Fidelity through History and to It: An Impossible Dream
Fidelity through Histor y and to It: An Impossible Dream
Robert J. Kaczorowski 0 1
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Recommended Citation Robert J. Kaczorowski, Fidelity through History and to It: An Impossible Dream, 65 Fordham L. Rev. 1663 (1997). Available at: http://ir.lawnet.fordham.edu/flr/vol65/iss4/24
Sa theory of fidelity through history," Jack Rakove concludes,
"originalism ultimately fails because it is false to the history it
purports to describe."1 Its logic falsely assumes that "the decisions of
1787-88 [were] the conclusive culmination of some prior course of
reflection and deliberation," which "locked into the Constitution at the
moment of its adoption" "a set of definitive meanings."2 Fidelity to
history, Professor Rakove argues, demonstrates "the avowedly
experimental nature of revolutionary constitutionalism."3 Larry Kramer
shares Professor Rakove's interpretation of the Founding and of the
Constitution as experimental in its origins. He uses this insight to
build a theory of constitutional interpretation which conceives of "the
Constitution as a dynamic framework of evolving institutions and
restraints."4 This theory "makes history central to the interpretive
enterprise,"5 because it "requires us to evaluate a historically unfolding
process."6 Professor Kramer goes so far as to assert that "[t]he real
'Founding' took place when the Founders attempted to turn [the
ratified Constitution] into something real." 7 He argues that "[i]t was the
Founders' choices in putting their ideas to work that shaped the
course of American government. And it was the choices of their
successors, starting where the Founders left off, that made the
Constitution what it is today."'
* Professor of Law, Fordham University School of Law. I would like to thank
members of the New York University School of Law Colloquium in Legal History for
their insightful and constructive comments on an earlier draft of this Response. I am
grateful to Abner Greene for helping me to clarify my explanations of "implied
inherent powers" and "implied enumerated powers." Consuelo Campuzano and Bernard
Daskal provided invaluable research assistance. The research for this project was
supported by a faculty summer research grant from Fordham University School of Law.
1. Jack N. Rakove, Fidelity Through History (Or to It), 65 Fordham L Rev. 1587,
1609 (1997) [hereinafter Rakove, Fidelity Through History].
2. Id at 1608.
3. Id. Professor Rakove develops this point more fully in his remarkable book,
Original Meanings: Politics and Ideas in the Making of the Constitution (1996)
[hereinafter Rakove, Original Meanings].
4. Larry Kramer, Fidelityto History-And Through It, 65 Fordham L Rev. 1627,
6. Id. at 1651.
7. Id at 1655.
8. Id This view accords with that of David Currie, who goes so far as to
characterize the First Congress as "practically a second constitutional convention." David P.
Currie, The Constitutionin Congress: The Second Congress, 1791-1793, 90 Nw. U. L
Rev. 606, 606 (1996); see also David P. Currie, The Constitutionin Congress:
Chris Eisgruber suggests a more ambiguous role for history in
constitutional interpretation. He concludes "that fidelity to the
Constitution, if defensible at all, means fidelity to justice, and history matters
to constitutional interpretation only as the servant of justice." 9
"'Fidelity through history'... is a defensible conception of constitutional
interpretation," in his opinion, "only if history enlists in the service of
justice."'" He also believes, however, that "[h]istory serves a specific
and indispensable rhetorical role [in constitutional interpretation]: It
reconciles the American faith in popular sovereignty with the
justiceseeking Constitution."" Although Professor Eisgruber argues that
judges should enlist history to persuade their audiences that their
decisions are correct and that their decisions serve the ends of justice, he
also insists "that constitutional interpreters be faithful to history if
they make historical arguments at all."'"
Many of the choices the Founders made when they put the
Constitution into practice support Professors Rakove's and Kramer's
interpretations of the Founders' conception of the Constitution and the
manner in which it should be interpreted and applied. Constitutional
interpreters of the early American Republic also used history as
Professor Eisgruber recommends. Certainly one finds hotly contested
and conflicting interpretationsof the Constitution and of the scope of
the federal government's powers. But many of the Founders' actions
evince a conception of the Constitution as an evolving framework to
be shaped by political experience which would expand and adapt the
federal government's powers to meet changing and unanticipated
events. Although the Founders conceived of the Constitution as a
limitation on governmental powers, many of the choices they made
reveal a conception of the Constitution as a power-enhancing
document more than a power-limiting set of constraints. I would like to
discuss three of these choices and their judicial enforcement:
Congress's initial exercise of its contempt power in 1818; Congress's
charter of the Bank of the United States in 1793; and Congress's
enactment of the Fugitive Slave Acts of 1793 and 1850. Finally, this
Response will argue that Reconstruction Congresses transformed the
constitutional theories and guarantees of the Fugitive Slave Clause
and the Fugitive Slave Acts into constitutional theories and
guarantees of the fundamental rights of all Americans.
tive Issues in the First Congress, 1789-1791, 61 U. Chi. L. Rev. 775, 776-78 (1994)
[hereinafter Currie, SubstantiveIssues] (discussing the significant contributions of the
9. Christopher L. Eisgruber, The Living Hand of the Past: History and
Constitutional Justice, 65 Fordham L. Rev. 1611, 1626 (1997) (footnote omitted).
10. Id. at 1612.
11. Id. at 1622.
12. Id. at 1625.
CONGRESS's EXERCISE OF ITS CONTEMPT POWER
I include the contempt power because it was challenged on the
grounds that Congress had usurped judicial powers, in violation of the
principle of the separation of powers, and that it violated the
contemnor's Fifth Amendment right to due process of law.13 In 1818
Congress found a private citizen to be in contempt of Congress for
attempting to bribe a Congressman. The contemnor appealed,
insisting that the powers to subpoena, to arrest, to detain, to try, and to
punish private citizens were judicial in nature. 4 He argued also that,
inimposing criminal sanctions, Congress violated his procedural
guarantees under the Fifth Amendment of the Bill of Rights.15
Distinguishing the "unlimited powers" of state legislatures, which included
the contempt power, from the enumerated powers of Congress, which
it derived "in derogation of the rights of sovereign states," the
contemnor insisted that Congress's powers must be strictly limited to
those expressly delegated and others that "may be 'necessary' to
effectuate the express powers."' 16
In an opinion written by Justice William Johnson, who had been
appointed by Thomas Jefferson "to put [on the Court] a Justice of
13. Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 232-33 (1821).
