A. Creation of National Gov’t and Separation of Power 7

Slavery and the Law

1. Prigg v. Pennsylvania (1842) – Federal Field Preemption, only Congress has right to legislate in field

   1. Facts

      1. Issue

         1. Case not about their being freed. Slaveowner had already gone into PA and recaptured slaves and brought them back to MD. The slaves claimed that the owner had informally set them free prior to her birth – she married and moved to PA.

         2. Case was about whether Prigg and his cohorts could be criminally prosecuted for violating Pennsylvania’s no-self-help law.

      2. Right of recapture

         1. In colonial background, there was a common law right of recapture – permitted self-help as long as it didn’t involve violence or disturbing the peace. So recapture was a common process.

         2. Northern states (PA in particular) included in state laws a provision allowing recapture – to show other states that a Union was really desired. (PA – 1780)

         3. Generally, it would be an agent of the slave owner, or professional, who would seize the slave and convey him back into slave territory

      3. Fugitive Slave Clause

         1. 1793 – Congress approves Fugitive Slave Act, requiring that judges return escaped slaves.

         2. Fugitive Slave clause says instead of “may be reclaimed and conveyed”, it says “shall be delivered up”

            1. 
               Difference in language from something close in time
               

         3. Process created by which a slave seized by self-help would have to be taken to a judge (state or fed) – who would evaluate claim that person was fugitive slave, and only upon judge’s certification of that fact could slave be removed. Doesn’t say who will do they conveying.

      4. PA Slave Recapture Clause

         1. PA 1826 statute was designed to prevent self-help – designed to limit violence in recapture of slaves. The slave was entitled to a hearing to determine his rights.

   2. Story and the Fugitive Slave Act

      1. Story as a nationalist

         1. The Fugitive Slave Act is very ambiguous in terms of who is supposed to enforce it.

         2. Story was a nationalist fighting for federal power, but there was a conflict b/c if you are outcome oriented in this instance, then the feds were not going to eliminate the Fugitive Slave Act and it would be better to let the anti-slave states chip away at it.

         3. How far should the judge work the positive law to be outcome oriented? Is there something in Story’s position that would make him think that he was bound by positive law rather than being able to exercise his own moral judgment?

      2. Story’s interpretation of the Fugitive Slave Act in constitutional history

         1. We wouldn’t have a union without it.

            1. 
               Story sees this as a great compromise between the North and the South – that there was great debate – an acquiescence to a compromise.
               
            2. 
               But there wasn’t great debate – it was slipped in at the last moment without great debate and the lack of deliberation meant that the delegates did not examine its full implications.
               

         2. With this sort of collision, we have to interpret the Fugitive Slave Act so that its true purposes will be met.

            1. 
               What was the interpretive intent of the framers? They closed the debates, so they did not want their legislative history to be examined – they wanted the document to be the final product.
               
            2. 
               Should Story be bound by the intent of the framers or only by the document itself?
               

   3. Is there a conflict between PA statute and Fugitive Slave Act?

      1. What does “shall be delivered up” mean? Who delivers up the slave? This doesn’t necessarily suggest self-help, rather it suggests some sort of constitutionally mandated process.

      2. This power is not enumerated in Article I, Section 8, so it doesn’t appear to give Congress the explicit power to legislate related to this.

      3. The PA statute bars self-help and mandates that the person has to go to a magistrate.

      4. Is there room for states to legislate when it doesn’t directly conflict with the Act?

   4. Ruling

      1. He consigned enforcement of the Fugitive Slave Act to self-help – that states were not compelled to enforce it, but could not pass legislation that impaired it. The statute was self-executiong.

   5. McLean’s Opinion – narrower grounds.

      1. Fugitive Slave Act requires certification of slave for removal. Morgan was taken back to MD w/o certification process.

      2. Tried to get certification from justice of the peace, who determined that under PA law, he didn’t have jurisdiction

      3.  McLean said no conflict with statute, the behavior violates the state and fed statute

   6. Story:

      1. the PA statute didn’t just prohibit self-help to remove a slave; it prohibited self-help across the board

      2.  so it prohibits stuff that is presumed lawful, maybe even explicitly: that someone would use self-help to seize the slave in the first place

      3. So PA goes further than prohibiting what Fugitive Slave Act prohibited

   7. PA’s burden of proof: statute constit under FSC

      1. PA argued that Clause is silent as to how status is to be determined, how delivered up, who will enforce – and that in the face of this silence – 2 possibilities:

         1. Only the states have the power to act in this area, rendering the Fugitive Slave Act unconstitutional (and PA statute constitutional)

         2. States and Fed gov’t have concurrent jurisdiction – each can legislate, so long as there is no conflict between state and fed statute (b/c then Supremacy Clause says Fed statute wins) – AND that there is no conflict here

      2. Problems –

         1. Could defend statute only if you limit it to barring self-help on removal

   8. Story’s response:

      1. Congress occupied the entire field here, its silence is meaningful – if Cong didn’t provide penalty for those removing slaves w/o the process, not having a remedy is what Cong wanted.

