Lemmon v. People VII

Next, Judge Denio turned to the first of the objections raised by Mr. Lemmon. The New York law, was is argued, violated the Privileges and Immunities Clause, which provides that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

To address this argument, Judge Denio engaged in a long and scholarly review of the history of the Clause, starting with the inclusion of its predecessor in the Articles of Confederation. He drew the conclusion that the meaning of the Clause “is, that in a given State, every citizen of every of other State shall have the same privileges and immunities – that is, the same rights – which the citizens of that State shall possess.” 20 N.Y. at 608. On the other hand, the Clause did not grant to citizens of other States more rights than the State granted to its own citizens. “But where the laws of the several States differ, a citizen of one State asserting rights in another, must claim them according to the laws of the last mentioned State, not according to those which obtain in his own.” 20 N.Y. at 609.

In this context, Judge Denio denied that the Clause had anything “to do with the doctrine of international comity.” Under that doctrine, one State may defer to the laws of another, but it depends in part upon “the presumed assent of the legislative authority of the particular State in which the right is claimed; and an express denial of the right by that authority is decisive against the claim.” 20 N.Y. at 609. Here, there was such "an express denial" because the statutory history demonstrated that the New York legislature had already decisively spoken.

My reading of the decision leads me to conclude that Judge Denio was an extremely smart and clever lawyer. The discussion of comity together with the Privileges and Immunities Clause is at first somewhat surprising, because the doctrine of comity does not depend on the Clause. It is a flexible, quasi-equitable doctrine that typically comes into play in international relations (as Judge Denio concedes), where the Clause does not exist.

It is in the discussion immediately following that we see why the Judge has joined the two. By eliminating the flexibility of comity, which might have permitted the Virginians to keep their slaves provided they remained in New York only temporarily, Judge Denio was able to reduce the choice-of-law question implicit in the Privileges and Immunities Clause to an either-or, all-or-nothing proposition. This leads to a classic reductio ad absurdum, which the Judge paints with relish:

“If the owner of these slaves is not in like manner bound [by New York law, as New York citizens are], it is because . . . [Mrs. Lemmon] has brought with her, or sent with them [the slaves], laws of Virginia, and is entitled to have those laws enforced in the courts, notwithstanding the mandate of our own laws to the contrary. But the position of [Mrs. Lemmon] proves too much. The privileges and immunities secured to the citizens of each State by the Constitution are not limited by time, or by the purpose for which, in a particular case, they may be desired, but are permanent and absolute in their character. Hence, if [Mrs. Lemmon] can claim exemption from the operation of the statute . . . on the ground that she is a citizen of a State where slavery is allowed, and that our courts are obliged to respect the title which those laws confer, she may retain slaves here during her pleasure; and, as one of the chief attributes of property is the power to use it, and to sell or dispose of it, I do not see how she could be debarred of these rights within our jurisdiction as long as she may choose to exercise them. She could not, perhaps, sell them to a citizen of New York, who would at all events be bound by our laws, but any other citizen of a slave State – who would equally bring with him the immunities and privileges of his own State – might lawfully traffic in the slave property.”

20 N.Y. at 609-10.

Having demonstrated that the alternative would transform New York into a slave market, Judge Denio drew the obvious conclusion:

“The answer to the claim in that aspect has already been given. It is that the owner cannot lawfully do anything which our laws do not permit to be done by one of our own citizens, and as a citizen of this State cannot bring a slave within its limits except under the condition that he shall immediately become free, the owner of those slaves could not do it without involving herself in the same consequences.”

20 N.Y. at 611.

Popular History Vs. "Real" History?

Dmitri Rotov at Civil War Bookshelf has a post discussing James McPherson-type narrative history (which he seems to deny is “history”) versus “the discipline of history.” Although it’s a thoughtful post (and although he’s kind enough to quote me – thanks!), I must say I still don’t get it. To explain why, let me start by quoting from Dmitri’s post:

“On the contrary, the overwhelming experience of history begins at some point after the facts, dates, and (yes) storyline have been mastered. Fail to master those, and you cannot begin to engage this as hobby or discipline. The reading (and listening) experience called history rests on combinations of details that never stop surprising, delighting and challenging.

“History taught as story cuts out the legs from under those who might eventually learn to love history - perhaps even study or write history - and converts them into readers of nonfiction genre narrative, usually second rate literature with appallingly low history content.

“The question is how many of those nonfiction readers cross over to discerning history readers: direct mail specialists call this the "conversion rate" and I personally think it is miniscule. . ..

“Well, it is not history except that it uses historical materials more or less the way a novelist would use them. It is genre literature written to entertain - not in the way a crossword puzzle does, or even a detective novel, but in the same way a Western works - black hats, white hats, a struggle, a showdown, the end.

“I am selfishly concerned that a generation of people with no historical sensibility to whom McPherson and Goodwin have been portrayed as "historians" is making my life miserable. If McPherson and Goodwin were represented to newbies as the starting point in a long journey, then I should keep quiet. But if held up as representatives of this discipline called history they merely encourage newbies to read more authors like DKG and McP. They become a gateway to more Goodwinism, not to history.”

History as Narrative

To begin with, I just don’t understand why narrative history isn’t “history.” Herodotus called his work “Historiai” – “Inquiries” – because he was for the most part recording tales told to him by locals in response to questions he asked in the course of his travels. What he produced, naturally enough, was a series of dramatic narrative stories.