14. See id.at 214; see also U.S. Const. art. III, § 2, cl. 3. Article III, Section 2,
Clause 3 provides:
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury;
and such Trial shall be held in the State where the said Crimes shall have
been committed; but when not committed within any State, the Trial shall be
at such Place or Places as the Congress may by Law have directed.
15. See Anderson, 19 U.S. (6 Wheat.) at 218; see also U.S. Const. amend. V. The
Fifth Amendment states, in relevant part: "No person shall be held to answer for a
capital, or otherwise infamous crime, unless on a presentment or indictment of a
Grand Jury... nor be deprived of life, liberty, or property, without due process of law
.. ." Id.
16. Anderson, 19 U.S. (6 Wheat.) at 213, 215. Nor could this power be implied
from the Necessary and Proper Clause, U.S. Const. art. L § 8, cl. 18, the contemnor
insisted, for the power to punish attempted bribery was not necessary to enable
Congress to perform its legislative duties. Only if such punishment were not otherwise
available would it be necessary for Congress to exercise this power. He noted,
however, that such offenses were punishable in the courts of the states and the District of
Columbia. Moreover, Congress could remedy any perceived inadequacy in judicial
redress of an attempted bribe of one of its members. The only constitutional
provision which might have authorized Congress's actions, he argued, was Article I,
Section 5. But this provision merely authorizes Congress to "determine the Rules of its
Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence
of two thirds, expel a Member." U.S. Const. art. I, § 5, cl. 2. The contemnor
vehemently insisted that Congress's authority to order the arrest and to compel the
appearance of private citizens and punish their wrongdoing "cannot be construed to
operate beyond the walls of the house, except on its own members, and its officers."
Anderson, 19 U.S. (6 Wheat.) at 213-14. By its very terms the Constitution limits this
authority "solely to the internal polity and economy of the house." Id. at 214.
Consequently, he argued, Congress acted without constitutional authority. Id.at 213-14.
unquestionable Republican sympathies,"' 7 the Supreme Court upheld
Congress's contempt powers even though it acknowledged that the
Constitution clearly did not expressly give "to either house [the
power] to punish for contempts, except when committed by their own
members."'" The Court concluded that, if such a power existed, it
"must be derived from implication," notwithstanding that "the genius
and spirit of our institutions are hostile to the exercise of implied
powers.""9 The reason, quite simply, is that it was impossible to frame "a
system of government which would have left nothing to
Justice Johnson then described the Constitution as an experimental,
power-enhancing, and dynamically-evolving framework shaped by
political experience. He characterized the "science of government" as
"the most abstruse of all sciences," having "but few fixed
principles."" Government "practically consists in little more than the
exercise of a sound discretion, applied to the exigencies of the state as they
arise."" Presaging Oliver Wendell Holmes, Johnson declared that
government "is the science of experiment." The most important
maxim of government, "which necessarily rides over all others,.., is,
that the public functionaries must be left at liberty to exercise the
powers which the people have intrusted to them."'24
The Court upheld Congress's contempt power on a theory that the
Constitution necessarily delegates to Congress those powers that are
inherent in the sovereign nature of the national government and
implied from the purposes, ends, and objectives for which it was
established, broadly conceived. I will refer to these powers as "implied
inherentpowers." Justice Johnson explained that Congress's contempt
powers were inherently derived from its paramount duty to secure
"the safety of the people [which] is the supreme law,"' 25 and its implied
inherent power of self-defense against "rudeness" and "insult."26 In
addition, the Court adopted a theory that Congress also has certain
powers that flow from those specifically enumerated in Article I and
in other constitutional provisions that expressly delegate legislative
power to Congress. I will refer to these powers as "implied
enumerated powers." The Court interpreted the Constitution's express
delegation of the power to punish counterfeiting and treason as
encompassing an implicit delegation of power to punish other kinds of
offenses.2 7 The contemnor had argued that the explicit delegation of
congressional power to punish and expel its own members barred
Congress from punishing private citizens. 8 Justice Johnson
responded: "This argument proves too much; for its direct application
would lead to the annihilation of almost every power of congress. "29
He further explained:
To enforce its laws upon any subject, without the sanction of
punishment, is obviously impossible. Yet there is an express grant of
power to punish in one class of cases, and one only, and all the
punishing power exercised by congress in any cases, except those which
relate to piracy and offences against the laws of nations, is derived
from implication. Nor did the idea ever occur to any one, that the
peuxnpirsehssinggrapnotwienr oinneancylasosthoefr.c30ases repelled the assumption of the
The Court thus affirmed Congress's contempt power on a theory of
constitutional interpretation predicated on the assumption that the
Constitution was a power-enhancing document and that Congress was
a sovereign legislative body with the powers inherent in such
assemblies, "derived from implication," such as the power to punish
violations of its laws, limited only by the ends and purposes for which it
was established. In addition, the Court rejected the contemnor's
narrow textual interpretation that would have limited Congress's penal
powers to those expressly delegated and instead implied general penal
powers from those specifically delegated by the Constitution.
The Bank of the United States presents a fuller example of
constitution making through political practice, because its creation involved
the political and constitutional decisions of all three branches of the
government. Moreover, the executive and congressional participants
in the initial decision to charter the Bank included many of the
draft27. Id at 233.
28. Idat 213-14. Justice Johnson noted:
But it is argued, that the inference, if any, arising under the constitution, is
against the exercise of the powers here asserted by the house of
representatives; that the express grant of power to punish their members, respectively,
and to expel them, by the application of a familiar maxim, raises an
implication against the power to punish any other than their own members.
Id at 232-33.
