the citizens of one government have a right of passage through the territory of another, peaceably, for business or pleasure; and the latter acquires no right over such person or his property." Moreover, foreign nations yield this privilege to each other "without any express compact. It is a principle of the unwritten law of nations." Id.

As you may guess, Judge Clerke then concluded that, if sovereign nations, unbound by compact, granted this privilege to one another, a fortiori "this principle is much more imperative on the several States." "For it can be clearly deduced, as we have seen, from the compact on which their union is based." Id.

Judge Clerke has one more hurdle to pass: are slaves "property," or is that term limited to "merchandise or things?" And who defines the term? We will deal with these issues in our next installment.

Lemmon v. People X

Judge Wright, ironically, voted in favor of freeing the eight slaves by insisting that the Constitution strictly limited the powers of the federal government to those specifically enumerated. Conversely, Judge Clerke voted to reverse by looking to the broad purposes of the Constitution as he perceived them rather than focusing on specific clauses or powers. In many ways, Judge Clerke's opinion is a remarkably "loose" and “liberal” one.

Judge Clerke agreed that the New York statute applied to the situation and, but for constitutional considerations, required freeing the slaves. “But it is a question of much greater difficulty, whether the Legislature had the constitutional power to do so.”

The Constitution, Judge Clerke asserted, “not only establishes a confederacy of States, but also, in regard to its most material functions, it gives this confederacy the character of a homogeneous national government.” The framers “evidently designed to incorporate this people into one nation, not only in its character as a member of the great family of nations, but also in the internal, moral, social and political effect of the Union upon the people themselves.”

From this, Judge Clerke in effect derived what we would today call the right to travel:

“It was essential to this grand design that there should be as free and as uninterrupted an intercommunication between the inhabitants and citizens of the different states, as between the inhabitants and citizens of the same State.”

20 N.Y. at 634.

In the remainder of the paragraph, Judge Clerke repeatedly invoked the “more perfect union” language of the Preamble and listed many of the provisions of the Constitution (including the Interstate Commerce Clause and the Privileges and Immunities Clause) that were designed “better to secure and perpetuate mutual friendship and intercourse among the people of the different States.” Based on this review, he concluded as follows:

“Most assuredly, the people who adopted the present Constitution did not intend that the intercourse between the people of the different States should be more limited or restricted than the States, in their corporate capacity, provided in the Articles of Confederation. On the contrary, they contemplated, as we have seen, a more perfect union, and a more perfect and unrestricted intercourse; and they amply secured it by the provisions to which I have referred.”

20 N.Y. at 635-36.

In the next post, we will see how Judge Clerke uses this foundation.

Lemmon v. People IX

I have reviewed, more or less completely as the case may be, the majority opinions of Judges Denio and Wright and the brief dissents of Chief Judge Comstock and Judge Selden.

The third dissenter, and the only judge who wrote a dissent of any length, was Thomas W. Clerke. Judge Clerke bears a very odd, double role in the case. He seems to have been a Justice of the Supreme Court who was sitting as a Judge of the New York Court of Appeals "ex officio." In all honesty, I'm not sure what this means in this context. Probably, he was a senior judge of the Supreme Court who sat on the Court of Appeals either by virtue of his seniority or by designation.

Judge Clerke's role was particularly unusual, first, because he a member of both the Supreme Court panel whose decision was appealed to the Court of Appeals, and of the Court of Appeals when it heard and decided that appeal. In other words, he sat in review of the decision of the panel of which he himself was a member.

Second, and even more oddly, he voted differently on the two panels. In the Supreme Court, he voted to affirm (and thus in favor of freeing the slaves). At the Court of Appeals, he voted to reverse the Supreme Court panel (including himself)!

In his Court of Appeals dissent, Judge Clerke even mentioned his change of view. He referred to "the judge who decided this case in the first instance (by whose reasoning, I may be permitted here to say, I was erroneously influenced in voting at the general term of the Supreme Court in the first district)."

20 N.Y. at 636.

Very, very strange.

Lemmon v. People VIII

I have previously noted that the opinion of Judge William B. Wright for affirmance contains several passionate denunciations of slavery. Apart from that rhetoric, the substance of the opinion is quite similar to that of Judge Denio, and I therefore will not discuss it at length.

One aspect of the opinion worth noting, however, is Judge Wright's emphasis on the limited powers of the federal government. Judge Wright almost certainly was savoring the irony as he used the doctrine of states' rights to strike a blow at the slave states in a passage such as this:

"Is there anything in the Federal Constitution to hinder the State from pursuing her own policy in regulating the social and civil condition of every description of persons that are or may come within her jurisdictional limits, or that enjoins on her the duty of maintaining the status of slavery in the case of slaves from another State of the Union voluntarily brought into her territory? It ought not to be necessary at this day to affirm the doctrine, that the Federal Constitution has no concern, nor was it designed to have, with the social basis and relations and civil conditions which obtain within the several States. The Federal Constitution is but the compact of the people of separate and independent sovereignties, yielding none of the rights pertaining to those sovereignties within their respective territorial limits, except in a few special cases."

20 N.Y. at 620-21.

Or this:

"It has never yet been doubted that the sovereign powers vested in the State governments remain intact and unimpaired, except so far as they are granted to the government of the United States; and that the latter government can claim no powers which are not granted to it by the Constitution, either expressly or by necessary implication. There is no grant of power to the Federal Government, and no provision of the Constitution from which any can be implied, over the subject of slavery in the States, except in the single case of a fugitive from service."

20 N.Y. at 628.

Finally, in the supreme irony, he invokes Dred Scott:

"Indeed, the exclusive right of the State of Missouri to determine and regulate the status of persons within her territory, was the only point in judgment in the Dred Scott case, and all beyond this was obiter [dictum, that is, extraneous discussion that was unnecessary to the decision and therefore not binding on other courts]. [Citations omitted.] Any other doctrine might prove more disasterous to the status of slavery than to that of liberty in the States, for, from the moment that it is conceded that, by the exercise of any powers granted in the Constitution to the Federal Government, it may rightly interfere in the regulation of the social and civil condition of any description of persons within the territorial limits of the respective States of the Union, it is not difficult to foresee the ultimate result."

20 N.Y. at 624-25.

This last passage seems to me to be a veiled threat to the Taney Court: if you hold that the Constitution requires a State to admit slaves, a Republican Court will in the future use your reasoning to compel southern States to abolish slavery.

Millard Fillmore Says "Ouch!"