Even if you do not consider Herodotus a true “historian,” no one doubts that his successor, Thucydides, was. And yet he, too, recounts the history of the Peloponnesian War in chronological terms, using techniques (such as reconstructed speeches and dialogs) that would be condemned if used today, to create “you are there” excitement.

And so on with all the great Roman historians, such as Livy (whose histories are called “The Annals” because they tell their story in chronological format), Sallust and the superb Tacitus. All tell riveting stories in largely narrative and chronological format. All intentionally strive to relate their stories in ways and using techniques designed to heighten dramatic tension and get their readers to “experience” the past. And talk about black hats and white hats! Livy described his task as “putting on record the story of the greatest nation in the world.” Nobody reading the Annals is going to mistake Tarquin the Proud for one of the good guys.

Is Narrative History Dangerous?

Putting aside whether narrative history is “history,” I am also confused by the sense I get from Dmitri’s post that narrative tales of the past are somehow dangerous (“convert[ing people] into readers of nonfiction genre narrative, usually second rate literature with appallingly low history content”). I have no idea what the empirical evidence shows (or even whether there is any), but it certainly is at odds with common sense and, in my case, personal experience.

As even Dmitri concedes, you can’t begin to understand or appreciate “real” history (as he understands it) until you master “the facts, dates, and (yes) storyline.” But how do you do that? By reading your Livy – or your James McPherson. You may decide that Hannibal crossing the Alps, or Lee invading Pennsylvania, is not your cup of tea, and that you want to play video games instead. But you presumably learned something and know more now than you did before you read them. Can that possibly be a bad thing? And if those stories don’t grab you, you’re never going be reading monographs anyway.

And how else does one become interested in history? I’d guess that most classical history professors were inspired by “simplistic” accounts of Thermopylae, or Horatio at the Bridge, or the Rape of Sabine Women, or Hannibal Crossing the Alps.

I have not reviewed a list of the histories in the libraries of, say, John Adams or Thomas Jefferson, but I’d guess their libraries were heavy with narrative histories, including narrative histories that in some respects were wildly inaccurate – far more inaccurate than anything in McPherson. (I think it’s widely known that Jefferson’s views of early English history, for example, were downright bizarre; I assume he got those views from somewhere.) And yet they seem to have turned out all right, because, I suspect, the histories they read inspired them, even though those histories may not have satisfied Dmitri’s rigorous standards.

Those ancient stories inspired me (I am not a historian, but I wound up majoring in Classics in college). Barbara Tuchman’s dramatic narrative The Guns of August inspired me to read a good deal of World War I history. And McPherson and Ken Burns were the starting points of Civil War reading. They didn't do me many any harm.

Finally, I’m not aware that “popular” historians such as McPherson explicitly or implicitly tell their readers that they should not or need not read more on the periods or topics they cover. I presume most readers of McPherson stop with him, feeling they’ve gotten a sufficient feel. But is it fair to blame McPherson for that?

I don’t mean to give Dmitri too hard a time. When you’ve read deeply in a particular area and realize how complex it is, it can be frustrating to see more broad-brush accounts that, in your view, miss subtle but key points that have changed your analysis or perspective. But is that a legitimate reason to condemn narrative histories that are sufficiently dramatic and entertaining to lure tens of thousands of readers, who will surely learn more from the experience than they would reading a romance novel or playing video games?

Stephen Breyer Says "Ouch!"

In the June 2006 issue of The Harvard Law Review, Judge Michael W. McConnell reviews Supreme Court Associate Justice Stephen Breyer's book Active Liberty: Interpreting Our Democratic Constitution. The review, entitled "Active Liberty: A Progressive Alternative to Textualism and Originalism?", may be accessed here.

Over at The Volokh Conspiracy, Professor David Bernstein characterizes the Review as "rather devastating (though unfailing polite)." I'd characterize the "rather devastating" part of the characterization as itself "polite." I wonder whether Justice Breyer is embarrassed?

Both Judge McConnell's Review and Professor Bernstein's post (which features a special guest appearance in the comments by Judge McConnell himself) are well worth reading.

Update: Anyone interested in the subject should also not miss Professor Ilya Somin's Review of Justice Breyer's book in the Northwestern University Law Review. This link will take you to Professor Somin's blog entry at The Volokh Conspiracy, which in turn provides a link to his Review.

Gulph

I can't help it -- I love the word "gulph." It makes you wonder whether we shouldn't substitute "ph" for the pedestrian "f" every once in a while, or perhaps exchange them. "Wanna toss the phootball some more, Phrank?" "What phor? I've had enouph, Fil. I'd rather play golph." "OK, say hello to your wiphe Foebe." "I won't. Coming over Phriday? "Phat chance." "Don't be a phuckphace." "Pheel the love."

"A Certain Gulph:" Direct Taxes and the Three-Fifths Clause

Article I, Section 2, Clause 3 of the original Constitution contained the famous (or infamous) three-fifths clause, which provided that both Representatives in Congress and "direct Taxes" would be allocated based upon the number of "free Persons" and three-fifths of "other Persons," that is, black slaves:

"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."

The implication was that granting increased representation to white citizens in states with large numbers of black slaves was reasonable since, after all, they would bear a correspondingly greater amount of taxes.

