"An Anachronism In Need Of Repeal"

Before you click on the link, take the quiz.

Which provision of the Bill of Rights does the "Staff" of the Harvard Crimson contend is "an anachronism in need of repeal"? I'll even narrow it down for you. You have a one out of four chance:

a. The First Amendment (free speech and that sort of stuff)

b. The Second Amendment (right to bear arms)

c. The Fourth Amendment (search and seizure)

d. The Eighth Amendment (bail, cruel and unusual punishment)

A hint: this is not hard; it's just sophomoric.

"Light-Houses of the Skies"

I can't figure out whether to admire John Quincy Adams or simply shake my head in wonder at his political tone deafness. In 1825, while the rest of the country argued heatedly over whether the federal government could build roads, President Adams was urging Congress to erect "light-houses of the skies:"

Connected with the establishment of an university, or separate from it, might be undertaken the erection of an astronomical observatory, with provision for the support of an astronomer, to be in constant attendance of observation upon the phenomena of the heavens, and for the periodical publication of his observances. It is with no feeling of pride as an American that the remark may be made that on the comparatively small territorial surface of Europe there are existing upward of 130 of these light-houses of the skies, while throughout the whole American hemisphere there is not one. If we reflect a moment upon the discoveries which in the last four centuries have been made in the physical constitution of the universe by the means of these buildings and of observers stationed in them, shall we doubt of their usefulness to every nation? And while scarcely a year passes over our heads without bringing some new astronomical discovery to light, which we must fain receive at second hand from Europe, are we not cutting ourselves off from the means of returning light for light while we have neither observatory nor observer upon our half of the globe and the earth revolves in perpetual darkness to our unsearching eyes?

I Guess Dan Rather Was "Jonathan Russelled"

By 1822, a number of politicians were already surreptitiously jockeying for position in the race to succeed James Monroe as president. Among the contestants were Henry Clay of Kentucky and John Quincy Adams of Massachusetts, who was then serving as President Monroe’s Secretary of State.

Clay and Adams had served together in 1814 as two of the five members of the American delegation that had negotiated the treaty with Great Britain, known as the Treaty of Ghent, that settled the War of 1812. During the negotiations, there had been some tensions among the American delegation. The British took the position that the War terminated American rights to fish off the Labrador coast; in return, the British were prepared to give up their right to navigate on the Mississippi River. Adams, a New Englander, was determined to press the Labrador fisheries issue, although he never advocated conceding the latter issue. Westerner Henry Clay adamantly saw the Mississippi River as an American stream and the paramount issue. Ultimately, the Treaty did not mention or settle either issue.

A third member of the American delegation at Ghent had been Jonathan Russell, who in the spring of 1822 was serving as a Representative from Massachusetts in the House. Although from Massachusetts, Russell was a Clay man in 1822, and he came up – either with or without Clay’s connivance – with an ingenious scheme to discredit Clay’s rival Adams.

Russell arranged for another member of the House to demand that the executive branch produce a letter – which Russell believed had been lost – that Ghent delegate Russell had written at the conclusion of the negotiations. Russell then produced a “true copy,” which portrayed Adams at Ghent as one who “would barter the patriotic blood of the West for blubber, and exchange ultra-Allegheny scalps for codfish.”

Adams, however, had the last laugh. He was able to locate the original letter and establish that the “copy” was nothing of the sort and had been fabricated years later. Adams’s destruction of Russell was so devastating that for a time a new phrase entered the language: “to be Jonathan Russelled.”

The Origin of "Godlike Daniel"

On August 2, 1826, Daniel Webster delivered a eulogy on the lives and services of John Adams and Thomas Jefferson at Faneuil Hall in Boston. So magnificent was the speech that, upon its conclusion, tremendous cheers roared through the hall -- although "inappropriate indeed for the occasion," according to Webster's friend and fellow Dartmouth alumnus George Ticknor.

The eulogy also earned Webster the appellation "Godlike Daniel:"

Three days later, an obscure temperance journal in Boston [called the National Philanthropist] commented, "To say of this production that it was eloquent, would be too common an expression to apply to such a performance. It was profound -- it was sublime -- it was godlike."

Merrill D. Peterson, The Great Triumvirate: Webster, Clay, and Calhoun, at 111.

Daniel Webster on the Slave Trade

I deem it my duty on this occasion to suggest, that the land is not yet wholly free from the contamination of a traffic, at which every feeling of humanity must for ever revolt, - I mean the African slave-trade. Neither public sentiment, nor the law, has hitherto been able entirely to put an end to this odious and abominable trade. At the moment when God in his mercy has blessed the Christian world with a universal peace, there is reason to fear, that, to the disgrace of the Christian name and character, new efforts are making for the extension of this trade by subjects and citizens of Christian states, in whose hearts there dwell no sentiments of humanity or of justice, and over whom neither the fear of God nor the fear of man exercises a control.

In the sight of our law, the African slave-trader is a pirate and a felon; and in the sight of Heaven, an offender beyond the ordinary depth of human guilt. There is no brighter page of our history, than that which records the measures which have been adopted by the government at an early day, and at different times since, for the suppression of this traffic; and I would call on all the true sons of New England to cooperate with the laws of man, and the justice of Heaven.

If there be, within the extent of our knowledge or influence, any participation in this traffic, let us pledge ourselves here, upon the rock of Plymouth, to extirpate and destroy it. It is not fit that the land of the Pilgrims should bear the shame longer. I hear the sound of the hammer, I see the smoke of the furnaces where manacles and fetters are still forged for human limbs. I see the visages of those who by stealth and at midnight labor in this work of hell, foul and dark, as may become the artificers of such instruments of misery and torture. Let that spot be purified, or let it cease to be of New England. Let it be purified, or let it be set aside from the Christian world; let it be put out of the circle of human sympathies and human regards, and let civilized man henceforth have no communion with it.

Daniel Webster, Plymouth Oration, December 22, 1820. I have added paragraph breaks for readability.

Was The Louisiana Purchase Unconstitutional? VI

Let's look at a few other considerations. In this post, I'll review the relevant "legislative history" of the Constitutional Convention. Current original understanding theory holds that the unexpressed and (at the time of ratification) unknown intent of the members of the Constitutional Convention is irrelevant. Still, it's fun to investigate.

Ironically, the original version of the Clause contained language that provided more support for the suggestion that new states could be formed only from then-existing territory of the United States.

The admission of additional states was raised as an issue at the very outset of the constitutional convention. On Tuesday May 29, 1787, Edmund Randolph of Virginia presented, on behalf of the Virginia delegation, a series of 15 resolutions commonly known as the Virginia Plan. The 10th resolution addressed the admission of new states:

10. Resolvd. that provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a voluntary junction of Government & Territory or otherwise, with the consent of a number of voices in the National legislature less than the whole.

So far as I can tell, it is impossible to be sure whether the phrase “within the limits of the United States” was intended to imply the limits of the United States as they then existed in 1787. But at least the phrase lends itself to that possibility.