      2. By adding a remedy, state is violating the purposes of Congress – so there is a conflict in the face of silence.

         1. this argument is made in modern federal preemption law

      3. But case comes out: Only Federal gov’t can legislate in this area-So Prigg’s conviction must be overturned

   9. What was Story up to?

      1. Objective legal craftsman

         1. Story considered one of greatest legal minds of his time

      2. Wanted to go antislavery BUT believed himself to be so constrained by legal authority that he couldn’t go that way

      3. Wanted to go nationalist (Story was very much in the Marshall school) BUT had to find ways to assuage his guilt – so said constraining legal arguments were more constraining than they actually were

      4. Maybe to say: this isn’t about the judiciary imposing this requirement on the states to cooperate w/ slavery – Congress did it. Issues of democratic legitimacy.

      5. Northern states interfering w/ slave recapture through legal process – might have thought that would be destructive to the Union. Then, federal law was taking an accomodationist position. Maybe later it could be convinced to take a less accomodationist stance.

         1. Was Story signaling Congress to pass federal legislation?

         2. Or signaling the states to be more careful in interfering?

2. Dred Scott (1857) p. 183; blacks are not citizens

   1. History

      1. In this period, each side became more extreme, further from each other

         1. There were freedom suits, juries decide if slave or free

         2. Broad-based resistance to return of fugitive slaves

         3. Heightening of abolitionist rhetoric, obnoxious to Southerners – attacking morality of Southern culture – viewing everything as built on this rotten foundation of slavery – offensive to honor of Southern culture

      2. Justice Taney – had slaves. But not reliant on them to continue his line of work.

         1. He had more of a stake in Southern culture and against the angry rhetoric impugning Southern culture, than slavery itself.

   2. Background of case

      1. 2 different suits, only 1 of which got to SupCt

      2. When Dred Scott initiates suit for freedom, there was strong Missouri SupCt precedent on his side (on whether being brought to live in free territory, he had become free, notwithstanding being brought back to Missouri). Missouri was not entirely proslavery.

      3. Dred Scott’s master died after Dred Scott had been taken into IL. Dred Scott sues administrator of his master’s estate for freedom, since he was now resident of IL. Juris. was based on diversity.

      4. Within the life of Dred Scott’s litigation at Missouri stage – during the delay - Missouri SupCt changed its mind on that question, recognized that it was going against the weight of the authority

         1. States are allowed to be concerned w/ their own self-preservation

         2. Don’t want large population of free blacks in Missouri

            1. 
               This is a silly argument, b/c probably the free state is able to resist the taking-back to Missouri of that person. So the large free black population would be in the free state.
               

      5.  The delay affected the outcome.

   3. Holding

      1. Dred Scott did not have standing to sue, since he was not a citizen of the United States, but was instead property.

         1. Diversity – refers to citizens (Art. III §2)

      2. States could recognize blacks for their own purposes, but not as national citizens.

      3. Supreme Court declared MS compromise unconstit. even after it decided that it did not have juris. to hear the case.

         1. Congress could not grant citizenship to their slaves or descendants – would be taking of property from slave owners w/o due process.

         2. Right of property of slave is distinctly and expressly affirmed in constit.

   4. Originalist opinion

      1. Even in the now free states, at the time of the Const (originalist opinion) – it couldn’t be the case that a change in beliefs since Const was enacted could change our fundamental laws.

      2. Barriers had been set up to equality for blacks – perpetual and impassable barrier intended to be erected between white and black races.

      3. One couldn’t possibly believe that “citizens of the U.S.” could have contemplated that blacks could be citizens of the U.S.

