Wednesday, May 23, 2007

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.

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