In fact, however, there is substantial evidence that the participants at the Constitutional Convention fully expected that "direct Taxes" would rarely, if ever, be imposed, and that the linkage between representation and direct taxes was an intentional subterfuge:

"After numerous motions and amendments, the Randolph-Williamson scheme was passed with a proviso suggesting that the three-fifths rule was primarily a rule for apportioning direct taxation among the states, and that the rule of representation simply followed the same formula. As Williamson noted, 'less umbrage would perhaps be taken agst. an admission of slaves into the Rule of representation' if it posed as an extension of a rule of taxation. The fact that few delegates expected such taxes to be levied posed no obstacle to a formula which was designed to legitimate a decision taken for political reasons."

Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (Vintage 1997) at 74.

"Though a few delegates hinted that the new government might still resort to the 'federal principle, of requiring quotas' in the form of requisitions upon the states, experience had proved that the only workable revenue system was one that left the Union completely independent of the states. Consistent with their expectations about the modest responsibilities of the new government, the framers believed that its revenue needs would be met through a program of indirect taxation centering on import duties -- the most productive and least burdensome forms of revenue available to the prudent statesman."

Original Meanings at 180.

Indeed, the direct taxation measure seemed sufficiently unnecessary as a revenue-raising measure that Gouverneur Morris later proposed deleting it. "'He had only meant it as a bridge to assist us over a certain gulph;' -- that is, the issue of whether slaves should be counted at all -- 'having passed that gulph the bridge may be removed.'" Original Meanings 396, n. 44.

In fact, the expectation that direct taxes would rarely if ever be levied proved accurate:

"The direct tax provision of the three-fifths clause turned out to be almost meaningless, and accordingly all the three-fifths clause really did was give the slave states more power. As Morris predicted, the new federal government . . . depended on import duties for the lion's share of its income, and northerners paid the lion's share of the duties. Direct taxes, from the outset, were dismissed as unpopular, cumbersome, and impossible to enforce . . ..

"Only when the import trade was threatened by war did the federal government even consider direct taxes. In 1798 it appeared that the United States would soon be at war with France, and as a result many in Congress thought it dangerous for the federal treasury to be totally dependent on import duties. So Congress, with much grumbling, agreed to a direct tax of two million dollars. Similarly, during the War of 1812 the Madison administration desperately needed money, and Congress imposed direct taxes of three million dollars in 1813, six million dollars in 1814, and three million dollars in 1815. . . All in all, Congress resorted to direct taxes only four times in the seventy-two years between Washington's election and Lincoln's. In the other sixty-eight years direct taxes were neither enacted nor even seriously discussed."

Leonard Richard, The Slave Power: The Free North and Southern Domination, 1780-1860 (Louisiana State Univ. Press 2000) at p. 55.

Lemmon v. People VI

Judge Hiram Denio’s opinion in favor of affirmance -- that is, in favor of declaring the eight slaves free -- lacks the passionate denunciations of slavery we have seen in Justice Wright’s. It is a model of dispassionate and impartial scholarship. Nonetheless – and I may be imagining it – I picture Judge Denio silently smiling from time to time as he writes his opinion.

Justice Denio began his constitutional discussion by arguing that the Fugitive Slave Clause supported the constitutionality of the statute and thus the eight slaves' freedom. The Clause, the judge deduced, supported the conclusion that “the authors of the Constitution [assumed] that the fact of a federative Union would not of itself create a duty on the part of the States which should abolish slavery to respect the rights of the owners of slaves escaping thence from the States where it continued to exist.” 20 N.Y. at 604. In other words, the Framers implicitly recognized that a State could declare all slaves who came within its jurisdiction free, unless the Constitution provided otherwise. Despite this assumption, the Framers constrained free States only as to escaped slaves, not as to slaves whose masters brought them voluntarily into the jurisdiction:

“Reading the provision for the rendition of fugitive slaves, in the light which these considerations afford, it is impossible not to perceive that the [Constitutional] Convention assumed the general principle to be that the escape of a slave from a State in which he was lawfully held to service into one which had abolished slavery would ipso facto transform him into a free man. This was recognized as the legal consequence of a slave going into a State where slavery did not exist, even though it were without the consent and against the will of the owner. A fortiori he would be free if the master voluntarily brought him into a free State for any purpose of his own. But the provision in the Constitution extended no further than the case of fugitives.”

20 N.Y. at 606.

Sitting alone in his chambers, Judge Denio puts down his pen and reviews his handiwork. He leans back in his chair and smiles, savoring the irony. Round one to freedom.

Jimmie Carter Says "Ouch"

Let's face it, the man is a disgrace. Alan Dershowitz's article is utterly devastating.

Lemmon v. People V

Broadly speaking, there were two legal issues for the Court to decide in Lemmon. The first was whether the law of New York provided that slaves physically brought into the state were free, even if they were brought there temporarily or in transit. Second, if and only if the answer to the first question was in the affirmative, then it became necessary to second: whether the law of New York was void or unenforceable or void because it violated the federal Constitution.

As it turned out, the Court concluded that the answer to the first question was clear. All three opinions that analyzed the arguments in detail – Judge Clerke’s dissent as well as the majority opinions of Judges Denio and Wright – concluded that the New York legislature had outlawed the importation of slaves into the state, even if the presence was temporary or transitory. Briefly, earlier New York statutes banning slavery in the state had contained exceptions, including an exception covering temporary or transitory presence. In 1841, the state legislature had repealed that exception. All of the Judges concluded that the legislature clearly intended to outlaw even temporary or transitory slavery within the State. No judge expressed doubt that State statutory law required that the petition be granted and the slaves be freed.