29. IL at 233.
ers of the Constitution and those who played leading roles in its
ratification. The question of Congress's power to charter corporations was
thoroughly discussed in President George Washington's first
administration by Secretary of the Treasury Alexander Hamilton,3 Secretary
of State Thomas Jefferson, 32 and Attorney General Edmund
Randolph. President Washington even solicited the views of Congressman
James Madison before he signed the bill into law. 33 The
constitutionality of the Bank was discussed in Congress as well, with Madison
leading the opposition, insisting that in 1787 the Framers rejected a
proposal that would have delegated to Congress the power to charter
corporations. The Framers' intent was not a significant factor in
Congress's decision to enact the Bank bill or in the President's decision to
sign it into law in 1793.2
The United States Supreme Court upheld the constitutionality of
Congress's power to charter the Bank against a challenge brought by
the state of Maryland in 1819.35 The lawyers who argued the case
included the most eminent constitutional lawyers of the day,36 and
they argued the case on conflicting conceptions of the Constitution
and of the ways in which the Constitution and Congress's powers
under it should be understood and interpreted. Their arguments
elaborated many of those made in President Washington's administration
and in Congress. In one of Chief Justice John Marshall's most famous
opinions, the Court adopted a conception of the Constitution as a
dy31. Alexander Hamilton, Opinion on the Constitutionality of an Act to Establish
a Bank, in 8 The Papers of Alexander Hamilton 63, 97 (Harold C. Syrett et al. eds.,
namically-evolving, power-enhancing document 37 whose scope and
meaning were defined through political practice. 38 Chief Justice
Marshall attributed this conception to the Founders, to President
Washington and his cabinet, and to the early Congresses. 39 Justice Felix
Frankfurter cited Marshall's opinion in 1952 as authority for his "gloss
on the Constitution" theory of interpreting implied executive
powers. 4' The Chief Justice asserted that the Constitution could not
"con37. Chief Justice Marshall had earlier asserted that the provisions of the
intended to endure for ages to come, and, consequently, to be adapted to the
various crisesof 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.
Id. at 415-16.
38. Referring to the question of whether Congress possessed the power to
incorporate a bank, Marshall began:
It has been truly said, that [the Bank's constitutionality] can scarcely be
considered as an open question, entirely unprejudiced by the former
proceedings of the nation respecting it. The principle now contested was introduced
at a very early period of our history, has been recognised by many successive
legislatures, and has been acted upon by the judicial department, in cases of
peculiar delicacy, as a law of undoubted obligation.
Id. at 401. He conceded that "a bold and daring usurpation might be resisted, after an
acquiescence still longer and more complete than this." lI
But it is conceived that a doubtful question, . . . in the decision of which the
great principles of liberty are not concerned, but the respective powers of
those who are equally the representatives of the people, are to be adjusted; if
not put atrest by the practiceof the government, ought to receive a
considerable impressionfrom that practice. An exposition of the constitution,
deliberately established by legislative acts, on the faith of which an immense
property has been advanced, ought not to be lightly disregarded.
Id. (emphasis added).
39. Marshall attributed particular importance to the fact that this power "was
exercised by the first Congress elected under the present constitution," that -[i]ts
principle was completely understood, and was opposed with equal zeal and ability," both in
Congress "and afterwards in the executive cabinet," and, having "convinced minds as
pure and as intelligent as this country can boast, it became a law." Id. at 401-02. He
noted that after the original law was allowed to expire, "a short experience of the
embarrassments to which the refusal to revive it exposed the government ... induced
the passage of the present law." 1I at 402. Marshall concluded that "[i]t would
require no ordinary share of intrepidity to assert that a measure adopted under these
circumstances was a bold and plain usurpation, to which the constitution gave no
40. This theory of constitutional interpretation through political practice became a
recurring theme in constitutional litigation and practice. See eg., infra text
accompanying notes 76-78 (discussing this theory's application in fugitive slave cases). Justice
Felix Frankfurter's "gloss on the Constitution" theory of constitutional interpretation
is an extension of Marshall's approach to interpreting the constitution as expressed in
tain an accurate detail of all the subdivisions of which its great powers
will admit," for this "would partake of the prolixity of a legal code."'
Rather, the Constitution required "only [that] its great outlines should
be marked, its important objects designated, and the minor
ingredients which compose those objects be deduced from the nature of the
objects themselves."42 The Court thus conceived of the Constitution
as a power-enhancing framework of government whose substance
would evolve over time through the workings of the political system.
In addition to the powers enumerated in the Constitution, Chief
Justice Marshall declared that the national government possessed the
implied or inherent powers of sovereign governments, limited in their
scope to the purposes, ends, and objects for which the government
was established and from which these implied or inherent powers
were derived. Consequently, Congress possessed the sovereign power
to charter corporations to perform the duties and accomplish the
McCulloch. Like Marshall, Justice Frankfurter argued that history and political
practice were essential factors in interpreting the Constitution. Justice Frankfurter, citing
McCulloch as authority for "a spacious view" of the Constitution, opined:
The Constitution is a framework for government. Therefore the way the
framework has consistently operated fairly establishes that it has operated
according to its true nature. Deeply embedded traditional ways of
conducting government cannot supplant the Constitution or legislation, but they
give meaning to the words of a text or supply them. It is an inadmissibly
narrow conception of American constitutional law to confine it to the words
of the Constitution and to disregard the gloss which life has written upon
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J.,
concurring). Justice Robert Jackson derived his tripartite approach to examining the
constitutionality of executive powers based on the history of political practice from
the same theory of constitutional interpretation:
The actual art of governing under our Constitution does not and cannot
conform to judicial definitions of the power of any of its branches based on
isolated clauses or even single Articles torn from context. While the
Constitution diffuses power the better to secure liberty, it also contemplates that
practice will integrate the dispersed powers into a workable government.
Id. at 635 (Jackson, J., concurring). Justice Jackson offered this approach to
constitutional interpretation as a more realistic alternative to originalism and textualism,
which he regarded as futile methods of defining the scope of governmental powers.
Although he was addressing the issue of presidential powers, his comments are
applicable generally to constitutional interpretation:
Just what our forefathers did envision, or would have envisioned had they
foreseen modern conditions, must be divined from materials almost as
enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A
century and a half of partisan debate and scholarly speculation yields no net
result but only supplies more or less apt quotations from respected sources
on each side of any question. They largely cancel each other. And court
decisions are indecisive because of the judicial practice of dealing with the
largest questions in the most narrow way.
Id. at 634-35 (Jackson, J., concurring) (footnote omitted).
41. McCulloch, 17 U.S. (4 Wheat.) at 407.
objectives the Constitution conferred upon it. 3 But, the Constitution
did not leave Congress's implied powers "to general reasoning,"
Marshall declared.' He quoted the Necessary and Proper Clause and
interpreted it as an express delegation of implied powers to execute the
powers enumerated in Article I, in addition to "all other powers
vested by this constitution, in the government of the United States, or
in any department thereof."45
43. Id at 410-11. Marshall noted that Maryland's argument against the Bank's
constitutionality was based "[o]n this alone: The power of creating a corporation, is
one appertaining to sovereignty, and is not expressly conferred on Congress." Id. at
409. Conceding that this was true,Marshall dismissed the argument with the
observation that "all legislative powers appertain to sovereignty." Id. He then affirmed the
Bank's theory of dual sovereignty and theory of implied powers derived from the
objects entrusted by the Constitution to the government of the United States: "[T]he
powers of sovereignty are divided between the government of the Union, and those of
the States. They are each sovereign, with respect to the objects committed to it. and
neither sovereign with respect to the objects committed to the other." Id. at 410.
