The court inserted into the Constitution a political consideration that would not permit of judicial interpretation, precisely because it is not in accord with the law. When the Constitution uses the word “all” it is not for the court to insert any exception it may prefer politically. Slavery is against natural right and permitted only by municipal law. The latter may simply take the fruits of slave labor or it may allow the master to take the slave’s life. In law, a statute containing the word forever lasts only so long as the next Congress or Congresses decide to change it. The past, in this sense, cannot bind the future. The United States has sovereignty over the territories it acquired by treaty and, in the same manner, a current Congress can ignore any stipulation, because treaties have the same force as statutes. If we owe something to foreign nations, it is only a matter of comity. The common law governs where statute does not exist, but as before, Congress may replace the common law with a statutory enactment as it deems necessary. Only the rights specified in the Constitution and its amendments extend beyond the life of any Congress, because these rights derive their authority from supermajorities required for ratification.
It is difficult to discern any Constitutional basis for the Taney decisions. He used Sanford’s claim that those of African construction were inferior to whites and could never be citizens. He made an extraordinary restrictive interpretation of “territory” to strike down the Missouri Compromise. Had Taney occupied the chair when Marshall was chief justice, the government of the Union would have been little more than another version of the Articles of Confederation. A nation at war with itself overturned the Taney decision, with over 620,000 deaths, as many as most other US wars combined. Not only did the war end slavery everywhere on US soil but it also permanently altered the balance of power between the state governments and the government of the Union. The court had overextended.
State Abolition
The 14th Amendment would negate part of the Dred Scott decision, but neither the northern states nor the state courts were willing to wait. New York provided a sample case Lemmon v. the People 20 N.Y. 562 (N.Y. 1860) a month before the Civil War began. The facts of that case, and the logic used to decide, demonstrated the widening gap between the Taney Court and the state courts. Justice Denio reports that Ms. Lemmon took a steamer from the city of Norfolk, Virginia, to the city of New York. There she intended to change ships for a steamer bound to Texas. She had in her company eight personal slaves. She debarked with the slaves into New York while awaiting the steamer to Texas. During the layover, anti-slave activists entered the house, removing the said slaves. The Lemmons filed a writ of habeas corpus, asking production of her slaves before the court. The Lemmons indicated that slavery was legal in both Virginia and Texas, that she did not intend to stay in New York except to change ships in the port, and that she had come to New York only because there was a transit route to Texas.
An 1817 act of the state of New York unequivocally declared free any slave introduced or brought into the state under any pretense whatever. The legislature repealed any exceptions to this rule in 1841, even unavoidable instances. Slaves brought to New York would be set free. New York claimed the sovereign state right to determine the conditions of all persons at any time within its jurisdiction. New York had no voluntary abridgment of this rule contracted with any other state. No claim of comity within international law can bind this legislative decision. Conciliatory legislation is a matter of political power; it is the court that administers laws legally enacted by the state. The Fugitive Slave Law countenanced the opposite, but it was the moral expectation of many states at the forging of the Constitution that upon abolishing slavery in their state, the Fugitive Slave Law would no longer be obligatory. A state of slavery can exist only by positive law, and without it, the writ of habeas corpus may free them in cases other than fugitive slaves. The fugitive slave clause applies solely to the actual escape of a slave from one state to another. The privileges and immunities clause eliminated alienage of citizenship across the states.
A citizen asserting privileges and immunities must claim them according to the state in which the individual is bodily located, not the state from which the individual came. The laws of New York are clear; bring a slave into the state and the slave is free. Our courts have no obligation to apply the laws of another state. The owner of the slaves cannot do anything forbidden to our own citizens. Had the slaves remained on the ship while in the New York Harbor, the case may well have been federal, given Congress’ power over interstate commerce. They were, at debarkation, subject to the laws of New York. The temporary movement of a slave cargo from ship to land during an interstate voyage had never been the object of Congressional commerce legislation.
Justice Wright, with the concurrence of Justices Davies, Bacon, and Welles, repeated that slavery exists only by virtue of municipal law. It is repugnant to natural and civil law. The Constitution avoided referencing slaves as property, and the Fugitive Slave Law was a simple interstate compact limited only to a slave running away from the home state into another state. Habeas corpus removes a subject from private force into the public forum. Each state may regulate the social and civil condition of her citizens and of all persons within her territory. This power is exclusive; the only exception is the fugitive slave provision of the US Constitution. The laws of comity compel no state to violate its own laws.
Justice Clerke dissents. If the legislature of New York declared that all slaves brought within its borders, whatever the circumstances, are free, then does the state have the Constitutional authority to do so? Confiscating the property of citizens from other states passing through this one is inconsistent with the purpose of a perfect union with unrestricted intercourse. International law provides the passage through another’s territory with the person and the property intact. The right to the service and labor of another is property. Several clauses in the Constitution recognize slaves as property. Whatever the weakness of comity among nations, it is stronger among states of our Union. The rights thus established are within the cognizance of judicial tribunals.
Unrepentant
Taney was as unrepentant in Kentucky v. Dennison, 65 U.S. 66 (1861) as he was in Scott but tinged with a bit more political realism. The Constitution of 1789 required the return of runaway slaves and that provision got statutory instantiation in the Fugitive Slave Act of 1793. In Dennison, the target was not the slave but the paramour who enticed her to escape. Kentucky law adjudged Dennison guilty in abstentia and the Kentucky governor petitioned that the Ohio governor deliver Dennison to Kentucky authorities for punishment. Taney found himself impaled on the horns of a dilemma. Either the Union government had the penetrative power to require one state to enforce the legal decisions of another, or the obligation reduced to comity. No comparable fugitive slave-type power existed. The colonial arrangements had not survived the various transitions through the Constitution of 1787. If Taney issued a writ of mandamus forcing the Ohio governor to comply with the Kentucky governor’s demand, he risked Union enforcement of the privileges and immunities and full faith and credit clauses of the Constitution. Alternatively, the governor of one state could refuse comity for the request of a fellow governor. Taney went with the latter, and he refused the writ of mandamus.
Even the Taney Court recognized the limits of state sovereignty when not focusing on race. During the Civil War SCOTUS illustrated one of the state sovereignty problems in Baldwin v. Hale, 68 U.S. 1 Wall. 223 223 (1863). The instant case focused on a note obligating a citizen of Massachusetts to a citizen of Vermont. The defendant, a Massachusetts citizen, got a certificate of insolvency from that state, and the question was whether that insolvency applied to the note owed to the plaintiff. The Massachusetts Supreme Court held that the insolvency did apply, because the note originated in and was payable in Massachusetts. SCOTUS accepted the facts but disagreed on the law. Because Congress had not exercised its Constitutional power over bankruptcies, the states were free to act. Their decisions, however, were bounded by the borders of their respective states. A state insolvency certificate cannot defeat a diversity suit between citizens. The same insolvency cannot defeat a note made in one state and payable in another. The state’s power over bankruptcy covered only cases between citizens of the same state on a loan made and payable in that state.