Scott v. Emerson VIII: "His Own Voluntary Act"

You will recall that Justice Scott of the Supreme Court of Missouri denied that, in earlier cases granting freedom, the "result was brought about by a presumed assent of the master, from the fact of having voluntarily taken his slave to a place where the relation of master and slave did not exist."

In his dissent, Justice Gamble took issue with this assertion. "The perfect equality of the States, lies at the foundation of the Union." Because each State is free to adopt or reject the institution of slavery, as it sees fit, "[a]s citizens of a slaveholding State, we have no right to complain of our neighbors of Illinois, because they introduce into their State Constitution a prohibition of slavery." From this, it follows that a citizen of Missouri "who removes with his slave to Illinois" has done so knowing "that the fundamental law of the State to which he removes, and in which he makes his residence, dissolves the relation between him and his slave." The act of removal to a free State

is as much his own voluntary act, as if he had executed a deed of emancipation. Nor can any man pretend ignorance, that such is the design and effect of the constitutional provision. The decisions which have heretofore been made in this State, and in many other slaveholding States, give effect to this and other similar provisions, on the ground, that the master, by making the free State the residence of his slave, have voluntarily subjected himself and his property to a law, the operation of which he bound to know. It would seem difficult to make any sound distinction between the effect of an emancipation produced by the act of the master, in thus voluntarily placing his slave under the operation of such a law, and that of an emancipation produced by the act of the master, by the execution of an instrument of writing in any State where the slave resided, which, according to the law of the State, would be sufficient to discharge the slave from servitude, although it might not be a valid emancipation under the laws of another State.

Blind Alfred Reed

Unexpected lyrics from a country musician born in Floyd, Virginia in 1880:

In the same kind of raiments
And the same kind of shoes,
We'll all sit together
In the same kind of pews,
The whites and the colored folks,
The Gentiles and the Jews
Will praise the Lord together,
And there'll be no drinking booze,
There'll be no distinction there.

Blind Alfred Reed, "There'll Be No Distinction There" (recorded Dec. 3, 1929), from the Complete Recorded Works in Chronological Order, Document Records DOCD-8022.

Scott v. Emerson VII: Hamilton Rowan Gamble

Justice Hamilton Rowan Gamble dissented. The opening sentence of his opinion suggested that he believed that more was at stake than one man's freedom: "As I am constrained to depart from the opinion given by a majority of the court, the questions involved in the case and the present condition of feeling in the country, seem to require that I should state the grounds of the dissent."

Justice Gamble began his analysis by noting that slaves were not merely property. Because slaves were human beings, slavery was also a status, which the law had always treated differently:

In all ages, and in all countries in which slavery has existed, the slave has been regarded not merely as property, but also a being capable of acquiring and holding certain rights, by the act of the master. He could acquire and enforce his right to freedom in modes recognized by the law of the country in which he dwelt.

After surveying authorities from Coke to Justinian, Justice Gamble turned to the laws of emancipation in the slaveholding states. He noted that, if a master emancipated his slave in one slaveholding state in compliance with that state's laws, "the right to freedom will be fully sustained in the courts of all the slaveholding States, although the act of emancipation may not be in the form required by the laws of the State in which the court is sitting."

In lawyerly fashion, Justice Gamble employed a hypothetical -- and some rather angry language that betrayed his bitterness at Justice Scott's reasoning and result. Suppose a Missouri master freed his slaves in his will in accordance with Missouri law, and the former slaves emigrated to another slave state, where emancipation by will was not permitted. "[N]o person is so ignorant as to suppose that they would lose their right to freedom by such a change of residence." The principle was "perfectly plain."

In short, Justice Gamble seemed to say, no true conflicts of laws question existed. Just as real estate questions are decided in accordance with the law of the state in which the real estate is located, the question as to a slave's status is decided in accordance with the law of the State where the status was acquired:

In all such cases, courts continually administer the law of the country where the right was acquired; and when the law becomes known to the court, it is just as much a matter of course, to decide the rights of the parties according to its requirements, as it is to settle title of real-estate, situate in our State, according to our own laws.

