We may examine some paradigmatic cases of purported judicial activism and evaluate them against our working definition. More broadly, we may consider whether there have been periods in Supreme Court history with a marked tendency toward activist
decisions. When examining activist
rulings, we will see what alternative justifications may have been offered in lieu of the usual norms of interpretation, to consider whether this might form a basis for a less arbitrary jurisprudence.
Confining discussion to the Supreme Court makes sense insofar as lower courts are bound by vertical precedent, which is respected unanimously, thereby giving fewer opportunities for overt activism. Naturally, novel cases usually reach the lower courts before going to the Supreme Court, so a comprehensive history of judicial activism ought to include all the courts. Recognizing the limitations of our approach, we nonetheless expect the Supreme Court’s history to be of greater significance, insofar as it establishes controlling precedents for the lower courts and sets an example regarding the permissible breadth of interpretive activity.
The paradigmatic example of judicial activism as first identified by Schlesinger was the New Deal majority on the Supreme Court, which Roosevelt secured with the appointment of Hugo Black in 1937. Justices Black and Douglas remained on the Court through the entirety of the 1950s and 1960s, participating in what is now generally considered to be the acme of judicial activism, namely the Warren Court and its civil rights cases, including the celebrated Brown v. Board of Education (1954). Legal historians have retrospectively identified the Lochner era (1897-1937) as an earlier period of judicial activism, this time serving conservative policy interests in laissez faire capitalism. This identification is not mere revisionism, for the famous dissents of Justice Harlan attested even then that this Court had gravely departed from established norms of strict construction.
In a concurring opinion in Brzonkala v. Virginia Polytechnic Institute 169 F.3d 820, 892 (4th Cir. 1999) (en banc), Chief Judge J. Harvie Wilkinson identified three stages of judicial activism: the Lochner era, the Warren and early Burger Courts, and a third era that probably began with New York v. United States, 505 U.S. 144 (1992).
Apart from the puzzling omission of the New Deal activism of the late 30s and 40s, we may take exception to the identification of a new period of activism in the 1990s. Wilkinson bases this activism on a new emphasis on federalism, restricting application of the commerce power to noncommercial state concerns. This is not activism
in the sense of any methodological negligence or malfeasance, but only in the improper sense of invalidating acts of Congress. As we have noted, the mere fact of invalidation tells us nothing about the propriety or methodology of a ruling. We might just as credibly argue that the Court in this period was putting limits on excessively broad constructions of the commerce power, which still retains much latitude (e.g., it still applies to most intrastate commerce).
We may examine some exemplary cases from each of the three well-established periods of judicial activism: the Lochner era (1897-1937), the New Deal Court (1937-1945), and the Warren Court (1954-1968). The last two periods of activism do not have sharply defined ends, but gradually elide into relatively less activist periods. Activism, we have noted, can only be evaluated on a case by case basis, so the characterization of a Supreme Court era as activist
refers to a greater frequency of important activist decisions. Our identification of decisions as activist
relies on analysis of each argument’s method. The evidence of an underlying result-oriented jurisprudence is strengthened by similarity of results across such decisions (e.g., reducing socioeconomic regulation, strengthening civil rights of individuals and minorities). Such similarity would not, of itself, constitute evidence of activism, if the decisions were also supported by valid legal argument.
For other periods in the twentieth and twenty-first centuries, the Court has had a mixed record of activist tendencies, largely due to the mixed composition of the Court. We may tentatively identify activist tendencies of individual judges, and see how these align with our identification of activist
periods. This is a hazardous endeavor, and its results should not be taken as simple facts, but as guides toward more rigorous investigation. A justice may change his tendencies over time, and even when they are pronounced toward activism or a conventional methodology, they are only tendencies. Many Supreme Court cases are relatively uncontroversial, with unanimous or near-unanimous decisions, and with conventional legal methods providing a clear basis for ruling. Thus even the most strident activist may find himself making activist
rulings only on a minority of occasions. The mere count of total rulings is not what matters, but the number of significant rulings with far-reaching implications. When such decisions are activist
in their approach, they effectively establish new law out of whole cloth, and it is the breadth of this law that is the best measure of the impact of activist behavior.
If we are justified in regarding judicial activism as a methodological aberration, we may find support by noting its absence in the eighteenth and nineteenth centuries. This does not mean that there were no bad, even anachronistically activist
decisions in that period. It means that there was a well established consensus that one, at least in principle, ought to interpret the law and constitution by objective methods of construction, namely by appeal to the text itself and possibly the legislative history. The Lochner era court departed from this method, and Louis Brandeis would later make substantive attacks on the very possibility of objective construction. Since then, there have been many jurists and legal scholars who have tacitly or openly held that the meaning of the law or the Constitution can vary over time according to the exigencies of the day. This is not a mere change in the application of the law to diverse historical circumstances, but a denial of the objectivity of its content. Whatever the merits of this philosophy, it was generally foreign to the jurists of the eighteenth and nineteenth centuries.
In our cursory survey of Supreme Court history, we will focus mostly on questions of constitutional law. These more frequently invite activist rulings by the high court, due to the importance of their implications for basic rights, the difficulty of alternative remedy by constitutional amendment, and the broad language of the Constitution which does allow some latitude for interpretation. This last factor should make us cautious about identifying activism
too readily, for we find, especially in the early cases of the Marshall Court, that courts have always enjoyed some discretion in when to apply judicial review and how to apply it. Even the most rigorous strict constructionist cannot avoid the exercise of such discretion, though he tries to confine it within the limits set by statutory and constitutional text, history and controlling precedent. We reserve the term judicial activism
only for those exercises of discretion that make no attempt to self-impose any such limits.
The power of federal courts to exercise judicial review over legislative and executive acts, invalidating those that transgress constitutionally defined limits of government power, has been accepted since Chief Justice John Marshall’s well-reasoned opinion in Marbury v. Madison 5 U.S. 137 (1803). Though the Chief Justice undoubtedly exercised some discretion in choosing to make this case a test of the constitutional limits of Congressional authority and the Court’s own power to invalidate legislation, the merit of his argument is that it follows inexorably from the logic of having a written Constitution that binds the branches of government. Indeed, other republics with written constitutions have found it necessary to entrust their high courts with similar review powers, lest these constitutions should become a dead letter.
An early alternative to judicial review was for states to declare acts of Congress void within their borders, when such acts exceeded federal authority under the Constitution. The Virginia and Kentucky Resolutions of 1798, anonymously authored by Thomas Jefferson and James Madison, advocated such defiance of the Alien and Sedition Acts, on the ground that the federal government had violated its compact with the States. Decades later, South Carolina (1832) nullified the Tariff Act of 1828, though this act was clearly within the constitutional powers of Congress. If acts of Congress are not to be subject to the arbitrary review of every state, the interpreter of constitutionality ought to be of national authority.
Many other modern constitutions are lengthy documents, written with statutory exactitude and subject to frequent amendment. The Constitution of the United States, by contrast, was deliberately written in broad terms, to establish a framework of government, the specifics of which were left to acts of Congress and the other branches of government. Thus the two houses of Congress defined their own rules of procedure, as did the federal courts. Such rules filled in specifics left unsaid by the Constitution, and have come to form traditions hardly less basic to American government than those written in the Constitution. Exercise of judicial review, then, cannot restrict itself to the letter of the Constitution, but must also allow for the same latitude that the Framers themselves granted. Assessing the permissible bounds of this latitude entails a study of the intentions of the Framers and the practices established shortly after ratification.
Assessing the validity of an act of Congress under the Constitution did not mean judging whether the act was good or bad, just or unjust, but whether Congress had the authority under the Constitution to pass such an act. Judicial review of legislation required assessing what are the powers of Congress. Article I, Section 8 enumerates various powers of Congress: to tax and spend, to borrow, to regulate interstate and international commerce, to create a rule of naturalization and laws on bankruptcies, to coin money and punish counterfeiters, to establish a post office and postal roads, to secure limited duration copyrights and patents, to create lower federal courts, to punish maritime crimes, to declare war, to raise an army and a navy and regulate these, to organize militias, and to establish a federal district. These powers, especially the taxation power, were a great expansion over what was permitted under the Articles of Confederation. Nonetheless, it would have been unnecessary to enumerate these powers had it been thought that Congress could legislate anything whatsoever. The doctrine that this is a government of enumerated powers
signifies that the federal government should be limited in its power, as was held by most of the Framers.
Yet the written Constitution adds a further clause at the end of Article I, Section 8, granting Congress the power: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
This was a compromise between Alexander Hamilton’s plan (June 18, 1787) to allow Congress to pass any law whatsoever and Charles Pinckney’s plan (May 29) to limit federal powers to those expressly delegated,
as had been the case under the Articles of Confederation. Madison’s Virginia Plan (May 29) would give Congress the power to legislate in all cases to which the separate states are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation.
The Convention instead approved the amended language: in all cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual Legislation.
It is unknown why this was replaced by the necessary and proper
clause in the final Constitution.
Against accusations that this clause and the Supremacy Clause (Art. VI, ¶ 2) gave virtually unlimited legislative power to Congress, Hamilton—who had personally favored such a grant of power at the Convention—held that these clauses are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers.
In his telling, the necessary and proper
clause is merely the tautology that a legislature may make whatever laws are necessary and proper fo the execution of the powers granted to it.
But SUSPICION may ask, Why then was it introduced? The answer is, that it could only have been done for greater caution, and to guard against all cavilling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the Union. The Convention probably foresaw, what it has been a principal aim of these papers to inculcate, that the danger which most threatens our political welfare is that the State governments will finally sap the foundations of the Union; and might therefore think it necessary, in so cardinal a point, to leave nothing to construction. Whatever may have been the inducement to it, the wisdom of the precaution is evident from the cry which has been raised against it; as that very cry betrays a disposition to question the great and essential truth which it is manifestly the object of that provision to declare. [Federalist No. 33 (January 3, 1788)]
Hamilton’s argument is relevant not only because he attended the Convention and was a supporter of a strong Congress, but because it gives evidence that imposing limits on Congressional power was necessary to secure ratification of the Constitution. It would thwart the intentions of the ratifying States if the clause were construed as granting unlimited legislative power, or as defining some new power beyond those enumerated. Rather, the clause gives Congress some discretion on the means to exercise its enumerated powers.
One may question how to determine which laws are necessary and proper for the exercise of such powers, and who determines this. For Hamilton, the determiner was the national government… in the first instance… and its constituents in the last.
After Marbury, it was established that the Court, in its role of interpreting the law, including the supreme law that is the Constitution, should be the determiner. A standard for determination would be defined in McCulloch v. Maryland 17 U.S. 316 (1819).
The issues raised before the Marshall Court were whether Congress had the power to establish a national bank and whether a state had the power to tax a federal bank, when said taxation was clearly designed to curtail that bank’s activities. The first question involved the necessary and proper
clause. The state argued that this clause was just giving Congress legislative power, but Chief Justice Marshall found this had the implausible implication that, without the clause, Congress would not have power to make laws. He evidently departed from Hamilton’s understanding that this was mere tautology or redundancy. Regarding the term necessary,
he noted that this does not always mean absolute physical necessity,
but sometimes only that one thing is convenient, useful, or essential to another.
To employ the means necessary to an end is generally understood as employing any means calculated to produce the end, and not as being confined to those single means without which the end would be entirely unattainable.
There is a logic to this, for it would be absurd to deny Congress the power to pass law A when exercising its taxation power on the grounds that some other law B might also enable it to exercise such power. Even here we suppose that law A is a means to exercise an expressly enumerated power.
