Commonwealth v. Aves: "His condition is not changed"

The case of Commonwealth v. Aves, 35 Mass. 193 (1836) is a relatively well-known early decision in which a respected northern state court judge declared free a slave brought into a non-slave state only "for [a] temporary purpose . . . but not acquiring a domicil here."

What I have not seen emphasized about Aves is that, in one significant respect, the reasoning was narrower than that employed by some contemporaneous slave state courts.

In Aves, Chief Justice Lemuel Shaw of the Supreme Judicial Court of Massachusetts went out of his way to explain that the slave's presence in the state did not change his status per se. Instead, the slave was entitled to his freedom because Massachusetts law would not enforce his restraint:

[I]f such persons have been slaves, they become free, not so much because any alteration is made in their status, or condition, as because there is no law which will warrant, but there are laws, if they choose to avail themselves of them, which prohibit, their forcible detention or forcible removal.

The difference between a change in status and the absence of law to enforce the restraint might at first seem metaphysical, but in fact it can be crucial. What happens if the slave returns with his master to a slave state and then sues there for his freedom? If his status has changed, in theory the slave state court should declare him free. But if he retains the status of a slave, and the sole question was a matter of enforcement, then he remains a slave.

Although Chief Justice Shaw admitted the issue was not before him, he drew precisely this conclusion:

Whether, if a slave, voluntarily brought here and with his own consent returning with his master, would resume his condition as a slave, is a question which was incidentally raised in the argument, but is one on which we are not called on [note the use of the double preposition!] to give an opinion in this case, and we give none. From the principle above stated, on which a slave brought here becomes free, to wit, that he becomes entitled to the protection of our laws, and there is no law to warrant his forcible arrest and removal, it would seem to follow as a necessary conclusion, that if the slave, waives the protection of those laws, and returns to the state where he is held as a slave, his condition is not changed.

I have in other posts reviewed a number of slave state decisions concerning slaves who moved to free territory or states and later returned to slave states, where they sued for the freedom. (Most of the decisions I have discussed involve the Supreme Court of Missouri; click the appropriate tag.) It is true that the slave state courts required residence rather than transit (although some defined transit extremely narrowly). But in effect, they assumed that, once the slave became free, he remained free even when he returned to a slave state. In other words, his status had changed.

Groves v. Slaughter XII: "No law of either state could affect his right of property"

Without further ado, Justice Baldwin explained precisely what he meant by the sentence discussed in the last post. For readablity, I am going to break up Justice Balwin's overlong paragraph:

Thus, in Ohio, and those states to which the ordinance of 1787 applies, or in those where slaves are not property, not subjects of dealing or traffic among its own citizens, they cannot become so, when brought from other states; their condition is the same as those persons of the same color already in the state; subject in all respects to the provisions of its law, if brought there for the purposes of residence or sale. If, however, the owner of slaves in Maryland, in transporting them to Kentucky or Missouri, should pass through Pennsylvania or Ohio, no law of either state could take away or affect his right of property; nor, if passing from one slave state to another, accident or distress should compel him to touch at any place within a state, where slavery did not exist. Such transit of property, whether of slaves or bales of goods, is lawful commerce among the several states, which none can prohibit or regulate, which the constitution protects, and congress may, and ought, to preserve from violation.

The remainder of the paragraph consists of a somewhat defensive justification:

Any reasoning or principle which would authorize any state to interfere with such transit of a slave, would equally apply to a bale of cotton, or cotton goods; and thus leave the whole commercial intercourse between the states liable to interruption to extinction by state laws, or constitutions. It is fully within the power of any state to entirely prohibit the importation of slaves, of all descriptions, or of those who are diseased, convicts, or of dangerous or immoral habits or conduct; this is a regulation of police, for purposes of internal safety to the state, or the health and morals of its citizens, or to effectuate its system of policy in the abolition of slavery. But where no object of police is discernible in a state law of constitution, nor any rule of policy, other than that which gives to its own citizens a 'privilege,' which is denied to citizens of other states, it is wholly different. The direct tendency of all such laws is partial, antinational, subversive of the harmoney which should exist among the states, as well as inconsistent with the most sacred principles of the constitution; which on this subject have prevailed through all time, in and among the colonies and states, and will be found embodied in the second resolution of the Virginia legislature, in 1785. (1 Laws U. S. 53.)

It is hard to imagine that Justice Baldwin could have been much clearer. Free states could not constitutionally "take away or affect [the] right of property" in slaves passing through in transit from one slave state to another.

Justice Baldwin's paragraph does contain at least one subtle shift worth noting. You will recall that in his preceding paragraph Justice Baldwin concluded that the federal government could use its commerce clause power only "for the purpose of protecting" slave property. The clear implication was that Congress could not properly pass a law banning interstate commerce in slaves. Here, however, Justice Baldwin is a little less sure. "[C]ongress may, and ought, to preserve" the interstate transit of property "from violation." He does not use the word "must."

Professor Currie summarized Justice Baldwin's career as follows:

Baldwin managed to write almost nothing of interest for the Court in a constitutional case, largely confining himself to a series of mostly tardy concurrences I have already described as long and boring.

The conclusion at the Oyez site is remarkably similar:

Baldwin wrote almost nothing of interest for the Court on the Constitution and there is little evidence of a coherent constitutional vision in the totality of his work. In the words of one scholar, "His influence on American law was negligible and his presence on the Supreme Court was probably counterproductive."

How different these assessments might have been if the Supreme Court had had an opportunity to consider Lemmon v. People or some other, similar case. It is certainly true that the opinion was pure dictum. It is equally true that no other justice, including Chief Justice Taney, joined the opinion. But the Chief Justice could plausibly claim, if he chose, that nothing in his concurrence directly addressed or contradicted Justice Baldwin's key assertions. It was a rare instance in which a member of the court had erected the framework of an argument that the court might adopt at any time if it chose to do so.

Groves v. Slaughter XII: "Any power of congress is conservative in its character"

By way of a refresher, when we left off, Justice Henry Baldwin was examining the ramifications of his analysis that showed that states had the right to create (or not create) property in slaves. If they did so, the property rights they created were “property” under the Constitution. Having reviewed the consequence for under the Fifth Amendment and the Privileges and Immunities Clause, Justice Baldwin then penned a sentence that seems to come out of the blue:

It follows, likewise, that any power of congress over the subject is, as has been well expressed by one of the plaintiffs’ counsel, conservative in its character, for the purpose of protecting the property of the citizens of the United States, which is a lawful subject of commerce among the states, from any state law which affects to prohibit its transmission for sale from one state to another, through a third or more states.

I want to put aside for the moment the questions what this follows from and why it follows it. To answer those questions, we must first take a look at what the sentence actually says.

The sentence actually seems to contain two ideas. It begins by addressing the idea that there are limitations on the power of Congress; it ends, however, by suggesting that there are limitations on the power of states that do not recognize slavery.