William Shawcross

I remember reading William Shawcross's book Sideshow: Kissinger, Nixon and the Destruction of Cambodia shortly after it came out in 1979, a brutal indictment of U.S. policy in Cambodia. Essentially (bear in mind I read the book twenty-five years ago) it painted a picture of a peaceful and essentially apolitical Cambodia dragged against its will into political and military conflict by Nixon, Kissinger and the United States. The bottom line: the United States created the Khmer Rouge, or at least gave them traction, and was responsible for the horrors there. The book was passionate, brilliantly argued, and extremely well written.

I have seen reports over the past several years of Shawcross's conversion, although I have not followed them closely. Having recently read Mark Moyars's magnificent Triumph Forsaken, however, I followed the links of a recent Power Line post, "Killing Fields Then and Now," that referred to Shawcross and an article he published in the Times of London, "Remember: for Cambodia read Iraq." I figured this was an opportunity to find out where thirty years had brought him.

The answer, it turns out, is a very long way. He now says that, "Given the catastrophe of the communist victories, I have always thought that those like myself who were opposed to the American efforts in Indochina should be very humble." But I was particularly taken by the sentences that followed:

I also think it wrong to dismiss the US efforts there as sheer disaster. Lee Kuan Yew, the former longtime Prime Minister of Singapore, has a subtler view. He argues that, although America lost in IndoChina in 1975, the fact that it was there so long meant that other SouthEast Asian countries had time to build up their economies to relieve the poverty of their peasants and thus resist communist encroachment — which they probably could not have done had IndoChina gone communist in the 1960s.

It is eerie how precisely Professor Moyar's book corroborates Shawcross's statement. Had the United States abandoned Vietnam in, say, 1964 or 1965, there is little doubt that the dominoes would have fallen: at the very least, Cambodia, Thailand, Malaysia, Singapore and (the big prize) Indonesia. John Kennedy made a disastrous decision in failing to halt the coup against and murder of Ngo Dinh Diem, and Lyndon Johnson, dealt a bad hand, tragically chose to fight a limited war rather than destroy North Vietnam as he should have. But even that limited war, which held off Communist victory for ten years, until we chose to abandon even that effort, delayed the North Vietnamese victory until Malaysia, Singapore, Indonesia and other countries in the region had achieved sufficient stability to withstand the shock of abandonment and defeat.

A recent National Review column on Shawcross, "The Shawcross Redemption," quotes a left-wing journal labeling him as "a fellow-traveler of U.S. imperialism, a committed Euroskeptic, a powerful advocate of pre-emptive war, and an apologist for monarchy and inherited privilege." Congratulations, Mr. Shawcross, you must be doing something right to merit such a frenzied and incoherent denunciation. Welcome aboard.

Some Schlesinger Articles

Commentary Magazine has linked to some interesting articles (all PDF) about Professor Schlesinger and his works. If you want to learn something about the man, rather than read empty tributes, give them a try:

Robert Kagan, Review of Schlesinger's A Life in the Twentieth Century (March 2001)

Kenneth S. Lynn, "The Schlesinger Thesis" (March 1987)

Midge Decter, "Kennedyism Again" (December 1978)

Michael Novak, "The Presidency & Professor Schlesinger" (Feb. 1974)

Irwin Ross, Review of Schlesinger's The Vital Center (Oct. 1949)

Edward N. Saveth, Review of Schlesinger's The Age of Jackson (Feb. 1946)

In the comments to Norman Podhoretz's "Contentions" article, the comment of James Piereson strikes me as exactly right:

It is difficult to disagree with Norman Podhoretz’s judgment that Schlesinger’s work as an historian was compromised by partisanship. The problem with Schlesinger’s work, as Mr. Podhoretz notes, is that he interpreted the past through the prism of the present — and his view of the present was always shaped by the interests of the Democratic party. There is, for example, the Age of Jackson, where Schlesinger argued that Jackson’s populist administration was a forerunner to the New Deal — ignoring the fact that Jackson’s populism called for decentralization, federalism, and private markets. The Whigs, and later, the Republicans, were at that time the party of internal improvements through federal spending and intervention. Up until the time of the New Deal, the Democrats were the party of states rights, the Republicans the party of national power. Schlesinger wanted to claim that the Democratic party has been the instrument of liberalism and reform from the very beginning of the nation — a claim which overlooks about two-thirds of the nation’s history.