What divided the majority from the dissent was, rather, the second question. The majority concluded that the New York law did not violate the Constitution. The dissent concluded that the statute was unconstitutional and therefore unenforceable. It is to the constitutional arguments I shall turn next, starting with the analysis of Judge Hiram Denio.

The Sherman-Hood Correspondence

I recently stumbled across and read the correspondence between Generals Sherman and Hood about the evacuation of civilians from Atlanta in 1864. If you're at all interested in the Civil War (or either of the generals), it's highly recommended.

The correspondence is the source of several of Sherman's famous quotes about the horror of war, and Hood comes across as a literate, intelligent and impassioned advocate (however misguided!) that belies the image of him as sort of dopey conveyed by his hang-dog pictures and his later debacles at Franklin and Nashville. You can find it at this site, and elsewhere by googling "sherman hood correspondence.

Lemmon v. People IV

OK, I lied. Let's clear out a little more underbrush first.

Three Judges declined to join the majority opinions. Two of the three issued brief (roughly 150 words each) opinions that are legally insignificant but nonetheless worthy of attention on the theory that they presumbaly reflect views held by a number of "conservative" New Yorkers who were more concerned about sectional relations than the immorality of slavery.

The opinions are startlingly similar. Both Chief Judge George F. Comstock and Judge Samuel Lee Selden began by stating that attention to "other causes" or "other duties" had prevented them from giving the case the "attention" or "careful examination" it deserved. Nonetheless, both suggested that they were concerned that the majority decision threatened interstate relations.

Chief Judge Comstock's remarks are, for some reason, set forth in the third person. He opined

"that the legislation of this State, on which the question in the case depends, is directly opposed to the rules of comity and justice which ought to regulate intercourse between the States of this Union; and he was not prepared to hold that such legislation does not violate obligations imposed on all the States by the Federal Constitution."

He therefore "dissent[ed] from the judgment."

Judge Selden technically seems to have abstained, but expressed virtually identical concerns:

"I . . . am not prepared, therefore, definitely to determine whether the act of 1841 is or is not in conflict with any express provision of the United States Constitution. But however this may be, I cannot but regard it as a gross violation of those principles of justice and comity which should at all times pervade our inter-state legislation, as well as wholly inconsistent with the general spirit of our national compact. While, therefore, I am not prepared at this time to give such reasons as would justify me in holding the law to be void, I am equally unprepared to concur in the conclusion to which the majority of my associates have arrived."

20 N.Y. at 644.

One striking thing about both opinions is the use of the word "justice" together with the word "comity." The invocation of the doctrine of comity -- voluntary deference by one jurisdiction to the laws or customs of another jurisdiction -- is understandable. The invocation of "justice" is less so. Nonetheless, both Judges apparently felt that it would be "unjust" for New York not to take the laws and customs of Virginia into account.

The other thing that strikes me is that both went to the trouble of expressing their disagreement, or at least uneasiness in the case of Judge Selden, with the majority holding. Having pleaded inattention, presumably they could have simply abstained without writing anything. I infer that both were seriously worried about the impact of the decision and at least wanted to send the message that some New Yorkers were sympathetic to Virginia's position. If so, perhaps they achieved their purpose. According to the Valley of the Shadow Project, the May 1, 1860 issue of the Staunton Spectator specifically reported that "[t]hree of the Judges--Comstock, Seden [sic] and Clark [sic]--dissent from the judgement pronounced in this case."

Lemmon v. People III

I don't have time to create a thoughtful post on Judge Denio's opinion, so I'll briefly post another excerpt from Judge Wright's opinion that reveals where his sympathies lie. He describes slavery as

"a social condition that violates the law of nature (Virginia Bill of Rights, Sections 1, 15); a status, declared by Lord Mansfield, in Sommerset's case, to be 'of such a nature that it is incapable of being introduced on any reasons, moral or political;' that originates in the predominance of physical force, and is continued by the mere predominance of social force, the subject knowing or obedient to no law but the will of the master, and all of whose issue is involved in the misfortune of the parent; a status which the law of nations treats as resting on force against right, and finding no support outside of the municipal law which establishes it. (Taylor's Elements of Civil Law, 429; Sommerset's case, 20 Howell's State Trials, 2; 2 Devereaux's R., 263.) Why should not the State be able to utterly suppress it within her jurisdiction?"

20 N.Y. at 630-31 (italics in original).

Lemmon v. People II

The Historical Society of the Courts of the State of New York has a nice web page on the case, with links to the full texts of the decisions in all three courts (the trial court decision in New York City Superior Court; the first-level appeal in the Supreme Court; and the second-level appeal in the Court of Appeals), as well as to some of the briefs, the statutes that formed the background for the decisions, and other materials.

