Two Articles

Haven't read either of them yet, but here are two articles on SSRN that look interesting.

The first deals with Strader v. Graham, an 1851 Supreme Court case concerning slavery and slave freedom that the Supreme Court might, and perhaps should, have used to decide Dred Scott six years later. Here's the abstract:

In 1841, three Kentucky slaves in Louisville boarded a steamboat bound for Cincinnati. Within days, they had made their way to Detroit and then to permanent freedom in Canada. Their owner, a prominent central Kentucky businessman, soon tracked them down and tried to lure them back to bondage in the United States. When these efforts failed, he sued the steamboat owners for the value of the lost slaves in a Kentucky court.

After ten years of litigation, this case reached the U.S. Supreme Court. The Court’s decision in favor of the Kentucky slaveholder would prove to be an important precedent a few years later when the Court considered the freedom claim of another slave, Dred Scott, whose case would produce perhaps the most important decision ever handed down by the U.S. Supreme Court.

The key issue in Dred Scott - how, if at all, a Negro slave could obtain his freedom by spending time on free soil - had also been considered by the Court in prior cases. This Article deals with one of these, Strader v. Graham, 51 U.S. 82 (1851), the case brought by the Kentucky businessman whose slaves escaped on the defendants’ steamboat and the only Kentucky slave case ever to reach the Supreme Court.

This Article provides a detailed description of Strader, including its factual background, its reflection of Kentucky slave law in the first half of the nineteenth century, and its significance for Dred Scott and other subsequent slave-related matters. Part I provides an overview of Kentucky slave law as it evolved up to the time of the Strader litigation. Part II describes Strader’s factual background and the Kentucky court decisions it produced. Part III covers the Strader case in the U.S. Supreme Court. Part IV deals with post-Strader events, including a review of the Dred Scott case and the role that the Strader decision played in that litigation. Part V provides some concluding observations about how the Strader case reflected the role of slavery, law, and lawyers in antebellum Kentucky and what Strader and Dred Scott might teach us in the modern era.

The second article addresses one aspect of the so-called "incorporation" debate -- that is, did Section 1 of the 14th Amendment "incorporate" the Bill of Rights. The article looks at contemporaneous newspaper coverage to determine whether the reading public would have understood this to be an aim of Section 1:

For over sixty years scholars have debated whether Section 1 of the Fourteenth Amendment “incorporated” the Bill of Rights guarantees and thus made them enforceable against the states. Recently, the debate has turned to what the state legislators might have known when they ratified the amendment. In this paper, presented at the University of San Diego Law School on January 7, George Thomas discusses the body of evidence already available and then presents new evidence gathered from a search of newspaper archives for the period 1865 to 1869. He discovered one newspaper article that clearly makes the incorporation case and three others that offer lesser degrees of support for the proposition that educated men of the era were aware that Section 1 included the Bill of Rights. But 96% of the articles that discussed “privileges” and “immunities” gave no hint of a connection with the Bill of Rights.