Scott v. Emerson VI: "The Providence of God"

Justice Scott closed with a paean to black slavery as a civilizing and humane institution:

As to the consequences of slavery, they are much more hurtful to the master than the slave. There is no comparison between the slave in the United States and the cruel, uncivilized negro in Africa. When the condition of our slaves is contrasted with the state of their miserable race in Africa; when their civilization, intelligence and instruction in religious truths are considered, and the means now employed to restore them to the country from which they have been torn, bearing with them the blessings of civilized life, we are almost persuaded, that the introduction of slavery amongst us was, in the providence of God, who makes the evil passions of men subservient to His own glory, a means of placing that unhappy race within the pale of civilized nations.

Having justified the institution, Justice Scott imposed it on Dred Scott: "[T]he judgment is reversed, and the cause remanded."

Arthur Schlesinger

I've been looking for some balanced discussion about the late Arthur Schlesinger, rather than mere encomia. It looks like this developing thread at Commentary Magazine may fit the bill.

Uh Oh

I'm hanging my head in shame! You can take the test for yourself here.

Scott v. Emerson V: "Times Are Not Now As They Were"

Now Justice Scott comes to the heart of the matter. "[T]he comity shown to the laws of other States, is a matter of discretion, to be determined by the courts of that State in which the laws are proposed to be enforced" -- that is, in this instance, by the courts of the State of Missouri.

Even so, why should Missouri, after thirty years, decline to enforce the laws of other States concerning slave freedom? Justice Scott's answer says volumes for the increasing anger and distrust between the sections in the early 1850s:

If it is a matter of discretion, that discretion must be controlled by circumstances. Times are not now as they were when the former decisions on this subject were made. Since then not only individuals but States have been possessed with a dark and fell spirit in relation to slavery, whose gratification is sought in the pursuit of measures, whose inevitable consequences must be the overthrow and destruction of our government. Under such circumstances, it does not behoove the State of Missouri to show the least countenance to any measure which might gratify this spirit. She is willing to assume full responsibility for the existence of slavery within her limits, nor does she seek to share or divide it with others.

Anti-Confederates, Not Unionists

I am reading Jonathan Dean Sarris's excellent A Separate Civil War: Communities in Conflict in the Mountain South (Charlottesville: University of Virginia Press 2006), a study of two counties in north Georgia, near the Tennessee-North Carolina state line, before and during the Civil War. Professor Sarris makes a convincing case that, in those two counties at least, most dissenters were anti-Confederate rather than Unionist. Here is a quote from pages 75 and 76:

[M]any mountaineers saw the Confederacy's policies as essentially illegal. In the name of secession, authorities invaded homes and violated the sanctity of property and family. The traditional arbiters of law and order -- constables, soldiers, government officials -- had transformed into brutal agents of state-sponsored terrorism.

. . . .

[N]orth Georgia's Tories were driven to resist in reaction to the policies of the Confederate government. What does not appear in the records is any strong evidence of ideological Unionism among the dissenters. Just as a vote against secession in 1861 did not necessarily delineate unconditional pro-Union sentiment, the desertion, draft evasion, and resistance of 1862 and 1863 were not a comprehensive demonstration of any well-defined commitment to the abstract ideals to which so many Northerners subscribed. Although a few "unconditional Unionists" doubtless inhabited north Georgia's mountains, it seems evident that dissent sprang from less philosophical, more contingent causes.

Anyone who has been intrigued by reports of "Unionist" enclaves in the south during the Civil War will want to read Professor Sarris's book.

Thanks to Kevin Levin at Civil War Memory, whose post mentioning this book a few months ago alerted me to its existence.