The page focuses on the opinion for affirmance (i.e., affirming the discharge of the slaves) of Court of Appeals Judge William B. Wright. This is understandable, for Judge Wright's opinion includes impassioned denunciations of slavery. Passages such as this lead me to assume that Judge Wright was a Republican:

". . . [S]lavery is repugnant to natural justice and right, has no support in any principle of international law, and is antagonistic to the genius and spirit of republican government. Besides, liberty is the natural condition of men, and is world-wide; whilst slavery is local, and beginning in physical force, can only be supported and sustained by positive law. 'Slavery,' says Montesquieu, 'not only violates the laws of nature and of civil society; it also wounds the best forms of government; in a democracy where all men are equal slavery is contrary to the spirit of the Constitution.'"

20 N.Y. at 617.

In fact, there were two opinions for affirmance, the first of which was authored by Hiram Denio, and Judge Denio's opinion appears first, before Judge Wright's. It is not clear (to me at least) whether this is because Judge Denio was senior (he joined the Court in 1853; Judge Wright is listed as officially joining the Court in 1861 and in 1860 was apparently a Supreme Court Justice sitting by designation). Nor is it clear how many of the five Judges in the majority joined in each opinion, or whether some or all joined in both opinions.

I will next look at Judge Denio's drier, scholarly opinion.

Durham-in-Wonderland

Just a brief entry to thank Professor K.C. Johnson for his wonderful blog Durham-in-Wonderland. I read it regularly, and you should too.

The Unknown Thomas Burke

One of the joys of history comes from the little gems that you run into.

Take American revolutionary Dr. Thomas Burke, whom I stumbled across in Merrill Jensen's The Articles of Confederation, at 174-75.

The first draft of the Articles of Confederation was drafted by a committee of the Continental Congress headed by John Dickinson, the "Pennsylvania Farmer" in 1767, and is known as the Dickinson Draft. The Dickinson Draft is a remarkable document. In some ways, it was a more "nationalist" and less "states-rights" constitution than the Constitution of 1787. In particular, the proposed federal government was not one of specific, enumerated powers. Art III of the Dickinson Draft provided that "Each Colony shall retain and enjoy so much of its present Laws, Rights and Customs, as it may think fit, and reserves to itself the sole and exclusive regulation and Government of its internal police, in all matters that shall not interfere with the Articles of this Confederation."

The Committee presented the Draft to the Continental Congress on July 12, 1776. Amazingly (in retrospect), during debates held intermittently over the following eight months, no one objected to the centralized form of government that the document contemplated.

In February 1777, Dr. Thomas Burke arrived at Congress as a new delegate from North Carolina. When debate on the draft resumed, Burke quickly identified the central issue. Article III "expressed only a reservation of the power of regulating the internal police, and consequently resigned every other power." It was "in the Power of the future Congress or General Council to explain away every right belonging to the States and to make their own power as unlimited as they please."

To prevent this perceived tyranny, he proposed that "all sovereign power was in the States separately, and that particular acts of it, which should be expressly enumerated, would be exercised in conjunction, and not otherwise; but that in all things else each State would exercise all the rights and power of sovereignty, uncontrolled."

Suprisingly again, the other delegates were slow to realize the significance of Burke's objection. Ultimately, however, his proposal resulted in the adoption of what became Article III of the Articles of Confederation:

"Each State retains its sovereignty, freedom and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled."

How can it be that this man, arguably America's first constitutional scholar, is virtually unknown? His brief Wikipedia entry does not even mention his most significant contribution.

Justice Story Says "Ouch!"

“To prove their contentions [that the first Continental Congress was a sovereign body, and that it represented the people of the United States as a whole, not the people of the several states as represented in their state governments] the Northerners [during the nineteenth century] cited such documents as the Declaration of Independence and the preamble to the Constitution of 1787. Their method of proof was to state their contention, or reiterate it, and by use of italics to place undue emphasis on the portions of the documents which seemed to prove their arguments. [fn2] This is essentially the technique of argument used by small boys and would be unworthy of consideration had it not been so effective in shaping certain ideas which have profoundly influenced the interpretation of American history.”

The first work cited in footnote 2 as an example of a work containing such a “technique of argument used by small boys” is no less than Joseph Story’s Commentaries on the Constitution of the United States (originally published 1833). Associate Justice Joseph Story, ironically appointed to the Supreme Court by President James Madison in 1811, was a leading member of the Marshall (and post-Marshall) Court until his death in 1845 and a professor of law at Harvard. His three-volume Commentaries, although little read today (except by legal historians), was regarded as the leading treatise on constitutional law during most of the Nineteenth Century.

The source of the quote? The highly-regarded and often pungent and highly amusing Merrill Jensen, in his book The Articles of Confederation: An Interpretation of the Social-Constitutional History of the American Revolution 1774-1781 (University of Wisconsin Press 1976) (originally published 1940) at 162-63.

A Ninth Amendment Primer I

The Ninth Amendment states, quite simply, that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Over the past forty years or so, since Justice Arthur Goldberg’s concurrence in Griswold v. Connecticut, 381 U.S. 479, 485 (1965), a debate has developed over the meaning of the Amendment, and in particular over the phrase “other[] [rights] retained by the people.” Does this not suggest – or even plainly state – that the people retain other, unenumerated rights not specifically set forth in the Constitution?

“Progressives” (for want of a better term) have argued that the Ninth Amendment’s reference provides a textual basis for discerning additional rights not specifically described in the Constitution – the right to have an abortion, for example. In his book, Restoring the Lost Constitution: The Presumption of Liberty, Randy Barnett has advanced an alternative, libertarian reading of the Constitution based in part on the Ninth Amendment.