On the issue of congressional power, Justice Baldwin gives us a clue in his reference to the argument of "one of the plaintiffs' [sic] counsel." The counsel to whom he was referring was none other than Henry Clay, who represented Slaughter. Clay argued in part:

The last question in the case is, whether the provision of the constitution of the United States, which gives to congress, exclusively, the right to regulate commerce between the states, is opposed by the constitution of Mississippi. The argument for the plaintiffs in error [the indorsers], is on the abolition side of the question. The counsel for the defendant [in error, Slaughter] sustain the opposite principle. The object of prohibition in the constitution of the United States is to regulate commerce; to sustain it, not to annihilate it. It is conservative. Regulation implies continued existence-life, not death; preservation, not annihilation; the unobstructed flow of the stream, not to check or dry up its waters. But the object of the abolitionists is to prevent the exercise of this commerce. This is a violation of the right of congress under the constitution.

In short, Clay argued that that the term "regulate" meant regularize, make regular. By making commerce regular, one facilitated it. So understood, the term excluded prohibition.

This argument is not as farfetched as it might seem. At least one contemporary legal scholar has recently made a virtually identical argument. Professor Randy Barnett has asserted that at the time of the founding, the term regulate and its cognates were generally understood to mean regularize:

The power to regulate is, in essence, the power to say, "if you want to do something, here is how you must do it." . . . The power to regulate the making of contracts and wills [for example] is not the power to prohibit such activity, even though contracts or wills that do not conform to the regulation are necessarily unenforceable. A pure regulation of commerce, then, is a set of rules that tells people, "If you want to trade or exchange with others, here is how you must go about it."

Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton University Press 2004), at 303.

That said, Justice Baldwin’s reasoning, to extent we can discern it, appears different from Professor Barnett’s. Professor Barnett’s analysis is based primarily on lexicography. His review of dictionary definitions and usage of the word “regulate” and its cognates at about the time of the founding leads him to conclude that its primary meaning was “regularize” rather than “prohibit.” Accordingly, he reasons, when the Framers used the term, and when members of the state conventions read and analyzed the text, it is reasonable to expect that their understanding of its meaning reflected this common understanding.

Justice Baldwin, however, apparently thought that the “conservative” nature of Congress’s power somehow “follow[ed]” from what he had just said. I can only infer that he was not relying primarily on definitions of words, but rather on the structure of the Constitution and the interplay of responsibilities it implied. My best guess – and it is just a guess – is that the key lies in the fact that it was the states (in Justice Baldwin's view) that had the exclusive right to create “property” in slaves. If the states chose to exercise that power and create that property right, the federal government could not destroy that right.

Here, I think, we must return to Justice Baldwin’s earlier assertion that “rights of property” “do not consist merely in ownership; the right of disposing of property of all kinds, is incident to it.” If the “rights of property” include “the right of disposing of” it; and if the federal government may not destroy those rights, including the right of disposal; then as a practical matter (so the argument would go) the federal government can take no steps to impede interstate commerce in that property.

The portion of the sentence restricting the power of states to “affect[] to prohibit [the] transmission [of slave property] for sale from one state to another, through a third or more states” presumably relates back to Justice Baldwin’s premise about the scope of federal power over interstate commerce. Justice Baldwin early on asserted that Congress had exclusive power to regulate interstate commerce; the states have none. If laws of the sort that Justice Baldwin is describing are assumed to regulate interstate commerce, by definition the states have no power to enact them.

If I am reading Justice Baldwin correctly, there is a great irony here. On the one hand, the federal government apparently cannot restrict the interstate slave trade because it would infringe on the exclusive rights of the states to create that property, which the federal government must then protect. On the other hand, a state cannot restrict the interstate slave trade because it would infringe on the federal government’s exclusive right to regulate interstate commerce. Heads I win, tails you lose.

In the next post, Justice Baldwin will make himself painfully clear.

Nusrat Fateh Ali Khan

Have I mentioned I'm a big fan? Try this.

"Let Are Kids Walk"

File this one under "great moments in education." The demonstrators are high school seniors protesting the school district's refusal to allow them to participate in graduation ceremonies because they flunked a standardized test.

At Least It Was Dead

At NR's The Corner, Stanley Kurtz linked to an article with the intriguing headline, "Couple find dead bat in breakfast cereal."

At least it was dead. Years ago -- I was probably about 6 -- I slept over at my grandparents'. For breakfast, my grandfather unsealed and opened a brand new box of Kellogg's Special K. Out flew a real, live moth! Cool!

Groves v. Slaughter XI: "I feel bound to consider slaves as property"

Justice Henry Baldwin delivered the third and final concurring opinion in Groves v. Slaughter. As we shall see (although not in this post), it is in Justice Baldwin’s opinion that contains language that the Supreme Court might have used to reverse Lemmon v. People.

Like both Justice McLean and Chief Justice Taney, Justice Baldwin began by admitting that his separate opinion on the constitutional issues was unnecessary and irrelevant. He blamed both of his colleagues for forcing him to write (“since a different course has been taken by the judges who have preceded me, I am not willing to remain silent, lest it may be inferred, that my opinion coincides with” theirs).

Justice Baldwin then immediately declared himself a federal exclusivist on the Commerce Clause: “the power of congress ‘to regulate commerce among the several states,’ is exclusive of any interference by the states.”

I warned in an earlier post that the term “exclusive” often has an odd meaning in the Commerce Clause context. Here is an example. Having announced that Congress had exclusive authority over interstate commerce, Justice Baldwin then attempted to define the difference between “commerce among the states” and “[p]olice” and to draw a line between them.

The line that Justice Baldwin drew appeared to allow the states ample room to affect interstate commerce, so long as they did not explicitly regulate it. Nonetheless, the Mississippi constitution failed even that generous test. By its terms, it did “not purport to be a regulation of police, for any defined object connected with the internal tranquillity of the state, the health of the people.” To the contrary, it was specifically “aimed at the introduction of slaves, as merchandize, from other states.” The exemption given to settlers only confirmed that its purpose was unrelated to domestic peace or welfare, for it imposed no limits on the introduction of diseased, convicted, insurgent or otherwise dangerous slaves.

For these reasons, Justice Baldwin concluded that Section 2 of the Mississippi constitution (if it were the law of Mississippi) would have been an improper “regulation of commerce among the several states,” subject, however, to one significant proviso: the question still remained whether "slaves are the subjects of such commerce, according to the true meaning of the constitution of the United States, as expounded by this court.”

Justice Baldwin did not explicitly say so, but he seems to have assumed that, if slaves were persons, and not property, then they would not be “subjects of commerce.” His announcement of his position was oddly defensive:

[I] feel it a duty to . . . speak plainly and explicitly, however unsuited to the spirit of the times, or prevalent opinions anywhere, or by any persons, my views may be. That I may stand alone among the members of this court [note that Justice Baldwin apparently believed that every other justice was of the view that slaves were not “subjects of commerce”], does not deter me from declaring that I feel bound to consider slaves as property, by the law of the states, before the adoption of the constitution, and from the first settlement of the colonies; that this right of property exists independently of the constitution, which does not create, but recognises and protects it from violation, by any law or regulation of any state, in the cases to which the constitution applies.

After reviewing the history that he contended supported his conclusion, Justice Baldwin made clear that (unlike Justice McLean) he regarded slaves as articles of commerce “among the several states” as well as “with foreign nations.”