Thus, Congress possessed the sovereign power of incorporation as a power inherent in
its sovereignty which it could use to carry into effect the great objects and vast powers
the Constitution conferred on it. Justice Story made a similar argument in Prigg v.
Pennsylvania, 41 U.S. (16 Pet.) 539 (1842), with respect to Congress's power to
enforce the property rights of slaveholders. See infra notes 76-83 and accompanying text.
44. McCulloch, 17 U.S. (4 Wheat.) at 411.
45. Id.at 412 (quoting U.S. Const. art. I, § 8,cl. 18). Chief Justice Marshall
asserted that the terms of the Necessary and Proper Clause "purport to enlarge, not to
diminish the powers vested in the government. It purports to be an additional power,
not a restriction on those already granted." McCulloch, 17 U.S. (4 Wheat.) at 420.
Marshall's explanation of the Necessary and Proper Clause appears to have been
taken from James Madison, who explained in The FederalistNo. 44 why the powers
conferred on the United States government were not limited to those expressly
delegated in the Constitution, as Article II provided in the Articles of Confederation. Id.
at 415. Madison explained:
Had the [constitutional] convention attempted a positive enumeration of
the powers necessary and proper for carrying their other powers into effect,
the attempt would have involved a complete digest of laws on every subject
to which the Constitution relates; accommodated too not only to the existing
state of things, but to all the possible changes which futurity may produce;
for in every new application of a general power, the particularpowers, which
are the means of attaining the object of the general power, must always
necessarily vary with that object, and be often properly varied whilst the object
remains the same.
The Federalist No. 44, at 284-85 (James Madison) (Clinton Rossiter ed., 1961). This is
not to suggest that Madison favored the broad interpretation the Court affirmed in
McCulloch. His theory of republican government coupled with his fear of legislative
tyranny led him to oppose a broad construction of the Necessary and Proper Clause
after the Constitution was ratified. See Rakove, Original Meanings, supra note 3, at
355. Nevertheless, Marshall certainly intended a broad interpretation:
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
Marshall's interpretation of the Necessary and Proper Clause is
generally understood as an explanation of implied enumerated
powers.4 6 This is only part of Marshall's analysis, however. He also
interprets the Necessary and Proper Clause as a delegation of implied
inherent powers. The example he used to explain the scope of the
Necessary and Proper Clause was not an enumerated power, but a
power implied from the sovereign nature of the national government:
Congress's penal powers.47 Indeed, Marshall asserted that a general
penal power attributed to Congress "might be denied with the more
plausibility, because it is expressly given in some cases,"48 whereas the
power to charter a bank might be more easily justified because it is a
power about which the Constitution is silent.49 He asserted that "the
whole penal code of the United States" is implied from its sovereign
powers, except where it is expressly given.50 Thus, like Congress's
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.
McCulloch, 17 U.S. (4 Wheat.) at 415-16. It is here that Marshall admonished: "[W]e
must never forget, that it is a constitution we are expounding." Id. at 407.
46. Professor Levinson, in his "nit" with me, insists that McCulloch is an Article I
case. See Remarks, Fidelity Through History: Colloquy, 65 Fordham L. Rev. 1693,
1697 (1997); see also Paul Brest & Sanford Levinson, Processes of Constitutional
Decisionmaking: Cases and Materials 34-35 (3d ed. 1992) ("Marshall does not place
principal reliance on the [Necessary and Proper] clause as a ground of decision; ...
before he reaches it he has already decided, on the basis of far more general
implications, that Congress possesses the power, not expressly named, of establishing a bank
and chartering corporations ...".); Geoffrey R. Stone et al., Constitutional Law 66-67
(2d ed. 1991) (musing that, while the McCulloch decision does not necessarily
recognize implied inherent powers, perhaps it does reflect Marshall's view "that [an
enumerated] power naturally includes the appropriate means for achieving the intended
end"); see also supra pp. 1666-67 (defining "implied enumerated powers" and
"implied inherent powers").
47. Marshall opined, "[W]ith respect to the whole penal code of the United States:
whence arises the power to punish in cases not prescribed by the constitution? All
admit that the government may, legitimately, punish any violation of its laws; and yet,
this is not among the enumerated powers of Congress." McCulloch, 17 U.S. (4
Wheat.) at 416.
48. Id.Marshall referred to the express delegation of the powers "'to provide for
the punishment of counterfeiting the securities and current coin of the United States,'
and 'to define and punish piracies and felonies committed on the high seas, and
offenses against the law of nations."' Id. at 416-17 (quoting U.S. Const. art. I, § 8, cls. 6,
49. Id. at 416. Recall that the contemnor in Anderson v. Dunn made this precise
argument two years later in challenging Congress's inherent power to find private
individuals guilty of criminal contempt. See supra text accompanying notes 16, 28-30.
Marshall's comment likely inspired the contemnor's attorney to make this argument.
50. McCulloch, 17 U.S. (4 Wheat.) at 416. Marshall continued:
The good sense of the public has pronounced, without hesitation, that the
power of punishment appertains to sovereignty, and may be exercised
whenever the sovereign has a right to act, as incidental to his constitutional
powers. It is a means for carrying into execution all sovereign powers, and may
be used, although not indispensably necessary. It is a right incidental to the
power, and conducive to its beneficial exercise.
Id. at 418; accord Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 233 (1821).
contempt powers, the Court recognized Congress's power to charter
corporations as an implied inherent power, to accomplish the
"objects," "purposes," and "ends" for which the national government was
established, as well as an implied enumerated power.