On Tuesday June 5, 1787, the 10th resolution came up for discussion before the convention sitting as a committee of the whole. The discussion was brief:

Resolution 10 was agreed to-viz-that provision ought to be made for the admission of States lawfully arising within the limits of the U. States, whether from a voluntary junction of Government & territory, or otherwise, with the consent of a number of voices in the National Legislature less than the whole.

On Thursday July 26, 1787, the Convention referred a series of resolutions to the Committee of Detail. The resolution concerning new states, then numbered XVII, was at that point unchanged:

XVII. RESOLVED, That provision ought to be made for the admission of states lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory, or otherwise, with the consent of a number of voices in the national legislature less than the whole.

On Tuesday August 6, 1787, John Rutledge of South Carolina delivered the Report of the Committee of Detail. The Committee’s version of Resolution XVII, now labeled Article XVII, continued to include the “within the limits of the United States” language:

New States lawfully constituted or established within the limits of the United States may be admitted, by the Legislature, into this Government; but to such admission the consent of two thirds of the members present in each House shall be necessary. If a new State shall arise within the limits of any of the present States, the consent of the Legislatures of such States shall be also necessary to its admission. If the admission be consented to, the new States shall be admitted on the same terms with the original States. But the Legislature may make conditions with the new States, concerning the public debt which shall be then subsisting.

On Wednesday August 29, the Committee of Detail’s draft of Article XVII came up for review before the convention. For reasons that Madison does not explain, the convention voted unanimously to replace the first clause with new language that did not include the phrase “within the limits.” The relevant portion of Madison’s notes reads as follows in its entirety:

Mr. Govr. MORRIS moved the following proposition as a substitute for the XVII art:

"New States may be admitted by the Legislature into this Union: but no new State shall be erected within the limits of any of the present States, without the consent of the Legislature of such State, as well as of the Genl. Legislature"

The first part to Union inclusive [that is, the first clause, “New States may be admitted by the Legislature into this Union”] was agreed to nem: con: [without dissent].

Although there was a good deal of discussion about the second part of the sentence – the circumstances under which new states could be created out of present states, in whole or in part – the initial clause remained the same.

On Saturday September 15, the delegates reviewed the constitution and considered final amendments. The Section concerning the admission of new states had already reached its final form:

Art. IV. Sect 3. "New States may be admitted by the Congress into this Union: but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned as well as of the Congs"

Joseph Story

The District of Columbia gun control case is having the side effect of placing before the public historical figures whose names rarely get mentioned in the media. Just yesterday, I read an interview that Hugh Hewitt conducted with two law school deans about the case. One of them raised Joseph Story as having made an important point in the Second Amendment debate:

But also, you look at Joseph Story, who in the key treatise in the 1830’s, looking at the founding understanding of these things, talks about the moral check that having a right to keep and bear arms would pose on governmental power from becoming tyrannical.

Joseph Story is little known today, except by historians and lawyers with a historical bent. But he was a preeminent lawyer and judge of the first half of the Nineteenth Century. Among other things, he served as an Associate Justice on the Supreme Court from 1811 until his death in 1845. He was also a Professor of Law at Harvard and the author of a three-volume treatise on Constitutional Law, Commentaries on the Constitution of the United States (1833), which was generally regarded as the leading treatise on the subject at the time.

Here is the section of Story's Commentaries to which the quote from the interview refers. I have divided the section into two paragraphs to make it more readable:

§ 1890. The importance of this article [the Second Amendment] will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people.

The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.

It is probably a coincidence, but Justice Story has also been on the mind of our present Chief Justice, John Roberts, who gave a talk last week on James Madison's appointment of Story to the Supreme Court. Reports are here and here.

On the List

As I run across books that look interesting, I throw them in my Amazon cart. Two in the cart at present:

Daniel Walker Howe's What Hath God Wrought: The Transformation of America, 1815-1848. The last "big" book covering this period, Sean Wilentz's The Rise of American Democracy, was disappointing. However, this review of Howe's book suggests that it will be far superior.

A series of extraordinary testimonials, such as this one by Todd Zywicki at Volokh, led me to Harold J. Berman's Law and Revolution: The Formation of the Western Legal Tradition.

On the other hand, another item in my cart is the latest killer sheep movie.

John Rutledge

I was looking at biographical information about John Rutledge, who served as a delegate from South Carolina to the Constitutional Convention and ran across a fact of which I was totally unaware of: he was a Justice of the Supreme Court twice.

Here's Wikipedia:

George Washington then appointed him as Associate Justice of the U.S. Supreme Court, but he served for only two years. In 1791, he became chief justice of the South Carolina Supreme Court. . . .

In 1795, George Washington again appointed Rutledge during a recess of the Senate to the U.S. Supreme Court, this time as Chief Justice of the United States replacing John Jay. Rutledge became Chief Justice on July 1 of 1795. Soon thereafter, on July 16 of 1795, Rutledge gave a highly controversial speech denouncing the Jay Treaty with England. He reportedly said in the speech "that he had rather the President should die than sign that puerile instrument — and that he preferred war to an adoption of it."

Rutledge's outspoken opposition to the Jay Treaty, and the rumors of mental illness he had suffered since the death of his wife in 1792, caused the Federalist-dominated Senate to reject his appointment on December 15, 1795. As a result, Rutledge's recess appointment automatically expired at the end of that Senate session. Rutledge thus became the only U.S. Supreme Court Justice in history to be forced out of office involuntarily, ending his public career. . . . [He left] office as Chief Justice on December 28 of 1795.

The Wikipedia article also mentions that Alexander Hamilton questioned Rutledge's sanity. Here is Hamilton's letter to Rufus King on Rutledge:

December 14, 1795.
My Dear Sir:

An extraordinary press of occupation has delayed an answer to your letter on the subject of Mr. R. Though it may come too late, I comply with your request as soon as I can.

The subject is truly a perplexing one; my mind has several times fluctuated. If there was nothing in the case but his imprudent sally upon a certain occasion, I should think the reasons for letting him pass would outweigh those for opposing his passage. But if it be really true that he is sottish, or that his mind is otherwise deranged, or that he has exposed himself by improper conduct in pecuniary transactions, the bias of my judgment would be to negative. And as to the fact, I would satisfy myself by careful inquiry of persons of character who may have had an opportunity of knowing.

It is now, and, in certain probable events, will still more be of infinite consequence that our judiciary should be well composed. Reflection upon this in its various aspects weighs heavily upon my mind against Mr. R. upon the accounts I have received of him, and balances very weighty considerations the other way.

A Doctrinal "Feedback Effect" 2

In my last post, I set the stage for Professor Akhil Amar’s justification of his position that “the Fourteenth Amendment has a doctrinal ‘feedback effect’ against the federal government, despite the amendment’s clear textual limitation to state action.”

