Saturday, May 12, 2007

Lemmon v. People XVII: The Passenger Cases

Chief Justice Taney's dissent in the Passenger Cases, 48 U.S. 283, 492 (1849), is famous for containing the first expression of what later became known the "right to travel." It strikes me, however, that he might have been able to use the thrust of his comments to support an argument that slaveholders had a right to travel through free states with their slaves.

The Passenger Cases involved statutes by the states of New York and Massachusetts by which ship captains were charged a fee for each passenger they brought into the state. The principal question was whether these statutes violated the Commerce Clause.

The Taney court decisions on the Commerce Clause were usually virtually incoherent, and the Passenger Cases were no exception. By a 5-4 vote, the Court held the statutes invalid. At least three of the five judges in the majority stated the statutes violated the Commerce Clause. The two others apparently rested their decisions on other grounds.

Likewise, the dissenters cited a number of different, and sometimes contradictory, reasons for their conclusions. Among other things, they argued that the statutes were the legitimate exercise of police powers retained by the states to protect their citizens against disease and pauperism; and that the transportation of passengers fell outside the scope of the Commerce Clause altogether.

The sections of the statutes at issue in the cases concerned the imposition of fees on captions bring aliens into the states from abroad. However, the statutes contained corresponding sections imposing fees for interstate travel by American citizens coming from ports in other states. Although interstate travel was not before the Court, Chief Justice Taney reached out to consider it. In his view, the Commerce Clause did not bar states from imposing the fees for the importation of aliens from foreign ports. However, the Constitution would bar imposing fees for the interstate transportation of American citizens.

Why? Well, it's not clear. Taney did not cite any particular constitutional provision. Rather, he cited the nature of the Union. Judge for yourself. Here is his discussion in its entirety:
In speaking of the taxing power in this case, I must, however, be understood as speaking of it as it is presented in the record,-that is to say, as the case of passengers from a foreign port. The provisions contained in that law relating to American citizens who are passengers from the ports of other States is a different question, and involves very different considerations. It is not now before us; yet, in order to avoid misunderstanding, it is proper to say, that, in my opinion, it cannot be maintained. Living as we do under a common government, charged with the great concerns of the whole Union, every citizen of the United States, from the most remote States or Territories, is entitled to free access, not only to the principal departments established at Washington, but also to its judicial tribunals and public offices in every State and Territory of the Union. And the various provisions in the Constitution of the United States-such, for example, as the right to sue in a federal court sitting in another State, the right to pursue and reclaim one who has escaped from service, the equal privileges and immunities secured to citizens of other States, and the provision that vessels bound to or from one State to another shall not be obliged to enter and clear or pay duties-all prove that it intended to secure the freest intercourse between the citizens of the different States. For all the great purposes for which the Federal government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States. And a tax imposed by a State for entering its territories or harbours is inconsistent with the rights which belong to the citizens of other States as members of the Union, and with the objects which that Union was intended to attain. Such a power in the States could produce nothing but discord and mutual irritation, and they very clearly do not possess it.

Passenger Cases, 48 U.S. at 492.

Judge Thomas W. Clerke of the New York Court of Appeals did not cite the Passenger Cases in his dissent in Lemmon v. People, but I now wonder whether he had read Chief Justice Taney's passage and was inspired by it. I have discussed Judge Clerke's dissent at length in earlier posts (you can find them by clicking the "Thomas W. Clerke" tag), but here's a taste:
It was essential to this grand design [of the Constitution] that there should be as free and as uninterrupted an intercommunication between the inhabitants and citizens of the different States, as between the inhabitants and citizens of the same State.

. . .

[W]e say, that the citizens of any one State have a right of passage through the territory of another, peaceably, for business or pleasure; and the latter acquires no right over such person or his property.

Lemmon, 20 N.Y. at 634, 636.

Frustratingly, I can't find a picture of Judge Clerke. The picture above is of Judge William B. Wright, who wrote one of the majority opinions in Lemmon.

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