FUGrrIvE SLAVE CLAUSE AND THE FUGIIVE SLAVE
Acrs OF 1793 AND 1850
My third example relates to the Fugitive Slave Clause of Article IV,
Section 21l and the Fugitive Slave Acts of 17935
and 1850.53 The
legislative history of the 1793 statute, like that establishing the Bank of
the United States, involved many of the Framers and Ratifiers of the
Constitution, including the governors of Pennsylvania and Virginia. It
was discussed in President Washington's cabinet as well as in
Congress, and it was enacted at the request of Washington's
administration. Congress enacted the Fugitive Slave Act in 1793, and President
Washington immediately signed it into law without any .question of
Congress's legislative power.5 It is noteworthy that the Fugitive
Slave Clause is in Article IV, Section 2 and, like the Privileges and
Immunities Clause which precedes it, does not delegate enforcement
power to Congress. In contrast, Sections 1 and 3 of Article IV
expressly delegate enforcement power to Congress.5 - Nevertheless, no
one challenged Congress's power to enforce these clauses.
The Fugitive Slave Act of 1793 is extraordinary, for it is an act of
Congress in which Congress exercised plenary power to enforce a
constitutional right, however reprehensible this right might be to us
today. In adopting the Fugitive Slave Clause, therefore, the Founders
expanded an ancient common law right of property to include
property in slaves56 and elevated it into a new constitutional right that
auUnited States; and nothing in this Constitution shall be so construed as to
Prejudice any Claims of the United States, or of any particular State.
I& at art. IV, § 3, cls. 1, 2 (emphasis added). Moreover, Article IV, Section 4
stipulates affirmative duties directing the government of the United States to guarantee to
each state a republican form of government and to protect them from invasion and
from foreign violence: "The UnitedStates shall guaranteeto every State in this Union
a Republican Form of Government, and shall protect each of them against Invasion;
and on Application of the Legislature, or of the Executive (when the Legislature
cannot be convened) against domestic Violence." Id. at art. IV, § 4 (emphasis added).
56. The common law recognized the right of the owner of chattels that strayed or
were taken away to recapture them through self-help, provided it could be done
without a breach of the peace. 3 William Blackstone, Commentaries on the Laws of
England *4 [hereinafter Blackstone, Commentaries]. In the eighteenth century, this
proprietary right also authorized masters to recapture fugitive servants, fathers to
recapture runaway children, and husbands to recapture absconding wives. Id. This right
encompassed an extrajudicial remedy, as Sir William Blackstone explained in his
This happens when any one hath deprived another of his property in goods
or chattels personal, or wrongfully detains one's wife, child, or servant: in
which case the owner of the goods, and the husband, parent, or master, may
lawfully claim and retake them wherever he happens to find them, so it be
not in a riotous manner, or attended with a breach of the peace .... If
therefore he can so contrive it as to gain possession of his property again
without force or terror, the law favors and will justify his proceeding. But as
the public peace is a superior consideration to any one man's private
property; ... it is provided that this naturalright of recaption shall never be
exerted where such exertion must occasion strife and bodily contention, or
endanger the peace of society.
Id. at *4-5 (emphasis added).
The common law, however, did not recognize a slave owner's right to recapture a
fugitive slave. The apparent reason is that the property right to slaves was unlike the
right to other kinds of property. It did not exist by natural law, by customary law, or
by common law. This was Lord Mansfield's holding in Somerset v. Stewart, 98 Eng.
Rep. (1 Lofft) 499, 510 (K.B. 1772). Jurisdictions in the United States affirmed this
principle as authoritative precedent. See, e.g., Commonwealth v. Ayes, 35 Mass. (18
Pick.) 193, 196-201 (1836) (citing Somerset as "high authority"). Slavery existed only
by positive law. The slave owners' property right in their slaves, including the right of
recapture, was thus created by and existed only under state statutory law. Under the
Articles of Confederation, then, the recapture of fugitive slaves who escaped from the
state in which they owed labor or service to another state was a matter of comity
among the states. William M. Wiecek, The Sources of Antislavery Constitutionalism
in America, 1760-1848, at 78 (1977). The state to which a slave fled was free to
emancipate her or to return her, as it saw fit. Jones v. Vanzandt, 13 F. Cas. 1040, 1042
(C.C.D. Ohio 1843) (No. 7,501); Jones v. Van Zandt, 46 U.S. (5 How.) 215, 229 (1847);
see also Thomas D. Morris, Free Men All: The Personal Liberty Laws of the North,
1780-1861, at 15-16 (1974) (discussing states' sovereignty in handling the recovery of
As Northern states abolished slavery while Southern states retained it, two
conflicting legal systems emerged in the United States. This troubled slaveholders. The legal
effect of any state's law did not go beyond its territorial jurisdiction. A state that did
thorized slaveholders to pursue and recover their slave property even
when their slaves escaped to a state that did not recognize slavery.5
The significance of the Fugitive Slave Clause is that it conferred on
slave owners a new constitutional property right enforceable under
the authority of the national government, independent of the states,
and it prohibited the states from interfering with this right.5 8
In 1793, Congress exercised plenary power in enacting the Fugitive
Slave Act to enforce this constitutional right. In addition to
prescribnot recognize slavery was under no obligation to give effect to the master's right in his
slave, should either or both come within the state's jurisdiction. Nor were
nonslaveholding states under any legal obligation to return runaway slaves to their
owners in another state.
57. See, e.g., Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 613-15 (1842)
(recognizing a constitutional right to recovery of slave property); Glen v. Hodges, 9 Johns. 67,
69-70 (N.Y. Sup. Ct. 1812) (granting plaintiff a new trial in action for trespass, stating
that when his slave escaped to Vermont, the Constitution "entitled [plaintiff] to
reclaim him in the state to which he fled," without interference by the defendant);
Wright v. Deacon, 5 Serg. & Rawle 62, 63 (Pa. 1819) (quashing a writ de homine
replegiandowhich would release a fugitive slave from prison, stating that issuance of
such a writ would violate the U.S. Constitution); Kauffman v. Oliver, 10 Pa. (10 Barr)
514, 517 (1849)
(holding that actions under the Fugitive Slave Act of 1793 may be
brought only in federal court, where it is not met with "local legislation, or municipal
; Sims's Case, 61 Mass. (7 Cush.) 285, 296-310 (1851)
(denying writ of
habeascorpusto fugitive slave who had escaped to Boston, concluding that "the
question [of the 1793 Act's constitutionality] ... is settled by a course of legal decisions
which we are bound to respect, and which we regard as binding and conclusive upon
; Driskill v. Parrish, 7 F. Cas. 1100, 1101 (C.C.D. Ohio 1845) (No. 4,089)
("Neither the laws of nations nor the common law authorise the master to recapture
his slave beyond the jurisdiction in which slavery is sanctioned. The constitution and
the act of congress give the remedy in this case."); Giltner v. Gorham, 10 F. Cas. 424,
425 (C.C.D. Mich. 1848) (No. 5,453) (stating that "the owner of a slave has a right to
reclaim him in a state where slavery does not exist" and recognizing that right as
constitutional); Ray v. Donnell, 20 F. Cas. 325, 326 (C.C.D. Ind. 1849) (No. 11,590)
(recognizing that "[a]n action against one or more persons, for harboring or secreting
fugitives from labor" is based on the Constitution of the United States); Oliver v.