Having staked out his position, Justice Baldwin was apparently concerned that his position created uncertainty about the rights of the states. If slaves were “articles of commerce,” did that not suggest that slavery existed independent of states? The answer was no. Each state, using its local law, had the power to create a “right of property in the owner of a slave.” By the same token, each state had the right and power not to do so, or to abolish slavery. This was “a matter of internal police, over which the states have reserved the entire control.”

However, once the states created this “right of property,” it became subject to the Commerce Clause:

As each state has plenary power to legislate on this subject, its laws are the test of what is property; if they recognise slaves as property of those who hold them, they become the subjects of commerce between the states which so recognise them, and the traffic in them may be regulated by congress, as the traffic in other articles; but no further.

The fact that the states had the right and power to create “property” in the constitutional sense had several other constitutional ramifications, Justice Baldwin argued. First, slaves were also “property” for purposes of the Fifth Amendment. It is not clear to me whether Justice Baldwin was referring simply to the “takings” clause of the Fifth Amendment. His broad definition of “rights of property,” and his conclusion that “congress cannot touch” them, suggested that he had something broader in mind:

Being property, by the law of any state, the owners are protected from any violations of the rights of property by congress, under the fifth amendment of the constitution; these rights do not consist merely in ownership; the right of disposing of property of all kinds, is incident to it, which congress cannot touch.

Second, although the common law of the states thus regulated “[t]he mode of disposition,” in exercising that power the states were subject to the Privileges and Immunities Clause. Justice Baldwin apparently understood that clause to require states not to discriminate, in matters of commerce, against citizens of other states. If a state permitted its own citizens to trade in or dispose of slave property, it must “put[] the citizens of all [other states] on the same footing as their own.”

Indeed, as Justice Baldwin later explained, slavery, one created, became "property in every constitutional sense, and for every purpose:"

[W]herever slavery exists, by the laws of a state, slaves are property in every constitutional sense, and for every purpose, whether as subjects of taxation, as the basis of representation, as articles of commerce, or fugitives from service.

Queen Victoria Goes to Kansas

I got a chuckle out of this:

In 1860, William G. Brownlow, a fiercely partisan Tennessee Whig, announced that he would join the Democrats only "when Queen Victoria consents to be divorced by a county court in Kansas."

Groves v. Slaughter X: "The power . . . is exclusively with the several states"

The second concurrence was by Chief Justice Taney, who conceded at the outset that discussion of the Commerce Clause issue was unnecessary and irrelevant. He blamed Justice McLean for forcing him to write on the issue (“as my brother McLean has stated his opinion upon [the constitutional issue], I am not willing, by remaining silent, to leave any doubt as to mine”).

The “opinion” that the Chief Justice then proceeded to deliver was a bare outline of his conclusions. He did not provide any hint of the reasoning or legal authorities, if any, that led him to arrive at those conclusions. Here is the relevant passage in its entirety:

In my judgment, the power over this subject is exclusively with the several states; and each of them has a right to decide for itself, whether it will, or will not, allow persons of this description to be brought within its limits, from another state, either for sale, or for any other purpose; and also to prescribe the manner and mode in which they may be introduced, and to determine their condition and treatment within their respective territories; and the action of the several states upon this subject cannot be controlled by congress, either by virtue of its power to regulate commerce, or by virtue of any power conferred by the constitution of the United States.

In short, Chief Justice Taney apparently was of the opinion (a) that the states had sole and exclusive power over slavery and interstate commerce in slaves, and (b) that Congress had no power over these subjects. He did not deign to tell us why.

Al-Qaeda Torture Methods

Somehow, I was never able to get too upset about Abu Ghraib and Gitmo. I wonder why?

Jimmy Carter Says "Ouch!" Again

Christopher Hitchens on Jimmy Carter: now there's a match made in heaven (whoops: sorry, Chris)!

In the Carter years, the United States was an international laughingstock. This was not just because of the prevalence of his ghastly kin: the beer-sodden brother Billy, doing deals with Libyan President Muammar Qaddafi, and the grisly matriarch, Miz Lillian. It was not just because of the president's dire lectures on morality and salvation and his weird encounters with lethal rabbits and UFOs. It was not just because of the risible White House "Bible study" sessions run by Bert Lance and his other open-palmed Elmer Gantry pals from Georgia. It was because, whether in Afghanistan, Iran, or Iraq—still the source of so many of our woes—the Carter administration could not tell a friend from an enemy. His combination of naivete and cynicism—from open-mouthed shock at Leonid Brezhnev's occupation of Afghanistan to underhanded support for Saddam in his unsleeping campaign of megalomania—had terrible consequences that are with us still. It's hardly an exaggeration to say that every administration since has had to deal with the chaotic legacy of Carter's mind-boggling cowardice and incompetence.

Groves v. Slaughter IX: An Addendum on Justice McLean

I ended my last post on Groves v. Slaughter with the comment that "[t]he general view of Justice McLean is that he simply lacked the mental horsepower and writing ability to be a first-rate judge." In this vein, I can't resist quoting at least a portion of Professor Currie's wry summary of the judge's efforts and career:

Important for his longevity and the vehemence of his opinions, McLean exhibited more bluster than sound reasoning. He distorted commerce clause precedents to further his nationalistic position, let his abolitionist views lead him into inconsistent and unnecessary support for state power in Groves, and added very little in his long Scott dissent. . . . His best opinion came in Prigg . . . [but even there] McLean neglected to make clear whether he was concurring or dissenting.

It's worth keeping this assessment in mind when you run across pre-War histories mentioning McLean as a potential Republican presidential candidate.

Cat With Turkey Claw

I think that's what it is.

Groves v. Slaughter VIII: A "power higher and deeper than the constitution"

Only seven Supreme Court justices participated in the decision in Groves v. Slaughter. (One justice was “indisposed” and another “died before the case was decided.")

The first concurrence, by Justice John McLean, is a textbook example of Commerce Clause incoherence.

After admitting that his constitutional ruminations were “not necessary to decision of the case," Justice McLean began his discussion of the substance by forcefully asserting “that the power to regulate commerce is exclusively vested in congress, and that no part of it can be exercised by a state.” This was so even if the federal government had not exercised its power as to a particular subject. A contrary rule “would be as fatal to the spirit of the constitution, as it is opposed to its letter.” What letter, Justice McLean declined to identify.

Next, Justice McLean sketched out what sounded like a narrow reading of the police powers exception. A state may pass laws to guard the health and protect the rights of its citizens, “[b]ut these laws must not be extended so as to come in conflict with a power expressly given to the federal government.”

Having laid out a super-nationalist position – federal exclusivity, narrow state police powers – Justice McLean then took half of it back. It turns out that power over international commerce may somehow be different from power over interstate commerce. The following sentences must be among the more bizarre constitutional pronouncements ever written:

The power to regulate commerce among the several states is given in the same section, and in the same language [as the power to regulate foreign commerce]. But it does not follow, that the power may be exercised to the same extent.

Got it?

The paragraphs that follow relate to slavery, and it becomes clear that Justice McLean’s odd conclusion arose from the collision of two propositions that appeared to him otherwise unreconcilable. The first proposition was that Congress had power (and therefore exclusive power) over “[t]he transportation of slaves from a foreign country.” The fact that the Constitution expressly barred Congress from prohibiting the importation of the slaves before 1808 proved that Congress otherwise had the power to do so, because “this exception to the exercise of the commercial power, may well be considered as a clear recognition of the power in the case stated.”