Chief Justice Marshall considers that the clause, judging from its positive phrasing, enlarges the power of Congress beyond what was enumerated in the earlier clauses. The extent of this enlargement remains to be defined.
We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.
This is a broad grant of power to Congress, possibly beyond what might have secured ratification of the Constitution had this understanding of the clause been prevalent at the time. Although the Chief Justice admits there is no enumerated power to establish a national bank (though it was deemed necessary to specify a power to establish a post office), it is licit for Congress to do so if such is a means plainly adapted
to the end of exercising its enumerated powers, and is consistent with the letter and spirit of the Constitution. In support of this, he notes that all accept the constitutionality of establishing a Territorial Government, a corporate body, for the purpose of exercising the Article 4, Section 3 power to make all needful Rules and Regulations repsecting the Territory or other Property belonging to the United States.
If this is conceded, one may also allow Congress to establish a bank for the purpose of exercising its enumerated powers of borrowing and creating a currency. Only if a law were inappropriate or ill-adapted to the exercise of an enumerated power, i.e., if it had nothing to do with the exercise of such a power, could it be considered contrary to the letter and spirit of the Constitution, which intended to limit the powers of Congress.
The second issue involves the Supremacy Clause.
(Art. VI, ¶ 2) The state of Maryland required the Bank of the United States in Baltimore to pay $15,000 annually or a heavy tax on the paper it used for bank notes. The Federal cashier James W. McCulloch issued notes without paying the tax, which led to the case. Here action by the state of Maryland would impede the federal government from executing its functions, thereby undermining federal supremacy. Thus Justice Marshall noted, The power to tax involves the power to destroy,
not that all taxation is destructive, but in this case it retarded a function of the federal government. If Maryland’s scheme were allowed, states might tax the post office, the mint, and every other federal office. Seeing it was clearly contrary to the designs of the American people to make the federal government so subservient to the States (or indeed they might have remained under the Articles of Confederation), such a scheme cannot be admitted as constitutional.
It may be questioned whether the Marshall Court got the law right
in McCulloch and whether it established a workable standard for interpreting the necessary and proper clause. For our purpose it is important to note that it established a permissive interpretation of the powers of Congress to include what would later be called implied powers,
i.e., powers to make laws that facilitate the execution of expressly enumerated powers. The breadth of tolerance is subject to discretion, but Justice Marshall’s general rule was to favor constitutionality unless expressly prohibited by the Constitution.
For this reason, Chief Justice Marshall has sometimes been painted as a sort of activist or advocate for a strong federal government. We have noted, however, that mere result-oriented judging
does not suffice to qualify as judicial activism.
In most cases, the accusation of result-oriented judging
is unprovable. We instead evaluate opinions on the substance of their arguments, and Marshall does offer credible, though not infallible, arguments that his ruling comports with what the American people intended when ratifying the Constitution. It surely was intended that an act of Congress contrary to the Constitution should not stand. Likewise, a national bank was established by the first Congress under the Constitution, which would hardly be possible if the people and their representatives found this to be beyond the powers granted to Congress. Lastly, while some States may object to particular acts of Congress, it would hardly be coherent to attempt to establish a more perfect Union while permitting any State to frustrate the activity of the federal government by its own taxation power.
In short, we should interpret the Constitution to mean what those who adopted it understood it to mean. This principle, so uncontroversial when applied to statutory law, has been defended and criticized as originalism
in the last several decades. In the nineteenth century, this principle had no name, but its universal adoption is evidenced by the arguments that justices felt obligated to employ when interpreting the Constitution. They might appeal to the text itself, the Convention debates and early drafts, the Federalist papers, the acts of the first Congress, or to case law of the time period. However fallible the application of their method, and however much bias may have crept into their analysis, all were agreed that judicial review involved the Court’s solemn duty to uphold the will of the people who adopted the Constitution. However much this may be disparaged now as filiopietistic
or epistemologically naive, it can scarcely be doubted that the jurists of the nineteenth century took this approach seriously.
Constitutional interpretation is, nonetheless, distinct from statutory interpretation. The Constitution, unlike ordinary legislation, was intended to last for ages. Thus it is broadly construed so that it may be applied to various unforeseeable circumstances, granting the government power to deal with these contingencies under its enumerated powers and any proper means for exercising these powers.
It must have been the intention of those who gave these powers to insure, so far as human prudence could insure, their beneficial execution. This could not be done by confiding the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate, and which were conducive to the end. This provision is made in a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.
We now turn to a particular power of Congress which would later occasion much of the activist
jurisprudence of the Lochner era, namely the commerce power. The constitutional grant is stated simply: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.
(Art. I, § 8, cl.3) As the States also have power to regulate commerce, questions of jurisdiction between federal and state governments can arise. First, which activities fall under the category of commerce? Second, when is commerce considered to be interstate rather than merely intrastate?
The seminal Commerce Clause case is Gibbons v. Ogden 22 U.S. 1 (1824), involving licenses to operate steamboats. The State of New York had granted to Robert Livingston and Robert Fulton (the famous inventor) an exclusive right to control steamboat navigation in state waters. They in turn indirectly granted a license to Aaron Ogden to run steamboats between the city of New York and various points in New Jersey. Thomas Gibbons also operated steamboats between New York and New Jersey, as his ships were federally licensed for coasting trade under a 1793 act of Congress.
First, the Court had to decide whether the federal license was a valid exercise of power. Ogden had contended that commerce
did not include navigation or transportation; rather this power ought to be construed strictly.
In this early mention of strict construction,
Chief Justice Marshall notes that the Constitution itself prescribes no such rule.
What do gentlemen mean by astrict construction?If they contend only against that enlarged construction, which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support or some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction which would cripple the government and render it unequal to the object for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded.
Here the Chief Justice objects only to excessively narrow, hyper-literal construction, which disregards the general import of terms and their context in view of the greater aims of the document, which in this case was for the heretofore independent, sovereign States to convert their Congress of Ambassadors, deputed to deliberate on their common concerns and to recommend measures of general utility, into a Legislature, empowered to enact laws on the most interesting subjects,
thereby conceding some of their own sovereignty and independence. While Chief Justice Marshall is often characterized as exhibiting some extra-legal advocacy of a strong federal government, in fact this advocacy is reasoned and justified by the nature of the legal instrument that he is interpreting.
As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction.
As counsel noted at the bar, the powers in the Constitution are enumerated, not defined. If commerce is to be limited to interchange of commodities, it would not include navigation. Yet commerce also includes intercourse between nations and their parts. The mind can scarcely conceive a system for regulating commerce between nations which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals in the actual employment of buying and selling or of barter.
Seeing that it is impractical to regulate commerce without also regulating navigation, the power of commerce must entail a power to regulate navigation. More practically:
If commerce does not include navigation, the government of the Union has no direct power over that subject, and can make no law prescribing what shall constitute American vessels or requiring that they shall be navigated by American seamen. Yet this power has been exercised from the commencement of the government, has been exercised with the consent of all, and has been understood by all to be a commercial regulation. All America understands, and has uniformly understood, the wordcommerceto comprehend navigation. It was so understood, and must have been so understood, when the Constitution was framed. The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government, and must have been contemplated in forming it. The convention must have used the word in that sense, because all have understood it in that sense, and the attempt to restrict it comes too late.
It is implausible that a country with a well developed merchant marine should not recognize that a grant of power over commerce would entail regulation of navigation involving cargo or passengers. Thus Chief Justice Marshall, even while rejecting strict construction
in the sense of hyper-literalism, appeals to the original sense or meaning most likely to have been understood by those who adopted the Constitution. He is advocating for a strong national government because the adopters of the Constitution willed it so. This is not an absolutely centralized government, as the powers of Congress remain limited to those enumerated. Marshall might have taken the position that the power to regulate navigation was implied
by an enumerated right, but instead he formulated it as being included in that enumerated right.
The second question is whether the exclusive right granted by the State of New York was valid or in conflict with the federal license possessed by Gibbons. After all, the state right only applied to state waters. Chief Justice Marshall interprets among the several States
to exclude commerce which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States.
Nonetheless, the power of Congress, when regulating international commerce, does not stop at the jurisdictional lines of the several States. It would be a very useless power if it could not pass those lines.
Many international ports are in the interior of a state, so regulating international commerce could involve regulating navigation that is at least partly interior to a state. The same reasoning holds for interstate commerce. If Congress can regulate the transportation of goods or passengers between states, it may regulate relevant navigation interior to such states.
This creates an apparent conflict, for the states also claim a right to regulate navigation in their interior waters, and the states retain (as both parties agreed) whatever sovereign powers they have not expressly conceded to the federal government in the Constitution. Ogden further held, however, that the grant of power over interstate and international commerce to Congress could not be considered exclusive unless the continued exercise of such power by the state was inconsistent with that grant. Gibbons, by contrast, held that the grant included the whole power to regulate such commerce, so this is incompatible with the state having any part in it.
Chief Justice Marshall concluded that states do not partake of the power to regulate interstate and international commerce, notwithstanding their right to inspect goods entering the state. If the state and federal governments pass laws regarding the same subject, i.e., licensing transportation between two ports within a state, it does not mean that both partake of the same power. Congress may regulate such navigation as something necessarily incidental to the power expressly granted to Congress, and implies no claim of a direct power to regulate the purely internal commerce of a State.
That is, the federal government has full power over interstate commerce, and the state retains power over intrastate commerce. The powers are distinct, but sometimes the subjects can overlap, as both the national and state government may employ similar means (licensing of transportation between ports within a state) to exercise their respective powers.
Since, however, in exercising the power of regulating their own purely internal affairs, whether of trading or police, the States may sometimes enact laws the validity of which depends on their interfering with, and being contrary to, an act of Congress passed in pursuance of the Constitution, the Court will enter upon the inquiry whether the laws of New York, as expounded by the highest tribunal of that State, have, in their application to this case, come into collision with an act of Congress and deprived a citizen of a right to which that act entitles him. Should this collision exist, it will be immaterial whether those laws were passed in virtue of a concurrent powerto regulate commerce with foreign nations and among the several Statesor in virtue of a power to regulate their domestic trade and police. In one case and the other, the acts of New York must yield to the law of Congress, and the decision sustaining the privilege they confer against a right given by a law of the Union must be erroneous.
Marshall avoids ruling whether the state and federal governments have overlapping powers by invoking the supremacy of federal law. Insofar as the New York law prevents a steamboat operator from exercising the right of his federal license, which would let him use any port to transport his goods or passengers, this conflicts with the act of Congress and must yield to it.
It might be thought that Marshall declared the Commerce Clause exempt from judicial review when he wrote:
If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often they solely, in all representative governments.
Judicial review is needed only to determine whether or not Congress has power under the Constitution to enact a certain law, and this applies to the Commerce Clause no less than other parts of the Constitution. Once it is conceded that a law falls under an enumerated power of Congress, however, it is not subject to any sort of judicial review as to whether that particular means ought to have been adopted. Such review is left only to the Congress and to the people.
Justice William Johnson, a Jefferson appointee, arrived at the same conclusions from different considerations.
In attempts to construe the Constitution, I have never found much benefit resulting from the inquiry whether the whole or any part of it is to be construed strictly or literally. The simple, classical, precise, yet comprehensive language in which it is couched leaves, at most, but very little latitude for construction, and when its intent and meaning is discovered, nothing remains but to execute the will of those who made it in the best manner to effect the purposes intended. The great and paramount purpose was to unite this mass of wealth and power, for the protection of the humblest individual, his rights, civil and political, his interests and prosperity, are the sole end; the rest are nothing but the means. But the principal of those means, one so essential as to approach nearer the characteristics of an end, was the independence and harmony of the States that they may the better subserve the purposes of cherishing and protecting the respective families of this great republic.