Kauffman, 18 F. Cas. 657, 659, 661 (C.C.E.D. Pa. 1850) (No. 10,497) (charging jury
and stating that "the people of these United States," who have "united under a
common government, have bound themselves, by the great charter of their Union, to
deliver up slaves escaping from one state into another," even where such slaves have
escaped to a state whose citizens are "opposed to the institutions of slavery, and have
abolished it within their borders"); Charge to Grand Jury-Fugitive Slave Law, 30 F.
Cas. 1015, 1016 (D.C.D. Mass. 1851) (No. 18,263) (finding a conspiracy to prevent the
execution of the fugitive slave law to be a treasonable conspiracy); Miller v.
McQuerry, 17 F. Cas. 335, 339 (C.C.D. Ohio 1853) (No. 9,583) ("The citizen of a slave
state has a right, under the constitution and laws of the Union, to have the fugitive
slave 'delivered up on claim being made,' and no state can defeat or obstruct this
58. During the ratification of the Constitution, James Madison acknowledged this
when he explained that the Fugitive Slave Clause "secures us that property which we
now possess. At present, if any slave elopes to any of those states where slaves are
free, he becomes emancipated by their laws." 3 Jonathan Elliott, The Debates in the
Several State Conventions on the Adoption of the Federal Constitution 453 (2d ed.
1836-45), quoted in Morris, supranote 56, at 19. The Fugitive Slave Clause, he
concluded, "was expressly inserted, to enable owners of slaves to reclaim them." ld.,
quoted in Morris,supra note 56, at 19.
ing a summary process for the rendition of fugitive slaves,59 this
statute is extraordinary for the two civil remedies it conferred on
slaveholders against anyone who knowingly interfered with the
owners' recapture of a fugitive slave or assisted in her escape. The first
was a civil "penalty" of five hundred dollars recoverable by the owner
in an action of debt.60 Even more remarkable was the second remedy:
a tort action for damages.61 Thus, this federal statute, enacted by
many of the United States Constitution's Framers and Ratifiers, in
consultation with President Washington and Attorney General
Randolph, just four years after the ratification of the Constitution,
provided civil process to enable private parties to enforce their
constitutionally secured property right through private causes of
action! This presents important evidence not only of the Founders'
conception of constitutional rights, but of their understanding of the
scope of congressional powers to enforce them. Moreover, the 1793
statute is a significant example of constitution making by the
executive and legislative branches of the government, for it constituted the
exercise of a federal police power that overrode the police powers of
Slave owners and their agents brought many lawsuits under the
Fugitive Slave Act in federal and state courts, and they succeeded in
recovering the civil fine and tort damages more often than they failed. 62
59. Act of Feb. 12, 1793, ch. 7, § 3, 1 Stat. 302, 302-05.
60. Id § 4, 1 Stat. at 305; see also Steams v. United States, 22 F. Cas. 1188, 1192
(C.C.n.p. n.d.) (No. 13,341) (holding that private actions for penalties are civil
61. Act of Feb. 12, 1793, ch. 7, § 4, 1 Stat. at 305.
62. Compare Glen v. Hodges, 9 Johns. 67, 70 (N.Y. Sup. Ct. 1812)
action for trespass vi et armis by slave owner under Fugitive Slave Act of 1793 and
ordering new trial)
; Jones v. Vanzandt, 13 F. Cas. 1040, 1046 (C.C.D. Ohio 1843) (No.
7,501) (returning verdict for plaintiff of $1,200), aftd, 13 F. Cas. 1054 (C.C.D. Ohio
1849) (No. 7,503); Giltner v. Gorham, 10 F. Cas. 424, 427, 433 (C.C.D. Mich. 1848)
(No. 5,453) (returning verdict for plaintiff and awarding judgment for $2,752); Ray v.
Donnell, 20 F. Cas. 325, 329 (C.C.D. Ind. 1849) (No. 11,590) (returning verdict for
plaintiff and awarding judgment for $1,500); Driskill v. Parrish, 7 F. Cas. 1100, 1104
(C.C.D. Ohio 1845) (No. 4,089) (jury could not agree), retried,7 F. Cas. 1095, 1100
(C.C.D. Ohio 1849) (No. 4,088) (returning verdict for plaintiff and awarding judgment
for $500, the proved value of the slaves in question); Dreskill v. Parish, 7 F. Cas. 1068,
1068-69 (C.C.D. Ohio 1851) (No. 4,075) (awarding plaintiff per diem costs and travel
expenses for witnesses who were summoned); Dreskill v. Parish, 7 F. Cas. 1069, 1069
(C.C.D. Ohio 1851) (No. 4,076) (same); Oliver v. Kauffman, 18 F. Cas. 657, 664
(C.C.E.D. Pa. 1850) (No. 10,497) (considering action on the case for harboring and
concealing fugitive slaves; jury disagreed), retried,Oliver v. Weakley, 18 F. Cas. 678,
679 (3d Cir. 1853) (No. 10,502) (returning verdict for plaintiff and awarding judgment
for $2,800); and Daggs v. Frazer, 6 F. Cas. 1112, 1113-14 (D.C.D. Iowa 1849) (No.
3,538) (holding that action in trover will not lie in Iowa to recover the value of slaves,
but permitting plaintiff to amend his declaration and continue the cause at his own
expense) with Worthington v. Preston, 30 F. Cas. 645, 646-47 (C.C.E.D Pa. 1824) (No.