Scott v. Emerson IV: "It Is Humiliating"

When we left him, Justice Scott had set the stage: laws are generally and presumptively local; if a state chooses to apply foreign law, it does so voluntarily and as a matter of comity.

Having set the stage, Justice Scott moves in closer. Two considerations suggest that Missouri should decline to apply foreign law here. First, "[i]t is a humiliating spectacle, to see the courts of a State confiscating the property of her own citizens by the command of a foreign law." States that free slaves are enforcing their own laws; should not Missouri do the same?

The geography of Missouri makes it especially vulnerable. "On almost three sides the State of Missouri is surrounded by free soil." "[N]umberless" slaves might be freed when "those living along an extreme frontier" sent them even briefly across the border.

Climate Change: Greenland

This article appears to contain a really inconvenient truth:

Petr Chylek of the department of physics and atmospheric science at Dalhousie University in Nova Scotia notes that Gore in his movie "suggests the Greenland melt area increased considerably between 1992 and 2005."

But, Chylek points out, "1992 was exceptionally cold in Greenland" and that "if Gore had chosen for comparison the year 1991, one in which the melt area was 1% higher than in 2005, he would have to conclude that the ice sheet melt area is shrinking and that perhaps a new Ice Age is just around the corner."

Scott v. Emerson III: "The Act is the Thing"

The majority decision was written by Justice William Scott. After describing the facts, Justice Scott began by identifying the basis for the court's decisions "to exact the forfeiture of emancipation." It was not "a presumed assent of the master, from the fact of having voluntarily taken his slave to a place where the relation of master and slave did not exist." Rather, the decisions presumed "it is the duty of the courts of this State to carry into effect the Constitution and laws of other States and territories, regardless of the rights, the policy or the institutions of the people of this State." "The old cases say, the intent is nothing, the act is the thing."

Justice Scott immediately questioned whether this duty existed. Although the States were "associated for some purposes of government," they "have always been regarded as foreign to each other" "in relation to their municipal concerns." In "all . . . matters of internal police," such as the laws of estates, States generally follow their own laws and not those of other States or federal laws "enacted for the mere purpose of governing a territory."

In short, there was no obligation to observe or enforce the laws of other States:

Every State has the right of determining how far, in a spirit of comity, it will respect the laws of other States. Those laws have no intrinsic right to be enforced beyond the limits of the State for which they were enacted. The respect allowed them will depend altogether on their conformity to the policy of our institutions. No State is bound to carry into effect enactments conceived in a spirit hostile to that which pervades her own laws.

Scott v. Emerson II: A Soldier and A Slave

The facts, as the Supreme Court of Missouri understood them, were simple.

Dr. John Emerson was a surgeon in the U.S. Army. From 1834 until April or May 1936, Emerson "was stationed at Rock Island, a military post in the State of Illinois." After that, Emerson was stationed until 1838 "at Fort Snelling, also a military post in the territory of the United States" "ceded to by France to the United States, under the name of Louisiana, which lies north of 36 degrees 30 minutes, north latitude, not included within the limits of the State of Missouri." Dred Scott was Emerson's slave, and Emerson "held him in servitude" in both locations.

Years later, Scott brought suit for his freedom in the St. Louis Circuit Court. Because Emerson had died, Scott named as defendant Irene Emerson, Dr. Emerson's wife and administratrix.

At trial, the Circuit Court instructed the jury, "in effect, that if such were the facts, they would find for Scott. He accordingly obtained a verdict. The defendant moved for a new trial on the ground of misdirection by the court, which being denied to her, she sued out this writ of error."

It is worth recalling that we have run into a virtually identical scenario before. In Rachael v. Walker (1836), the slaveowner was a soldier posted to Fort Snelling (near Minneapolis). Sixteen years earlier, the Supreme Court of Missouri held that Rachael's servitude there entitled her to be free.

Climate Change

Roy W. Spencer, principal research scientist at the Global Hydrology and Climate Center of the National Space Science and Technology Center, has a column well worth reading in today's New York Post: "Not That Simple: Global warming: What we don't know."