Apparently in order to take a silly swipe at President Bush, Millard Fillmore's Bathtub gratuitously bashes its own eponym:

"Millard Fillmore is widely considered to be one of the worst, or most inactive, presidents in U.S. history. He was an accidental president, taking office on the death of Zachary Taylor. Trying to avoid controversy and confrontation he let fester many of the problems that would lead to the Civil War. He was a one-term president — his own party refused to nominate him for election on his own, in 1852. After the Whig Party crashed and burned, Fillmore accepted the nomination of the American Party, more commonly known as the Know-Nothing Party, in 1856. 'Millard Fillmore' is shorthand for 'failed presidency' in most lexicons."

I suppose one's view of President Fillmore may depend on what you think of the Compromise of 1850, but the claims that he was "inactive" or that he presided over a "failed presidency" are ludicrous. Shortly after becoming president, he vigorously endorsed the proposed Compromise, and his advocacy probably contributed to its successful passage. The Whigs failed to renominate him largely because he was unwilling to employ patronage to reward Whig bosses. No doubt, the Whigs later came to rue their foolish decision.

While his later acceptance of the American ("Know-Nothing") Party nomination in 1856 was not his finest hour, there were several mitigating factors. First, it's worth remembering that the Whig Party was dead and buried as a national party by 1856, and many former Whigs who found the Republicans unacceptable turned to the American Party as to the only other viable alternative to the Democrats. Second, the Americans nominated Fillmore in absentia and without his knowledge (he was in Europe, I believe). Bored and depressed from the deaths of his wife in 1853 and daughter in 1854, Fillmore accepted the nomination upon his return but did not, to the best of my knowledge, make any statements endorsing its nativist rhetoric.

I have previously posted a brief appreciation of Fillmore and his presidency here.

Merry Christmas!

Hiram Denio

Since I'm in the middle of discussing Judge Hiram Denio's opinion in Lemmon v. People, I thought I'd provide a photo and brief bio. The following is from the New York State Courts site:

"Born in Rome, New York, on May 21, 1799, Hiram Denio commenced his legal studies at the age of 17 with Judge Joshua Hathaway of Rome and later studied in the office of Storrs & White in Whitesboro. After admission to the bar in 1821, Denio established a private practice with Wheeler Barnes in Rome. While in Rome, he was appointed County District Attorney, serving in this position from 1825 to 1834. In 1826, he relocated to Utica, forming another legal practice, this time with E.A. Wetmore. In 1834 he was appointed Circuit Judge and Vice-Chancellor for the 5th Circuit. However, four years later, he was forced to resign due to illness, returning to private practice once more. He served as Bank Commissioner from 1838 to 1840. In 1845 Judge Denio assumed the position of Reporter, publishing five volumes of the Reports before leaving the post in 1848. Appointed to fill a vacancy on the Court of Appeals in June 1853, he was reelected twice, serving as Chief Judge from 1856 through 1857. Considered one of the foremost judges in New York, he retired in 1866. Judge Denio served as trustee of Hamilton College from 1835 until his death. In 1859, Madison University (now Colgate University) awarded him the honorary degree of LLD. With William Tracy, he edited an edition of the revised statutes of New York published in 1852. Judge Denio died in Utica, New York, on November 5, 1871."

Lemmon v. People VII

Next, Judge Denio turned to the first of the objections raised by Mr. Lemmon. The New York law, was is argued, violated the Privileges and Immunities Clause, which provides that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

To address this argument, Judge Denio engaged in a long and scholarly review of the history of the Clause, starting with the inclusion of its predecessor in the Articles of Confederation. He drew the conclusion that the meaning of the Clause “is, that in a given State, every citizen of every of other State shall have the same privileges and immunities – that is, the same rights – which the citizens of that State shall possess.” 20 N.Y. at 608. On the other hand, the Clause did not grant to citizens of other States more rights than the State granted to its own citizens. “But where the laws of the several States differ, a citizen of one State asserting rights in another, must claim them according to the laws of the last mentioned State, not according to those which obtain in his own.” 20 N.Y. at 609.

In this context, Judge Denio denied that the Clause had anything “to do with the doctrine of international comity.” Under that doctrine, one State may defer to the laws of another, but it depends in part upon “the presumed assent of the legislative authority of the particular State in which the right is claimed; and an express denial of the right by that authority is decisive against the claim.” 20 N.Y. at 609. Here, there was such "an express denial" because the statutory history demonstrated that the New York legislature had already decisively spoken.

My reading of the decision leads me to conclude that Judge Denio was an extremely smart and clever lawyer. The discussion of comity together with the Privileges and Immunities Clause is at first somewhat surprising, because the doctrine of comity does not depend on the Clause. It is a flexible, quasi-equitable doctrine that typically comes into play in international relations (as Judge Denio concedes), where the Clause does not exist.

It is in the discussion immediately following that we see why the Judge has joined the two. By eliminating the flexibility of comity, which might have permitted the Virginians to keep their slaves provided they remained in New York only temporarily, Judge Denio was able to reduce the choice-of-law question implicit in the Privileges and Immunities Clause to an either-or, all-or-nothing proposition. This leads to a classic reductio ad absurdum, which the Judge paints with relish:

“If the owner of these slaves is not in like manner bound [by New York law, as New York citizens are], it is because . . . [Mrs. Lemmon] has brought with her, or sent with them [the slaves], laws of Virginia, and is entitled to have those laws enforced in the courts, notwithstanding the mandate of our own laws to the contrary. But the position of [Mrs. Lemmon] proves too much. The privileges and immunities secured to the citizens of each State by the Constitution are not limited by time, or by the purpose for which, in a particular case, they may be desired, but are permanent and absolute in their character. Hence, if [Mrs. Lemmon] can claim exemption from the operation of the statute . . . on the ground that she is a citizen of a State where slavery is allowed, and that our courts are obliged to respect the title which those laws confer, she may retain slaves here during her pleasure; and, as one of the chief attributes of property is the power to use it, and to sell or dispose of it, I do not see how she could be debarred of these rights within our jurisdiction as long as she may choose to exercise them. She could not, perhaps, sell them to a citizen of New York, who would at all events be bound by our laws, but any other citizen of a slave State – who would equally bring with him the immunities and privileges of his own State – might lawfully traffic in the slave property.”

20 N.Y. at 609-10.

Having demonstrated that the alternative would transform New York into a slave market, Judge Denio drew the obvious conclusion:

“The answer to the claim in that aspect has already been given. It is that the owner cannot lawfully do anything which our laws do not permit to be done by one of our own citizens, and as a citizen of this State cannot bring a slave within its limits except under the condition that he shall immediately become free, the owner of those slaves could not do it without involving herself in the same consequences.”