18,055) (charging jury that jailor could not be held liable for fugitive slave's escape if
he was not negligent) and Kauffman v. Oliver, 10 Pa. (10 Barr) 514, 518-19 (1849)
(holding that an action at common law does not lie for harboring runaway slaves or
Moreover, antebellum judges enforced the Fugitive Slave Clause and
the Fugitive Slave Act of 1793, notwithstanding their personal
abhorrence of slavery.63 Federal and state appellate judges generally
asserted that the constitutional recognition of the slaveholder's right of
recapture inherently delegated legislative power to Congress to
enforce the right. When they did not assert it, they simply assumed that
the Fugitive Slave Clause secured the slaveholder's property right,
and that this recognition inherently delegated to Congress the power
to enforce the right. Through the first half of the nineteenth century,
every court that decided the question of the 1793 Fugitive Slave Act's
constitutionality upheld it.' State and federal judges were
consistfor aiding in their escape, and that state courts do not have jurisdiction under the 1793
Act to try such cases)
63. See, e.g., Commonwealth v. Griffith, 19 Mass. (2 Pick.) 11, 19 (1823)
(considering the constitutionality of the Fugitive Slave Act of 1793, stating that "[ilt is difficult
... for persons who are not inhabitants of slaveholding States, to prevent prejudice
from having too strong an effect on their minds," but nevertheless concluding, "We do
not perceive that the statute is unconsitutional")
; Wright v. Deacon, 5 Serg. & Rawle
62, 63 (Pa. 1819) (holding that the Constitution supports the right of a master to
control his slave); Johnson v. Tompkins, 13 F. Cas. 840, 843 (C.C.E.D. Pa. 1833) (No.
7,416) (charging jury, stating that "[i]t is not permitted to you or to us to indulge our
feelings of abstract right on these subjects; the law of the land recognises the right of
one man to hold another in bondage, and that right must be protected"); Charge to
Grand Jury-Fugitive Slave Law, 30 F. Cas. 1015, 1016 (D.C.D. Mass. 1851) (No.
18,263) (stating that the conclusion that fugitive slave laws are to be disobeyed does
not follow from the prevailing moral conviction against the institution of slavery).
64. Justice McLean asserted in 1853:
The act of 1793 has been in operation about sixty years. During that whole
time it has been executed as occasion required, and it is not known that any
court, judge, or other officer has held the act, in [a summary process to
determine the right to remove an alleged fugitive slave], or in any other
Miller v. McQuerry, 17 F. Cas. 335, 340 (C.C.D. Ohio 1853) (No. 9,583). For a
contrary view, see Finkelman, Story Telling, supranote 54, at 269-73. Finkelman asserts
that two courts, one in New York and one in New Jersey, held that the Fugitive Slave
Act was unconstitutional on the ground that the Fugitive Slave Clause is not among
the enumerated powers of Congress and therefore did not delegate legislative power
to Congress to enforce it. Id. at 271-72. It appears that Finkelman misread the cases
on which he relies. In neither case did the legal issue involve the constitutionality of
the Fugitive Slave Act of 1793, nor did the courts decide the constitutionality of this
statute. The opinions on which Finkelman relies were the personal views of two
judges expressed in dicta. Both judges acknowledged that they were not deciding the
question of the 1793 Act's constitutionality. One judge is Chancellor Reuben H.
Walworth. He expressed his personal view that the Fugitive Slave Act of 1793 was
unconstitutional while acknowledging that the issue was not before his court. See Jack v.
Martin, 14 Wend. 507, 524-30 (N.Y. 1835). Indeed, he joined the decision of the New
York Court for the Correction of Errors, the predecessor of the New York Court of
Appeals, in affirming the New York Supreme Court's decision in Jack v. Martin, 12
Wend. 311 (N.Y. Sup. Ct. 1834), which upheld the constitutionality of the Fugitive
Slave Act of 1793 and a master's right to remove an alleged fugitive slave from New
York City to New Orleans. Id. at 325-27. The Court of Errors upheld the Supreme
Court's decision, but made the following qualification:
The judgment of the Supreme Court was affirmed, but it was affirmed solely
on the ground that the plaintiff having by his pleas admitted that he was the
ently deferential to Congress, not only in recognizing its power to
enforce the Fugitive Slave Clause, but in refusing to pass upon the
justice, fairness, and policy considerations of the legislation as well.6'
slave of the defendant and had escaped from her service; that, therefore, the
defendant was entitled to judgment; the court expressly declining to pass
upon the constitutionalityof the law of Congress and of the Statute of this
Jack v. Martin, 14 Wend. at 507 n.(a) (emphasis added).
The other judge Professor Finkelman referred to is Chief Justice Joseph G.
Hornblower of the New Jersey Supreme Court. The case in which the New Jersey Chief
Justice expressed his views involved a petition for habeas corpus on behalf of an
alleged fugitive slave who had been seized under a New Jersey fugitive slave statute.
The habeas claim alleged that the seizure and detention of the petitioner were not
done in compliance with the New Jersey statute and that he should therefore be
released. The legal process provided in the state statute was virtually identical to the
summary process provided for in the Fugitive Slave Act of 1793. Chief Justice
Hornblower asserted that both statutes were probably unconstitutional. He nonetheless
[I]t is not my intention to express any definitive opinion on the validity of
the act of Congress, nor is it necessary to do so in this case, as the proceeding
in question has not been in conformity with the provisions of that act, but in
pursuance of the law of this state.
State v. Sheriff of Burlington 5 (N.J. Super. Ct. 1836), reprintedin 1 Fugitive Slaves
and American Courts: The Pamphlet Literature 97, 101 (Paul Finkelman ed., Series
No. 2, 1988). Apparently Chief Justice Hornblower's opinion was not officially
reported. It was printed in a newspaper and appears to have been reprinted in a
pamphlet in 1851.
Robert Cover curiously, and in my opinion erroneously, asserted that, during the
first half-century following the enactment of the Fugitive Slave Act of 1793, "[sIome
case law had developed, largely unfavorable [to the fugitive slaves and the antislavery
cause], though not conclusive." Robert M. Cover, Justice Accused: Antislavery and
the Judicial Process 163 (1975). He referred to three cases that upheld the statute, In
re Susan, 23 F. Cas. 444 (C.C.D. Ind. 1818) (No. 13,632); Wright v. Deacon, 5 Serg. &
Rawle 62 (Pa. 1819); and Commonwealth v. Griffith, 19 Mass. (2 Pick.) 11 (1823).