At the same time, Justice McLean was convinced that the states must have, and therefore did have, the power to control, or prohibit, the entry of slaves into their individual borders. But if the states had this power, the federal government could not have it, because the federal government’s commerce power was always exclusive (“If a state may admit or prohibit slaves at its discretion, this power must be in the state, and not in congress”). Strangely enough, the provision that barred the federal government from banning the importation of slaves until 1808 also supported this proposition (“Some of the states, at that time, prohibited the admission of slaves, and their right to do so was as strongly implied by this provision, as the right of other states that admitted them”).

Justice McLean reasoned that, since the federal government must have exclusive control over the international slave trade, and since the states must have exclusive control over the domestic slave trade, there must be some difference in the Constitution between the two, and it seems to have had something to do with equality among the states:

The United States are considered as a unit, in all regulations of foreign commerce. But this cannot be the case, where the regulations are to operate among the several states. The law must be equal and general in its provisions. Congress cannot pass a non-intercourse law, as among the several states; nor impose an embargo that shall affect only a part of them.

If you understand what this means, or why it supports Justice McLean’s conclusion, please let me know!

Justice McLean then veered off into a discussion of whether slaves were “persons.” According to the justice, “[t]he constitution treats slaves as persons” and “acts upon slaves as persons, and not as property.” “By the laws of certain states, slaves are treated as property,” but this character given by local law “cannot divest them of the leading and controlling quality of persons.”

The last (quite long) paragraph of the opinion at least had a purpose. Justice McLean returned to the proposition that states must have the power to regulate the introduction of slaves within their borders. To support this assertion, he cited, first, the fact more than half the states have “abolished or prohibited” slavery. “And in these states, a slave cannot be brought as merchandize, or held to labor, in any of them, except as a transient person.”

Can it possibly be, for example, that the constitution of Ohio, which prohibits slavery, violates the Commerce Clause? Nay!

[N]o one doubts [Ohio’s] power to prohibit slavery. And what can more unanswerably establish the doctrine that a state may prohibit slavery, or, in its discretion, regulate it, without trenching upon the commercial power of congress?

The final paragraph presents an odd mix of half-digested ideas that support the idea that slavery was somehow more “local” and less “commercial” than commerce in products. While Ohio can prohibit slavery, it could not prohibit the importation of “the cotton of the south.” Why not? Because the Commerce Clause “was designed to prevent commercial conflicts among” the states. Slavery, on the other hand, “is local in its character, and in its effects; and the transfer or sale of slaves cannot be separated from this power. It is, indeed, an essential part of it.”

The concluding sentences give the game away. Here is the true source of Justice McLean’s conflict. Ultimately, a principle “higher and deeper than the constitution” required the states to be able to control slavery: “the law of self-preservation.” Consider that the following language comes from the pen of a Justice of the Supreme Court of the United States:

Each state has a right to protect itself against the avarice and intrusion of the slave-dealer; to guard its citizens against the inconveniences and dangers of a slave population. The right to exercise this power, by a state, is higher and deeper than the constitution. The evil involves the prosperity, and may endanger the existence of a state. Its power to guard against, or to remedy the evil, rests upon the law of self-preservation; a law vital to every community, and especially to a sovereign state.

Coda I: I've intentionally left you in the dark about Justice McLean's political views. Even so, you may have guessed. Portions of his opinion suggest the later Republican theme that freedom was national, slavery local. He hailed from Ohio, dissented in Dred Scott, and his anti-slavery views were so pronounced that he was a potential Republican presidential nominee in both 1856 and 1860. Before the War, anti-slavery men were entirely capable of holding radical states-rights views in support of the rights of northern states to reject slavery. In this respect, Justice McLean's opinion reminds me of the opinions of Justice Abram D. Smith of the Supreme Court of Wisconsin in Ableman v. Booth (discussed in a number of earlier posts; click on the appropriate tags).

Coda II: According to Professor Currie, Justice McLean "concluded that slaves were not articles of commerce because the Constitution referred to them as 'persons.'" I suppose that is fair guess at one of the points that Justice McLean was struggling to make, but the fact of the matter is he never quite drew that distinction. What he wound up saying was that slaves were subject to the Commerce Clause for purposes of international trade, but not subject to it for purposes of interstate trade -- a very strange position. The general view of Justice McLean is that he simply lacked the mental horsepower and writing ability to be a first-rate judge. His opinion here certainly bears out that assessment.

Groves v. Slaughter VII: It Is "Unnecessary to Inquire"

The “opinion of the court” in Groves v. Slaughter was “delivered” by Justice Smith Thompson. I know you’re excited to finally get to the decision, but control yourself, for the “opinion of the court” contains no discussion of the Commerce Clause. Justice Thompson showed admirable judicial restraint. You will remember that the threshold issue was whether the provision of the Mississippi constitution forbidding the importation of slaves for sale was itself the law of Mississippi or merely a directive to the Mississippi legislature that it should enact such a law. If it was the law of Mississippi, then it would be necessary to reach the Commerce Clause issue. But if it were simply a directive to the legislature, then the federal constitutional issue disappeared. Justice Thompson put the issue as follows:

The question arising under the constitution of Mississippi is, whether this prohibition, per se, interdicts the introduction of slaves as merchandize, or for sale, after a given time; or is only directory to the legislature, and requiring their action, in order to bring it into full operation, and render unlawful the introduction of slaves for sale, at any time prior to the act of the 13th of May 1837.

Justice Thompson concluded that it was more reasonable “to construe the constitution as directory only to the legislature.” Thus, when the slaves were sold, “there was, certainly, no fixed and settled course of policy which would make void or illegal such contracts.” The indorsers’ defense that the contracts were null and void as contrary to Mississippi law therefore failed, and the federal constitutional issue was moot:

The judgment of the circuit court [in favor of Slaughter] is accordingly affirmed. And this view of the case makes it unnecessary to inquire whether this article in the constitution of Mississippi is repugnant to the constitution of the United States; and indeed, such inquiry is not properly in the case, as the decision has been placed entirely upon the construction of the constitution of Mississippi.

But fear not! Although they admitted that it was utterly unnecessary, three justices wrote separate concurring opinions in which they gratuitously addressed the Commerce Clause issue. It is to the first of these to which I shall next turn to.

Groves v. Slaughter VI: Persons "Are Not the Subject of Commerce"

Yet another issue that caused confusion in pre-War Commerce Clause cases was the meaning of the term “commerce.” It pretty clearly included the shipment of goods. But did it also include the transit of passengers? The issue was particularly troublesome because the states repeatedly passed laws that (a) substantially impinged upon international passenger transit, but (b) were clearly motivated by legitimate “police” issues such as health and safety. (In this respect, they were something like my hypothetical in the last post, in which a state banned the importation of tobacco.) From time to time, some of the justices sought to cut this Gordian knot of conflicting considerations by suggesting that passenger travel was not “commerce.”