20 N.Y. at 611.

Popular History Vs. "Real" History?

Dmitri Rotov at Civil War Bookshelf has a post discussing James McPherson-type narrative history (which he seems to deny is “history”) versus “the discipline of history.” Although it’s a thoughtful post (and although he’s kind enough to quote me – thanks!), I must say I still don’t get it. To explain why, let me start by quoting from Dmitri’s post:

“On the contrary, the overwhelming experience of history begins at some point after the facts, dates, and (yes) storyline have been mastered. Fail to master those, and you cannot begin to engage this as hobby or discipline. The reading (and listening) experience called history rests on combinations of details that never stop surprising, delighting and challenging.

“History taught as story cuts out the legs from under those who might eventually learn to love history - perhaps even study or write history - and converts them into readers of nonfiction genre narrative, usually second rate literature with appallingly low history content.

“The question is how many of those nonfiction readers cross over to discerning history readers: direct mail specialists call this the "conversion rate" and I personally think it is miniscule. . ..

“Well, it is not history except that it uses historical materials more or less the way a novelist would use them. It is genre literature written to entertain - not in the way a crossword puzzle does, or even a detective novel, but in the same way a Western works - black hats, white hats, a struggle, a showdown, the end.

“I am selfishly concerned that a generation of people with no historical sensibility to whom McPherson and Goodwin have been portrayed as "historians" is making my life miserable. If McPherson and Goodwin were represented to newbies as the starting point in a long journey, then I should keep quiet. But if held up as representatives of this discipline called history they merely encourage newbies to read more authors like DKG and McP. They become a gateway to more Goodwinism, not to history.”

History as Narrative

To begin with, I just don’t understand why narrative history isn’t “history.” Herodotus called his work “Historiai” – “Inquiries” – because he was for the most part recording tales told to him by locals in response to questions he asked in the course of his travels. What he produced, naturally enough, was a series of dramatic narrative stories.

Even if you do not consider Herodotus a true “historian,” no one doubts that his successor, Thucydides, was. And yet he, too, recounts the history of the Peloponnesian War in chronological terms, using techniques (such as reconstructed speeches and dialogs) that would be condemned if used today, to create “you are there” excitement.

And so on with all the great Roman historians, such as Livy (whose histories are called “The Annals” because they tell their story in chronological format), Sallust and the superb Tacitus. All tell riveting stories in largely narrative and chronological format. All intentionally strive to relate their stories in ways and using techniques designed to heighten dramatic tension and get their readers to “experience” the past. And talk about black hats and white hats! Livy described his task as “putting on record the story of the greatest nation in the world.” Nobody reading the Annals is going to mistake Tarquin the Proud for one of the good guys.

Is Narrative History Dangerous?

Putting aside whether narrative history is “history,” I am also confused by the sense I get from Dmitri’s post that narrative tales of the past are somehow dangerous (“convert[ing people] into readers of nonfiction genre narrative, usually second rate literature with appallingly low history content”). I have no idea what the empirical evidence shows (or even whether there is any), but it certainly is at odds with common sense and, in my case, personal experience.

As even Dmitri concedes, you can’t begin to understand or appreciate “real” history (as he understands it) until you master “the facts, dates, and (yes) storyline.” But how do you do that? By reading your Livy – or your James McPherson. You may decide that Hannibal crossing the Alps, or Lee invading Pennsylvania, is not your cup of tea, and that you want to play video games instead. But you presumably learned something and know more now than you did before you read them. Can that possibly be a bad thing? And if those stories don’t grab you, you’re never going be reading monographs anyway.

And how else does one become interested in history? I’d guess that most classical history professors were inspired by “simplistic” accounts of Thermopylae, or Horatio at the Bridge, or the Rape of Sabine Women, or Hannibal Crossing the Alps.

I have not reviewed a list of the histories in the libraries of, say, John Adams or Thomas Jefferson, but I’d guess their libraries were heavy with narrative histories, including narrative histories that in some respects were wildly inaccurate – far more inaccurate than anything in McPherson. (I think it’s widely known that Jefferson’s views of early English history, for example, were downright bizarre; I assume he got those views from somewhere.) And yet they seem to have turned out all right, because, I suspect, the histories they read inspired them, even though those histories may not have satisfied Dmitri’s rigorous standards.

Those ancient stories inspired me (I am not a historian, but I wound up majoring in Classics in college). Barbara Tuchman’s dramatic narrative The Guns of August inspired me to read a good deal of World War I history. And McPherson and Ken Burns were the starting points of Civil War reading. They didn't do me many any harm.

Finally, I’m not aware that “popular” historians such as McPherson explicitly or implicitly tell their readers that they should not or need not read more on the periods or topics they cover. I presume most readers of McPherson stop with him, feeling they’ve gotten a sufficient feel. But is it fair to blame McPherson for that?

I don’t mean to give Dmitri too hard a time. When you’ve read deeply in a particular area and realize how complex it is, it can be frustrating to see more broad-brush accounts that, in your view, miss subtle but key points that have changed your analysis or perspective. But is that a legitimate reason to condemn narrative histories that are sufficiently dramatic and entertaining to lure tens of thousands of readers, who will surely learn more from the experience than they would reading a romance novel or playing video games?

Stephen Breyer Says "Ouch!"

In the June 2006 issue of The Harvard Law Review, Judge Michael W. McConnell reviews Supreme Court Associate Justice Stephen Breyer's book Active Liberty: Interpreting Our Democratic Constitution. The review, entitled "Active Liberty: A Progressive Alternative to Textualism and Originalism?", may be accessed here.

Over at The Volokh Conspiracy, Professor David Bernstein characterizes the Review as "rather devastating (though unfailing polite)." I'd characterize the "rather devastating" part of the characterization as itself "polite." I wonder whether Justice Breyer is embarrassed?

Both Judge McConnell's Review and Professor Bernstein's post (which features a special guest appearance in the comments by Judge McConnell himself) are well worth reading.

Update: Anyone interested in the subject should also not miss Professor Ilya Somin's Review of Justice Breyer's book in the Northwestern University Law Review. This link will take you to Professor Somin's blog entry at The Volokh Conspiracy, which in turn provides a link to his Review.

Gulph

I can't help it -- I love the word "gulph." It makes you wonder whether we shouldn't substitute "ph" for the pedestrian "f" every once in a while, or perhaps exchange them. "Wanna toss the phootball some more, Phrank?" "What phor? I've had enouph, Fil. I'd rather play golph." "OK, say hello to your wiphe Foebe." "I won't. Coming over Phriday? "Phat chance." "Don't be a phuckphace." "Pheel the love."

