Monday, May 28, 2007

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.

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