Unfortunately, here is where I get lost. Essentially, Professor Amar points out that neither First Amendment paradigm (local citizen complaining about distant federal government vs. beleaguered southern Unionist advancing Reconstruction against irate locals) is contained in the text of the First Amendment. Likewise, the text of the Amendment does not reflect either the pro-jury or the anti-jury rules that flow from those paradigms.

Professor Amar then proceeds as follows:

"[It is reasonable to infer] that the core purpose of the unreconstructed First Amendment was to prevent not majority tyranny, but self-dealing by unrepresentative government agents. Given an agency-cost theory of free speech, a jury may well be the best guardian of the First Amendment’s core – a conclusion buttressed by the efforts of eighteenth-century speakers like Zenger and Callender to appeal from judge to jury. But if the original “First Amendment due process” theory is built in part on structural inferences from Barron, then the Fourteenth Amendment’s repudiation of Barron requires us to rethink the original assumptions that led us to juries. Once the Fourteenth Amendment is on the books, the agency theory of free speech is less explanatory than the minority-protection theory, for the latter better accounts for speech limitations on majoritarian state legislatures. And the minority-protection theory suggests a different optimal allocation between judge and jury. To put the structural point textually, the parallel language between the First Amendment and the Fourteenth should strongly incline us toward a unitary theory of freedom of speech against both state and federal governments.

With all due respect to Professor Amar, whom I admire greatly, I just don’t think this flies (or, more likely, I just don’t understand what he's saying). Professor Amar may well be correct that “[o]nce the Fourteenth Amendment is on the books . . . the minority-protection theory . . . better accounts for speech limitations on majoritarian state legislatures.” That does not establish, however, that the minority-protection theory better accounts for speech limitations on the federal government. In 1866-68, Republicans who passed the Fourteenth Amendment almost certainly viewed the federal government -- which they controlled -- as part of the solution, not part of the problem. Why isn’t it equally or more reasonable to posit different theories applicable to the federal and state governments?

Happy Thanksgiving

Everyone else seems to be posting Thanksgiving Proclamations by the usual suspects, primarily President Lincoln. Since I'm a contrarian, here is James Madison's from 1814, in the midst of the War of 1812. I have added paragraph divisions to make the text more readable. My thanks go to the brave men and women fighting to defend our freedom. Be well.

"The two Houses of the National Legislature having by a joint resolution expressed their desire that in the present time of public calamity and war a day may be recommended to be observed by the people of the United States as a day of public humiliation and fasting and of prayer to Almighty God for the safety and welfare of these States, His blessing on their arms, and a speedy restoration of peace, I have deemed it proper by this proclamation to recommend that Thursday, the 12th of January next, be set apart as a day on which all may have an opportunity of voluntarily offering at the same time in their respective religious assemblies their humble adoration to the Great Sovereign of the Universe, of confessing their sins and transgressions, and of strengthening their vows of repentance and amendment.

"They will be invited by the same solemn occasion to call to mind the distinguished favors conferred on the American people in the general health which has been enjoyed, in the abundant fruits of the season, in the progress of the arts instrumental to their comfort, their prosperity, and their security, and in the victories which have so powerfully contributed to the defense and protection of our country, a devout thankfulness for all which ought to be mingled with their supplications to the Beneficent Parent of the Human Race that He would be graciously pleased to pardon all their offenses against Him; to support and animate them in the discharge of their respective duties; to continue to them the precious advantages flowing from political institutions so auspicious to their safety against dangers from abroad, to their tranquillity at home, and to their liberties, civil and religious; and that He would in a special manner preside over the nation in its public councils and constituted authorities, giving wisdom to its measures and success to its arms in maintaining its rights and in overcoming all hostile designs and attempts against it; and, finally, that by inspiring the enemy with dispositions favorable to a just and reasonable peace its blessings may be speedily and happily restores.

"Given at the city of Washington, the 16th day of November, 1814, and of the Independence of the United States the thirty-eighth.

"JAMES MADISON"

A Doctrinal "Feedback Effect"

In my last post, I raised a question concerning what I termed (incorrectly, as we will see) “reverse incorporation.” I posed a hypothetical in which one of the provisions of the Bill of Rights (I was using the Second Amendment) was originally understood to convey limited or no individual rights. However, in 1868, when the Fourteenth Amendment was ratified, the same Bill of Rights provision was (incorrectly) understood to convey broader individual rights, and it was generally understood that a purpose and effect of the Fourteenth Amendment was to bestow those broader rights on individuals as against state governments.

Under those circumstances, I asked, which construction would apply to the federal government (and the District of Columbia)? Logically, it would seem that the original, more restrictive understanding would apply. After all, the underlying Bill of Rights provision was not amended, and the Fourteenth Amendment does not apply against the federal government. On the other hand, it certainly is awkward and odd as a practical matter to apply one version of, say, the First Amendment to the federal government and another version to the states.

Finally, I mentioned that I recalled that Professor Akhil Amar had discussed the issue and advanced a justification for “reverse incorporation,” although I had not understood it.

I have found that passage, in Amar’s book The Bill of Rights, and thought I’d discuss it as best I can.

Amar’s discussion of what he calls a “feedback effect” (not “reverse incorporation”) of the Fourteenth Amendment occurs in the context of a discussion of the First and Fourteenth Amendments. By way of background, Amar’s view is that the core purpose of the freedom of speech provision of the First Amendment was, originally (i.e., in 1791), to insure that local citizens had the right to speak out against distant, unfaithful federal representatives. A corollary was that local juries were a key procedural protection – think of the John Peter Zenger case as the paradigm.

How, then, Amar asks, do we reconcile this with the modern tendency to take First Amendment issues away from juries by characterizing them as issues of law? Amar argues that this is justified by the Fourteenth Amendment. In 1868, the paradigmatic speaker in need of protection was not John Peter Zenger, but rather a beleaguered southern Unionist seeking to defend Reconstruction policy amidst a sea of hostile locals. In this context, juries were part of the problem, not part of the solution. The paradigms of the original First Amendment and the 1868 First Amendment (as incorporated by the Fourteenth) are essentially opposite in this respect.

But a question then arises. Let us assume that anti-jury rules are justifiable in Fourteenth Amendment-First Amendment cases involving states. Even so, how does that validate applying the same anti-jury rules to First Amendment cases involving the federal government? Amar puts it this way: “Can it be argued that the Fourteenth Amendment has a doctrinal ‘feedback effect’ against the federal government, despite the amendment’s clear textual limitation to state action?”

Amar’s answer is unambiguous: “Yes it can.”

In the next post, I will try to pick my way through Amar’s argument in support of his conclusion to see (a) whether I can understand it, and (b) if so, whether it makes any sense.

Reverse Incorporation?

Let's assume that the Second Amendment, when ratified, was understood not to convey an individual right. Let's further assume that in 1868, the Second Amendment was generally understood (incorrectly) to convey an individual right to keep and bear arms for self defense; and that the Fourteenth Amendment, when ratified, was generally understood to convey (among other things) this individual right against the states.