"A Certain Gulph:" Direct Taxes and the Three-Fifths Clause

Article I, Section 2, Clause 3 of the original Constitution contained the famous (or infamous) three-fifths clause, which provided that both Representatives in Congress and "direct Taxes" would be allocated based upon the number of "free Persons" and three-fifths of "other Persons," that is, black slaves:

"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."

The implication was that granting increased representation to white citizens in states with large numbers of black slaves was reasonable since, after all, they would bear a correspondingly greater amount of taxes.

In fact, however, there is substantial evidence that the participants at the Constitutional Convention fully expected that "direct Taxes" would rarely, if ever, be imposed, and that the linkage between representation and direct taxes was an intentional subterfuge:

"After numerous motions and amendments, the Randolph-Williamson scheme was passed with a proviso suggesting that the three-fifths rule was primarily a rule for apportioning direct taxation among the states, and that the rule of representation simply followed the same formula. As Williamson noted, 'less umbrage would perhaps be taken agst. an admission of slaves into the Rule of representation' if it posed as an extension of a rule of taxation. The fact that few delegates expected such taxes to be levied posed no obstacle to a formula which was designed to legitimate a decision taken for political reasons."

Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (Vintage 1997) at 74.

"Though a few delegates hinted that the new government might still resort to the 'federal principle, of requiring quotas' in the form of requisitions upon the states, experience had proved that the only workable revenue system was one that left the Union completely independent of the states. Consistent with their expectations about the modest responsibilities of the new government, the framers believed that its revenue needs would be met through a program of indirect taxation centering on import duties -- the most productive and least burdensome forms of revenue available to the prudent statesman."

Original Meanings at 180.

Indeed, the direct taxation measure seemed sufficiently unnecessary as a revenue-raising measure that Gouverneur Morris later proposed deleting it. "'He had only meant it as a bridge to assist us over a certain gulph;' -- that is, the issue of whether slaves should be counted at all -- 'having passed that gulph the bridge may be removed.'" Original Meanings 396, n. 44.

In fact, the expectation that direct taxes would rarely if ever be levied proved accurate:

"The direct tax provision of the three-fifths clause turned out to be almost meaningless, and accordingly all the three-fifths clause really did was give the slave states more power. As Morris predicted, the new federal government . . . depended on import duties for the lion's share of its income, and northerners paid the lion's share of the duties. Direct taxes, from the outset, were dismissed as unpopular, cumbersome, and impossible to enforce . . ..

"Only when the import trade was threatened by war did the federal government even consider direct taxes. In 1798 it appeared that the United States would soon be at war with France, and as a result many in Congress thought it dangerous for the federal treasury to be totally dependent on import duties. So Congress, with much grumbling, agreed to a direct tax of two million dollars. Similarly, during the War of 1812 the Madison administration desperately needed money, and Congress imposed direct taxes of three million dollars in 1813, six million dollars in 1814, and three million dollars in 1815. . . All in all, Congress resorted to direct taxes only four times in the seventy-two years between Washington's election and Lincoln's. In the other sixty-eight years direct taxes were neither enacted nor even seriously discussed."

Leonard Richard, The Slave Power: The Free North and Southern Domination, 1780-1860 (Louisiana State Univ. Press 2000) at p. 55.

Lemmon v. People VI

Judge Hiram Denio’s opinion in favor of affirmance -- that is, in favor of declaring the eight slaves free -- lacks the passionate denunciations of slavery we have seen in Justice Wright’s. It is a model of dispassionate and impartial scholarship. Nonetheless – and I may be imagining it – I picture Judge Denio silently smiling from time to time as he writes his opinion.

Justice Denio began his constitutional discussion by arguing that the Fugitive Slave Clause supported the constitutionality of the statute and thus the eight slaves' freedom. The Clause, the judge deduced, supported the conclusion that “the authors of the Constitution [assumed] that the fact of a federative Union would not of itself create a duty on the part of the States which should abolish slavery to respect the rights of the owners of slaves escaping thence from the States where it continued to exist.” 20 N.Y. at 604. In other words, the Framers implicitly recognized that a State could declare all slaves who came within its jurisdiction free, unless the Constitution provided otherwise. Despite this assumption, the Framers constrained free States only as to escaped slaves, not as to slaves whose masters brought them voluntarily into the jurisdiction:

“Reading the provision for the rendition of fugitive slaves, in the light which these considerations afford, it is impossible not to perceive that the [Constitutional] Convention assumed the general principle to be that the escape of a slave from a State in which he was lawfully held to service into one which had abolished slavery would ipso facto transform him into a free man. This was recognized as the legal consequence of a slave going into a State where slavery did not exist, even though it were without the consent and against the will of the owner. A fortiori he would be free if the master voluntarily brought him into a free State for any purpose of his own. But the provision in the Constitution extended no further than the case of fugitives.”

20 N.Y. at 606.

Sitting alone in his chambers, Judge Denio puts down his pen and reviews his handiwork. He leans back in his chair and smiles, savoring the irony. Round one to freedom.

Jimmie Carter Says "Ouch"

Let's face it, the man is a disgrace. Alan Dershowitz's article is utterly devastating.

Lemmon v. People V

Broadly speaking, there were two legal issues for the Court to decide in Lemmon. The first was whether the law of New York provided that slaves physically brought into the state were free, even if they were brought there temporarily or in transit. Second, if and only if the answer to the first question was in the affirmative, then it became necessary to second: whether the law of New York was void or unenforceable or void because it violated the federal Constitution.

As it turned out, the Court concluded that the answer to the first question was clear. All three opinions that analyzed the arguments in detail – Judge Clerke’s dissent as well as the majority opinions of Judges Denio and Wright – concluded that the New York legislature had outlawed the importation of slaves into the state, even if the presence was temporary or transitory. Briefly, earlier New York statutes banning slavery in the state had contained exceptions, including an exception covering temporary or transitory presence. In 1841, the state legislature had repealed that exception. All of the Judges concluded that the legislature clearly intended to outlaw even temporary or transitory slavery within the State. No judge expressed doubt that State statutory law required that the petition be granted and the slaves be freed.

What divided the majority from the dissent was, rather, the second question. The majority concluded that the New York law did not violate the Constitution. The dissent concluded that the statute was unconstitutional and therefore unenforceable. It is to the constitutional arguments I shall turn next, starting with the analysis of Judge Hiram Denio.