Justice Johnson finds the language of the Constitution to be broad (comprehensive
), but not difficult to understand on that account. On the contrary, such language was designed to be widely intelligible, and one need only appeal to the understanding of those who adopted the Constitution to discern its intent. The overarching aim of the Constitution was to unite the states in harmony for the purpose of better securing the rights and prosperity of their citizens. Under the Articles of Confederation, somes states resisted taxation by the national government, and this disunity on taxation and commercial restrictions threatened the nation with anarchy and ruin.
For a century, the States had submitted, with murmurs, to the commercial restrictions imposed by the parent State; and now, finding themselves in the unlimited possession of those powers over their own commerce which they had so long been deprived of and so earnestly coveted, that selfish principle which, well controlled, is so salutary, and which, unrestricted, is so unjust and tyrannical, guided by inexperience and jealousy, began to show itself in iniquitous laws and impolitic measures from which grew up a conflict of commercial regulations destructive to the harmony of the States and fatal to their commercial interests abroad.
This was the immediate cause that led to the forming of a convention.
In support of this thesis, Justice Johnson notes resolutions from the period urging that Congress should have the power to regulate commerce so that such regulations should be uniform. Prior to the Constitution, every state had its own commercial regulations for dealing with other states. By common consent, those laws dropped lifeless from their statute books for want of the sustaining power that had been relinquished to Congress.
From this one confirms the intent of the adopters of the Constitution to grant the power in its entirety to Congress.
What is this power to regulate commerce
that previously existed in the states?
The States were unquestionably supreme, and each possessed that power over commerce which is acknowledged to reside in every sovereign State. The definition and limits of that power are to be sought among the features of international law, and, as it was not only admitted but insisted on by both parties in argument that,unaffected by a state of war, by treaties, or by municipal regulations, all commerce among independent States was legitimate,there is no necessity to appeal to the oracles of the jus commune for the correctness of that doctrine. The law of nations, regarding man as a social animal, pronounces all commerce legitimate in a state of peace until prohibited by positive law. The power of a sovereign state over commerce therefore amounts to nothing more than a power to limit and restrain it at pleasure. And since the power to prescribe the limits to its freedom necessarily implies the power to determine what shall remain unrestrained, it follows that the power must be exclusive; it can reside but in one potentate, and hence the grant of this power carries with it the whole subject, leaving nothing for the State to act upon.
This abstract argument appeals to the law of nations,
as the States were originally independent sovereigns. We should note that the law of nations
was a product of natural law jurisprudence, though for present purposes one need only acknowledge that both parties accepted the principle in question. What holds for the grant of the power to regulate international commerce must also hold for interstate commerce, since both grants use the same language. Thus the states retain no power of their own to regulate interstate commerce, except as incidental to the exercise of some other unquestionable power.
No statute is needed to permit commerce unless it were previously forbidden by statute. Thus Congress permits all interstate commerce that it does not forbid, and does not need to issue a statute stating this permission. The grant to Fulton and Livingston, as it would be applied in this case, would have the effect of prohibiting a form of interstate commerce that Congress permits, and would thus be an unlawful appropriation by New York of a federal power. Even if there had been no federal license to Gibbons, New York’s action against him would have been an unlawful restriction of interstate commerce.
Justice Johnson agrees that the power over navigation is inseparable from that of regulating commerce, since the vehicle (including its construction) and other operations of exchange are essential to commerce.
The federalist
opinions of Justices Marshall and Johnson are motivated by their discernment of the intentions of the Framers and the content of the Constitution. Their arguments appeal to relevant texts, as well as to more abstract principles of sovereignty and constitutionalism. Yet even these principles were not of their own devising, but drew upon the common traditions of legal and political philosophy then current, which indeed informed the Constitution. Abstract argument, however, was never divorced from the necessary exercise of interpreting the Constitution as it was understood by its adopters.
On the assumption that the Constitution is written in plain language and grants Congress all legislative means to execute its powers save those it expressly prohibits, we should not be surprised to find that the early Court rarely invalidated acts of Congress. Indeed, there would be no such case after Marbury until the Dred Scott decision, to be reviewed shortly.
First, we should point out another case, which takes another aspect of federalism into consideration. While powers granted to the federal government are to be exercised without interference by the States, it is less immediately clear if the Bill of Rights, by preventing the national government from infringing upon certain rights of citizens, should also be understood as prohibiting the States from doing the same. In Barron v. Baltimore 32 U.S. 7 Pet. 243 (1833), the Supreme Court held that the framers of the Bill of Rights did not intend for these amendments to apply to actions by the States. Writing for a unanimous Court, Chief Justice Marshall found the question to be not of much difficulty,
for the drafters of the Bill of Rights clearly intended to prevent abuses by the national government (as proved by early resistance to the Constitution), and the amendments themselves contained no text indicating that they should be applied to the States. The mere absence of specification did not suffice to apply to the States, as the Constitution by default applied to the government it created, and any restriction on state legislation was stated explicitly in a separate instance (as with ex post facto laws).
Though Barron v. Baltimore may be a sound interpretation of the specific legal intent of the Bill of Rights, it evades the question of the nature of those rights. Is the source of those rights merely positive law, or are not some of these at least natural rights, which all republican governments are bound to respect? Under Barron, the U.S. Bill of Rights apparently is not a declaration of the rights of man
like that of the French, for it would be unconscionable to permit any states to violate natural human rights. Yet the initial omission of a Bill of Rights was partly motivated by a belief that it was redundant or improper to define these rights by positive law, for what the federal Constitution granted, it might take away by amendment. Some due consideration is owed for the view that the government does not grant, but rather recognizes pre-existing rights held by the people.
Reviewing the Bill of Rights briefly, the substantive rights are:
1a: non-establishment of religion
1b: free exercise of religion
1c: freedom of speech
1d: freedom of the press
1e: assembly and petition
2: keep and bear arms
3: no forced quartering of soldiers in peacetime
4a: no unreasonable search and seizure
4b: warrants on probable cause
5a: grand jury for capital cases and serious crimes
5b: no double jeopardy
5c: no compelled self-incrimination
5d: require due process of law to deny life, liberty or property
5e: just compensation for takings for public use
6a: speedy and public trial by jury
6b: confront accusers and know charges
6c: can compel witnesses for defense
6d: guaranteed assistance of counsel
7: common law trials by jury
8a: no excessive bail or fines
8b: no cruel or unusual punishments
9: enumerated rights in Constitution do not deny others retained by people
10: powers not delegated to the United States by the Constitution, are reserved to the States (if not prohibited by Constitution) or the people
None of the enumerated rights in the first eight amendments are original to the U.S. Constitution, but all have precedents in the state constitutions or in English common law. Few of these are what are ordinarily considered human rights,
i.e., rights belonging to all human beings. The UN Universal Declaration of Human Rights includes versions of (1b), (1c), (1d), (1e), (4a), (5d), (5e), (6a), (6b), (8b), but without the specific means prescribed by the Anglo-American tradition. Early Americans themselves did not seem to conceive of these as human rights, but as rights they had previously enjoyed or demanded as free citizens in their political tradition. The rights of men as men were relatively few: life, liberty and property, the right to enter society by voluntary consent, and the right to worship God were the most commonly cited. The other rights were matters of positive law, but sufficiently venerable and jealously guarded that it would have been unconscionable for these to be abrogated by statute.
The Virginia Declaration of Rights contained many of these rights, and expressed the sentiment that all power derives from the people, so that the rights of the people reflect certain powers that they have not granted to their government. The Virginia Declaration contains rights (5c), (6a), (6b), (6c) and a partial version of (5d) (no man be deprived of his liberty except by the law of the land or the judgment of his peers
) in § 8; (8a), (8b) in § 9; (4a), (4b) (evidence of a fact
rather than probable cause
) in § 10; (7) in § 11, (1d) in § 12; (2) in § 13, (1b) in § 14. Yet none of these rights are among those declared in § 1 to be inherent rights
that men have by nature
and cannot divest themselves of by any compact: the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
The non-establishment of a religion (1a) was clearly intended to apply only to the federal government, for several states (or colonies) had, from time to time, favored a particular Christian confession. Nonetheless, the general republican mood was that tolerance on equal footing was the best policy for securing domestic peace. By the early nineteenth century, all states had abandoned the state establishment of any particular church.
The absence of many of the other enumerated rights in state constitutions did not necessarily mean non-recognition, for some of these rights were guaranteed by judicial practice. Conversely, the state constitutions’ declarations of rights often included many political rights not found in the U.S. Bill of Rights, imposing restraints on legislatures, separation of powers, etc. These issues were mainly decided for the federal government in the main body of the Constitution.
The constitution of Massachusetts included rights (1b) (but expressly denied (1a)), (5d) (according to standing laws
), (5e), (4a), (4b) (supported by oath or affirmation
), (6a) (though not speedy
), (1d), (2), (3). The only natural
and inalienable
rights were akin to those of Virginia: among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.
It was also the right and duty of men in society to worship the Supreme Being. All other rights, ostensibly, were positive rights, though some were considered so essential to good order that they should not be abrogated.
Thus the Court in Barron v. Baltimore was correct in interpreting the Bill of Rights to be positive rights defined in the federal constitution, and as rights of the people with respect to the federal government. They were not recognized as inalienable or natural rights, except perhaps the free exercise of religion, though many of them were so essential to a free, ordered society that abrogating them would be unconscionable. At any rate, none of them have ever been revoked. This exposition of the applicability of the Bill of Rights will gain importance when we consider the Fourteenth Amendment and later due process and civil rights cases.
Slavery was legal in eight of the original thirteen States, and illegal in five (Massachusetts, Rhode Island, Connecticut, New Hampshire, Pennsylvania). A compromise was reached at the Constitutional Convention in 1787, giving the Congress power over interstate and foreign commerce and navigation, against the objections of slave states, in exchange for limiting direct taxation to proportion of the number of inhabitants including three-fifths of slaves, the latter provision being sufficiently favorable to the South as to preclude direct taxation.
The Constitution’s unwieldy compromise on the issue of slavery made it difficult to discern the extent to which persons of African descent might be guaranteed the rights of state or federal citizenship. The same person could be recognized as a citizen in one state and as mere property
in another. Slaveowners complained that their property rights were denied if their slaves were permitted to escape to freedom in the North, while conversely free blacks were sometimes kidnapped and enslaved in the South. The Constitution’s guarantee that a citizen of one state should have the rights of a citizen in every other state was inconsistent with this state of affairs. On the other hand, the Union would not exist at all had the Convention not made some compromise on slavery.
The Constitution mentions slaves in just a few places, and only by circumlocution. Congress was not to prohibit Migration or Importation of such Persons as any of the States now existing shall think proper to admit
prior to the year 1808. This was understood to allow Congress to prohibit the foreign slave trade thereafter. Apportionment of representatives and direct taxes among the States would count three fifths of all other Persons
besides free Persons.
Lastly, Article 4, Section 2 says:
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
Note that slaves are always characterized as Persons rather than property. Whether men could own the persons of slaves rather than their labor or its fruits was a disputed legal question even in the South. That slaves were persons, even if they were also property, was well established. That they were not free was no less well established. Though the Constitution makes no mention of race, in fact slaves were predominantly of black African descent. White indentured servitude still existed, but was steadily in decline.