I assume that, in a suit involving a state, or a subdivision of a state, the 1868 understanding would control. But the case the Supremes have just accepted involves the District of Columbia. The District is not a state. The Second Amendment, but presumably not the Fourteenth, applies to it.

Which understanding then controls? Is the 1868 understanding somehow "reverse incorporated" back into the Second Amendment itself? My recollection is that Akhil Amar discusses this somewhere and would answer in the affirmative. (I believe the discussion was not about the Second Amendment in particular, but about whether 1868 understandings of provisions of the Bill of Rights, applied against the states via the Fourteenth Amendment, should in general be deemed to relate back to the underlying provisions of the Bill of Rights.) My recollection also is that I read and reread Professor Amar's discussion and could never understand it.

Maxblogging 2

History in the Making

Probably every lawyer in the country knows this by now, but on the theory that one or two non-lawyer history buffs read these posts, here's the scoop: the Supremes accepted a case today in a Second Amendment case. The case will probably be decided next June. There's been an upwell of Second Amendment scholarship recently, and we're about to see an explosion. And we're about to see constitutional history made. For a recent, non-scientific sampling of reactions and leads, see the Volokh Conspiracy here, here, here, here, here, and here.

Whether a majority of the Court will acknowledge it, I don't know, but the meaning of the Second Amendment runs through the Fourteenth.

Addition: While I'm collecting resources, see also the posts at PrawfBlawg here and here.

Addition 2: This Randy Barnett article is also worth reading: Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?

Addition 3: I would be remiss not to add this Glenn Reynolds post collecting further references.

Was The Louisiana Purchase Unconstitutional? V

The second objection – that the United States could not create a new state (or states) from the Louisiana Purchase territory – strikes me as equally odd.

Article IV, Section 3, Clause 1 provides that "New States may be admitted by the Congress into this Union . . .." It contains a qualification, but that qualification relates to the creation of new states out of old ones: ". . . but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress."

Once again, it seems to me that the language is determinative. Nothing in the language would lead the ratifiers to think that new states could be created only out of the United States and their territory as they existed in 1787 - 89.

Nonetheless, in an attempt to spin this out a bit more, I look at a couple of other considerations in a future post or two.

I Think It's Your Mind

Little Green Footballs has a post reporting that a "presentation sponsored by the Yellow Pages . . . claim[s] that Frank Zappa was a Muslim."

I don't think so.

But it does give me an excuse to post on Zappa, complete with cool "Sheik Yerbouti" album cover.

The Godlike Daniel

Posting about John Calhoun lead me think, not unexpectedly, about Daniel Webster.

Rather than quote from the Webster-Hayne debate, I thought I'd share this wonderful description of the Godlike Daniel:

He was a black, raven-haired fellow, with an eye as black as death, and as heavy as a lion's -- and no lion in Africa ever had a voice like him, and his look was like a lion's -- that same heavy look, not sleepy, but as if he didn't care about any thing that was going on about any thing; but as if he would think like a hurricane if he once got worked up to it.

The Collected Perennial Publius

Earlier this year, Matthew J. Franck published at NRO's Bench Memos a blog series entitled "The Perennial Publius" on the 85 essays of The Federalist. He has now assembled them in one handy place. I've downloaded them. You should too.

Was The Louisiana Purchase Unconstitutional? IV

After all of this build up, the Constitutional analysis is a let down – with all due respect to Thomas Jefferson, these are not close questions. Let’s plow ahead anyway, starting with Representative Nicholson’s first issue: did the Constitution bar the United States from acquiring, by treaty, sovereignty over new territory, i.e., territory that it did not possess in 1789?

The proponents of unconstitutionality apparently grounded their conclusion in the idea that the “United States” referred to in the Constitution was and could only be the physical entity as it existed in 1789. New Hampshire Federalist Senator William Plumer, for example, apparently believed that the reference in the Preamble "to ourselves and our Posterity" suggested that the Constitution was limited to the geographic confines that existed upon ratification:

The constitution of the United States was formed for the express purpose of governing the people who then & thereafter should live within the limits of the United States as then known & established. It never contemplated the accession of a foreign people, or the extension of territory.

As David Currie has noted, "If that was the best opponents of acquisition could do, it was pretty poor." Article II, Section 2 says simply that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." Why isn’t that the beginning and end of the matter? Transfer of territory has been a common subject of treaties for thousands of years. Nothing in Section 2 suggests that that subject is somehow carved out from the treaty power. To the contrary, the language is general and admits of no exceptions.

John C. Calhoun, Nationalist II

On Tuesday February 4, 1817, Representative John Caldwell Calhoun gave a speech in a favor of internal improvements. The following passage is simply stunning in its beauty. Imagine you are Calhoun, standing there on the floor of the House of Representatives one hundred ninety years ago, and declaim it as he might have.

To improve readability (and recitability), I have added additional paragraph divisions and removed phrases such as “Mr. C. said.”

But on this subject of national power, what . . . can be more important than a perfect unity in every part, in feelings and sentiments? And what can tend to more powerfully produce it, than overcoming the effects of distance?

No country, enjoying freedom, ever occupied anything like as great an extent of country as this Republic. One hundred years ago, the most profound philosophers did not believe it even to be possible. They did not suppose it possible that a pure Republic could exist on as great a scale even as the island of Great Britain.

What then was considered chimerical, . . . we now have the felicity to enjoy; and what is most remarkable, such is the happy mould of our Government, so well are the State and general powers blended, that much of our political happiness draws its origin from the extent of our Republic. It has exempted us from most of the causes which distracted the small Republics of antiquity.

Let it not, however, be forgotten, let it . . . forever be kept in mind, that it exposes us to the greatest of all calamities, next to the loss of liberty, and even to that in its consequence – disunion. We are great, and rapidly – [I] was about to say fearfully – growing. This . . . is our pride and danger – our weakness and our strength. Little . . . does he deserve to be intrusted with the liberties of this people, who does not raise his mind to these truths.

We are under the most imperious obligation to counteract every tendency to disunion. The strongest of all cements is, undoubtedly, the wisdom, justice, and, above all, the moderation of this House; yet the great subject on which we are now deliberating, in this respect, deserves the most serious consideration.

Whatever . . . impedes the intercourse of the extremes with this, the centre of the Republic, weakens the Union. The more enlarged the sphere of commercial circulation, the more extended that of social intercourse; the more strongly are we bound together; the more inseparable are our destinies.

Those who understand the human heart best, know how powerfully distance tends to break the sympathies of our nature. Nothing, not even dissimilarity of language, tends more to estrange man from man. Let us then . . . bind the Republic together with a perfect system of roads and canals. Let us conquer space. . . .

So situated . . . , blessed with a form of Government at once combining liberty and strength, we may reasonably raise our eyes to a most splendid future, if we only act in a manner worthy of our advantages. If, however, neglecting them, we permit a low, sordid, selfish, and sectional spirit to take possession of this House, this happy scene will vanish. We will divide, and in its consequences will follow misery and despotism.