There seems little doubt that the ideas of the Founding Generation included a significant strain of natural law thinking. Nonetheless, I am persuaded that the “unenumerated rights” argument ultimately does not fly as a historical matter. The better view is set forth by Kurt T. Lash in two articles published in the Texas Law Journal and available online, The Lost Original Meaning of the Ninth Amendment, 83 Texas Law Review 331 (Dec. 2004) and The Lost Jurisprudence of the Ninth Amendment, 83 Texas Law Review 597 (Feb. 2005).

In brief, Professor Lash argues convincingly that the key word in the Amendment is the word “construed.” One principal argument against the adoption of what became the Bill of Rights was that it was unnecessary. The Constitution created a federal government that was authorized to exercise only those limited powers specifically described in the document. To the extent that the Constitution did not specifically grant powers to the federal government, the people necessarily retained the corresponding rights. It was unnecessary, therefore, to amend the Constitution to protect a right of freedom of speech or of the press (for example), because the Constitution did not grant to the federal government any power over speech or the press. Thus the people already retained those rights.

Even worse, it was argued, was the fact that the passage of a bill of rights might inadvertently create the inference that the federal government had any powers that were not specifically withheld. The Constitution, for example, did not delegate to the federal government the power to tell me what color shirt to wear when I got up in the morning; I had the right to choose whatever color shirt struck my fancy. But would the addition of a bill of rights omitting a right to wear any shirt I choose not suggest that I did not have such a right in the first place, and that the federal government had the power to tell me what color shirt to wear?

The evidence appears overwhelming that the Ninth and Tenth Amendments were included in the Bill of Rights to meet these concerns. In this reading, the two amendments complement each other. The Tenth reconfirms the rule that the federal government has only those powers specifically delegated to it. The Ninth is a rule of construction, providing that the enumeration of certain rights in the Bill of Rights should not be construed by negative inference as an enlargement of the powers delegated to the federal government.

What has obscured the connection is that the two amendments use different language. The Tenth refers to “powers”, while the Ninth speaks of “rights:”

Tenth: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Ninth: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The drafting history, however, confirms that the differing language arises out of the fact that the drafters regarded governmental “powers” and simply the opposite of retained popular “rights.” The reason that the Ninth Amendment refers only to “rights” is merely the result of stylistic polishing. Consider the various versions of the text that became the Ninth Amendment, in chronological order, emphasizing the words “rights” and “powers:”

Virginia Convention June 27, 1788

Seventeenth, That those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner whatsoever to extend the powers of Congress. But that they may be construed either as making exceptions to the specified powers where this shall be the case, or otherwise as inserted merely for greater caution.

New York Convention July 26, 1788 (the predecessor language of the Tenth Amendment is bracketed)

[[T]hat every power, jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several states, or to their respective state governments, to whom they may have granted the same;] and that those clauses in the said Constitution, which declare, that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution; but such clauses are to be construed either as exceptions to certain specified powers, or as inserted merely for greater caution.

Proposed by Madison June 8, 1789

Fourthly, That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit:

[Numerous other provisions]

That exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

House Select Committee July 28, 1789

ART. 1, SEC. 9 – Between PAR. 2 and 3 insert,

[Other provisions, including the predecessors of the First through Fifth and Eighth Amendments]

The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

House of Representatives August 24, 1789

ARTICLE THE FIFTEENTH

The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.

Senate September 9, 1789

ARTICLE THE ELEVENTH

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


Final Proposal to States September 25, 1789

Article the eleventh . . . The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

A Map Ain't A Map

As mentioned in an earlier post, Jimmie Carter appears to have used copies of maps without permission, in apparent violation of the copyright laws. That seems to be the least of Carter's sins, but the copyright issue is an interesting one -- as are some of the reactions to the accusation.

One approach taken by those seeking to minimize Carter's culpability is to suggest that maps are only minimally copyrightable. Hiram Hover, for example, posts the following:

"Maybe there’s a case of copyright infringement here, maybe not. As Ralph Luker points out, maps of the same place do tend to bear some resemblance to one another—surprising as that may be to the folks over at NRO, who have done so much to flog the accusation. In any event, a cribbed map is hardly what comes to most people’s minds when they hear the charge of 'plagiarism.'"

This is excuse is particularly silly coming from a purported historian. A historian should know, if anyone should, that maps are not fungible. Good or poor maps can make all the difference when trying to following a campaign, for example. Even in a social history, the absence of good maps can be extremely frustrating.

On the legal side, it's worth noting that the very first copyright act enacted in this country -- the Copyright Act of 1790 -- specifically included maps within its scope. Indeed, "map" was the very first item mentioned in the title of the Act: "An Act for the Encouragement of Learning, by securing the Copies of Maps, Charts and Books, to the Authors and Proprietors of such Copies, during the Times therein mentioned." (Emphasis added) "Map" is likewise the first protected species of work listed in the text of the Act:

"Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That from and after the passing of this act, the author and authors of any map, chart, book or books already printed within these United States . . . shall have the sole right and liberty of printing, reprinting, publishing and vending such map, chart, book or books, for the term of fourteen years from the recording the title thereof in the clerk’s office, as is herein after directed . . .." (Emphasis added.)

I guess the First Congress was populated by denizens of NRO. It's a massive right-wing conspiracy!