The Fugitive Slave Clause cited above is the one place where the Constitution explicitly recognizes that some states may have slavery or other forced labor. It is also the only place where the laws of free states are circumscribed on the question of slavery. Congress passed the first Fugitive Slave Act in 1793 to enforce this clause and prescribe penalties for those who aided the escape of slaves.
Congress abolished the importation of slaves in 1808, the soonest the Constitution allowed. Even earlier, in 1800, an act of Congress prohibited Americans from participating in the slave trade between other nations, and authorized federal officials to confiscate the cargo of ships transporting slaves between other nations in U.S. waters. Nonetheless, an interstate slave trade along the U.S. coast was permitted to persist.
Notwithstanding the Fugitive Slave Clause, free states (and slave states for that matter) could prohibit the importation of slaves from other states. In Butler v. Hopper 4 F. Cas. 904, 1 Wash. C.C. 499 (1806), Judge Bushrod Washington on the U.S. Circuit Court for the District of Pennsylvania ruled: Neither does the 2d section of the 4th article… extend to the case of a slave voluntarily carried by his master into another state, and there leaving him under the protection of some law declaring him free.
In that case, the master had a residence in Philadelphia, so by taking his slave there, he relinquished his right of ownership under the laws of Pennsylvania.
Shortly after the Constitution was adopted, several free states passed laws permitting non-resident visitors or sojourners
from other states to be accompanied by their slaves and return them to their domicile without change in status. Such laws were passed by Pennsylvania and Rhode Island, as well as New York and New Jersey, which had abolished slavery by gradual emancipation in 1799 and 1804 respectively.
Massachusetts had no such law on sojourners, however, and in Commonwealth v. Aves, 35 Mass. 193, 18 Pick. 193 (1836), Chief Justice Lemuel Shaw of the Massachusetts Supreme Judicial Court made a sweeping ruling that enabled any slaves brought into the state by their master to claim freedom. Shaw’s opinion, which would influence other states, addressed several fundamental issues of law respecting slavery.
First, Shaw noted that all sides accepted that slavery was abolished in Massachusetts, no later than when the 1780 constitution’s declaration of rights affirmed that All men are born free and equal, and have certain natural, essential, and unalienable rights, which are, the right of enjoying and defending their lives and liberties, that of acquiring, possessing, and protecting property.
We note his originalist method: That the description was broad enough in its terms to embrace negroes, and that it was intended by the framers of the constitution to embrace them, is proved by the earliest contemporaneous construction, by an unbroken series of judicial decisions, and by a uniform practice from the adoption of the constitution to the present time.
The question is whether and to what extent this state constitutional right, characterized as a natural right, can be circumscribed by the law of nations or by the federal constitution.
By the law of nations, traffic on the high seas could not be interrupted by another nation, even if that traffic were wrong in itself, as in the case of slavery. Shaw cites the British case Madrazo v. Willes (1820), in which a concurring opinion noted: If a ship be acting contrary to the general law of nations, she is thereby subject to confiscation, but it is impossible to say, that the slave trade is contrary to what may be called the common law of nations.
In another British case, Forbes v. Cochrane (1824), an opinion noted (as paraphrased by Shaw):
…that the plaintiff could not found his claim to the slaves upon any general right, because by the English laws such a right cannot be considered as warranted by the general law of nature, that if the plaintiff could claim at all, it must be in virtue of some right which he had acquired by the law of the country where he was domiciled, that where such rights are recognized by law, they must be considered as founded, not upon the law of nature, but upon the particular law of that country, and must be co-extensive with the territories of that state.
The right to own slaves is not a natural right, but a positive right co-extensive with the state granting it. Indeed, if anything, slavery is contrary to natural right, and immorality is a recognized exception for allowing the operation of the law of another domicile to follow a person into the state he is visiting. This led the counsel for Aves to argue: Slavery is not immoral… It is true, it is not consistent with natural right, but the standard of morality by which courts of justice are to be guided, is that which the law prescribes.
If the court followed this standard, then immorality
could never limit the applicability of the law of a foreign domicile. Indeed, the Commonwealth countered that slavery was tolerated by law in the British colonies, but this did not prevent the Court of the King’s Bench from deciding on its immorality and impolicy in England.
It may seem strange that something could be admitted by all parties to be contrary to natural right yet consistent with the law of nations. The law of nations
had originated among Scholastics as a particular application of natural law, where sovereigns render to each other the duties owed to moral persons by the law of nature. In the hands of Grotius and those who followed him, however, the law of nations was a kind of positive law, a set of general rules commonly accepted for dealing among nations in order to avoid the greater evil of war. In a similar way, free states might tolerate slavery in other states, especially when they are joined in a Union whose peace is essential to their own welfare.
Natural law is deemed relevant only for establishing that the master-slave relationship is not among those natural and social relations, which are everywhere and by all people recognized, and which, though they may be modified and regulated by municipal law, are not founded upon it, such as the relation of parent and child, and husband and wife.
Any acquisition of property in a person, being contrary to natural right, and effected by the local law, is dependent upon such local law for its existence and efficacy, and being contrary to the fundamental laws of this State, such general right of property cannot be exercised or recognized here.
Blacks who come to Massachusetts are free, not so much because the change in location effects a change in status, but simply because there are laws, if they choose to avail themselves of them, which prohibit, their forcible detention or forcible removal.
Shaw finds the rule of comity is inapplicable because slavery offends the morals of the Commonwealth and is contrary not only to its public law, but also to its policy, having never permitted more than a mild form of servitude (which differed from apprenticeship only in its duration
) much earlier in its history. The federal constitution imposes a positive law requirement to return fugitive slaves, but this cannot be construed as imposing a broader comity among the states regarding slave laws. Indeed, as Pinckney boasted after the Convention, the Fugitive Slave Clause granted the slave states a right they had not enjoyed previously. Responding to the contention that non-recognition of the domicile law involves a denial of the basic right to property, Shaw remarks that even Southern jurisdictions have found it is not strictly accurate to say that persons are property. Rather, one can say that by law the relations of property apply to certain persons, and as a term of convenience one may refer to them as property. But it would be a perversion of terms to say, that such local laws do in fact make then personal property generally; they can only determine, that the same rules of law shall apply to them as are applicable to property….
A further argument against comity is found in the practices of the slave states, which often prevented free blacks from taking up legal residence there, and even prevented them by law (South Carolina in 1823, Georgia in 1829) from entering ports, confining them in jail until their ship’s departure. Counsel for the Commonwealth contended this was a direct violation
of the Constitution’s privileges and immunities
clause (Art. IV, § 2), as blacks were citizens of northern states. Even if such non-recognition of the rights of free blacks were licit, this would weaken any claim by the South to be owed recognition of their domicile law on slavery in the North.
Absent any restriction imposed by the rule of comity, the law of nations, or the federal constitution, Shaw ruled that the Commonwealth was not obligated to recognize the ownership rights of sojourning slaveholders over their slaves. The slave did not become free by virtue of entering a free state physically, but by virtue of there being no legal restrictions in that state preventing him from petitioning for his freedom. The fugitive slave law applied only to a slave fleeing from the state in which he was held, not to a slave fleeing his master in a free state to which he was brought voluntarily. A slave might choose not to have recourse to the laws of the Commonwealth, however, and return to his home state with his master, thereby having no change in status.
Though this ruling has the strange result that a slaveowner has less claim to a slave when he is with him in a free state than when the slave is on his own, it has a defensible internal logic and at any rate was highly influential. Other states likewise held that freely transported slaves, even if merely sojourning, could petition for freedom in northern free states, but if they did not so petition, they remained slaves upon return to their home state.
Even prior to Commonwealth v. Aves, it was recognized in Louisiana that a slave who was brought to reside in a free state by his owner became free, no matter how short the residence. Moreover, once free, his free status ought to be recognized always by all other states. This principle of once free, always free
was more famously adopted by the state of Missouri, and applied to residence in free territories no less than states. A resident slave did not need to petition for freedom in the free state or territory; the mere fact of residence sufficed to establish freedom.
The Missouri Compromise of 1820 admitted Missouri as a state that could allow slavery, but on condition that in the rest of Louisiana territory north of 36 degrees 30 minutes north latitude:
…slavery and involuntary servitude, otherwise than in the punishment of crimes, whereof the parties shall have been duly convicted, shall be, and is hereby, forever prohibited: Provided always, That any person escaping into the same, from whom labour or services is lawfully claimed, in any state or territory of the United States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labour or service as aforesaid. [Sixteenth Congress, Sess. I, Ch. 23, 24, p.548]
The provision forever prohibited,
insofar as it was intended to apply even after statehood, was probably unconstitutional, since new states had the same sovereignty as the original states, which were free from federal interference with internal legislation on slavery. The Missouri Compromise would be repealed in 1854 and replaced by the Kansas-Nebraska Act, which allowed the slavery question to be decided by each territory when it joined the Union. This encouraged a rush of slaveholders into Kansas in the hopes of creating a pro-slavery majority.
While the Missouri Compromise was in effect, the states of Arkansas, Michigan, Iowa and Wisconsin were created from the Louisiana territory. Arkansas was a slave state, while the others were free states. It was during this period, specifically 1832 to 1843, that the facts of the Dred Scott case occurred.
Thus far we have spoken mainly of state and territorial law, and the extent to which they may have been restricted by federal law, rather than the rights of free blacks under federal law. Some early tests of these rights arose in the 1820s, challenging state laws forbidding the admission of free blacks. In Brig Wilson v. United States, 30 F. Cas. 239, 1 Brock. 423 (1820), John Marshall, sitting as circuit justice, upheld a District Court’s discretionary judgment exempting a Venezuelan ship from confiscation, notwithstanding an 1803 act of Congess that forbade admission of ships carrying
any negro, mulatto, or other person of colour,
save those who were registered seamen of the United States or countries beyond the Cape of Good Hope, into any state whose law forbade importation of such people. The black men on the Wilson were free men, and though they were from the Caribbean and thus technically not excepted, respect for the law of nations urged discretion in this case, as it should not be assumed that Congress intended to cause hostile acts against friendly states unless no other rational construction is possible. Though the act of Congress was evidently designed to enforce state-level abolition of the slave trade before 1808, here it was applied in light of a Virginia statute forbidding the admission of free blacks. Justice Marshall confirmed the constitutionality of the 1803 act of Congress as a lawful exercise of the commerce power. He avoided pronouncing on the constitutionality of the Virginia statute by finding it was not violated in this case, since the crew could not be considered imported
into the state unless they were left behind by their ship.
A more direct test was made in Elkison v. Deliesseline, 8 F. Cas. 493 (1823), which challenged the constitutionality of South Carolina’s Negro Seamen Act, under which a British seaman from Jamaica named Elkison was held in jail while his ship was in port, and was subject to enslavement if his captain did not pay the cost of incarceration. This law was enacted in reaction to the Vesey rebellion, where slaves planned to kill white slaveholders and escape to Haiti with the assistance of free black sailors. Though no sailors were actually involved in the failed conspiracy, it was led by a free black man, Denmark Vesey, who was a former seaman. Accordingly, the new law required black seamen to be incarcerated while in port, so that they could not converse with the slaves of that state, where blacks outnumbered whites. South Carolina considered this law to be an exercise of its police power, providing for public security and welfare. Justice William Johnson, sitting as a circuit justice for the South Carolina district, ruled that the law was unquestionably unconstitutional, for neither party disputed that it interfered with the federal power to regulate commerce. As Justice Johnson would opine again in Gibbons v. Ogden, the power of regulating interstate and international commerce given to Congress is thereby fully removed from the states, who have no such concurrent power. Instead, the South Carolina Association, representing Charleston sheriff Deliesseline, held that this interference was necessary to exercise the state’s sovereign right of self-preservation that could not be relinquished. Reacting to Charleston attorney Isaac Holmes’s stunning declaration that he preferred a dissolution of the Union
over relinquishing this right of the State, Justice Johnson held that the law grounded in this supposed right is altogether irreconcilable with the powers of the general government; that it necessarily compromits the public peace, and tends to embroil us with, if not separate us from, our sister states; in short, that it leads to a dissolution of the Union, and implies a direct attack on the sovereignty of the United States.