New York v. Miln, which I mentioned in an earlier post, was such a case. There New York had passed a law imposing various obligations on ship captains bringing international passengers into the state. The motivation was to discourage taking in criminals and paupers who would become a public burden or threaten public safety. On the one hand, the law arguably “regulated” “commerce” (if passenger travel was commerce). On the other hand, it was generally accepted that states had the right to exclude undesirable immigrants altogether. Did not the greater power (total exclusion) necessarily include the lesser (imposing burdens)?

Although the case produced a range of opinions, it was actually less confusing than most Commerce Clause decisions of the period. As I noted before, in essence the court held that the state’s police powers prevailed over Commerce Clause considerations. Even if, or although, passenger travel was “commerce,” the state clearly had the police power to impose quarantine laws restricting immigration to protect public heath. Broadly viewed, the New York law was similarly designed to protect public safety and was thus a proper exercise of the police power, even though it affected international commerce.

Even so, the idea that passenger traffic was not really commerce at all was sometimes just so easy that the temptation was irresistible. For example, Justice Barbour’s opinion in Miln basically followed the reasoning described above. Nonetheless, he could not resist throwing in the irrelevant observation that passengers “are not the subject of commerce.” In short, the idea was never dispositive, but it popped up from time to time to bolster conclusions reached for other reasons. As a result, the concept was one of the confusing currents of contradictory considerations that churned through Commerce Clause opinions of the period. (And how’s that for alliteration?)

When we arrive (finally!) at Groves v. Slaughter, we will see this issue resurface to some degree in some of the opinions with additional overlays that generate even greater confusion: are slaves persons or goods (or both)? What is the source of their status, state law or the federal Constitution? Does it even matter?

As I hope this very brief and simplistic review has suggested, Commerce Clause law was a mess during this period. Individual opinions were often badly written and virtually incomprehensible. Most cases generated multiple opinions that employed different reasoning, making it impossible to identify which reasoning controlled (assuming you could understand it). Cases were often decided by narrow majorities, and as majorities shifted it was often difficult to reconcile results in different cases.

As a result, a justice writing an opinion could often justify any result and reasoning he desired. If you wanted to uphold a state law, emphasize lack of federal exclusivity and/or the breadth of state police power; point out (if applicable) that the federal government had not passed legislation concerning the subject; and (if applicable) suggest that passengers are not commerce. In the alternative, you could concede federal exclusivity but go on to endorse a police power exception that swallowed the rule.

If, on the other hand, you wanted to strike down a state law, pick one or more of the following: harp on federal exclusivity; emphasize that the subject matter demanded national uniformity; (if applicable) highlight the fact that the federal government had passed laws regulating the same subject matter; assert that the offending state law “really” represented a regulation of commerce and was not merely the exercise of a police power; and (if applicable) deny that passenger travel was excluded from the scope of the Commerce Clause.

In the following posts, I will actually get to the opinions in Groves (I promise!). Hopefully, the background I have tried to provide will reduce, or at least explain, the confusion we encounter. In the meantime, if you have any questions, I’m happy to try to answer them. If those of you already familiar with this area think my explanations incorrect, misleading or otherwise insufficient, fire away. I’m not proud.

Groves v. Slaughter V: The Police

Another issue that created great confusion in Commerce Clause cases of the pre-Civil War period was the relationship between the Clause and the states’ powers of “police.” That term was generally a shorthand way of referring to those powers of internal regulation that everyone understood the states possessed. In Groves v. Slaughter, for example, Justice Baldwin referred to a “regulation of police” as any law with an “object connected with the internal tranquility of the state, the health or morals of the people.”

But the powers of police could potentially come into conflict with the Commerce Clause. Let me use a hypothetical based on modern concerns. Assume a non-tobacco growing state concludes that the use of tobacco is injurious to the health of its citizens. It therefore bans the use of tobacco within the state. Health regulation is a quintessential police power. The Supreme Court had early on recognized that the states could enforce quarantine and health laws without offending the Commerce Clause:

The same bale of goods, the same cask of provisions, or the same ship, that may be the subject of commercial regulation, may also be the vehicle of disease. And the health laws that require them to be stopped and ventilated, are no more intended as regulations of commerce, than the laws which permit their importation, are intended to inoculate the community with disease.

Gibbons v. Ogden (1824) (Johnson, J., concurring).

From this perspective, a member of the Taney court would not have had the slightest doubt that a state could enact my hypothetical statute.

On the other hand, looked at differently, there is not the slightest doubt that this hypothetical law affects interstate commerce, perhaps substantially. (One assumes that Virginia would have screamed bloody murder if a number of northern states had banned the use of tobacco in 1840.) Although the state has not banned the importation of tobacco or tobacco products into the state, clearly no merchant is going to bother to import them, except possibly for transshipment.

Now take it a step further. What if the state bans the possession of tobacco in the state? Again, looked at one way this is a purely “internal” regulation. Looked at another way, the state has, in effect, banned the importation of tobacco, because anyone who does so is immediately guilty of illegal possession.

Finally, what if the state bans the importation of tobacco into the state? Now you have a statute that certainly looks like it is directly regulating interstate commerce. But the motivation and purpose of the law remains (hypothetically) to protect the health of the state’s citizens – an exercise of police power. And if it was constitutionally permissible for the state to ban the use and possession of tobacco, doesn’t it elevate form over substance to say that the state cannot address the problem directly and ban importation as well? And yet, if a line needs to be drawn somewhere, where are you going to draw it if you don’t do so here?

Although a total ban might seem unrealistic, the variations are potentially endless. Our hypothetical state might require that tobacco products be shipped into the state, or sold in-state, only in specified packaging (with, for example, a specified warning label). Or it might require that importers or in-state sellers of tobacco products obtain licenses, pay fees and post bonds to defray consumer health costs. All of these schemes would, as a practical matter, burden interstate commerce to a greater or lesser degree. Again, where and how do you draw the line? Does the degree of burden matter? Does the practical impact on interstate commerce matter? If it does, aren’t you depriving the state of its right to protect the health of its residents? Etc. etc. etc.

The interaction of the exclusivity issue (discussed in the last post) and the police power issue (discussed here) resulted in combinations of views that may seem extremely odd to modern observers. For example, a justice might present an extremely “nationalist” position on the exclusivity issue, asserting that the Commerce Clause gave Congress the exclusive right to regulate international and interstate commerce (whether Congress actually exercised that right or not) and denied the states any authority to do so. At the same time, that justice might have an expansive view of the states’ police powers, believing that a state could properly (using the hypothetical) ban the use and possession of tobacco as a health measure. In short, you wind up with an opinion proclaiming federal exclusivity that contains a police power exception that virtually swallows the rule. Professor Currie has wryly commented on this rather odd result as follows:

The reader may well find the resulting “exclusivity” of congressional authority in the sphere of commerce a peculiar one. If the purpose of the Framers was to create a self-executing safeguard against state interference with commerce, one might expect them to have done so without regard to the name of the power the state purported to exercise.

David P. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789-1888 (Chicago: University of Chicago Press 1985) at 175.

The point for now is that it will be necessary to watch both issues when examining the opinions discussing the Commerce Clause in Groves (and almost any other Commerce Clause opinion of the period). The tension between the two considerations creates a good deal of the confusion (sometimes to the point of incomprehensibility) in the decisions.