The Sherman-Hood Correspondence

I recently stumbled across and read the correspondence between Generals Sherman and Hood about the evacuation of civilians from Atlanta in 1864. If you're at all interested in the Civil War (or either of the generals), it's highly recommended.

The correspondence is the source of several of Sherman's famous quotes about the horror of war, and Hood comes across as a literate, intelligent and impassioned advocate (however misguided!) that belies the image of him as sort of dopey conveyed by his hang-dog pictures and his later debacles at Franklin and Nashville. You can find it at this site, and elsewhere by googling "sherman hood correspondence.

Lemmon v. People IV

OK, I lied. Let's clear out a little more underbrush first.

Three Judges declined to join the majority opinions. Two of the three issued brief (roughly 150 words each) opinions that are legally insignificant but nonetheless worthy of attention on the theory that they presumbaly reflect views held by a number of "conservative" New Yorkers who were more concerned about sectional relations than the immorality of slavery.

The opinions are startlingly similar. Both Chief Judge George F. Comstock and Judge Samuel Lee Selden began by stating that attention to "other causes" or "other duties" had prevented them from giving the case the "attention" or "careful examination" it deserved. Nonetheless, both suggested that they were concerned that the majority decision threatened interstate relations.

Chief Judge Comstock's remarks are, for some reason, set forth in the third person. He opined

"that the legislation of this State, on which the question in the case depends, is directly opposed to the rules of comity and justice which ought to regulate intercourse between the States of this Union; and he was not prepared to hold that such legislation does not violate obligations imposed on all the States by the Federal Constitution."

He therefore "dissent[ed] from the judgment."

Judge Selden technically seems to have abstained, but expressed virtually identical concerns:

"I . . . am not prepared, therefore, definitely to determine whether the act of 1841 is or is not in conflict with any express provision of the United States Constitution. But however this may be, I cannot but regard it as a gross violation of those principles of justice and comity which should at all times pervade our inter-state legislation, as well as wholly inconsistent with the general spirit of our national compact. While, therefore, I am not prepared at this time to give such reasons as would justify me in holding the law to be void, I am equally unprepared to concur in the conclusion to which the majority of my associates have arrived."

20 N.Y. at 644.

One striking thing about both opinions is the use of the word "justice" together with the word "comity." The invocation of the doctrine of comity -- voluntary deference by one jurisdiction to the laws or customs of another jurisdiction -- is understandable. The invocation of "justice" is less so. Nonetheless, both Judges apparently felt that it would be "unjust" for New York not to take the laws and customs of Virginia into account.

The other thing that strikes me is that both went to the trouble of expressing their disagreement, or at least uneasiness in the case of Judge Selden, with the majority holding. Having pleaded inattention, presumably they could have simply abstained without writing anything. I infer that both were seriously worried about the impact of the decision and at least wanted to send the message that some New Yorkers were sympathetic to Virginia's position. If so, perhaps they achieved their purpose. According to the Valley of the Shadow Project, the May 1, 1860 issue of the Staunton Spectator specifically reported that "[t]hree of the Judges--Comstock, Seden [sic] and Clark [sic]--dissent from the judgement pronounced in this case."

Lemmon v. People III

I don't have time to create a thoughtful post on Judge Denio's opinion, so I'll briefly post another excerpt from Judge Wright's opinion that reveals where his sympathies lie. He describes slavery as

"a social condition that violates the law of nature (Virginia Bill of Rights, Sections 1, 15); a status, declared by Lord Mansfield, in Sommerset's case, to be 'of such a nature that it is incapable of being introduced on any reasons, moral or political;' that originates in the predominance of physical force, and is continued by the mere predominance of social force, the subject knowing or obedient to no law but the will of the master, and all of whose issue is involved in the misfortune of the parent; a status which the law of nations treats as resting on force against right, and finding no support outside of the municipal law which establishes it. (Taylor's Elements of Civil Law, 429; Sommerset's case, 20 Howell's State Trials, 2; 2 Devereaux's R., 263.) Why should not the State be able to utterly suppress it within her jurisdiction?"

20 N.Y. at 630-31 (italics in original).

Lemmon v. People II

The Historical Society of the Courts of the State of New York has a nice web page on the case, with links to the full texts of the decisions in all three courts (the trial court decision in New York City Superior Court; the first-level appeal in the Supreme Court; and the second-level appeal in the Court of Appeals), as well as to some of the briefs, the statutes that formed the background for the decisions, and other materials.

The page focuses on the opinion for affirmance (i.e., affirming the discharge of the slaves) of Court of Appeals Judge William B. Wright. This is understandable, for Judge Wright's opinion includes impassioned denunciations of slavery. Passages such as this lead me to assume that Judge Wright was a Republican:

". . . [S]lavery is repugnant to natural justice and right, has no support in any principle of international law, and is antagonistic to the genius and spirit of republican government. Besides, liberty is the natural condition of men, and is world-wide; whilst slavery is local, and beginning in physical force, can only be supported and sustained by positive law. 'Slavery,' says Montesquieu, 'not only violates the laws of nature and of civil society; it also wounds the best forms of government; in a democracy where all men are equal slavery is contrary to the spirit of the Constitution.'"

20 N.Y. at 617.

In fact, there were two opinions for affirmance, the first of which was authored by Hiram Denio, and Judge Denio's opinion appears first, before Judge Wright's. It is not clear (to me at least) whether this is because Judge Denio was senior (he joined the Court in 1853; Judge Wright is listed as officially joining the Court in 1861 and in 1860 was apparently a Supreme Court Justice sitting by designation). Nor is it clear how many of the five Judges in the majority joined in each opinion, or whether some or all joined in both opinions.

I will next look at Judge Denio's drier, scholarly opinion.

Durham-in-Wonderland

Just a brief entry to thank Professor K.C. Johnson for his wonderful blog Durham-in-Wonderland. I read it regularly, and you should too.

The Unknown Thomas Burke

One of the joys of history comes from the little gems that you run into.

Take American revolutionary Dr. Thomas Burke, whom I stumbled across in Merrill Jensen's The Articles of Confederation, at 174-75.

The first draft of the Articles of Confederation was drafted by a committee of the Continental Congress headed by John Dickinson, the "Pennsylvania Farmer" in 1767, and is known as the Dickinson Draft. The Dickinson Draft is a remarkable document. In some ways, it was a more "nationalist" and less "states-rights" constitution than the Constitution of 1787. In particular, the proposed federal government was not one of specific, enumerated powers. Art III of the Dickinson Draft provided that "Each Colony shall retain and enjoy so much of its present Laws, Rights and Customs, as it may think fit, and reserves to itself the sole and exclusive regulation and Government of its internal police, in all matters that shall not interfere with the Articles of this Confederation."