Moreover, the treaty-making power of the United States was paramount, and not even Congress could pass a law like South Carolina’s, without furnishing a just cause of war.
Johnson’s decision provoked outrage among white South Carolinians, who feared that the logic of this ruling would allow free northern blacks to come into the state unimpeded. Only a few thousand free blacks resided in South Carolina, and, since the Vesey rebellion, they were considered a vital threat. Unsurprisingly for that period, the circuit court’s ruling was ignored, and Elkison remained incarcerated, for Justice Johnson found, as a procedural point, that authority to issue the writ of habeas corpus rested with the state. The matter was resolved legislatively and diplomatically. First, South Carolina revised the law to a milder form, removing the penalty of enslavement, and exempting U.S. warships and foreign vessels as long as their black seamen remained on board. The revised law was immediately implemented in December 1823, and a British captain was forced to pay for the confinement and release of four black sailors who were jailed for coming ashore. He complained to the British Foreign Office, which in turn demanded satisfaction from the United States, as it had in the Elkison case. [Scott Wallace Stucky. Elkison v. Deliesseline: Race and the Constitution in South Carolina, 1823.
North Carolina Central Law Review (1984): 14(2), Art. 3, 392-395] Attorney General William Wirt, a Virginian, opined that the South Carolina law was unconstitutional. President John Quincy Adams requested a stay of enforcement of the law from the South Carolina General Assembly, but was rebuffed in miltant terms: And if an appeal to the first principles of the right of self-government be disregarded… there would be more glory in forming a rampart with our bodies on the confines of our territory, than to be the victims of a successful rebellion, or the slaves of a great consolidated government.
[State Documents on Federal Relations 206 (H. Ames ed. 1970)] The act continued to be enforced intermittently.
In 1830, following another incident involving a British subject, Attorney General John M. Berrien of Georgia opined that the amended law was constitutional, accepting it as a kind of quarantine law, taking a narrow view of the federal commerce power, and considering that the treaty with Great Britain stipulated respect for internal laws of the two countries.
More significantly, when Roger B. Taney served as Attorney General under President Jackson in 1832, he also gave an unpublished opinion on the subject, saying that slave states had never given up the right to enact laws preventing the introduction of free blacks, or they would never have joined the Union. He seems to disregard Elkison or regard it as inapplicable to the amended law when he says: No judicial tribunal of competent authority has pronounced the law to be unconstitutional.
Some of his opinion foreshadows arguments he would use in the Dred Scott ruling:
The African race in the United States even when free, are every where a degraded class — & exercise no political influence. The privileges they are allowed to enjoy, are accorded to them as a matter of kindness & benevolence rather than of right. They are the only class of persons who can be held as mere property — as slaves. And where they are nominally admitted by law to the privileges of citizenship, they have no effectual power to defend them, & are permitted to be citizens by the sufferance of the white population & hold whatever rights they enjoy at their mercy. They were never regarded as a constituent portion of the sovereignty of any state. But as a separate and degraded people to whom the sovereignty of each state might accord or withhold such privileges as they deemed proper. They were not looked upon as citizens by the contracting parties who formed the constitution. They were evidently not supposed to be included by the term citizens.
Accordingly, the Privileges & Immunities clause did not intend to include black people as citizens in the several States.
As proof of this intention, he cites the actual practice of slave states, who have never granted free blacks from the North the same rights they would give to a white citizen from the North. Blacks were prevented from carrying arms, were presumed to be slaves without proof of freedom, and could be imprisoned without charge.
The slave holding states could not have surrendered this power, without bringing upon themselves inevitably the evils of insurrection & rebellion among their slaves, & the non slave holding states could have no inducement to desire its surrender. On the contrary as members of the union & interested in promoting the common welfare, they had every reason to wish that the slave holding states should retain a power which is obviously essential to their safety, & necessary to the preservation of peace & order within their limits.
Taney wholeheartedly accepts the public safety rationale, and even says the free states would have assented to this! He concludes that the Framers, from both free and slave states, intended to exclude blacks from the citizens of each State
who have rights under the Constitution.
…none of the parties to the compact contemplated the African race & did not design or desire to deprive each other of the absolute & unlimited power of Legislation so far as regarded them. Our constitutions were not formed by the assistance of that unfortunate race nor for their benefit. They were not regarded as constituent members of either of the sovereignties & were not therefore intended to be embraced by the terms citizens of each State. If they cannot be considered as included in this specific stipulation, (which would perhaps embrace them if a technical and literal interpretation were given to the words used, regardless of the plain object & intention of the parties) how can they be supposed to have been in the contemplation of the parties when general terms are used in the constitution upon other subjects? How can the states be supposed to have intended to surrender or limit their right of Legislation over this description of people by the general Terms in which they have granted the power to regulate commerce and to make Treaties?
Here Taney admits that he is prizing intention
over the literal meaning of the text. In doing so, he makes the racist desire of several states to have their way with the African race take precedence over the logic of the legal constitution they have crafted, though that desire is inconsistent with that logic. It is of course debatable that the Framers all intended to exclude Africans; rather they attempted to avoid the slavery question except where absolutely necessary. Taney’s commitment to canonizing popular racist beliefs even where they had not the courage to write them into law goes further, saying of the commercial treaty with Great Britain:
In both nations the great body of [the African race] are doomed to slavery & the number that are admitted to the privileges of freedom form but a small proportion. In both countries therefore the African race are generally spoken of & regarded as slaves who form no part of the body politic. They ought not therefore to be considered as embraced in any general stipulations made by treaty in favour of the people of the two nations. We never contemplate the British nation as in part made up of the African race, nor do they so regard the people of this country. They had therefore no right to suppose that the few emancipated coloured persons, who form an exception to the general character and legal condition of the race, were intended to be included in any general provisions made in favor of the people of the two countries.
Since there are relatively few free black citizens in each country, it should be assumed that they are excluded from the treaty unless there is a specific provision on the subject.
Again prizing intention over text, he concludes:
The Treaty is to be expounded according to the real meaning of the parties & a literal interpretation at war with the obvious intention ought not to be given to it. And I am persuaded that no one can believe that either those who negotiated the treaty or ratified it, thought at the time of the few coloured persons who enjoy a sort of degraded freedom, as a portion of the people of either country.
This interpretation is contradicted, of course, by the fact that the British government consistently advocated for her black subjects under the 1814 treaty from the first opportunity in 1823, and had in the previous century pronounced slavery as immoral and impolitic in the mother country, at last abolishing it in most colonies in 1833.
Taney is on solid ground only insofar as states were always permitted to limit the rights of black persons within their borders, even if they were free citizens of other states or countries. As he would say in Strader v. Graham, 51 U.S. 82 (1851), every State has an undoubted right to determine the status or domestic condition of the persons domiciled within its territory,
except where restrained
by the Constitution in the Fugitive Slave Clause.
Yet he would extend this power of racial subjugation to interference with federal law and international treaties.
Although Taney cites the popular racism of the founding era as a basis of interpreting the Constitution, there is scant evidence that Taney himself shared such views. On the contrary, Taney was a devout Catholic who considered slavery to be evil and emancipated his own slaves at an early age (all but two who were too old to provide for themselves). As an attorney in 1819, Taney defended Rev. Jacob Gruber for a fiery antislavery sermon, and though he recognized a defense solely on free speech grounds would suffice, he chose to add: A hard necessity, indeed, compels us to endure the evil of slavery for a time. It was imposed upon us by another nation, while we were yet in a state of colonial vassalage. It cannot be easily, or suddenly removed. Yet while it continues, it is a blot on our national character, and every real lover of freedom, confidently hopes that it will be effectually, though it must be gradually, wiped away.
Though T.S. Huebner (2010) has ably argued that Taney changed his early views by the 1850s, the evidence is unconvincing. His defense of a slave trader in 1827 was consistent with his duty as an attorney, whereas his attack on slavery in the Gruber case, being unnecessary to the defense, more likely reflected his genuine views. Taney’s negative remarks about emancipation in a post-Scott letter (Aug. 19, 1857) to Rev. Samuel Nott are consistent with his earlier professed belief in gradual emancipation. Every intelligent person whose life has been passed in a slaveholding State, and who has carefully observed the character and capacity of the African race, will see that a general and sudden emancipation would be absolute ruin to the negroes, as well as to the white population.
This was a common opinion among gradualist abolitionists. In the same letter, Taney admits a mixed experience about emancipation. In the greater number of cases my observation, freedom has been a serious misfortune to the manumitted slave; and he has most commonly brought upon himself privations and sufferings which he would not have been called on to endure in a state of slavery. In many cases, however, it has undoubtedly promoted his happiness.
[Letter of Chief Justice Taney to Rev. Samuel Nott, August 19, 1857, Proceedings of the Massachusetts Historical Society, 1871–1873, Vol. 12 (1871-1873), 445-447.] The general purpose of the letter was to give his positive estimation of Nott’s pamphlet Slavery and the Remedy (first five editions, 1856-1858), which proposed a remedial code to improve the lot of slaves, while conceding that slavery should remain under the authority of the states. It argued that barbarism was only partly removed from Africans in the United States, who were still not ready to be equals of Englishmen. While recognizing that slavery is an involuntary state of affairs, it would be irresponsible to emancipate slaves if there are no means by which they can survive. This admixture of racist condescension was not untypical among opponents of slavery, and such low estimation of the capacities of black people was informed by their actual conditions, utterly deprived of education, experience and capital. Likewise, Taney’s service in the American Colonization Society, which supported the consensual colonization of free blacks in Africa, reflected a common position at the time in the antislavery movement.
Another clue to Taney’s leanings might be found in Groves v. Slaughter, 40 U.S. 449 (1841), where he went beyond the scope of the case (responding to Justice McLean’s dictum) to opine that interstate slave trading power lay exclusively with states. We have already seen, however, in his opinion on the Negro Seamen Act, that he had long believed that the federal government was utterly prohibited from regulating slavery.
Dred Scott v. Sandford 60 U.S. 393 (argued 1856, decided 1857) came to be a career-defining case for Roger B. Taney, who succeeded Marshall as Chief Justice in 1836. Though a Jackson appointee, he was a strong federalist, and had a reputation for fairness as a judge. As we have noted, Dred Scott was only the second case in which the Supreme Court invalidated an act of Congress by judicial review. Here, unlike Marbury, the reasoning was highly tendentious. Nonetheless, given Taney’s negative views on slavery, this bad
decision can hardly be imputed to result-oriented judging in the sense of pursuing one’s own policy preferences. Rather, it seems to be the result of a long-held genuine though perhaps mistaken belief that the Framers intended to reserve the questions of slavery and black citizenship exclusively to the states, and not to include black people among the constituents of the republic. Such an opinion may be shared even by the staunchly anti-racist, as when Rep. Barbara Jordan declared (July 24, 1974): when that document was completed on the seventeenth of September in 1787, I was not included in that
We, the people.