The Civil War in Four Minutes!

The Civil War in Four Minutes. What a clever creation! Just wonderful.

Groves v. Slaughter IV: Some Commerce Clause Background

Before discussing the various opinions in Groves v. Slaughter, I'm going to do something I probably should have done before I reviewed the arguments of counsel: provide a very brief description of some of the issues relating to the Commerce Clause that members of the Supreme Court were wrestling with during this period.

One group of issues generally concerned whether the Commerce Clause left the states any role in regulating international and interstate commerce. The Commerce Clause itself granted to the federal government the power to regulate that commerce. It did not by its terms, however, assert that the states could not also regulate that commerce. Did that mean that the states had concurrent power to do so? A more "nationalist" judge might say that the Commerce Clause arose from a need for uniformity, and thus implicitly deprived the states of power. A more "localist" judge could point to the fact that other provisions of the Constitution showed that, when the framers desired to deprive the states of a particular power, they said so explicitly. They had not done so here.

Another aspect of the same question, or another way of looking at it, was whether it made a difference that Congress had or had not actually used its power under the Commerce Clause. Assume, for example, that New York passed a law regulating interstate commerce by granting exclusive licenses to certain coasting vessels to enter its ports. Assume further that the federal government had passed a statute that established a federal licensing system. In that event, a judge would be more inclined to say that the New York law was unconstitutional because it contradicted, undermined and frustrated the federal licensing system.

But what if the federal government had not passed any law relating to the licensing of coasting vessels? Would the New York law still be unconstitutional? After all, it was not frustrating any federal scheme. However, some more "nationalist" judges argued that the Commerce Clause gave Congress exclusive power over interstate and international commerce even where Congress had chosen not to exercise its power. In very famous dicta in a case called Gibbons v. Ogden (1824), Chief Justice Marshall had suggested

that, as the word "to regulate" implies in its nature, full power over the thing to be regulated, it excludes, necessarily, the action of all others that would perform the same operation on the same thing. . . . There is great force in this argument, and the court is not satisfied that it has been refuted.

Salome

I was going to post about the Commerce Clause, but I got caught up watching Jack Bauer. So you get Salome instead.

Groves v. Slaughter III: The Indorsers' Arguments

As we have seen, Slaughter's attorneys made two sorts of arguments. First, they claimed that Mississippi law did not make illegal the importation of slaves into the state for sale. In the alternative, they argued that, even if Mississippi law did bar the importation of slaves, such a law was unconstitutional because it violated the Commerce Clause.

As you might expect, the indorsers denied both propositions. First, they asserted that the wording of the Mississippi constitution was crystal clear: the importation of slaves into the state for sale was forbidden and illegal.

They then moved to the federal constitutional issue. Henry D. Gilpin conveniently began this portion of his argument by summarizing three lines of attack:

It is said, that it is, because the constitution gives to congress the power "to regulate commerce with foreign nations, among the several states, and with the Indian tribes." Is the prohibition to import slaves into Mississippi, for sale within that state, such a regulation of commerce among the several states, as congress had the sole authority to make? It is submitted-1. That it is not a regulation of commerce among the states. 2. That if it were, it is one excepted from this power of congress, and remains in the state. 3. That if it were vested in congress, it may also be exercised by the state.

The core of the first point -- "[t]hat it is not a regulation of commerce among the states" -- was based on the proposition that it was inconceivable that a slave state could not regulate the introduction of slaves within its borders. This was, Gilpin urged, an internal matter that did not affect interstate commerce. After quoting portions of a famous early interstate commerce opinion (relating to interstate transportation of passengers), Gilpin continued:

Is not this a commerce carried on between man and man, in the state of Mississippi? Is it not a matter that does not affect other states? Is it necessary for the general government to interfere, for the purpose of executing its powers? It is the importation of a slave; the sale of a slave. His being a slave; his being a subject of sale, is a matter depending solely on the state of Mississippi. It is by the local law alone, that the subject-matter of importation and sale is created. No other state is affected by its existence or non-existence. It is not necessary for any powers of the general government, that it should be able to enforce this sale or this importation, unless it has the power not to regulate, but to create articles of commerce.

Gilpin then hit Daniel Webster precisely where he was weakest: Webster's argument (discussed in the last post) that a free state could bar the importation of slaves, whereas a slave state could not. What's good for the goose, Gilpin noted, is good for the gander:

Suppose, Mississippi had said, no negroes shall be sold as slaves, within her limits; can congress interfere, to abolish this, on the ground that it affects other states? That will not be contended; yet, if it cannot, then its interference to regulate the disposition of them-the manner in which they are to be dealt with-is assuming a power over a subject-matter which the states themselves can abolish or create.

To avoid the force of this inference, a distinction has been taken, in regard to the importation of slaves into the slave-holding and non- slaveholding states. But where is this distinction found? Certainly not in the letter of the constitution; certainly not in its spirit. It is admitted, that the importation of a slave into New York, where the sale as a slave, and his detention in slavery, are forbidden, may be prohibited; yet it is urged, that the importation of a slave into Mississippi, where his sale, when so brought, is forbidden, cannot be prohibited. The distinction is not to be sustained. Commerce is the traffic in articles which are the subjects of traffic, either in the place from which they are brought, or the place to which they are taken, If the place from which they are brought is the test, then is every slave, taken from Virginia to New York, an article of commerce, and any regulation by the latter in regard to him, is a violation of the constitution. If the place into which they are imported, determines their character, then is the privilege of the slave state, in regard to their disposition as matters of commerce, as strictly constitutional and complete as that of the free states.

Next, Gilpin argued that, even if the bar on imported slaves affected commerce, Mississippi was entitled to do so because it was exercising its police powers. Mississippi was merely protecting itself, just as New York had been protecting itself in Miln (discussed in the last post):

This court . . . had laid down the rule, that a state might do whatever was necessary to protect itself internally; its quarantine, police, pilot laws, &c., all relating to and connected with navigation and commerce. . . . The evils against which the people of Mississippi desired to protect themselves, have been fully pointed out. Their determination to stop the introduction of slaves, without corresponding emigration; to guard against the admission of the vicious, through the deceptions of negro-traders, were evidently objects of proper municipal regulation, equally concerning the welfare of the whole people of the state, and that of many an individual within it.

Finally, Gilpin argued (in the alternative and as a last resort, to be sure) that this was a matter over which both Congress and the state of Mississippi had concurrent authority. Even assuming that the Constitution granted Congress power over the interstate slave trade, Congress had chosen not to exercise that power. Nothing, therefore, prevented the states from doing so:

Even if we admit congress might regulate them, could not that state also do so? And if not, to what serious evils might it lead! Congress has never yet acted on the subject; yet who can deny, that it is a subject that must have been acted on? It is submitted, therefore, on all these grounds, that this is not a regulation of "commerce among the states," according to the meaning of the constitution; but if it is, it is one that the states themselves have also a right to make.

Next, we will begin to examine what the Supreme Court did with this welter of arguments and counterarguments.