         1. The extent to which blacks were enslaved, unequal, was fixed in time?

         2. Or more aspirational language that is freedom or equality-friendly?

   5. How do we view the concept of citizenship?

      1. Property: bundle of rights. Citizenship could be viewed that way too.

         1. A notion like citizenship is not 1 totality of elements inseparable from another – but could be viewed as a collection of rights, responsibilities

      2. Originalist argument that citizenship was in fact viewed this way:

         1. Women denied the franchise, etc

         2. One element of full equality that Taney keeps noting the absence of where free blacks are concerned: intermarriage (miscegenation)

            1. 
               Marriage and personhood close together
               
            2. 
               But same statutes prohibited intermarriage w/ Indians, and they were allowed to become citizens
               
            3. 
               Anti-miscegenation and segregation were 2 of the last things to fall
               

         3.  Black were nowhere accepted as fully equal. No opinion that racial difference didn’t matter.

      3. Arguments against the bundle of rights theories

         1. Why would a large part of the bundle (voting or marriage) be relevant to who has the right to sue?

            1. 
               Is that one of the most powerful and symbolic of the rights of citizenship? No
               

         2.  Might be anachronistic to have the view in 1857 that founding generation meant “all or nothing” citizenship

            1. 
               Lots of citizens didn’t have all the rights that others had.
               

         3. Being a slave was not a barrier to suit in state courts

            1. 
               They did have disabilities in their rights during the suit
               

         4. But many states w/ antimiscengation laws also accorded to free blacks many rights such as voting. So, denying right to intermarry doesn’t mean you have to go all the way to the other side and deny all rights.

   6. Was it for the Supreme Court to decide the constitutionality of the MS Compromise? Was he justified in think that the institution that would solve the problem was the Court? Could the Court be a catalyst for public opinion – to exercise leadership in this way?

      1. Taney was very much a judicial supremacist – an exercise of power than finally ends the discussion.

      2. The debate was so deeply ingrained in morals and religion, which limits the possible extent of debate. The process of mutual more-extreme-making was a response to Roe – conservatives became exceedingly better organized and polarized after this decision – it motivated and organized an opposition. States-rights growing in opposition to the idea that the Court could decide these deeply moral issues.

      3. Congress had tried multiple times to reaches compromises in the territories, and it wasn’t working. What does the Court do when the structure of the gov’t cannot reach a compromise?

      4. It could have been that no solution would have been right that still would have allowed slavery to exist.

   7. Taney and the Territory Clause of Article IV Section 3

      1. Confers on Congress the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to US.

      2. Taney believed referred only to territory which at that time belonged to US and was w/in boundaries settled with UK

      3. New territory should be governed and admitted as a state as soon as possible – not governed by Congress w/ absolute auth

      4. Federal gov’t is acting as trustee for people of the state, but doesn’t have power over persons or property of citizens – never discretionary power

      5. Noone would debate that Congress could not make laws restricting freedom of religion or speech of citizens in terr – all Bill of Rights still apply, so rights of private property have to be guarded as against feds. No distinction between slaves as property and real property, so Congress would be infringing 5^th amendment by legislating slavery.

   8. Evaluation of opinion

      1. Not a very textualist opinion - The only constitutional language is through the Diversity clause – citizens of a state.

      2. Taney wanted to “get in and get out” – solve the problem once and for all and try to diffuse the conflict.

         1. But Dred Scott actually exacerbated the problem rather than solving it.

      3. Why didn’t Taney adopt one of the alternate views of citizenship, get Scott through the door by diversity jurisdiction, and then declare the Missouri Compromise unconstitutional?

         1. Taney did not want to give abolitionist forces any ground by granting blacks the right to legal redress or partial citizenship.

         2. He couldn’t see any way out of not declaring them citizens – too many repercussions – to be able to get to the MS Compromise.

         3. Once he found that the court didn’t have jurisdiction, then he should have just closed the case, rather than reaching the MS Compromise. He tried to justify this by saying that the lower Court had made substantive rulings, so he had to respond to it. But of course with modern jurisprudence, if the higher court finds that the lower court did not have jurisdiction, then their whole decision is vacated.

      4. Why didn’t Taney compromise by saying that blacks could be recognized as citizens of their states, and that the fed gov’t could then recognize them as citizens in terms of rights that citizens of a state has, but that states that didn’t want to grant blacks citizenship could continue to block their citizenship.

         1. Avoids the question as to whether people declared citizens of their own states had the right to have federal law which turns on state citizenship have the right to have those rights enforced within the borders of the states in which they reside. The Supremacy clause would mean that that the body of law (fed laws applying to state citizens) would then have to be enforced.

         2. Article VI Section 2 – The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

         3. Taney thought that the Privileges and Immunities clause could potentially then be employed to make them citizens in each state.

3. Prize Cases (1863) – Dealing with blockade that Lincoln ordered

   1. Background

      1. Lincoln delayed congress coming back into session so he could call out troops.

      2. Congress then validated Presidential action in Acts of August 6 – can violation of separation of powers be negated if institutional victim acquiesces? Do ordinary citizens derive a private right to liberty ensured by separation of powers?

   2. Holding

      1. President had right to impose blockade without a congressional declaration of war. Acts of Congress of 1795 and 1807 allowed to use militia in case of invasion or to suppress insurrection.

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