The Committee presented the Draft to the Continental Congress on July 12, 1776. Amazingly (in retrospect), during debates held intermittently over the following eight months, no one objected to the centralized form of government that the document contemplated.

In February 1777, Dr. Thomas Burke arrived at Congress as a new delegate from North Carolina. When debate on the draft resumed, Burke quickly identified the central issue. Article III "expressed only a reservation of the power of regulating the internal police, and consequently resigned every other power." It was "in the Power of the future Congress or General Council to explain away every right belonging to the States and to make their own power as unlimited as they please."

To prevent this perceived tyranny, he proposed that "all sovereign power was in the States separately, and that particular acts of it, which should be expressly enumerated, would be exercised in conjunction, and not otherwise; but that in all things else each State would exercise all the rights and power of sovereignty, uncontrolled."

Suprisingly again, the other delegates were slow to realize the significance of Burke's objection. Ultimately, however, his proposal resulted in the adoption of what became Article III of the Articles of Confederation:

"Each State retains its sovereignty, freedom and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled."

How can it be that this man, arguably America's first constitutional scholar, is virtually unknown? His brief Wikipedia entry does not even mention his most significant contribution.

Justice Story Says "Ouch!"

“To prove their contentions [that the first Continental Congress was a sovereign body, and that it represented the people of the United States as a whole, not the people of the several states as represented in their state governments] the Northerners [during the nineteenth century] cited such documents as the Declaration of Independence and the preamble to the Constitution of 1787. Their method of proof was to state their contention, or reiterate it, and by use of italics to place undue emphasis on the portions of the documents which seemed to prove their arguments. [fn2] This is essentially the technique of argument used by small boys and would be unworthy of consideration had it not been so effective in shaping certain ideas which have profoundly influenced the interpretation of American history.”

The first work cited in footnote 2 as an example of a work containing such a “technique of argument used by small boys” is no less than Joseph Story’s Commentaries on the Constitution of the United States (originally published 1833). Associate Justice Joseph Story, ironically appointed to the Supreme Court by President James Madison in 1811, was a leading member of the Marshall (and post-Marshall) Court until his death in 1845 and a professor of law at Harvard. His three-volume Commentaries, although little read today (except by legal historians), was regarded as the leading treatise on constitutional law during most of the Nineteenth Century.

The source of the quote? The highly-regarded and often pungent and highly amusing Merrill Jensen, in his book The Articles of Confederation: An Interpretation of the Social-Constitutional History of the American Revolution 1774-1781 (University of Wisconsin Press 1976) (originally published 1940) at 162-63.

A Ninth Amendment Primer I

The Ninth Amendment states, quite simply, that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Over the past forty years or so, since Justice Arthur Goldberg’s concurrence in Griswold v. Connecticut, 381 U.S. 479, 485 (1965), a debate has developed over the meaning of the Amendment, and in particular over the phrase “other[] [rights] retained by the people.” Does this not suggest – or even plainly state – that the people retain other, unenumerated rights not specifically set forth in the Constitution?

“Progressives” (for want of a better term) have argued that the Ninth Amendment’s reference provides a textual basis for discerning additional rights not specifically described in the Constitution – the right to have an abortion, for example. In his book, Restoring the Lost Constitution: The Presumption of Liberty, Randy Barnett has advanced an alternative, libertarian reading of the Constitution based in part on the Ninth Amendment.

There seems little doubt that the ideas of the Founding Generation included a significant strain of natural law thinking. Nonetheless, I am persuaded that the “unenumerated rights” argument ultimately does not fly as a historical matter. The better view is set forth by Kurt T. Lash in two articles published in the Texas Law Journal and available online, The Lost Original Meaning of the Ninth Amendment, 83 Texas Law Review 331 (Dec. 2004) and The Lost Jurisprudence of the Ninth Amendment, 83 Texas Law Review 597 (Feb. 2005).

In brief, Professor Lash argues convincingly that the key word in the Amendment is the word “construed.” One principal argument against the adoption of what became the Bill of Rights was that it was unnecessary. The Constitution created a federal government that was authorized to exercise only those limited powers specifically described in the document. To the extent that the Constitution did not specifically grant powers to the federal government, the people necessarily retained the corresponding rights. It was unnecessary, therefore, to amend the Constitution to protect a right of freedom of speech or of the press (for example), because the Constitution did not grant to the federal government any power over speech or the press. Thus the people already retained those rights.

Even worse, it was argued, was the fact that the passage of a bill of rights might inadvertently create the inference that the federal government had any powers that were not specifically withheld. The Constitution, for example, did not delegate to the federal government the power to tell me what color shirt to wear when I got up in the morning; I had the right to choose whatever color shirt struck my fancy. But would the addition of a bill of rights omitting a right to wear any shirt I choose not suggest that I did not have such a right in the first place, and that the federal government had the power to tell me what color shirt to wear?

The evidence appears overwhelming that the Ninth and Tenth Amendments were included in the Bill of Rights to meet these concerns. In this reading, the two amendments complement each other. The Tenth reconfirms the rule that the federal government has only those powers specifically delegated to it. The Ninth is a rule of construction, providing that the enumeration of certain rights in the Bill of Rights should not be construed by negative inference as an enlargement of the powers delegated to the federal government.

What has obscured the connection is that the two amendments use different language. The Tenth refers to “powers”, while the Ninth speaks of “rights:”

Tenth: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Ninth: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The drafting history, however, confirms that the differing language arises out of the fact that the drafters regarded governmental “powers” and simply the opposite of retained popular “rights.” The reason that the Ninth Amendment refers only to “rights” is merely the result of stylistic polishing. Consider the various versions of the text that became the Ninth Amendment, in chronological order, emphasizing the words “rights” and “powers:”

Virginia Convention June 27, 1788

Seventeenth, That those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner whatsoever to extend the powers of Congress. But that they may be construed either as making exceptions to the specified powers where this shall be the case, or otherwise as inserted merely for greater caution.

New York Convention July 26, 1788 (the predecessor language of the Tenth Amendment is bracketed)

[[T]hat every power, jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several states, or to their respective state governments, to whom they may have granted the same;] and that those clauses in the said Constitution, which declare, that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution; but such clauses are to be construed either as exceptions to certain specified powers, or as inserted merely for greater caution.