Dred Scott (c. 1799-1858) had sued for his freedom on the ground that his owner Dr. John Emerson, an army officer whose assignments required him to move frequently, had voluntarily taken him to a free state (Illinois) and a free territory (Wisconsin) for over two years. Under the accepted legal principle of once free, always free,
he should remain free upon return to Missouri. Scott’s claim to freedom was contestable on specific grounds, such as whether Dr. Emerson’s relocations were truly voluntary, or whether Missouri, a slave state, should be compelled to hear such a petition for freedom, which ought to occur in a free state. Instead the majority led by Chief Justice Taney made a far more sweeping finding, namely that, even if Scott were a freeman, he would have no standing to sue in federal court because all people of African descent, whether slave or free, are not citizens of the United States!
Writing for the majority, Chief Justice Taney asserts that, at the time the Constitution was adopted, people of African ancestry were considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.
Here the Government in question is the federal government, for though freed Africans at that time may have enjoyed citizenship in some states, they were not thereby recognized as free in other states, and the latter states did not intend to include them among citizens
of the United States.
It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.
This originalist principle is sound, though it may be fairly doubted whether it has been successfully applied in this case. Surely, the states with free Africans intended for all of their citizens to be citizens of the United States, and the slave states could not prevent that. Indeed, the Constitution limits apportionment based on slave population only, with the implication that all free citizens of any race may be fully counted toward apportionment. (The three-fifths
rule was actually an anti-slavery provision, so that slave states should not gain greater representation on the basis of people to whom they denied political and civil rights.)
To substantiate his interpretation of the opinions of the Framers, Chief Justice Taney cites some early colonial legislation hostile to Africans and remarks that the Declaration of Independence was adopted by many Framers who clearly did not intend to include people of the African race.
The number that had been emancipated at that time were but few in comparison with those held in slavery, and they were identified in the public mind with the race to which they belonged, and regarded as a part of the slave population rather than the free. It is obvious that they were not even in the minds of the framers of the Constitution when they were conferring special rights and privileges upon the citizens of a State in every other part of the Union.
The notion that emancipated slaves belonged to the slave population rather than the free appeals to popular opinion, but not to the meaning of laws at the time, which indeed permitted freed Africans to vote in some states. The fact that many of the Framers were not thinking of including Africans need not change the legal meaning of citizenship in each of the States, and the right of each State to define its criteria for citizenship without intrusion by other States or the federal government.
More substantively, Taney notes that, in 1822, the Court of Appeals of Kentucky decided that free negroes and mulattoes were not citizens within the meaning of the Constitution of the United States, and the correctness of this decision is recognized, and the same doctrine affirmed, in 1 Meigs’s Tenn. Reports, 331.
This is not controlling precedent for the U.S. Supreme Court, but it is indirect evidence of the opinions of the Framers, since that earlier generation was, if anything, more hostile to the African race. Laws in Massachusetts, Connecticut, New Hampshire and Rhode Island imposing prohibitions on people of the African race (to marry white people, to teach in school, or to join the militia) do not prove that free Africans were not considered citizens. Women and children are citizens, though they also had much more limited rights under the law.
A pertinent argument, perhaps, is that the slave states would not have ratified a Constitution that compelled them to receive a freed African from another State as a citizen of the United States. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
(Article IV, Sec. 2) Surely, Virginia would not have agreed to allow free Africans from Massachusetts to enjoy the rights of Virginian citizens. Yet Taney noted earlier that there were few such free Africans. States had recourse to impose legal restrictions on free Africans and to discourage their migration by social opprobrium. In Federalist No. 42, Madison said: Those who come under the denomination of free inhabitants of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of free citizens of the latter; that is, to greater privileges than they may be entitled to in their own State.
It can scarcely be denied that free Africans were free inhabitants of their state, and though the final text of the Constitution says Citizens of each State,
it is clear that at least some Framers did envision a broader application. Thus there should be no grounds for restricting the clause to a subset of citizens.
Moreover, it is not necessarily the case that the privileges and immmunities clause
confers all the rights of a citizen in the destination state. In Corfield v. Coryell 6 F. Cas. 546 (1823), it was held by Justice Bushrod Washington that this clause only guarantees those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several States which compose this Union.
This partly appeals to a sort of natural law jurisprudence, and partly to the historically recognized rights that are universal to the States. There are too many to be fully enumerated, but Justice Washington mentions these:
Protection by the Government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the Government must justly prescribe for the general good of the whole. The right of a citizen of one State to pass through, or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefits of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State…
While the conferral of these rights to freed Africans would have been considered obnoxious to the Southern states, we note that this still permitted various legal means to restrict their mobility in society. In point of fact, there were freed Africans in the antebellum South, yet subject to many restrictions. Naturally, we are not condoning this, but only note that the mere hostility of the Southern states toward Africans does not prove that the Privileges and Immunities Clause cannot apply to freed Africans.
Several states, beginning with Massachusetts (1783), explicitly permitted freemen of all races to vote, and while not all citizens had suffrage, suffrage as a rule was granted only to citizens. By 1790, blacks could legally vote also in Maryland, New York, Pennsylvania, Vermont, and North Carolina, though this was practically prohibited so that few free blacks actually were admitted to the polls. The legal right for black suffrage soon expanded to other states, but in the nineteenth century, black suffrage was rescinded by New Jersey (1807), Connecticut (1818), Rhode Island (1822), and Pennsylvania (1838). New York (1821) made the property requirement stricter for blacks than for whites. This checkered history nonetheless shows that the inclusion of blacks as citizens was definitely espoused by one or more States at the time of the Constitutional Convention, undermining Taney’s argument.
Nonetheless, Chief Justice Taney found that a freed African is not a citizen of the United States under the Constitution as understood by its adopters. The dubiousness of this finding raises issues within originalism, namely the extent to which the adopted language or the intentions of the adopters should be given more weight for interpretation. Cases where the intentions are diverse or ill-defined may require more weight to be given to the strict legal meaning of the terms, in this case citizen of each State,
without recourse to general social attitudes that were only imperfectly expressed in law, due to their tension with republican principles.
Proceeding from the assumption that a freed African is not a citizen of the United States in the original sense of the Constitution, Taney then proceeds to argue that States cannot expand the domain of national citizenship by expanding the bounds of State citizenship.
It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all of the rights and privileges of the citizen of a State and yet not be entitled to the rights and privileges of a citizen in any other State. For, previous to the adoption of the Constitution of the United States, every State had the undoubted right to confer on whomsoever it pleased the character of citizen, and to endow him with all its rights. But this character, of course, was confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States. Nor have the several States surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States. Each State may still confer them upon an alien, or anyone it thinks proper, or upon any class or description of persons, yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States. The rights which he would acquire would be restricted to the State which gave them. The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so. Consequently, no State, since the adoption of the Constitution, can, by naturalizing an alien, invest him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen and clothed with all the rights and immunities which the Constitution and laws of the State attached to that character.
It is very clear, therefore, that no State can, by any act or law of its own, passed since the adoption of the Constitution, introduce a new member into the political community created by the Constitution of the United States. It cannot make him a member of this community by making him a member of its own. And, for the same reason, it cannot introduce any person or description of persons who were not intended to be embraced in this new political family which the Constitution brought into existence, but were intended to be excluded from it.
Chief Justice Taney invokes the example of naturalization, which indeed is a power limited to Congress, to show that States cannot expand national citizenship by their own action. Yet the doctrine of enumerated powers would make this insufficient grounds for denying states the right to expand state and national citizenship among those born in the United States. Taney’s construction would restrict citizenship
to the particular state laws in force at the time of the Constitution, and so presumably a Constitutional amendment would be required each time a state modified its citizenship laws, lest any state citizens should be excluded from national citizenship. This is an impractical and highly irregular mode of constructing the Constitution.
In point of fact, the Rule of Naturalization passed by the first Congress in 1790 (III, 1, 103) allowed naturalization applications to any alien, being a free white person, who shall have resided with the limits and under the jurisdiction fo the United States for the term of two years.
Citizenship applications were handled by any common law court of the state in which the person resided for at least one year. The racist restriction, though noxious, is within the power of Congress, and even greater restrictions on nationality were in force through the early twentieth century, though no one can deny that Arabs, Chinese or Southern Europeans born in the United States at the time could be citizens. Note further that national citizenship was conferred by the mechanism of gaining state citizenship; all that was required was that the rule of naturalization should be uniform across the States. No such uniformity was demanded or expected for citizenship of those born in a state or territory.
Congress in 1792 directed that every free able-bodied white male citizen
shall be enrolled in the militia. The exclusion of blacks here is taken by Taney as proof that they are excluded from the duties of citizenship, but the same is true of women, likewise for social reasons, not because they are not citizens. Moreover, the fact that several states subsequently amended their laws to conform with the federal Militia Act in excluding blacks shows that they had been hitherto eligible as male citizens
of those states. Indeed, the qualifier white
would be unnecessary if citizenship was wholly denied to other races.
Taney further infers from the language of an 1813 act of Congress that blacks could not be citizens: it shall not be lawful to employ, on board of any public or private vessels of the United States, any person or persons except citizens of the United States, or persons of color, natives of the United States.
(2 Stat. 809) This language at least suggests that all persons of color are not citizens, but need not strictly imply that. The persons of color
category may simply refer to slaves, who were sometimes hired out for work at sea. The next section of the same act prohibits employment of naturalized citizens unless they present a certified copy of their naturalization. This and further clauses indicate the intent of the act was to prohibit foreign crewmen on U.S. ships from nations who had prohibited U.S. crewmen on their ships. [The Weekly Register, Baltimore, V, 6, October 9, 1813, pp. 89-90.]
Ultimately, Chief Justice Taney found that no state had the power to confer national citizenship on a free man of African descent who was born in the United States. He might have left the matter there, since this finding deprived Scott of standing to sue. Yet he found it necessary not merely to declare that the lower federal court had erred in thinking it had jurisdiction, but to correct its error in judgment. More strikingly, he would proceed to rule on whether the facts supported Scott’s claim to freedom, and in the process rule on the constitutionality of the Missouri Compromise (or what was left of it after the Kansas-Nebraska Act).
The act of Congress upon which the plaintiff relies declares that slavery and involuntary servitude, except as a punishment for crime, shall be forever prohibited in all that part of the territory ceded by France, under the name of Louisiana, which lies north of thirty-six degrees thirty minutes north latitude, and not included within the limits of Missouri. And the difficulty which meets us at the threshold of this part of the inquiry is whether Congress was authorized to pass this law under any of the powers granted to it by the Constitution; for if the authority is not given by that instrument, it is the duty of this court to declare it void and inoperative, and incapable of conferring freedom upon anyone who is held as a slave under the have of anyone of the States.
The counsel for the plaintiff has laid much stress upon that article in the Constitution which confers on Congress the powerto dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States,but, in the judgment of the court, that provision has no bearing on the present controversy, and the power there given, whatever it may be, is confined, and was intended to be confined, to the territory which at that time belonged to, or was claimed by, the United States, and was within their boundaries as settled by the treaty with Great Britain, and can have no influence upon a territory afterwards acquired from a foreign Government. It was a special provision for a known and particular territory, and to meet a present emergency, and nothing more.
In support of this unusual interpretation of the Property Clause (Art. IV, § 3, Cl. 2), which would make it wholly inapplicable to territories acquired after 1789, Taney cites historical evidence that it was occasioned by the need for some states to settle debts by selling western territory. As not all states had such recourse, the equitable solution was to entrust such territories to the national government, to satisfy the debts of all. Again, Taney’s version of originalism would make the original purpose of a constitutional provision restrict the scope of its meaning, taking precedence over what the text plainly says. While the Property Clause originally applied only to territory east of the Mississippi, the legally binding text grants power to all territory of the United States, so it should apply to lands west of the Mississippi if they are truly territories of the United States. Once more, with weak justification, Taney would interpret the Constitution restrictively to apply only to the peculiar circumstances of 1789, as if the Framers could not have envisioned that there might be new federal territories.