To legislate for our country . . . requires not only the most enlarged views, but a species of self-devotion not exacted in any other. In a country so extensive, and so various in its interests, what is necessary for the common good, may apparently be opposed to the interest of particular sections. It must be submitted to as the condition of our greatness.

Was The Louisiana Purchase Unconstitutional? III

In my last post on the topic, I quoted Representative Joseph Hopper Nicholson to the effect that opponents of the Louisiana Purchase were in fact raising two separate issues. First, was the United States authorized under the Constitution to assume sovereignty over, and take possession of, new territory? And second (and assuming a positive answer to the first question), was the United States authorized under the Constitution to admit that newly-acquired territory into the Union "upon an equal footing with the other States" -- i.e., as a state itself.

Let me turn, then, to the treaty between the United States and the French Republic. My purpose is not to summarize the entire treaty, but rather to focus only on those portions that bear directly on the issues identified by Representative Nicholson.

For our purposes, the Treaty is quite simple.

As you probably know, in 1803, some question existed as to whether Spain or France owned Louisiana. In October 1800, Spain and France had entered into a treaty by which Spain “promise[d] and engage[d] . . . to cede to the French Republic six months after the full and entire execution of the conditions and Stipulations herein relative to his Royal Highness the Duke of Parma, the Colony or Province of Louisiana.” However, Spain had never officially transferred the colony to France, and France had not actually taken possession of it. The first order of business, therefore, was to establish that France had marketable title to convey.

The parties accomplished this in Article I of the Louisiana Purchase Treaty. That Article quoted from the earlier treaty and simply asserted that “in pursuance of the [French-Spanish] Treaty . . . the French Republic has incontestable title to the domain and to the possession of the said Territory.”

After establishing title, Article I then conveyed it to the United States in a single sentence. In effect, the transfer was by quitclaim deed: although France maintained it had “incontestable title,” the United States got whatever title it was that France possessed, to the extent that France possessed it:

The First Consul of the French Republic desiring to give to the United States a strong proof of his friendship doth hereby cede to the United States in the name of the French Republic for ever and in full Sovereignty the said territory with all its rights and appurtenances as fully and in the Same manner as they have been acquired by the French Republic in virtue of the above mentioned Treaty concluded with his Catholic Majesty [the King of Spain].

The other Article that figured in later constitutional doubts was Article III. That Article dealt with the political rights and status of the inhabitants of the territory, and the status of the territory within the United States. The Article stated in its entirety:

The inhabitants of the ceded territory shall be incorporated in the Union of the United States and admitted as soon as possible according to the principles of the federal Constitution to the enjoyment of all these rights, advantages and immunities of citizens of the United States, and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property and the Religion which they profess.

Was this, in effect, a promise that the territory would be admitted to statehood? Although it does not say that in so many words, that is certainly a fair way – and perhaps the only way – to read it. It certainly seems that Representative Nicholson's breakdown of the issues corresponds nicely to Articles I and III.

In the next post, we’ll start looking at the relevant provisions of the Constitution.

Was The Louisiana Purchase Unconstitutional? II

One member of the House of Representatives correctly noted that those who expressed doubts about the constitutionality of the treaty were confusing two different points.

During the debates over the treaty, Representative Joseph Hopper Nicholson of Maryland asserted that there were two separate constitutional issues, "though gentlemen had very ingeniously blended them, and considered them as one." Nicholson identified the first issue as "[w]hether the United States, as a sovereign and independent empire, had a right to acquire territory." The second, he said, was "whether they [the United States] could admit that territory into the Union, upon an equal footing with the other States."

Putting aside whether the objections, so framed, have any merit, at least they make sense: I can understand what they are.

Let's turn now to the treaty itself to understand the sources of the concerns.

Was The Louisiana Purchase Unconstitutional? I

I have heard for years that Thomas Jefferson (and others at the time) believed that the Louisiana Purchase was unconstitutional, or at least that he had serious doubts about its constitutionality. I've never understood the issues. What were the objections? Were they well founded? Let take a look.

To begin with. let's try to understand the objections. Here is an excerpt from a letter that Jefferson wrote to Senator John Breckinridge (who should not be confused with this John Breckinridge) on August 3, 1803:

This treaty must of course be laid before both Houses, because both have important functions to exercise respecting it. They, I presume, will see their duty to their country in ratifying & paying for it, so as to secure a good which would otherwise probably be never again in their power. But I suppose they must then appeal to the nation for an additional article to the Constitution, approving & confirming an act which the nation had not previously authorized. The constitution has made no provision for our holding foreign territory, still less for incorporating foreign nations into our Union.

I don't know about you, but Jefferson's objection seems totally opaque to me. Was the United States going to be "holding foreign territory"? I didn't think so. The territory, once purchased, would belong to the United States. Would the US be "incorporating foreign nations into our Union"? Well, only in the sense that the U.S. was acquiring by treaty territory previously claimed by another country. But so what? Did Jefferson view these as different objections? Or were they two ways of phrasing the same thing? I'll explore these and other mysteries in future posts.

Veterans' Day

To everyone who is now serving or who has served, thanks, and stay safe.

Maxblogging

On Friday, I took my 79 year old mother in law to Bide a Wee, a pet shelter/adoption center. The result: Maxwell, 3 months of age.

John C. Calhoun, Nationalist

It's well-known that John Caldwell Calhoun's political and constitutional philosophy changed significantly over the course of his career. But it took the late David P. Currie to drive home just how radical a nationalist Calhoun was in his youth.

In December 1816, Calhoun, then a young Representative, proposed "A Bill to set apart and pledge, as a permanent fund for internal improvements, the bonus of the National Bank, and the United States share of its dividends":

Be it enacted, &c., That the United States' share of the dividends of the National Bank, and the bonus for its charter, be and the same are hereby set apart and permanently pledged as a fund for constructing roads and canals; and that it be subject to such specific appropriations, in that respect, as Congress may hereafter make.

The fact that Calhoun proposed an internal improvements bill is noteworthy in itself. But what is really startling is the argument he made in support of the bill's constitutionality. Calhoun began with what has got to be, in hindsight, one of the more ironic statements ever heard on the floor of the House:

It was mainly urged [Calhoun explained] that the Congress can only apply the public money in execution of the enumerated powers. He was no advocate for refined arguments on the Constitution. The instrument was not intended as a thesis for the logician to exercise his ingenuity on. It ought to be construed with plain, good sense; and what can be more express than the Constitution on this very point?