Lemmon v. People of the State of New York

In Lemmon v. People, 20 N.Y. 562 (1860), the New York Court of Appeals, the highest court in the state, ruled that slaves brought temporarily into the state from slaveholding states were free. For a time, Republicans feared that Lemmon would be reviewed by the United States Supreme Court and that that Court would use the case to issue a ruling holding that non-slave states could not bar citizens of slave states from bringing their slaves into non-slave states.

Lemmon is fascinating and worth close study for a number of reasons. First, it inadvertently tells a story about interstate travel and slavery in the 1850s. Second, it is, in effect, a snapshot of a range of opinions held by eight educated white men in New York in March 1860 about slavery, blacks and relations between the states. Finally, as noted, by serving as a focus for Republican fears and outcry about the "next" Dred Scott decision, the case itself influenced events.

In this and future posts, I am going to discuss Lemmon and, ultimately, assess whether Republicans' fears appear to have been reasonable.

All cases begin with the facts, and so shall I.

Juliet Lemmon was a citizen and resident of the state of Virginia. Her age is not disclosed. As of early November 1852, she had been "for several years" the owner of at least eight black slaves, "who appeared to be known only by their christian names as Emeline, Robert, Lewis, Amanda, Nancy, Ann, Lewis and Edward." Of the eight, one was a man, two women and five children. The opinion does not distinguish them by name or decribe their relationships to one another.

Mrs. Lemmon was then married to Jonathan Lemmon. Mrs. Lemmon and her husband decided to move permanently from the state of Virginia to the state of Texas. In order to do so, Mr. and Mrs. Lemmon took passage, together with the eight slaves, on the steamship "City of Richmond," departing from the port of Norfolk, Virginia and bound for New York City.

Later, after the suit was filed, Mrs. Lemmon argued that she was compelled by "necessity or accident" to land in New York City. However, that did not mean that the ship had been blown off course or arrived at New York by chance. Rather, what Mrs. Lemmon seems to have meant was that, in order to travel from Viriginia to Texas, she was forced, as a practical matter, to take one ship to New York and then transfer to a second, southbound ship.

The steamship "City of Richmond" arrived in New York harbor on November 5, 1852. That evening, Mr. and Mrs. Lemmon and the slaves, disembarked and spent the night at 3 Carlisle Street, presumably to await a southbound vessel.

The very next day, November 6, 1852, "Louis Napoleon, a colored citizen of this State, made application" for a writ of habeas corpus directed to Mr. Lemmon (apparently misnamed "Lemmings" in the original papers) and the (unnamed) owner of the house at 3 Carlysle Street. Essentially, the writ required the respondents to show cause why the slaves were not unlawfully restrained.

That same day, Mr. Justice Paine of the Superior Court of the City of New York issued the writ, "and on the same day one of the constables of the city of New York brought up the eight colored persons." In due course, Mr. Lemmon responded to the writ under oath, asserting "that the eight persons named were the slaves and property of" his wife; and that the slaves were in New York only temporarily and were in transit from Virginia to Texas. Accordingly, Mr. Lemmon denied that the slaves were illegally detained and sought dismissal of the writ.

On November 13, 1852, Mr. Justice Paine issued a decision in which "he discharged the colored Virginians." In other words, he decided the slaves were free.

Mr. Lemmon appealed to the New York Supreme Court (which was superior to the Superior Court of the City of New York, but inferior to the New York Court of Appeals). In December 1857, that court affirmed the ruling of Mr. Justice Paine. (Apparently the wheels of justice turned slowly 150 years ago!)

Mr. Lemmon then appealed again, this time to the New York Court of Appeals, the highest court in the state. That court issued its decision in March 1860. A majority of the eight voting judges affirmed the decisions of the lower courts, ruling that the slaves were free. Three dissenting judges disagreed.

Mr. Caldwell Goes to Richmond

Did you know that there was a Republican in the Virginia State Senate -- in 1860? There was:

"Alfred Caldwell, former mayor of Wheeling, was elected to the Virginia Senate in 1859 under the Opposition banner, but, by 1860, he was an active Republican. Serving as a member of the Republican National Committee in 1860, Caldwell would eventually become what one contemporary called one of 'the most sagacious and resolute Republicans in the Northwest.' In Richmond, Caldwell was ostacized, left to smoke his cigars alone and pay his own bills at the bar. But Panhandlers elected Caldwell to represent their 'peculiar sentiments' about slavery, not 'to be the toast of urbanity.' Despite his ostracism, it was difficult for what he termed the 'peddler-lynching, school-mam expelling, parson-whipping editors and asses of Old Virginia' to undermine his popularity among his constituents."

William A. Link, Roots of Secession: Slavery and Politics in Antebellum Virginia (Chapel Hill: The University of North Carolina Press 2003), at 202-03.

Incredibly, there's no Wikipedia entry for Senator Caldwell, and Professor Link's footnote (omitted) suggests by negative implication that there is little modern discussion of him. He might make an interesting topic for a thesis or paper.

Two Versions of Popular Sovreignty

The southern position on the territories shifted over time. The core premise was that the territories were jointly owned by the states; that residents of all states were entitled to equal access; and that equal access for slaveowners necessarily included the right to bring their "property." A limited version of the Cass-Douglas "popular sovereignty" option was therefore acceptable: residents of a territory were entitled to choose slavery or not, but only immediately before statehood (i.e., when voting on the proposed state constitution). If a territorial legislature were permitted to bar slavery earlier in the territorial phase, then slaveowners would never move in, and non-slavery would necessarily result.