Continuing with peculiar arguments about why the language of the Property Clause implies that it could not apply to newly acquired territory, Chief Justice Taney considers himself justified in ignoring precedents: We put aside, therefore, any argument, drawn from precedents, showing the extent of the power which the General Government exercised over slavery in this Territory, as altogether inapplicable to the case before us.
Taney holds that his interpretation is consistent with American Insurance Company v. Canter, 26 U.S. (1 Pet.) 511 (1828), notwithstanding its declaration that Florida continues to be a territory of the United States, governed by virtue of that clause in the Constitution which empowers ‘Congress to make all needful rules and regulations, respecting the territory or other property belonging to the United States.’
Florida did not become U.S. territory until 1819, so the Supreme Court apparently had found the Property Clause applicable to later acquired territories. Taney avoids this conclusion by noting the ruling’s subsequent statement:
Perhaps the power of governing a Territory belonging to the United States which has not, by becoming a State, acquired the means of self-government may result necessarily from the facts that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory. Whichever may be the source from which the power is derived, the possession of it is unquestionable.
This ambivalence as to the source of Congress’s power to govern territory, whether from the right of acquiring non-State territory or from the Property Clause, does not abolish the reality of that power, as Taney admits. He must deny the applicability of the Property Clause in order to construct a distinction between two versions of the power. The Northwest Ordinance of 1787 could prohibit slavery in those territories under Property Clause powers, but it is to be argued that Congress lacks that power in later acquired territories, notwithstanding its right to govern by virtue of acquisition.
Taney contends that the federal government has the explicit power to expand territory only by adding new states, but this comes with implied power to hold territory temporarily for this purpose:
The power to expand the territory of the United States by the admission of new States is plainly given, and, in the construction of this power by all the departments of the Government, it has been held to authorize the acquisition of territory not fit for admission at the time, but to be admitted as soon as its population and situation would entitle it to admission. It is acquired to become a State, and not to be held as a colony and governed by Congress with absolute authority, and, as the propriety of admitting a new State is committed to the sound discretion of Congress, the power to acquire territory for that purpose, to be held by the United States until it is in a suitable condition to become a State upon an equal footing with the other States, must rest upon the same discretion.
People from the States who live in this territory cannot be mere colonists governed by any laws the federal government imposes. Federal territory is to be held for the common and equal benefit
of people of all States. This implies that the federal government cannot exercise power over their persons and property.
Thus, the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.
In this extraordinary new interpretation of due process
under the Fifth Amendment, it is held that non-recognition of slave property upon entering a territory entails denial of due process. Some commentators have suggested that this is an early instance of substantive due process,
the idea that due process entails certain substantive rights not to be infringed even with procedural guarantees. Yet Taney here seems to conceive of due process in the traditional, procedural sense, as he presupposes that bringing slaves into a territory involves no breach of territorial law. What is at issue is whether the Congress, acting as either a national or territorial legislator, has the power to prohibit the entry of slave property into a territory. Taney holds that the federal government is pledged to protect slave property no less than any other form of property, if it is to make federal territory available equally to citizens of all states. The notion that it is inconsistent with due process to deny people their property for entering a territory, if true, should also require free states to recognize slave property brought within their borders. Taney’s due process argument can avoid this conclusion only if combined with his notion that federal legislative power over territories is somewhat more restrictive than what would be granted under the Property Clause.
Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned is not warranted by the Constitution, and is therefore void, and that neither Dred Scott himself nor any of his family were made free by being carried into this territory, even if they had been carried there by the owner with the intention of becoming a permanent resident.
Thus the Missouri Compromise is declared unconstitutional, and by implication, so is any scheme that would prohibit slavery in any portion of federal territory! Congress is thereby prevented from doing anything to contain the spread of slavery. Taney’s concern for the Framers’ intent neglects to consider evidence that they intended to limit the spread of slavery, in the hopes of phasing it out gradually.
What is worse, perhaps, than this dubious finding of unconstitutionality, depending on strained interpretations of the Property Clause and the Fifth Amendment, is the fact that it was wholly unnecessary to decide the case. Even on the assumption that Dred Scott was eligible for freedom in the state of Missouri or in the territory of Wisconsin (by virtue of the Northwest Ordinance), it would not follow that the state of Missouri was obligated to recognize this change of status under its own laws. As was held in Strader v. Graham:
Every state has an undoubted right to determine the status, or domestic and social condition of the persons domiciled within its territory except insofar as the powers of the states in this respect are restrained, or duties and obligations imposed upon them, by the Constitution of the United States. There is nothing in the Constitution of the United States that can in any degree control the law of Kentucky upon this subject. And the condition of the negroes, therefore, as to freedom or slavery after their return depended altogether upon the laws of that state, and could not be influenced by the laws of Ohio. It was exclusively in the power of Kentucky to determine for itself whether their employment in another state should or should not make them free on their return. [Strader v. Graham, 51 U.S. 82, 94 (1851)]
The principle of once free, always free
was one of Missouri law (with similar principles held in Kentucky, Louisiana, and Mississippi). If Missouri wanted to overturn its own precedent or regard it as inapplicable to this case, the Supreme Court should defer to its interpretation of its own laws. The rule of comity could not bind Missouri, for, as recognized even in Commonwealth v. Aves, states need not recognize the status of a person under another domicile’s law if such recognition is contrary to their own laws. Since Dred Scott resided in Missouri, there was a stronger basis for ignoring comity, though it would have been more problematic if he were merely sojourning there.
Notably, the Court in Scott v. Sandford rejects the notion that any law of nations
can have bearing on how master-slave relations are different from other property relations.
…there is no law of nations standing between the people of the United States and their Government and interfering with their relation to each other. The powers of the Government and the rights of the citizen under it are positive and practical regulations plainly written down. The people of the United States have delegated to it certain enumerated powers and forbidden it to exercise others. It has no power over the person or property of a citizen but what the citizens of the United States have granted. And no laws or usages of other nations, or reasoning of statesmen or jurists upon the relations of master and slave, can enlarge the powers of the Government or take from the citizens the rights they have reserved. And if the Constitution recognises the right of property of the master in a slave, and makes no distinction between that description of property and other property owned by a citizen, no tribunal, acting under the authority of the United States, whether it be legislative, executive, or judicial, has a right to draw such a distinction or deny to it the benefit of the provisions and guarantees which have been provided for the protection of private property against the encroachments of the Government.
It is sound to ignore the law of nations when interpreting internal laws, but its relevance cannot be avoided if we are trying to decide the comity owed among sovereign States. Moreover, the Constitution makes no statement about the right of slave property aside from the Fugitive Slave Clause, which speaks of slaves as persons.
Taney uses the Framers’ reticence to address slavery as a basis for claiming they intended to treat it no differently than any other form of property.
The sheer quantity of specious arguments in Scott v. Sandford led many commentators at that time and since then to accuse the Court of being motivated by a desire to serve the interests of the slave states. We find this motivation improbable in the case of Chief Justice Taney, though it is at least plausible that he was result-oriented
in the sense of seeking to resolve the controversy over slavery peaceably by removing it utterly from federal jurisdiction. If this were his motivation, it was a woeful miscalculation, though not unprecedented, for even Chief Justice Marshall had skillfully sought to avoid interstate slavery controversies by deciding cases on narrower, more technical grounds. Taney rightfully kept silent about the case until his death, so that his ulterior motives, if any, remain unknowable, and perhaps irrelevant. This accords with our narrow definition of judicial activism,
which does not require us to make guesses about motives.
Is Scott v. Sandford activist
in the sense of total disregard for norms of interpretation? It appears not, though there are some instances of unbalanced emphasis on supposed intent over the plain text of the Constitution, and a rather partial reading of relevant history. Perhaps the most activist
element of the decision is the interpretation of due process
as guaranteeing absolute protection of private property, an early precursor of Lochner-era jurisprudence. Yet, overall, the argument remains originalist in form, if poorly substantiated on evidentiary grounds. Taney is firmly convinced that the Framers had no intention of including black people in their republican compact, and this is not unreasonable considering the deep prejudices of the time. We must recall that Taney was old enough to have lived in that era as a young adult. Taney’s remark that the negro might justly and lawfully be reduced to slavery for his benefit
describes, not his own views, but the state of public opinion
at the time the Constitution was framed and adopted. Taney has been wrongfully accused of racism when in fact he was attempting an originalist analyis of the citizenship question.
Moreover, the findings in Scott were not peculiar to Taney, but shared by other jurists, both on and off the Court, including non-Southerners. The Marshall Court’s avoidance of slavery issues had left much undecided, and we have noted that the Missouri Compromise was likely an overreach insofar as it sought to prohibit new states from establishing slavery. Conversely, opposition to the Dred Scott decision was not always motivated by sound legal interpretation, but by moral outrage against slavery.
In his concurring opinion, Justice James Moore Wayne addressed the claim that the Court should not have ruled on the Missouri Compromise, due to lack of jurisdiction (since the Court already found that Scott had no right to sue).
But the error of such an assertion has arisen in part from a misapprehension of what has been heretofore decided by the Supreme Court in cases of a like kind with that before us, in part from a misapplication to the Circuit Courts of the United States of the rules of pleading concerning pleas to the jurisdiction which prevail in common law courts, and from its having been forgotten that this case was not brought to this court by appeal or writ of error from a State court, but by a writ of error to the Circuit Court of the United States.
In the latter case, we inquire not if this court (the Supreme Court) has jurisdiction, but if that court (the Circuit Court) has it, by determing if there are necessary averments by the plaintiff. Averments by the plaintiff are necessary to give the court jurisdiction. The defendant can file a plea in abatement, denying the truth of these averments. The plaintiff can then demur (object), saying that even if the defendant’s factual claims were true, it is insufficient to win the plea. If the Circuit Court erroneously sustains the plaintiff’s demurrer, the Supreme Court can inquire into the Circuit Court’s jurisdiction to do so, and correct its error. The Supreme Court’s review of cases by federal courts are not limited to any part of the case, so it can correct an error on merits. If the Supreme Court did not have this authority, it would enlarge the jurisdiction of Circuit Court. Justice Wayne’s argument proves that the Supreme Court has power to review the merits, but not that it is obligated to do so. Taney, however, would say we have to rule on the merit lest the Circuit Court’s error should stand as precedent.
Justice Samuel Nelson abstained from ruling on the Missouri Compromise, and gave a separate opinion on one point. Nelson believed that the Supreme Court does have jurisdiction in this case, notwithstanding Scott’s legal inability to sue. When a defendant submits to judgment and pleads over to merits, a plea in abatement is waived, though Nelson admits it is not clear if this applies to federal courts. It is unnecessary to decide this, however, because the merits favor the defendant. The Circuit Court upheld the decision of Missouri Supreme Court, ruling against the plaintiff.
Justice Nelson notes that case could be decided on the basis of Strader v. Graham. The states are sovereign with respect to each other, so Missouri decides if someone is free or slave in Missouri, notwithstanding the laws of another state or territory. Even if Congress can make slaves free in a federal territory, it cannot impose that status on the state to which the person returns.
Justice John Archibald Campbell, in his concurrence, agreed that Congress has no Constitutional power to abolish slavery in any territories, though he admitted the applicability of the Property Clause to the Louisiana territory. From his reading of early opinions of the Framers, so fearful of centralized government, he found the power to make rules and regulations in the territories must be restricted to such administrative and conservatory acts as are needful for the preservation of the public domain and its preparation for sale or disposition.