Groves v. Slaughter II: Slaughter's Arguments

In their appeal to the Supreme Court, the indorsers argued that that the transaction was null and void because it violated the provision of the Mississippi constitution that prohibited the importation of slaves into the state for sale. In response, Slaughter made essentially two kinds of arguments.

The first was not a federal constitutional argument. Instead, Slaughter argued that Mississippi law did not, in fact, forbid the importation of slaves into the state. The provision of the Mississippi Constitution was, in effect, an expression of the convention's belief that the Mississippi legislature should prohibit the importation of slaves. But, rightly or wrongly, the legislature had never passed such a law. Instead, it had passed laws implicitly recognizing that it was lawful to import slaves for sale, such as the law taxing imported slaves. Because the Mississippi legislature had not made the importation of slaves for sale illegal, Slaughter had violated no law, and the transaction was legal and certainly not null and void.

Slaughter’s second argument, however, did directly implicate the federal Constitution. Assuming that Mississippi law did make the importation of slaves for sale illegal, Slaughter argued, that law was itself void because it violated the Commerce Clause. That Clause, he urged, gave Congress the exclusive right to regulate commerce among the states.

In his argument on Slaughter's behalf, Henry Clay couched the argument in the following terms:

The last question in the case is, whether the provision of the constitution of the United States, which gives to congress, exclusively, the right to regulate commerce between the states, is opposed by the constitution of Mississippi. The argument for the plaintiffs in error [i.e., the indorsers], is on the abolition side of the question [i.e., they would permit states to abolish interstate commerce in slaves]. The counsel for the defendant [in error, i.e., Slaughter] sustain the opposite principle. The object of prohibition in the constitution of the United States is to regulate commerce; to sustain it, not to annihilate it. It is conservative. Regulation implies continued existence-life, not death; preservation, not annihilation; the unobstructed flow of the stream, not to check or dry up its waters. But the object of the abolitionists is to prevent the exercise of this commerce. This is a violation of the right of congress under the constitution.

The right of the states to regulate the condition of slaves within their borders, is not denied. It is fully admitted. Every state may, by its laws, fix the character and condition of slaves. The right of congress to regulate commerce between the different states, which may extend to the regulation of the transportation of slaves from one state to another, as merchandize, does not affect these rights of the states. But to deny the introduction of slaves, as merchandize, into a state, from another state, is an interference with the constitution of the United States. After their introduction, they are under the laws of the states. Nor is the power, given by the constitution of the United States, to regulate commerce, one in which the states may participate. It is exclusive. It is essentially so: and its existence in this form is most important to the slave-holding states.

Note how tight a rope Clay is walking. First, he must assert that Congress has the exclusive right to regulate commerce in slaves among the states; but at the same time he goes out of his way to suggest that Congress could not use that power to abolish that commerce, only to “regulate” it in order to conserve, preserve and sustain it.

Second, he must deny that the states have the power to regulate commerce in slaves among the states, but at the same time he must concede that states have the right “to regulate the condition of slaves within their borders.” Earlier cases had held that states had the right to bar or impose conditions on people entering their territory. For example, in Miln v. New York, 22 U.S. 1 (1824), the Court had upheld a New York statute relating to arriving ship passengers because the state had a right to protect itself against “the moral pestilence of paupers, vagabonds, and possibly convicts,” who might impose a tax burden, as well as against “the physical pestilence” that they might present. Clay also presumably recognized that it was unthinkable (and political suicide) to deny slave states the power to regulate and control the slaves within their borders. He was therefore forced to make the awkward suggestion that the Mississippi constitutional provision was null and void because it was specifically aimed at commerce (it denied the introduction of slaves “as merchandize”) and did not purport to be an exercise of police powers such as quarantine and inspection.

The constitutional argument of Clay’s co-counsel representing Slaughter, Daniel Webster, was, if anything, even more awkward. After demonstrating that the Constitution granted the federal government the exclusive right to regulate interstate commerce, he admitted that “interior rights, not commercial, may be regulated by the states.”

In an attempt to establish that the interstate transportation and sale of slaves was “commerce,” Webster then dealt with the uncomfortable issue whether slaves were “property.” He argued that both state law and the Constitution recognized slaves as property:

The powers conferred on congress, are duties; and they are to be exercised for the good of the states. What is the foundation of the right to slaves? There is no law declaring slaves property any more than land. Slaves are property by the term “slaves.” The master has a right to their services and labor. This is property. The constitution recognises slaves as property. Slaves escaping from the state in which they are held to service and labor may be arrested in other states, and carried back to the state from which they escaped. The right to take them up, is an acknowledgment of the right of property in them.

But this only created a further morass, because Webster was morally and politically bound to deny that states that abolished slavery could be forced to accept slaves. He therefore argued that the Commerce Clause did not authorize Congress to compel free states to take slaves. With all due respect to Webster, his argument as summarized is more conclusory than persuasive. Presumably, Webster was struggling to suggest that a state’s decision to abolish slavery within its borders was not a commercial decision, or that when a state abolished slavery, slaves ceased being property within that state’s borders:

While the right and duty in congress, under its power and duty to regulate commerce between the states, extends to slaves, as articles of commerce between the states, so long as slavery exists in the states, when slavery is abolished in a state, congress has no privilege to interpose; in such states, congress has no power to interfere with the state regulations as to slavery.

Webster thus settled on the odd proposition that a state that abolished slavery could constitutionally refuse the importation of slaves, but a state that recognized slavery violated the Commerce Clause if it did so:

If the right in states recognising slavery exists, to prohibit trading in them, it will allow non-intercourse between the states of the Union by the legislative enactments of the states; and will authorize retaliation. This is negatived by [earlier Supreme Court decisions]; and the question is closed.

Webster then provided an analogy to illustrate his position:

The court are called upon to say that the state of Mississippi may prohibit the transportation into that state of any particular article. The court will be obliged to find out something in the introduction of slaves, different from trading in other property. This will be difficult. Suppose, under some excitement, the introduction of cotton into the state of Massachusetts had been prohibited, and this was retaliated by a prohibition of the introduction into a cotton-planting state of cotton fabrics. Would not this be an interference with the power of congress to regulate commerce? Slaves are as much property in Mississippi and in Carolina, as cotton. All the states have not slaves, nor do all the states plant cotton. Can states interfere with the introduction of articles which congress have left free? There are exceptions; such as quarantine regulations, pilotage; but the subject of this inquiry is different. The prohibition of the constitution of Mississippi is a regulation of commerce, intercourse, merchandize.

It is fair to say, I think, that the analogy did not advance the ball at all. What if Massachusetts simply passed a law declaring that its citizens could not own cotton, and that the state did not recognize cotton as “property”? What if the cotton-planting states then passed laws declaring that their citizens could not own cotton fabrics, and that those fabrics were not “property”?

Webster’s peroration sounds like the conclusion of a man who has tied himself totally in knots:

The strongest motives to establish the constitution of the United States, was the regulation of commerce and intercourse between the states, and with foreign states; to make the United States, in this respect, a unit. It may not be easy to draw the line, so as to distinguish what may, and what may not, be an interference with the provisions of the constitution of the United States. But this is not such a case. This is a clear case. In any matters of the sale and purchase of property, the states cannot interfere.

I will turn next to the arguments made by the attorneys for the indorsers.