Turning to the text of the Constitution itself, Calhoun, incredibly, argued that Article I, Section 8, Clause 1 ("The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States") clearly granted Congress the power to provide for internal improvements. Calhoun specifically took the position that the enumeration of powers set forth in the remaining clauses of Section 8 did not limit the purposes for which Congress could lay and collect taxes, so long as they were for the "common defense" and "general welfare":

The first power delegated to Congress is comprised in these words: To lay and collect taxes, duties, imposts, and excises: to pay the debts, and provide for the common defence and general welfare of the United States; but all duties, imposts and Excises shall be uniform throughout the United States." . . . If the framers had intended to limit the use of the money to the powers afterwards enumerated and defined, nothing could be more easy than to have expressed it plainly. He knew it was the opinion of some, that the words, "to pay the debts, and provide for the common defense and general welfare," which he had just cited, were not intended to be referred to the power of laying taxes, contained in the first part of the section, but that they are to be understood as distinct and independent powers, granted in general terms; and are gratified by a more detailed enumeration in the subsequent part of the Constitution. If such were in fact the meaning, surely nothing can be conceived more bungling and awkward than the manner in which the framers have communicated their intention. If it were their intention to make a summary of the powers of Congress in general terms, which were afterwards to be particularly defined and enumerated, they should have told us so plainly and distinctly; and if the words "to pay the debts, and provide for the common defense and general welfare," were intended for this summary, they should have headed the list of our powers, and it should have been stated, that to effect these general objects, the following specific powers were granted.

Professor Currie observes:

The reader will be permitted to find it amusing that a Jeffersonian from South Carolina would find in the general welfare clause authority to spend for any purpose that benefited the nation . . ..

All the more so when that "Jeffersonian from South Carolina" is John Caldwell Calhoun.

Tunguska

When I was in college, I took an introductory astronomy course and wound up writing a short (5 page?) paper on Tunguska. I believe I concluded, by process of elimination, that it must have been caused by a mini black hole. Hey, it's cooler to think about mini black holes than about comets or meteors!

Be that as it may, I remain intrigued by the event. National Geographic has the latest interesting development: Crater From 1908 Russian Space Impact Found, Team Says. The corollary is that there was no mini black hole, just your ordinary "cosmic body":

Gasperini's team says that the basin's unusual shape is the result of a fragment thrown from the Tunguska explosion that plowed into the ground, leaving a long, trenchlike depression.

"We suggest that a 10-meter-wide [33-foot-wide] fragment of the object escaped the explosion and kept going in the same direction. It was relatively slow, about 1 kilometer a second [0.6 mile a second]," Gasperini said.

The lake is located along the most probable track of the cosmic body, he added, which likely made a "soft crash" in the marshy terrain.

Still, there's hope for us mini black hole fans:

William Hartmann, senior scientist of the Planetary Science Institute in Tucson, Arizona, said the new findings are compelling but do not address all of the lingering questions about the event.

"It's an exciting result that might shed new light on the Tunguska explosion," he said. "Certainly it warrants new studies of the area.

"But it raises a question in my mind: If one large fragment hit the ground, we would normally expect thousands of smaller fragments also to hit the ground along the path, and many searches have failed to find such meteorite fragments. So, why no smaller pieces?"

Go, Mini Black Hole!

Let's Say Thanks

Now here is a worthy cause. In all of 30 seconds or so, you can send a postcard to one of our troops. It doesn't even cost anything. Kudos to Xerox.

Darfur II

Four months ago, I mentioned the pathetic nature of the liberal response to Darfur. Now, in an article at the American Spectator, James Bowman has made the same point far more articulately than I did:

Near the end of Ted Braun's documentary, Darfur Now, a student from Los Angeles named Adam Sterling is invited to speak at the ceremonial signing in Sacramento of a measure he has helped to push through the California legislature. It instructs California state pension funds managers to sell any stock they have in companies doing business in the Sudan. "To the government of Sudan," says young Adam as Governor Arnold Schwarzenegger beams down at him approvingly. "We're coming! Your genocide will not occur on our watch, and it will not occur on our dime!" Now I suppose that disinvestment by the state employees of California -- and other states -- in Sudanese oil is not quite so feeble a gesture as the petition addressed to the Taliban I was once asked to sign, pre-9/11, protesting against their treatment of women in Afghanistan, but it is not far off it.

* * *

The saddest thing in this sad film is the shots of the people of Darfur as they wait for Western assistance, imagining what it will be like when "the white people" come to deliver them from their miseries, to set up hospitals and dig wells and bring electricity. They are frankly nostalgic for the days of empire. What Adam Sterling is really doing with his ostentatious display of compassion is helping to make sure that that will never happen. One of the refugee children interviewed for Mr. Braun's camera says: "I want to be a pilot. When I am a pilot I will fly to America and buy many weapons." And then, speaking of the Janjaweed, he adds: "Like they burned us, I want to burn them." Now there's someone who might get something done.

Genius!

Justice Curtis' Understanding of "the Privileges and Immunities of Citizens"

I discussed the other day Chief Justice Taney’s apparent understanding of the meaning of the phrase “Privileges and Immunities of Citizens.” In Dred Scott, Taney articulated the belief that the phrase encompassed, at a minimum, rights such as the rights of free speech and freedom of assembly, and the right to bear arms. Indeed, Taney’s understanding of the phrase seems to have been crucial to his view of the case. One senses that Taney reached the conclusion that free blacks could never be citizens in large part because the contrary conclusion was unthinkable. It was simply inconceivable to him that free blacks could have the right to assemble, carrying firearms, at any time of the day or night.

Associate Justice Benjamin Robbins Curtis, one of the two Dred Scott dissenters, ironically came to a radically different conclusion about the meaning of the phrase.

By way of background, Justice Curtis expressed the belief that the states determined citizenship in the first instance. Each state had the right to determine which of its residents would be citizens of that state. But if a state determined that certain residents, such as free blacks, were citizens of the state, then those persons were also citizens of the United States.

Justice Curtis then restated the “privileges and immunities” argument that the Chief Justice had found persuasive:

It has been further objected that, if free colored persons, born within a particular State and made citizens of that State by its Constitution and laws, are thereby made citizens of the United States, then, under the second section of the fourth article of the Constitution, such persons would be entitled to all the privileges and immunities of citizens in the several states, and, if so, then colored persons could vote, and be eligible to not only Federal offices, but offices even in those States whose Constitution and laws disqualify colored persons from voting or being elected to office.

Justice Curtis flatly denied the premise of the argument: “But this position rests upon an assumption which I deem untenable.” In a nutshell, Justice Curtis denied that citizenship, by itself, necessarily conveyed any particular civil or political rights under state law. Put slightly differently, Justice Curtis asserted that states were free to, and did, establish additional qualifications that citizens needed to fulfill in order to be entitled to exercise particular rights:

So, in all the States, numerous persons, though citizens, cannot vote, or cannot hold office, either on account of their age, or sex, or the want of the necessary legal qualifications. The truth is that citizenship, under the Constitution of the United States, is not dependent on the possession of any particular political or even of all civil rights, and any attempt so to define it must lead to error. To what citizens the elective franchise shall be confided is a question to be determined by each State in accordance with its own views of the necessities or expediencies of its condition. What civil rights shall be enjoyed by its citizens, and whether all shall enjoy the same, or how they may be gained or lost, are to be determined in the same way.

