Wednesday, January 03, 2007

Ableman v. Booth XI: Prigg v. Pennsylvania

The third and final hurdle that Justice Smith had to clear was Prigg v. Pennsylvania, in which the Supreme Court had ruled that the Fugitive Slave Act of 1793 was constitutional. Before he addressed that decision, he argued at length that the Fugitive Slave Act of 1850 also violated the Due Process Clause. Prigg did not address that issue. For that reason, among many others, the decision was not binding:

“In view of the dissentient opinions of the members of the supreme bench; in view of the discrepancy of opinion which has characterized all other decisions [on the issue]; in view of the fugitive character of the power here claimed by congress, leaping from article to article, from section to section, and from clause to clause, hovering now over a grant, then over a compact, fluttering now around an implication, then around an incident, to find whereon it may rest its foot; in view of the alarm which has seized upon many of the states in consequence of the enormous power which it has called upon congress to assume in its behalf, and the deep wounds which it seeks to inflict upon the rights and sovereignty of the states, and upon the great principles of human freedom; in view of all this, are we not justified in asking of the supreme court of the United States to review their decision . . .?”

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