Tig at Dusk

President Lincoln's Suspension of Habeas Corpus

Stephen I. Vladeck of the University of Miami School of Law has made available via SSRN a very nice article on President Lincoln's suspension of habeas corpus during the Civil War, entitled "The Field Theory: Martial Law, the Suspension Power, and the Insurrection Act," forthcoming in 80 Temple Law Review. Based on an analysis of another, little-noticed Civil War habeas case, Ex parte Field, 9 F. Cas. 1 (C.C.D. Vt. 1862) (No. 4761), the article explores whether President Lincoln's suspension of the writ was, in effect, legislatively authorized by earlier federal statutes that authorized the executive to call out the militia and to impose martial law to suppress insurrections. It thus suggests there may be a way to avoid the all-or-nothing dichotomy that is usually presented when considering Lincoln's actions and Chief Justice Taney's response in Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487) (Taney, C.J.).

Civil War buffs who are less interested in all the legal mumbo-jumbo may nonetheless want to give the article a look. It provides nice descriptions of events in Maryland leading to Lincoln's suspension of the writ, Merryman's arrest and suit, Taney's decision and Lincoln's response. You can read the more "historical" parts and skim the rest. Did you know, for example that Merryman later named his son Roger Brooke Taney Merryman? For good measure, you also get some brief discussion about early Congressional statutes delegating to the Executive authority to call out the militia and the "land and naval force[s] of the United States," Andrew Jackson's declaration of martial law in New Orleans in December 1814, Congress' later reimbursement of the fine imposed upon Jackson, and the 1841-42 Dorr War in Rhode Island. Fun stuff!

The abstract of the article is as follows:

In Ex parte Merryman, Chief Justice Taney famously rejected President Lincoln's power to unilaterally suspend the writ of habeas corpus in and around Baltimore at the outset of the U.S. Civil War. According to Taney, only Congress can provide for suspension of the writ, and Congress had not so provided. Just one year later, though, the Vermont federal circuit court held, in Ex parte Field, that the suspension of habeas corpus is necessarily coincident to the imposition of martial law. Because President Lincoln had the statutory authority to impose martial law by virtue of the so-called Militia Acts, Field concluded, Congress had effectively, if not explicitly, given sanction to Lincoln's suspension of habeas in those areas where martial law was validly in force.

This Article attempts a thorough reconstruction of the "Field theory," beginning with the facts of Merryman itself before moving to the pre-Civil War precedents on which the decision in Field relied. As it concludes, the President's authority to impose martial law in crisis situations does in fact derive from the Militia Acts, and there is at least a colorable argument that Baltimore was under martial law at the time Merryman was decided. More importantly for present purposes, though, the Article analyzes the deep and profound questions as to the substantive preconditions for the imposition of martial law through the lens of the modern-day Insurrection Act, concluding that the statutory framework, in current form, does not adequately demarcate the point past which martial law is appropriate. Because Congress has the power to provide for the calling forth of the military to respond to domestic crises, Congress can provide for greater accountability - especially at the end of the next emergency - and, the Article concludes, Congress should do so.

Professor Vladeck, by the way, blogs at Prawsblawg, one of my favorites.

The Fourteenth Amendment and Incorporation XIII: A New Article

I have previously published a number of posts here discussing the background of the Privileges or Immunities Clause of Section 1 of the Fourteenth Amendment, analyzing portions of the speeches and debates in the 39th Congress concerning the Amendment, and arguing that the Clause was clearly intended to apply the Bill of Rights against the states. You are invited to look under the tags "Fourteenth Amendment" and Incorporation" to find those earlier entries.