Justice Curtis then turned more directly to the Privileges and Immunities Clause itself. The Clause, he asserted, did “not confer on the citizens of one State, in all other States, specific and enumerated privileges and immunities.” Citizens of one state who travel to another state “are entitled to such [privileges and immunities] as belong to citizenship [in the second state], but not to such as belong to particular citizens attended by other qualifications.”

Privileges and immunities which belong to certain citizens of a State by reason of the operation of causes other than mere citizenship are not conferred. Thus, if the laws of a State require, in addition to citizenship of the State, some qualification for office or the exercise of the elective franchise, citizens of all other States coming thither to reside and not possessing those qualifications cannot enjoy those privileges, not because they are not to be deemed entitled to the privileges of citizens of the State in which they reside, but because they, in common with the native-born citizens of that State, must have the qualifications prescribed by law for the enjoyment of such privileges under its Constitution and laws. It rests with the States themselves so to frame their Constitutions and laws as not to attach a particular privilege or immunity to mere naked citizenship. If one of the States will not deny to any of its own citizens a particular privilege or immunity -- if it confer it on all of them by reason of mere naked citizenship -- then it may be claimed by every citizen of each State by force of the Constitution, and it must be borne in mind that the difficulties which attend the allowance of the claims of colored persons to be citizens of the United States are not avoided by saying that, though each State may make them its citizens, they are not thereby made citizens of the United States, because the privileges of general citizenship are secured to the citizens of each State. The language of the Constitution is "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." If each State may make such persons its citizens, they became, as such, entitled to the benefits of this article if there be a native-born citizenship of the United States distinct from a native-born citizenship of the several States.

I cannot help but point out that Justice Curtis, quite clearly the best judge on the Court at the time, was the sole Supreme Court nominee of President Millard Fillmore.

Impeachment Trivia

I really wish that Dennis Kucinich's moronic bill to impeach Vice President Cheney had passed. Then, we could have watched the Vice President preside over his own impeachment trial! Glenn Reynolds' further musings are here.

Causes and Motivations

In a recent post, Dimitri observed “that the principal cause [I would say causes - e] of the war and the principal reasons men fought represent totally different things. The first is an historical conclusion, the second a personal reality in historical time.”

Which brings to mind something I read yesterday:

From our current perspective, it is clear that conflicts over slavery caused the war. But this, most historians also admit, is not the same as explaining what motivated men to enlist and fight. Causes reflect the deep social forces that generate historical change whereas motivations operate on the individual level. . . . If we regard the Civil War as a truly popular conflict, then understanding the relationship between causes and motivations becomes crucial.

Aaron Sheehan-Dean, Why Confederates Fought: Family & Nation in Civil War Virginia, at 13-14.

As Phil Rizzuto would say, "Holy cow!"

The Importation of Slaves into Orleans Territory

Later in the antebellum period, southerners developed the theory that Congress lacked the power, under the Constitution, to ban or limit slavery in the territories. It is well known that Congress exercised this power when it adopted the Northwest Ordinance and enacted the Missouri Compromise. It is less well known that Congress also assumed that it had the power to limit slavery in the territories on a number of other occasions during the early republic.

Of these, the most startling occurred in 1804, when Congress enacted a statute creating “the territory of Orleans” from the Louisiana Purchase.

The Northwest Ordinance, adopted with modifications in 1789, provided simply that “There shall be neither slavery nor involuntary servitude in the said territory.” It prescribed no penalties or remedies.

The 1804 Act was different. The Act, formally titled “An Act erecting Louisiana into two territories, and providing for the temporary government thereof” (March 26, 1804), created from a “portion of county ceded by France to the United States, under the name of Louisiana,” “a territory of the United States, under the name of the territory of Orleans,” and set forth how its government would be organized and administered. The Act designated “[t]he residue of the province of Louisiana” “the district of Louisiana,” under the control of the governor of the Indiana territory.

Section 10 of the Act strictly limited the importation of slaves into the territory and established penalties and remedies for its violation. First, no slaves could lawfully be imported from outside the United States:

It shall not be lawful for any person or persons to import or bring into the said territory, from any port or place without the limits of the United States, or cause or procure to be so imported or brought, or knowingly to aid or assist in so importing or bringing any slave or slaves. And every person so offending, and being thereof convicted before any court within said territory, having competent jurisdiction, shall forfeit and pay for each and every slave so imported or brought, the sum of three hundred dollars . . .; and every slave so imported or brought, shall thereupon become entitled to, and receive his or her freedom.

Second, it was illegal to import slaves from within the United States if those slaves were brought into the United States after May 1, 1798:

It shall not be lawful for any person or persons to import or bring into the said territory, from any port or place, within the limits of the United States, or to cause or procure to be so imported or brought, or knowingly to aid or assist in so importing or bringing any slave or slaves, which shall have been imported since [May 1, 1798], into any port or place within the limits of the United States; and every person so offending, and being thereof convicted before any court within said territory, having competent jurisdiction, shall forfeit and pay for each and every slave so imported or brought, the sum of three hundred dollars . . ..

Third, the only people who could bring slaves of any sort into the territory were United States citizens actually settling in the territory, and they could bring only those slaves they then owned:

[A]nd no slave or slaves shall directly or indirectly be introduced into said territory, except by a citizen of the United States, removing into said territory for actual settlement, and being at the time of such removal bona fide owner of such slave or slaves . . ..

Finally, as if to emphasize the point, the last clause of Section 10 reiterated that “every slave imported or brought into said territory, contrary to the provisions of this act, shall thereupon be entitled to, and receive his or her freedom.”

Until I read the Act, I had not realized that it was so qualitatively different. Clearly, Congress was concerned that the limitations on the importation of slaves would be violated, but I am not familiar with the precise circumstances surrounding the passage of the Act. Can anyone point me in the right direction?

Abe Lincoln: Too Cheap for a Hooker

I am confident that Brian Dirck, a connoisseur of Lincoln kitch and gossip, will enjoy this one, courtesy of the New York Post:

November 5, 2007 -- DID Abe Lincoln's honesty prevent him from sowing his oats? In historian Gerald Prokopowicz's upcoming book, "Did Lincoln Own Slaves?," he writes that before Lincoln was the nation's 16th president, he visited a hooker, took off his clothes, then "thought to ask how much this was going to cost. Five dollars was the answer, but he only had two. The young lady assured him his credit was good, as his reputation for honesty had preceded him . . . [He] left, unfulfilled but unburdened by additional debt."

Justice Taney's Understanding of the "Privileges and Immunities of Citizens"

Justice Taney's discussion in Dred Scott as to whether free blacks could be "Citizens" under Article III, Section 2 is fascinating for a number of reasons. What I find most interesting about it is that Taney inadvertently sheds valuable light on the contemporary (1857) understanding of the meaning of the phrase "privileges and immunities."

The original Constitution contained separate references to the term "Citizen" in Articles III and IV. The provision at issue in Dred Scott was Article III, Section 2, which defined the jurisdiction of federal courts to include, among other things, "Controversies . . . between Citizens of different States."

