Tuesday, May 01, 2007

Lemmon v. People XV: "A Direct Obligation on the States"

So, were the Republicans paranoid nuts to fear that the Taney court would use Lemmon v. People, or some similar case, to impose slavery on the free states?

What I'm going to do periodically is provide quotes from some Supreme Court cases that, cumulatively, suggest that they were not. Eventually, I may try to tie them together.

Let's start with something simple, something that sets the stage: the proposition that property in slaves was recognized by the constitution. In his concurrence in Dred Scott, Justice Peter V. Daniel argued, among other things, that the federal government could not exclude slavery from the territories because it was, in effect, a trustee for the people of all of the United States -- including slaveholding states. To exclude slaveholding from the the territories would constitute a breach of trust by appropriating the territories for the exclusive use of nonslaveholders.

In the course of that argument, Justice Daniel argued that slaveholding was a property right of constitutional stature:
Nothing can be more conclusive to show the equality of this [slaveholding] with every other right in all the citizens of the United States, and the iniquity and absurdity of the pretension to exclude or to disfranchise a portion of them because they are the owners of slaves, than the fact that the same instrument, which imparts to Congress its very existence and its every function, guaranties to the slaveholder the title to his property, and gives him the right to its reclamation throughout the entire extent of the nation; and, farther, that the only private property which the Constitution has specifically recognised, and has imposed it as a direct obligation both on the States and the Federal Government to protect and enforce, is the property of the master in his slave; no other right of property is placed by the Constitution upon the same high ground, nor shielded by a similar guaranty.

60 U.S. at 490 (emphasis added).

Was it not fair to wonder whether this suggested that the right to own slaves was not entitled to greater protection under the Constitution than other forms of property rights?

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