Friday, May 25, 2007

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.

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