In addition, Clause 1 of Article IV, Section 2 contains what is known as the Privileges and Immunities Clause. It states, quite simply, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." Originally, this clause seems to have been intended to prevent states from discriminating against travelers from other states. For example, if a state permitted its citizens to engage in an occupation, it could not bar out-of-staters from doing so. On the other hand, it did not give out-of-staters any additional rights. If a state forbade the distribution of abolitionist literature, the ban applied to travelers from other states and the state's own citizens alike.

By 1857, however, Taney clearly understood the Privileges and Immunities Clause to convey additional, substantive rights. He assumed that, if free blacks were "Citizens" under Article III, then they must also be "Citizens" under Article IV. But free blacks could plainly not be Article IV "Citizens" precisely because they would then be entitled to the "privileges and immunities" of citizens as Taney understood them. That was unthinkable:

It cannot be supposed that they [the original thirteen states] intended to secure to them [blacks] rights and privileges and rank, in the new political body throughout the Union which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, [then they would be] entitled to the privileges and immunities of citizens . . ..

So what rights did Taney believe that the Privileges and Immunities Clause conveyed? Here is what he says:

For if [blacks] were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.

This passage reveals that Taney believed that "privileges and immunities of citizens" included, at a minimum, freedom of speech and assembly and the right to bear arms -- rights we customarily associate with the First and Second Amendments, and a right to go wherever one pleased at any hour of the day or night.

Nine years later, Senator Jacob Howard expressed a similar understanding of the "privileges or immunities" referred to in Section 1 of the then proposed Fourteenth Amendment.

Socialist Labor

I'm about one-third of the way through Kang Zhengguo's wonderful autobiography, Confessions: An Innocent Life in Communist China.

In 1965, the author was serving as a "resettled worker" at the Jian'an Materials Plant of Xi'an, a brick making facility, after having been thrown out college for political crimes:

I never fell for the phony pep talks we got from the leadership of the brickyard . . .. If labor was so glorious, why did they give all the dirty work to us, the dregs of society, instead of doing it themselves?

Incredibly, the author now teaches Chinese language and literature at Yale. I am awestruck.

Were Free Blacks Article III "Citizens" In 1789?

Stanton Krauss, a Professor of Law at Quinnipiac University, has published a gem of an article in the Connecticut Law Review on his historical researches relating to one aspect of Justice Taney’s Dred Scott decision: New Evidence That Dred Scott Was Wrong About Whether Free Blacks Could Count for the Purposes of Federal Diversity Jurisdiction. Although the article is available on SSRN, and I encourage you to read it for yourself, here is the gist of it.

As you may know, one aspect of the Dred Scott case turned on whether free blacks were “Citizens” under Article III, Section 2 of the Constitution, which grants federal courts jurisdiction over “Controversies . . . between Citizens of different States.” Scott had filed his second suit – the one that ultimately reached the Supreme Court – based upon “diversity of citizenship,” as lawyers now generally refer to the principle. In particular, Scott alleged that he was, at the time he filed suit, a citizen of the State of Missouri, and that the defendant, Sanford, was a citizen of the State of New York.

In his “Opinion of the Court,” Taney, among other things, denied that blacks – even free blacks – were or could ever become “Citizens” within the meaning of Article III, Section 2. Therefore, no diversity of citizenship existed, and federal courts accordingly lacked jurisdiction over the suit.

Although Taney purported to reach his conclusion based on historical inquiry, Professor Krauss points out that that inquiry did not focus on the Founders’ (or the founding generation’s) words or deeds concerning the diversity provision. Rather,

Taney proceeded by asking a far more general (and far more abstract) question: whether the Founders intended to allow free blacks to “become . . . member[s] of the political community formed and brought into existence by the Constitution of the United States, and as such became entitled to all rights, and privileges, and immunities, guarantied by that instrument to its citizens.”

Not unexpectedly given its phrasing, Taney answered this question in the negative. But what Taney did not do was pose, provide any evidence concerning, or answer the more immediate historical question: was there any evidence as to whether the Founders thought that free blacks could be “Citizens” for purposes of the diversity provision? Nor did the dissenters:

Although Taney’s conclusion was vigorously denounced by Justices Curtis and McLean, neither challenged his failure to adduce any evidence of what the Founders actually thought about the status of free blacks with respect to the diversity provision . . .. And neither the dissenting Justices nor the lawyers for the parties cited any such evidence, on either side of the issue. It’s only fair to assume that no one knew of anything to cite.

Remarkably, Professor Krauss has unearthed a tantalizing piece of evidence on the question – and it suggests that the founding generation believed that free blacks could be “Citizens” for diversity purposes (or perhaps that it did not occur to them that free blacks were not “Citizens” for that purpose).

Professor Krauss has apparently been engaged for over a decade in a “comprehensive study of early American newspapers and legal manuscripts.” As he describes it, he stumbled across a story about two 1793 federal court cases in which the plaintiff was black and the defendants white. Very briefly (read the article for more detail), Peter Elkay, a free black resident of Stockbridge, Massachusetts, sued John Ives III and Joel Moss, two white residents of Wallingford, Connecticut, for allegedly kidnapping Elkay’s daughters. Invoking diversity jurisdiction, Elkay brought his suits in federal court in Connecticut. The cases were tried in New Haven on April 28, 1793. The jury awarded Elkay damages of $250 in each case, motions to set aside the verdicts were denied, judgments were entered in Elkay’s favor and he was granted execution in that amount.

The lawyers and judges involved in the cases constituted a virtual “who’s who” of outstanding legal talent. Pierpont Edwards, the first and then-current United States Attorney for the District of Connecticut, represented Elkay. Connecticut Congressman James Hillhouse represented the defendants. Federal District Judge Richard Law and Supreme Court Justice James Wilson presided over the proceedings. All were knowledgeable about the Constitution. Edwards, Hillhouse and Law had all been delegates to the convention at which Connecticut had ratified the Constitution. Wilson, of course, was a delegate to the Constitutional Convention itself and to the Pennsylvania convention that ratified the Constitution on behalf of that state.

During May 1893, reports of the litigation “appeared in almost one-third of the English-language newspapers published in America,” including publications in Vermont, New Hampshire, Massachusetts, Connecticut, Rhode Island, New York, New Jersey, Pennsylvania, Delaware, Maryland and North Carolina. (Professor Krauss did not find articles on the cases in publications in Virginia, Kentucky, Tennessee, South Carolina or Georgia.)

During the case, none of the lawyers or judges questioned the diversity jurisdiction issue. After the case, so far as Professor Krauss can tell, no one who read the article about the cases appears to have raised, commented on or complained about the court’s jurisdiction, either in public (letters to newspapers, broadsides, etc.) or in private correspondence.

Professor Krauss dutifully explores other possibilities and concedes that other hypotheses cannot be excluded, but the fair inference is that it did not occur to anyone at the time that Elkay’s status as a free black excluded him from being considered a “Citizen” for purposes of Article III.