I am pleased to see a new article that reaffirms this conclusion. Bryan H. Wildenthal of the Thomas Jefferson School of Law has released on SSRN a working draft of an article entitled "Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67." The full article is available via SSRN. Here is the abstract:

For many years, the reigning view among scholars was that the Fourteenth Amendment was never understood (except by a few “eccentric” or “confused” figures) to “incorporate” or nationalize the entire Bill of Rights so as to apply it to the states. This modern conventional view was developed primarily by Charles Fairman and Stanley Morrison in 1949, and defended by Raoul Berger from 1977 to 1997. A revisionist, pro-incorporation view was expressed by Justice Hugo Black (and three colleagues) in Adamson v. California (1947), echoing the late-19th century view of the elder Justice John Marshall Harlan, and defended by William Crosskey in the 1950s and Alfred Avins in the 1960s (among others). Michael Curtis, starting in 1980, led a renewed wave of revisionist scholarship, joined by Akhil Amar, Richard Aynes, Earl Maltz, and Stephen Halbrook (among others) in the 1990s.

Few scholars would dispute that the modern conventional account has been severely challenged. Many have been persuaded that Black (and the “eccentric” Justice Harlan the elder) were right all along. But some still reject or question the legitimacy of the “incorporation doctrine.” Hence the purpose of this article. It demonstrates the truly shocking and inexcusable extent to which Fairman, Morrison, and especially Berger mishandled the evidence and profoundly misunderstood the meaning of the Fourteenth Amendment. The extent of their scholarly malpractice has not been fully or adequately explored until now. This makes it especially disturbing that their works remain amazingly influential, decades after they were largely debunked. Fairman's 1949 article, in particular, has been viewed as a “classic” for more than half a century. It is one of the most-cited law review articles of all time.

Surprisingly, my research has shown that there is still a great deal new to say about the original understanding of the Amendment in 1866-67. I have found relevant original source materials never adequately analyzed before. These include a May 1866 New York Times editorial published two days after the Amendment was introduced in the Senate, and an essay by a Kentucky state judge published during 1866-67 that suggests the goal of nationalizing the Bill of Rights may have been widely understood during the ratification period.

This article, following up on two articles I published in 2000, is part of a broader project that will include several forthcoming articles, to be eventually combined into a book.

"Go After the Head of the Snake"

What a terrible mess Lyndon Baines Johnson inherited in Vietnam. JFK had created the mess. He had refused to fight for Laos, thereby permitting the North Vietnamese to open the second Ho Chi Minh trail through that country. For short-sighted and self-serving political reasons he had appointed and then lacked the courage to relieve his Republican rival, Henry Cabot Lodge, as U.S. Ambassador and thus prevent the coup against and assassination of Ngo Dinh Diem in November 1963.

But JFK did not live long enough to reap the whirlwind. It fell on LBJ to watch and react as resulting political chaos promptly led to an accelerating decline in South Vietnamese military effectiveness, just as North Vietnam readied and then in the Spring of 1965 launched major military operations involving large regular NVA units.

LBJ was not blameless. He accepted the same "limited war" concept that JFK and his advisors had championed, and he saddled himself with those same JFK advisors who had helped create the mess. Even after the discovery of many large regular NVA units in South Vietnam, his own predilections and the counsel of his advisors led him to reject the sage advice of former President Eisenhower to "go after the head of the snake instead of the tail."

That said, however, LBJ was a tragic figure, not a villain. Trapped in a situation not of his own making, he received little help. His pleas to his advisors for solutions resulted in a choice among proposals that, at best, attacked the tail:

"'I'm pretty depressed reading all thse proposals,' Johnson told McNamara on July 2[, 1965]. The President confided to his wife, 'Vietnam is getting worse every day. I have the choice to go in with great casualty lists or to get out with disgrace. It's like being in an airplane and I have to choose between crashing the plane or jumping out. I do not have a parachute.'"

Mark Moyar, Triumph Forsaken: The Vietnam War, 1954-1965 (New York: Cambridge University Press 2006), at 409.

In retrospect, of course, LBJ should have either gone after the head of the snake or, failing that, jumped out of the plane. But hindsight is 20-20.

Climate Change

Here is a thoughtful article at Opinion Journal: "Plus Ca (Climate) Change: The Earth was warming before global warming was cool."

National Review Online has a new feature/group blog dedicated to climate change called "Planet Gore." If you're interested in getting something other than the party line, keep an eye on it. Thanks to Jay Richards at Planet Gore for the link to the Opinion Journal piece.