Proposed by Madison June 8, 1789

Fourthly, That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit:

[Numerous other provisions]

That exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

House Select Committee July 28, 1789

ART. 1, SEC. 9 – Between PAR. 2 and 3 insert,

[Other provisions, including the predecessors of the First through Fifth and Eighth Amendments]

The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

House of Representatives August 24, 1789

ARTICLE THE FIFTEENTH

The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.

Senate September 9, 1789

ARTICLE THE ELEVENTH

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


Final Proposal to States September 25, 1789

Article the eleventh . . . The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

A Map Ain't A Map

As mentioned in an earlier post, Jimmie Carter appears to have used copies of maps without permission, in apparent violation of the copyright laws. That seems to be the least of Carter's sins, but the copyright issue is an interesting one -- as are some of the reactions to the accusation.

One approach taken by those seeking to minimize Carter's culpability is to suggest that maps are only minimally copyrightable. Hiram Hover, for example, posts the following:

"Maybe there’s a case of copyright infringement here, maybe not. As Ralph Luker points out, maps of the same place do tend to bear some resemblance to one another—surprising as that may be to the folks over at NRO, who have done so much to flog the accusation. In any event, a cribbed map is hardly what comes to most people’s minds when they hear the charge of 'plagiarism.'"

This is excuse is particularly silly coming from a purported historian. A historian should know, if anyone should, that maps are not fungible. Good or poor maps can make all the difference when trying to following a campaign, for example. Even in a social history, the absence of good maps can be extremely frustrating.

On the legal side, it's worth noting that the very first copyright act enacted in this country -- the Copyright Act of 1790 -- specifically included maps within its scope. Indeed, "map" was the very first item mentioned in the title of the Act: "An Act for the Encouragement of Learning, by securing the Copies of Maps, Charts and Books, to the Authors and Proprietors of such Copies, during the Times therein mentioned." (Emphasis added) "Map" is likewise the first protected species of work listed in the text of the Act:

"Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That from and after the passing of this act, the author and authors of any map, chart, book or books already printed within these United States . . . shall have the sole right and liberty of printing, reprinting, publishing and vending such map, chart, book or books, for the term of fourteen years from the recording the title thereof in the clerk’s office, as is herein after directed . . .." (Emphasis added.)

I guess the First Congress was populated by denizens of NRO. It's a massive right-wing conspiracy!

Lemmon v. People of the State of New York

In Lemmon v. People, 20 N.Y. 562 (1860), the New York Court of Appeals, the highest court in the state, ruled that slaves brought temporarily into the state from slaveholding states were free. For a time, Republicans feared that Lemmon would be reviewed by the United States Supreme Court and that that Court would use the case to issue a ruling holding that non-slave states could not bar citizens of slave states from bringing their slaves into non-slave states.

Lemmon is fascinating and worth close study for a number of reasons. First, it inadvertently tells a story about interstate travel and slavery in the 1850s. Second, it is, in effect, a snapshot of a range of opinions held by eight educated white men in New York in March 1860 about slavery, blacks and relations between the states. Finally, as noted, by serving as a focus for Republican fears and outcry about the "next" Dred Scott decision, the case itself influenced events.

In this and future posts, I am going to discuss Lemmon and, ultimately, assess whether Republicans' fears appear to have been reasonable.

All cases begin with the facts, and so shall I.

Juliet Lemmon was a citizen and resident of the state of Virginia. Her age is not disclosed. As of early November 1852, she had been "for several years" the owner of at least eight black slaves, "who appeared to be known only by their christian names as Emeline, Robert, Lewis, Amanda, Nancy, Ann, Lewis and Edward." Of the eight, one was a man, two women and five children. The opinion does not distinguish them by name or decribe their relationships to one another.

Mrs. Lemmon was then married to Jonathan Lemmon. Mrs. Lemmon and her husband decided to move permanently from the state of Virginia to the state of Texas. In order to do so, Mr. and Mrs. Lemmon took passage, together with the eight slaves, on the steamship "City of Richmond," departing from the port of Norfolk, Virginia and bound for New York City.

Later, after the suit was filed, Mrs. Lemmon argued that she was compelled by "necessity or accident" to land in New York City. However, that did not mean that the ship had been blown off course or arrived at New York by chance. Rather, what Mrs. Lemmon seems to have meant was that, in order to travel from Viriginia to Texas, she was forced, as a practical matter, to take one ship to New York and then transfer to a second, southbound ship.

The steamship "City of Richmond" arrived in New York harbor on November 5, 1852. That evening, Mr. and Mrs. Lemmon and the slaves, disembarked and spent the night at 3 Carlisle Street, presumably to await a southbound vessel.

The very next day, November 6, 1852, "Louis Napoleon, a colored citizen of this State, made application" for a writ of habeas corpus directed to Mr. Lemmon (apparently misnamed "Lemmings" in the original papers) and the (unnamed) owner of the house at 3 Carlysle Street. Essentially, the writ required the respondents to show cause why the slaves were not unlawfully restrained.

That same day, Mr. Justice Paine of the Superior Court of the City of New York issued the writ, "and on the same day one of the constables of the city of New York brought up the eight colored persons." In due course, Mr. Lemmon responded to the writ under oath, asserting "that the eight persons named were the slaves and property of" his wife; and that the slaves were in New York only temporarily and were in transit from Virginia to Texas. Accordingly, Mr. Lemmon denied that the slaves were illegally detained and sought dismissal of the writ.

On November 13, 1852, Mr. Justice Paine issued a decision in which "he discharged the colored Virginians." In other words, he decided the slaves were free.

Mr. Lemmon appealed to the New York Supreme Court (which was superior to the Superior Court of the City of New York, but inferior to the New York Court of Appeals). In December 1857, that court affirmed the ruling of Mr. Justice Paine. (Apparently the wheels of justice turned slowly 150 years ago!)

Mr. Lemmon then appealed again, this time to the New York Court of Appeals, the highest court in the state. That court issued its decision in March 1860. A majority of the eight voting judges affirmed the decisions of the lower courts, ruling that the slaves were free. Three dissenting judges disagreed.