Dred Scott, with its suggestion that a congressionally-created territorial legislature lacked the power to bar slavery in a territory, reflected this approach.

The Breckinridge Democratic Platform of 1860 summed up the elements as follows:

"Resolved . . .

"1. That the Government of a Territory organized by an act of Congress, is provisional and temporary; and during its existence, all citizens of the United States have an equal right to settle with their property in the Territory, without their rights, either of person or property, being destroyed or impaired by Congressional or Territorial legislation. . .

"3. That when the settlers in a Territory having an adequate population, form a State Constitution, in pursuance of law, the right of sovereignty commences, and, being consummated by admission into the Union, they stand on an equal footing with the people of other States; and the State thus organized ought to be admitted into the Federal Union, whether its Constitution prohibits or recognizes the institution of Slavery."

Over time, and particularly in response to Douglas' Freeport Doctrine (and accepting its premise that slavery could not flourish without affirmative support), southern political leaders argued, in addition, that equal access required the federal government to enact slave codes that would affirmatively protect slavery in the territories. Only this, they argued, would provide sufficient protection to slavery to give slaveowners equal access as a practical matter.

This view of the federal government's duty to affirmatively protect slavery is also contained in the 1860 Breckinridge Platform:

"Resolved . . .

"2. That it is the duty of the Federal Government, in all its departments, to protect, when necessary, the rights of persons and property in the Territories, and wherever else its Constitutional authority extends."

Until 1860, the phrase "Popular Sovreignty" thus masked and smoothed over differences, allowing politicians in different sections to tell their constituents that it meant different things. The northern version permitted the people of a territory, through their territorial legislature, to bar slavery at any time after the territorial legislature was formed. The southern form, exemplified by the Breckinridge platform, essentially prohibited the people of the territory from barring slavery until they voted on the proposed state constitution.

Southern politicians accepted the weak form, but then added to it the stipulation that, during the territorial phase, the federal government was constitutionally obligated to take affirmative steps (if the territorial legislature did not do so) to protect slavery in the territory in order to insure that slaveowners had, as a practical matter, equal access.

I suppose a skeptic might argue that the southern form of "popular sovreignty" had somehow lost the "popular" part, and the "sovreignty" part as well. But it allowed southerners to argue that they supported "popular sovreignty" and adhered to true republican values.

The Breckinridge platform is noteworthy not just because it demanded those affirmative protections during the territorial phase. It also took the mask off the term "Popular Sovreignty" and clearly identified the specific form of popular sovreignty being endorsed.

The Douglas platform, in contrast, of course omitted the affirmative protections. It also left the popular sovreignty concept as vague as it could, and essentially abdicated responsibility for its meaning to an eventual ruling by the Supreme Court. (In Dred Scott, Taney had held that Congress could not constitutionally bar slavery from the territories and strongly implied that territorial legislatures could not do so either, but the court did not squarely rule on the latter issue because it was not presented.) The Douglas platform stated:

"7. Resolved, That it is in accordance with the interpretation of the Cincinnati platform, that during the existence of the Territorial Governments the measure of restriction, whatever it may be, imposed by the Federal Constitution on the power of the Territorial Legislature over the subject of the domestic relations, as the same has been, or shall hereafter be finally determined by the Supreme Court of the United States, should be respected by all good citizens, and enforced with promptness and fidelity by every branch of the general government."

The "Cincinnati platform", to which the Douglas platform refers, was the Democratic platform of 1856 (the 1856 Convention was held in Cincinnati). The Cincinnati platform was long on rhetoric and conveniently short on substance:

"And that we may more distinctly meet the issue on which a sectional party, subsisting exclusively on slavery agitation, now relies to test the fidelity of the people, north and south, to the constitution and the Union—

"1. Resolved, That claiming fellowship with and desiring the cooperation of all who regard the preservation of the Union under the constitution as the paramount issue, and repudiating all sectional parties and platforms concerning domestic slavery which seek to embroil the states and incite to treason and armed resistance to law in the territories, and whose avowed purpose, if consummated, must end in civil war and dis-union, the American democracy recognize and adopt the principles contained in the organic laws establishing the territories of Nebraska and Kansas, as embodying the only sound and safe solution of the slavery question, upon which the great national idea of the people of this whole country can repose in its determined conservation of the Union, and non-interference of Congress with slavery in the territories or in the District of Columbia.

"2. That this was the basis of the compromise of 1850, confirmed by both the Democratic and Whig parties in national conventions, ratified by the people in the election of 1852, and rightly applied to the organization of the territories in 1854.

"3. That by the uniform application of the Democratic principle to the organization of territories and the admission of new states, with or without domestic slavery, as they may elect, the equal rights of all the states will be preserved intact, the original compacts of the constitution maintained inviolate, and the perpetuity and expansion of the Union insured to its utmost capacity of embracing, in peace and harmony, every future American state that may be constituted or annexed with a republican form of government.

"Resolved, That we recognize the right of the people of all the territories, including Kansas and Nebraska, acting through the legally and fairly expressed will of the majority of the actual residents, and whenever the number of their inhabitants justifies it, to form a constitution, with or without domestic slavery, and be admitted into the Union upon terms of perfect equality with the other states."

Say what?