Before admission to the Union, communities had their own municipal governments without federal interference.
Moreover, Campbell adds, Dred Scott had lived in Missouri for fifteen years before filing his case on the basis of previous residency in free territory, so he never had the capacity to sue in federal court.
Justice John McLean, in his dissent, opposed all the major findings of the majority, though not always with pertinent legal arguments. Regarding the citizenship question, he rightly distinguished citizenship from rights such as voting and militia participation, which may be reserved to only some citizens. Scott’s inability to vote did not mean he could not sue in federal court, for even females and minors may sue, though they cannot vote. Even if he did not have free status in Missouri, his right to sue in federal court would be established if he had free status anywhere. Racial restrictions on naturalization had no relevance to those born in the United States, for whom no naturalization is required to become a citizen. The most general and appropriate definition of the term citizen is
a freeman.
Being a freeman, and having his domicil in a State different from that of the defendant, he is a citizen within the act of Congress, and the courts of the Union are open to him.
While the majority would compel free states and the federal government to recognize slavery everywhere, Justice McLean notes that it has been long held throughout Europe that slavery is only local in jurisdiction, and need not be recognized anywhere else except by express stipulation. This was acknowledged by the Supreme Court in Prigg v. Pennsylania, 41 U.S. 539 (1842), which we cite:
By the general law of nations, no nation is bound to recognize the state of slavery as to foreign slaves within its territorial dominions when it is opposed to its own policy and institutions in favor of the subjects of other nations where slavery is recognized. If it does it, it is as a matter of comity, and not as a matter of international right. The state of slavery is deemed to be a mere municipal regulation founded upon and limited to the range of the territorial laws.
Accordingly, no nation in Europe considers itself bound to return fugitive slaves, nor did the American states prior to the fugitive slave clause. It might be said that this citation of Prigg is an obiter dictum, since the main ruling was that Pennsylvania did violate the Fugitive Slave Clause. Nonetheless, this denial of the states’s obligation to recognize slavery without such a stipulation is hardly incidental to the argument.
Aside from the positive law requirement to return fugitive slaves, the free states and federal government are under no obligation to recognize the status of slavery outside of slaveholding states. Much less are they obligated, in deference to that institution, to deny citizenship to freemen of African descent outside of those states. The general racism and lack of regard for black people at the time of the Founding is insufficient basis for establishing an intent to exclude blacks from citizenship.
…while I admit the Government was not made especially for the colored race, yet many of them were citizens of the New England States, and exercised, the rights of suffrage when the Constitution was adopted, and it was not doubted by any intelligent person that its tendencies would greatly ameliorate their condition.
Indeed, some states abolished slavery shortly after ratifying the Constitution, as being more consonant with the values of a free republic. McLean notes, as we have, that the Founders hoped that slavery would gradually disappear:
…it is a well known fact that a belief was cherished by the leading men, South as well as North, that the institution of slavery would gradually decline until it would become extinct. The increased value of slave labor, in the culture of cotton and sugar, prevented the realization of this expectation.
Justice McLean also takes exception to the majority’s finding that the Property Clause does not give Congress the power to legislate like a government in federal territories. Without a temporary Government, new States could not have been formed, nor could the public lands have been sold. Congress is limited to means appropriate to the attainment of the constitutional object.
By this principle, Congress could not establish slavery, as that would not aid the constitutional object, but it might slaves or free blacks from settling territory if that was deemed injurious to population, lessening its land value. Here McLean is not speaking of the wisdom or morality of such legislation, but of its constitutionality. Though Congress cannot regulate the internal affairs of a State, it may do so for a territory.
The Missouri Compromise did not purport to forfeit property or take it for public purposes. It only prohibited slavery, as did the unquestionably constitutional Northwest Ordinance of 1787. Since slavery is an institution of local jurisdiction, slaveholders can have no expectation of being able to retain property rights over slaves when transporting them out of state.
McLean is on shakier ground when he faults Missouri for overturning its own precedent and thinks this is not a question of Missouri law alone, because it affects the application of an act of Congress and the constitution of Illinois. The weakness of McLean’s argument here only emphasizes what an unforced error the Dred Scott decision was. The central question as to whether Dred Scott must be recognized as free by the state of Missouri could have been decided against Scott without denying federal citizenship to free blacks or overturning the Missouri Compromise, but simply by recognizing the Missouri court’s jurisdiction over its own domicile law.
Justice Benjamin Robbin Curtis targeted the majority’s disavowal of jurisdiction in his dissent. If the Circuit Court had no jurisdiction, its judgment must be reversed and the cause remanded to be dismissed for want of jurisdiction.
In any case, the majority’s finding that free blacks were never intended to be citizens is ill-founded. In North Carolina, black freemen even exercised the franchise. To know what it meant to be a citizen of the United States at the time of the drafting of the Constitution, one should refer to the Articles of Confederation, which used the term free inhabitants.
Even if free blacks were not already national citizens at the founding, they would, as citizens of their state, be entitled under the Constitution to all Privileges and Immunities of Citizens in the several States.
(Art. IV, § 2, Cl. 1)
Justice Curtis found that Court’s most serious offense to be ruling on the constitutionality of the Missouri Compromise even after finding that it had no jurisdiction in this case: such an exertion of judicial power transcends the limits of the authority of the court as described by its repeated decisions…
This is effectively an accusation of judicial activism, but of a kind that is expressed not so much in the content or method of the majority’s ruling, but in the choice to rule on a constitutional question where it is not necessary to dispose of a case. Here the overreach is especially egregious as the Court has found that there is not even federal jurisdiction for this case.
The Supreme Court, like all appellate courts, has wide discretion in which cases it will hear, and its judgments about jurisdiction and standing, which are often subtle technical questions, may allow it to set aside controversial cases. Chief Justice Marshall has been accused of bringing great constitutional questions into cases that did not require them, and of disposing of cases on narrow technical grounds when he wished to avoid controversy or crisis. We have excluded such exercises of discretion from our definition of judicial activism, not because they are beyond criticism, but because evaluating such acts involves scienter evidence, and we cannot compel jurists to disclose their intent. Considering or avoiding constitutional questions when not called for in a case may be considered a form of result-oriented judging,
not in the sense of favoring one or the other outcome to a question, but in favoring the question’s resolution or non-resolution. Although this form of activism is not something we can conclusively identify, at least not without questioning the sincerity of Taney’s technical arguments, we may note that it can be just as harmful to the reputation of the Court as any other form of activism.
In a letter to President Buchanan (February 23, 1857), Justice Robert Cooper Grier reported (with the consent of the Chief Justice) that the majority initially intended to affirm the lower court’s decision without touching the difficult questions of the right of a negro to sue
and the Missouri Compromise. The dissenters, however, addressed at length these troublesome points, although not necessary to a decision of the case. In our opinion both the points are in the case and may be legitimately considered.
These two statements, which seem contradictory, show the discretion a Court has in choosing to consider an issue. Grier, a Northerner, was willing to concur on the overturning of the Missouri Compromise so that it would not appear to be a strictly Southern decision. So that if the question must be met, there will be an opinion of the court upon it, if possible, without the contradictory views which would weaken its force.
He and Justices Taney and Wayne felt it due to the President to disclose their expectation that there would be a broad-based ruling to nullify the Missouri Compromise, removing that aspect of the slavery issue from federal controversy.
Then as now, the expectations of political leaders and the general public toward the Supreme Court was that they would rule according to what is just
as defined by moral and political sentiments, rather than abstruse legal principles scarcely understood outside the legal profession. Much of the opprobrium directed toward the Court after the decision was unjustified, insofar as it was grounded in non-legal argument. The fact that the ruling benefited the morally noxious institution of slavery is not what made it a bad legal decision. Had the Court ruled that slavery was unconstitutional, this would have been a terrible decision legally, however much it might be acclaimed on moral grounds by abolitionists. Nonetheless, we may find both moral and legal fault with these aspects of the Taney settlement
as described by Frederick Douglass:
…that slaves are property in the same sense that horses, sheep, and swine are property; that the old doctrine that slavery is a creature of local law is false; that the right of the slaveholder to his slave does not depend upon the local law, but is secured wherever the Constitution of the United States extends; that Congress has no right to prohibit slavery anywhere; that slavery may go in safety anywhere under the star-spangled banner; that colored persons of African descent have no rights that white men are bound to respect; that colored men of African descent are not and cannot be citizens of the United States. [Speech before American Anti-Slavery Society, New York, May 14, 1857]
In the same speech, Douglass put forth this natural law argument:
He [Taney] may decide, and decide again; but he cannot reverse the decision of the Most High. He cannot change the essential nature of things—making evil good, and good evil.
Happily for the whole human family, their rights have been defined, declared, and decided in a court higher than the Supreme Court.There is a law,says Brougham,above all the enactments of human codes, and by that law, unchangeable and eternal, man cannot hold property in man.
Although in practice the Constitution was adopted with the understanding that slavery was to be tolerated in some states, care was taken not to give express sanction to that institution in the text. The principles of justice
and liberty
articulated in the Constitution are not grants of positive law, but rights that would belong to the people even if they were denied by man-made law. It would seem, then, on the question of fundamental natural rights, there is a weakness in Anglo-American jurisprudence insofar as it does not recognize the supremacy of natural law. Though the wrongness of slavery and its incompatibility with republican ideals may not have been appreciated by all at the time of the Founding, there can be no excuse among those who do recognize these contradictions. Yet, it may be said in defense of those federal jurists who dared not abolish slavery, that they were commissioned with no authority beyond that of the positive law, which is the compact that was agreed by all the states. Any attempt to exercise authority beyond that agreement would be rejected by some of the States, jeopardizing federalism, as occurred in the Negro Seamen affair and in the nullification crisis. Yet if the Dred Scott decision were designed to preserve the Union, it certainly failed in that regard, which only shows the perils of result-oriented judging, failing to achieve its desired result while at the same time undermining the legitimacy of the Court.
Unfortunately, the popularly perceived legitimacy
of the Supreme Court frequently has more to do with whether the public agrees with the policy outcome, and not with whether the Court has acted within its authority according to sound principles of legal interpretation. Judged by the latter criterion, Scott v. Sandford might be considered a legitimate exercise of judicial authority, however erroneous the arguments may have been in their particulars. It does not meet our narrow definition of judicial activism, though it certainly has activist
elements in parts of its arguments, such as result-oriented judging, deciding constitutional questions not required to dispose of the case, and inventing a kind of substantive due process doctrine. The treatment of the citizenship question was originalist in method, but it likely placed undue emphasis on the supposed intention as expressed by popular prejudices over the actual legal meaning of the Constitution’s text.
Fairly or unfairly, the Dred Scott decision ruined the reputation of the Court, and of Chief Justice Taney in particular, who was thenceforth maligned as an advocate of slavery. The legal subtleties were ignored or dismissed in view of the great moral importance of human liberty. The question of slavery, perhaps, could never have been resolved by the courts, and nothing less than a war among the States could decide the issue. Whatever the hypothetical alternatives may have been, in fact the issue was resolved by the defeat of the Confederacy and the requirement that the Thirteenth and Fourteenth Amendments should be accepted as a condition for re-admission to the Union. We shall see that the Civil War Amendments (13th–15th) effectively revised the framework of federalism, as the protection of civil liberties could not be safely entrusted to the states without federal oversight. This made possible new domains of constitutional jurisprudence, though it was not immediately clear what were the permissible methodological bounds of this activity.
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