Groves v. Slaughter I: The Interstate Slave Trade

In his book An Imperfect Union, Paul Finkelman argues that passages in the Supreme Court decision in Groves v. Slaughter (1841) could support a ruling reversing Lemmon v. People. I therefore thought I would take a close look at the case.

Groves v. Slaughter, 40 U.S. 449 (1841), was actually two cases, although they involved the same transaction. Both arose out the sale of slaves by Robert Slaughter to John W. Brown (not the John Brown!) in Natchez, Mississippi on December 20, 1836.

Sometime in 1835 or 1836, Slaughter, presumably a slave trader (and a very wealthy one, given the attorneys he later hired, as described below), brought a number of slaves into the Mississippi “as merchandize, and for sale.” In doing so, Slaughter paid a tax imposed by the Mississippi legislature. Brown purchased some or all of these slaves on December 20, 1836. Brown was apparently a resident of Mississippi and intended to employ the slaves in that state.

In partial payment of his purchase, Brown signed two promissory notes, one in the amount of $7,875, payable twenty-four months later, and the other in the amount of $7,000, payable twelve months later. In both cases, Brown made the notes payable to the order of one R.M. Roberts. For example, the $7,000 note stated as follows:

Natchez, December 20th, 1836.

Twelve months after date, I promise to pay to R. M. Roberts, or order, the sum of seven thousand dollars, for value received, payable and negotiable at the Commercial Bank of Natchez, state of Mississippi.

JOHN W. BROWN.

Roberts then indorsed the notes over Slaughter, and two other men, Moses Groves and James Graham, indorsed the notes as well. The indorsements were a device to provide additional security to Slaughter. By adding their indorsements, Roberts, Groves and Graham became liable on the notes and in effect guaranteed their payment. I am guessing here, but the indorsers were probably officers of the Commercial Bank at Natchez, where the notes were payable.

When the notes came due, Slaughter made demand for payment. (He seems to made his demands to the indorsers, confirming that it was their credit, not Brown’s, that supported the transaction.) The indorsers refused to pay. Slaughter then commenced separate suits on the two notes, in April 1838 and February 1839, in the United States Circuit Court for the Eastern District of Louisiana. Again, I am guessing, but I assume that Slaughter filed suit in federal court based on diversity of citizenship – presumably he was citizen of the State of Louisiana, and all of the defendants were citizens of Mississippi.

In both cases, the indorsers defended their refusal to pay on the ground that the transaction was illegal and therefore void. To quote the Supreme Court syllabus, they argued

that the cause or consideration for which the notes were given was null and void, the notes were null and void, and of no effect; because the contracts on which they are found were in direct violation of the constitution of the state of Mississippi, which expressly prohibits the introduction of slaves into that state, as merchandize, or for sale, after the first day of May 1833.

The provision of the Mississippi Constitution of 1832 upon which the indorsers relied appeared in Article VII. That Article had a separate subdivision, entitled “Slaves.” Section 2 of that subdivision provided as follows:

The introduction of slaves into this state, as merchandize, or for sale, shall be prohibited from and after the first day of May 1833: provided, that actual settler or settlers shall not be prohibited from purchasing slaves, in any state in this Union, and bringing them into this state for their own individual use, till the year 1845.

The Circuit Court rendered judgment in favor of Slaughter and against the indorsers, holding that the notes were enforceable. The indorsers appealed to the United States Supreme Court.

The cast of attorneys who argued the case before the Supreme Court was stunning. Henry D. Gilpin and Robert J. Walker (pictured) represented the indorsers. Henry Clay, Daniel Webster and Walter Jones represented Slaughter.

The Supreme Court report summarizes the arguments. The summary of Henry Clay’s argument provides some sense of the dramatic oratory for which he is famous. At the outset, he provided an arresting description of the tremendous scope and importance of interstate slave transactions to the economies of the southern states -- including his native state of Kentucky:

Clay, for the defendant in error, said, the questions to be decided in this case, involved more than $3,000,000, due by citizens of the state of Mississippi, to citizens of Virginia, Maryland, Kentucky and other slave states. The magnitude of the cause is shown by the increase of slaves in the state of Mississippi, from 1830 to 1840. In 1830, the slave population was about 65,000. In 1840, it had increased to upwards of 190,000. The greater portion of this increase took place about the time the contracts on which these suits were brought were made. Within the period of seven years, from 1830 to 1837, the increase had been more than 74,000. A large portion of this number had been introduced into the state, as merchandize, or for sale, by non-residents. The universal habit of all the planting states has been, to buy slaves on credit, leaving the product of planting to pay for them. Tens of thousands of slaves have been introduced, and contracts made by citizens of Mississippi to pay for them on time; and now the question is, whether these contracts shall be extinguished, by an ex post facto construction of the constitution of the state?

Rachel Carson

Over at Millard Fillmore's Bathtub, Tim Paganos is outraged and incredulous that anyone would vote against naming a post office after Rachel Carson. The infidels must be moronic, knuckle-dragging Repuglicans who drown puppies and shoot bald eagles!

I read Silent Spring decades ago and was as awe-struck (awe-stricken?) as any other teenager. But the fact of the matter is that the worldwide virtual ban of DDT has resulted in the deaths of millions of people. I had thought that this was pretty well known, but apparently not.

The problem is that DDT is what you need to use to kill malaria-carrying mosquitoes. And if you don't kill those mosquitoes, people die. Here, for example, is a recent article from the WSJ, chosen more or less at random, entitled "Suffering in Silence: The real legacy of Rachel Carson,"

The World Health Organization now estimates that there are between 300 and 500 million cases of malaria annually, causing approximately one million deaths. About 80% of those are young children, millions of whom could have been saved over the years with the regular application of DDT to their environments.

The article is actually quite balanced, both about Carson herself and the pros and cons of DDT use:

Carson cannot be blamed directly for these deaths. She didn't urge total bans in "Silent Spring." Instead, on the single page obliquely acknowledging DDT as an anti-malarial agent, she writes, "Practical advice should be 'Spray as little as you possibly can' rather than 'Spray to the limit of your capacity.'"

In the National Archives exhibit, Carson is described as "a passionate voice for protecting the environment and human health." Her concerns about the effects of insect death on bird populations were well-founded. But threats to human health were central to her argument, and Carson was wrong about those. Despite massive exposure in many populations over several decades, there is no decisive evidence that DDT causes cancer in people, and it is unforgivable that she overlooked the enormous boon of DDT for malaria control in her own time.

In short, Rachel Carson may not be the devil incarnate; but neither is she particularly admirable. Why anyone would vote to name anything after her -- even a post office -- is a mystery to me.

Finally, Tim asserts, "I don’t believe Carson ever alleged that DDT did cause cancer anywhere, so the study is moot." Sorry, Tim:

Some of Carson's star anecdotes about DDT's carcinogenic qualities turned out to be flawed: Her tale of "a housewife who abhorred spiders" spraying her basement in August and winding up dead of "acute leukemia" by October seems absurd to the modern reader, as does the man who winds up hemorrhaging in the hospital due to a "severe depression of the bone marrow" just "a short time" after spraying for roaches. Neither cancer could have been caused by DDT in so short a time.

Whoops!