Tuesday, February 06, 2007

Julia v. McKinney II: The Right to Travel

Once again, Chief Justice Matthias McGirk wrote the decision for the majority (the court divided 2-1, with Justice Wash dissenting). Justice McGirk began his analysis by examining the Illinois constitutional provision upon which Julia relied. As I explained in my first post on the case, that provision declared that slavery would not be introduced into the state and concluded “by saying any violation of this article shall effect the emancipation of such person.” McKinney’s attorney apparently advanced species of reductio ad absurdum argument: if the Illinois constitution were literally construed, “no one can travel through that State with his slaves without emancipating them.”

Justice Matthias McGirk agreed “that a literal construction would lead directly to this result.” He denied, however, that the Illinois constitution should be read so mechanically. He advanced two reasons. First, looking to “the end and object” of the provision, he concluded that its purpose was not to prevent slaveowners “from passing through Illinois with their slave property,” but rather “to prevent the relation of master and slave from existing in that State by an inhabitant and resident thereof.”

Second, the conclusion about the section’s purpose and intent was buttressed by the fact that a literal reading would violate what we would call today the right to travel, which Justice McGirk derived from the Privileges and Immunities Clause:

“[A]ll persons who are citizens of any of the States have a right by the constitution of the United States to pass through Illinois with any sort of property that they may own in the State where they migrate from. The 2d section of the 4th article of the Constitution of the United States says that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States. We are of opinion that it is the undoubted right of every citizen of the United States to pass freely through every other State with his property of every description, including negro slaves, without being in any way subject to forfeit his property for having done so, provided he does not subject his property by a residence to the action of the laws of the State in which he may so reside.”

Justice McGirk thus drew a sharp line between “emigrants or mere travelers” and residents. The difference between the two was fact-sensitive but ultimately clear. A traveler was on a journey. Mrs. Carrington was no traveler:

“In the case before us the owner of the slave was not an emigrant, but went into Illinois with an avowed view to make that State her home. She took up her residence there, with her slave in her possession, and kept the slave there for upwards of one month, and treated the slave in all respects as slaves are treated in States where slavery is allowed. These acts of the owner surely amounted to the introduction of slavery in Illinois.”

No comments:

Post a Comment

Related Posts with Thumbnails