Mr. Caldwell Goes to Richmond

Did you know that there was a Republican in the Virginia State Senate -- in 1860? There was:

"Alfred Caldwell, former mayor of Wheeling, was elected to the Virginia Senate in 1859 under the Opposition banner, but, by 1860, he was an active Republican. Serving as a member of the Republican National Committee in 1860, Caldwell would eventually become what one contemporary called one of 'the most sagacious and resolute Republicans in the Northwest.' In Richmond, Caldwell was ostacized, left to smoke his cigars alone and pay his own bills at the bar. But Panhandlers elected Caldwell to represent their 'peculiar sentiments' about slavery, not 'to be the toast of urbanity.' Despite his ostracism, it was difficult for what he termed the 'peddler-lynching, school-mam expelling, parson-whipping editors and asses of Old Virginia' to undermine his popularity among his constituents."

William A. Link, Roots of Secession: Slavery and Politics in Antebellum Virginia (Chapel Hill: The University of North Carolina Press 2003), at 202-03.

Incredibly, there's no Wikipedia entry for Senator Caldwell, and Professor Link's footnote (omitted) suggests by negative implication that there is little modern discussion of him. He might make an interesting topic for a thesis or paper.

Two Versions of Popular Sovreignty

The southern position on the territories shifted over time. The core premise was that the territories were jointly owned by the states; that residents of all states were entitled to equal access; and that equal access for slaveowners necessarily included the right to bring their "property." A limited version of the Cass-Douglas "popular sovereignty" option was therefore acceptable: residents of a territory were entitled to choose slavery or not, but only immediately before statehood (i.e., when voting on the proposed state constitution). If a territorial legislature were permitted to bar slavery earlier in the territorial phase, then slaveowners would never move in, and non-slavery would necessarily result.

Dred Scott, with its suggestion that a congressionally-created territorial legislature lacked the power to bar slavery in a territory, reflected this approach.

The Breckinridge Democratic Platform of 1860 summed up the elements as follows:

"Resolved . . .

"1. That the Government of a Territory organized by an act of Congress, is provisional and temporary; and during its existence, all citizens of the United States have an equal right to settle with their property in the Territory, without their rights, either of person or property, being destroyed or impaired by Congressional or Territorial legislation. . .

"3. That when the settlers in a Territory having an adequate population, form a State Constitution, in pursuance of law, the right of sovereignty commences, and, being consummated by admission into the Union, they stand on an equal footing with the people of other States; and the State thus organized ought to be admitted into the Federal Union, whether its Constitution prohibits or recognizes the institution of Slavery."

Over time, and particularly in response to Douglas' Freeport Doctrine (and accepting its premise that slavery could not flourish without affirmative support), southern political leaders argued, in addition, that equal access required the federal government to enact slave codes that would affirmatively protect slavery in the territories. Only this, they argued, would provide sufficient protection to slavery to give slaveowners equal access as a practical matter.

This view of the federal government's duty to affirmatively protect slavery is also contained in the 1860 Breckinridge Platform:

"Resolved . . .

"2. That it is the duty of the Federal Government, in all its departments, to protect, when necessary, the rights of persons and property in the Territories, and wherever else its Constitutional authority extends."

Until 1860, the phrase "Popular Sovreignty" thus masked and smoothed over differences, allowing politicians in different sections to tell their constituents that it meant different things. The northern version permitted the people of a territory, through their territorial legislature, to bar slavery at any time after the territorial legislature was formed. The southern form, exemplified by the Breckinridge platform, essentially prohibited the people of the territory from barring slavery until they voted on the proposed state constitution.

Southern politicians accepted the weak form, but then added to it the stipulation that, during the territorial phase, the federal government was constitutionally obligated to take affirmative steps (if the territorial legislature did not do so) to protect slavery in the territory in order to insure that slaveowners had, as a practical matter, equal access.

I suppose a skeptic might argue that the southern form of "popular sovreignty" had somehow lost the "popular" part, and the "sovreignty" part as well. But it allowed southerners to argue that they supported "popular sovreignty" and adhered to true republican values.

The Breckinridge platform is noteworthy not just because it demanded those affirmative protections during the territorial phase. It also took the mask off the term "Popular Sovreignty" and clearly identified the specific form of popular sovreignty being endorsed.

The Douglas platform, in contrast, of course omitted the affirmative protections. It also left the popular sovreignty concept as vague as it could, and essentially abdicated responsibility for its meaning to an eventual ruling by the Supreme Court. (In Dred Scott, Taney had held that Congress could not constitutionally bar slavery from the territories and strongly implied that territorial legislatures could not do so either, but the court did not squarely rule on the latter issue because it was not presented.) The Douglas platform stated:

"7. Resolved, That it is in accordance with the interpretation of the Cincinnati platform, that during the existence of the Territorial Governments the measure of restriction, whatever it may be, imposed by the Federal Constitution on the power of the Territorial Legislature over the subject of the domestic relations, as the same has been, or shall hereafter be finally determined by the Supreme Court of the United States, should be respected by all good citizens, and enforced with promptness and fidelity by every branch of the general government."

The "Cincinnati platform", to which the Douglas platform refers, was the Democratic platform of 1856 (the 1856 Convention was held in Cincinnati). The Cincinnati platform was long on rhetoric and conveniently short on substance:

"And that we may more distinctly meet the issue on which a sectional party, subsisting exclusively on slavery agitation, now relies to test the fidelity of the people, north and south, to the constitution and the Union—

"1. Resolved, That claiming fellowship with and desiring the cooperation of all who regard the preservation of the Union under the constitution as the paramount issue, and repudiating all sectional parties and platforms concerning domestic slavery which seek to embroil the states and incite to treason and armed resistance to law in the territories, and whose avowed purpose, if consummated, must end in civil war and dis-union, the American democracy recognize and adopt the principles contained in the organic laws establishing the territories of Nebraska and Kansas, as embodying the only sound and safe solution of the slavery question, upon which the great national idea of the people of this whole country can repose in its determined conservation of the Union, and non-interference of Congress with slavery in the territories or in the District of Columbia.

"2. That this was the basis of the compromise of 1850, confirmed by both the Democratic and Whig parties in national conventions, ratified by the people in the election of 1852, and rightly applied to the organization of the territories in 1854.

"3. That by the uniform application of the Democratic principle to the organization of territories and the admission of new states, with or without domestic slavery, as they may elect, the equal rights of all the states will be preserved intact, the original compacts of the constitution maintained inviolate, and the perpetuity and expansion of the Union insured to its utmost capacity of embracing, in peace and harmony, every future American state that may be constituted or annexed with a republican form of government.

"Resolved, That we recognize the right of the people of all the territories, including Kansas and Nebraska, acting through the legally and fairly expressed will of the majority of the actual residents, and whenever the number of their inhabitants justifies it, to form a constitution, with or without domestic slavery, and be admitted into the Union upon terms of perfect equality with the other states."

Say what?