Sunday, April 22, 2007

Lemmon v. People XIV: Did the Free States Have an Obligation to Respect the Institution of Slavery?

I earlier devoted a number of posts to discussing Lemmon v. People (1860), a decision by the New York Court of Appeals holding that slaves setting foot on New York soil thereby became free, even though brought into the state only temporarily and while in transit with their mistress during an interstate voyage from one slave state to another. (To find these posts, use the "Lemmon v. People" tag on the right side of the page.) I then published a preliminary post setting the stage for a discussion of whether and how the Supreme Court of the United States might have ruled, on appeal, that the Constitution required states at least to permit slaveholders to bring their slaves into free states temporarily and as part of interstate voyages.

The dissenting opinion in the New York Court of Appeals (discussed in several of the earlier posts) provides one possible approach, but I have been struggling to convince myself that the Taney court would have embraced so nationalistic and anti-state's rights an approach. It is certainly true that Taney demonstrated that he was prepared to write extremely nationalistic opinions if that is what it took to defend slavery: see my post on Prigg v. Pennsylvania (again, just use the tag). It is also certainly true that Taney's defense of slavery was so frenzied that it led to intellectual dishonesty and incoherence (see Dred Scott). Even so, the approach taken by the dissenter in Lemmon is based on such a "loose" construction that I keep thinking that it would have given even Roger Taney pause.

The good news is that there may be light at the end of the tunnel. Paul Finkelman's book, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill: University of North Carolina Press 1981), reportedly refers to unpublished notes and drafts in Taney's papers that indicate that he was preparing to write a decision holding that "the free states of the Union" had "an obligation . . . to respect the institution of slavery," even within their own borders. I've ordered a copy of Finkelman's book. Hopefully, it will provide some clue as to the reasoning that Taney contemplated using to justify such a holding. If so, I will report and then analyze the reasoning.

References to Finkelman's book and the existence of Taney's notes appear in James McPherson's Battle Cry of Freedom (at 180) and in Chandra Manning's recently-published What This Cruel War Was Over (at 17 and fn.33 at 230). I had hoped to find discussion of Taney's notes, and perhaps the notes themselves, on the web, but I struck out. If anyone has found them on the web or otherwise in publicly-available form, I'd be delighted to hear from you.

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