Cover then made the following observation: "In 1834 and 1835 New York judges split
as to the proper scope of congressional power to implement rendition." Cover, supra,
at 163. This comment is puzzling because, as explained above, Chancellor Walworth's
views in Jack v. Martin were pure dicta. See supra. Professor Cover presented no
other evidence to show that the case law relating to fugitive slaves and the Fugitive
Slave Act of 1793 was inconclusive.
65. See, e.g., Glen v. Hodges, 9 Johns. 67, 69-70 (N.Y. Sup. Ct. 1812)
plaintiff's motion for a new trial in action for trespass and stating that the Fugitive
Slave Act of 1793 "prescribes the mode of reclaiming... [a fugitive] slave")
; Wright v.
Deacon, 5 Serg. & Rawle 62, 63-64 (Pa. 1819)
(holding that the Constitution and the
1793 Act specifically permit a master to recover his fugitive slave, "whatever our
private opinions on the subject of slavery")
; Commonwealth v. Griffith, 19 Mass. (2
Pick.) 11, 19 (1823)
(stating that the Constitution reflects a compromise between the
slaveholding and nonslaveholding states, and concluding that, despite those "whose
feelings [are] abhorrent to slavery," the 1793 Act, promulgated in accordance with the
constitution, is not unconstitutional)
; Jack v. Martin, 12 Wend. 311, 321 (N.Y. Sup. Ct.
1834) ("I am... satisfied.., that a fair interpretation of the terms [of the Fugitive
Slave Clause] ... not only prohibits the states from legislation upon the question
involving the owner's right to this species of labor, but that it is intended to give to
congress the power to provide the delivering up of the slave."), affd on othergrounds,
14 Wend. 507 (N.Y. 1835); In re Susan, 23 F. Cas. 444, 444-45 (C.C.D. Ind. 1818) (No.
13,632) (denying motion to dismiss a warrant for the arrest and removal of a fugitive
Affirming the decisions and theories of the lower federal and state
appellate courts, the United States Supreme Court upheld the
statute's constitutionality in an 1843 decision that again conceived of the
Constitution as a dynamically-evolving, power-enhancing framework
of government whose meaning would largely be defined by political
practice.66 Justice Joseph Story wrote the opinion for the Court.67 He
began his analysis with a theory of judicial review that defined the
judicial function as enforcing the legislative exercise of constitutional
power: The judge should look to the nature and object of particular
constitutional provisions and interpret them to "secure and attain the
ends proposed. "'' Judges should therefore interpret the Constitution
"in such a manner as, consistently with the words, shall fully and
completely effectuate the whole objects of it." 69 As a general rule of
interpretation, Story opined, "No court of justice can be authorized so to
construe any clause of the Constitution as to defeat its obvious ends,
when another construction, equally accordant with the words and
sense thereof, will enforce and protect them."70 The Court's
deference to the lawmaking decisions of the people's representatives was
the judicial norm, whether the decisions were made by a constituent
assembly or a legislative assembly.
Applying this approach to constitutional interpretation, Story
analyzed the Fugitive Slave Clause as containing two constitutional
guarslave, stating that "it is a privilege secured to the people of the states ... to seek
redress before the tribunals, in the mode designated by Congress"); Johnson v.
Tompkins, 13 F. Cas. 840, 851 (C.C.E.D. Pa. 1833) (No. 7,416)
(recognizing that the
Fugitive Slave Act of 1793 bestows "an unqualified right [on] the master to seize,
secure and remove his fugitive slave")
; In re Martin, 16 F. Cas. 881, 883-84
(C.C.S.D.N.Y. n.d.) (No. 9,154) ("[W]hatever our private opinions on the subject of
slavery may be, we are bound in good faith to carry into execution the constitutional
provisions in relation to it.;...We are, accordingly, of opinion that the act of
congress ... is a valid and constitutional law ... ."). The United States Supreme Court
upheld Congress's legislative authority to enforce the Fugitive Slave Clause in the
first constitutional challenge to the 1793 Act it decided. Prigg v. Pennsylvania, 41 U.S.
(16 Pet.) 539, 625-26 (1842). Justice Story acknowledged that state courts had
universally upheld the Fugitive Slave Act of 1793. Id at 621.
66. Prigg,41 U.S. (16 Pet.) at 618-19, 625-26.
67. As this discussion will demonstrate, I disagree with Professor Levinson's
assertions that the Court in Prigg affirmed the slaveholder's Article IV right with
"notorious embarrassments," and that "the Court... just punt[ed] on this and [said], 'We are
not going to explain exactly why it is constitutional but it just has to be the case.'"
Remarks, Fidelity Through History: Colloquy, supra note 46, at 1697. The Court
exhaustively examined the Fugitive Slave Clause, the rights it guaranteed, and the
powers it conferred on the national government and on individuals to enforce it, as well as
the limitations it imposed on the states' police powers. Moreover, Justice Story's
opinion had been preceded by many lower federal court and state appellate court
opinions with similar analyses of slaveholders' Article IV right.
68. Prigg,41 U.S. (16 Pet.) at 610-11.
69. Id. at 612.
antees. The first prohibited the states from freeing fugitive slaves.71
Significantly, Story interpreted this prohibition against state action as
an affirmative recognition of "a positive and unqualified" right.72
Thus, the Court unanimously held that the Fugitive Slave Clause
nationalized the slave owner's right to his slave, for it "puts the right to
the service or labour upon the same ground and to the same extent in
every other state as in the state from which the slave escaped, and in
which he was held to the service or labour. If this be so," Story
reasoned, "then all the incidents to that right attach also."' 7 3 Story
concluded that this common law property right had been elevated to a
federally enforceable constitutional right.7 4
The Fugitive Slave Clause contains a second provision which
required that the fugitive slave "shall be delivered up on Claim of the
Party to whom such Service or Labour may be due."75 Story
interpreted these two provisions as a constitutional guarantee of the slave
owners' property right which delegated to Congress plenary power to
enforce it. Story declared: "If, indeed, the Constitution guarantees
the right, and if it requires the delivery upon the claim of the owner,
(as cannot well be doubted,) the natural inference certainly is, that the
national government is clothed with the appropriate authority and
functions to enforce it." 76 Story reaffirmed McCulloch's principle of
constitutional delegation of power inherent in the sovereign nature of
the national government and implied from the purposes, ends, and
objectives for which it was established. In this case, Congress's
plenary power to enforce the slaveholders' property rights of recapture
was implied from the constitutional recognition of this right in the
Fugitive Slave Clause. Story stated: "The fundamental principle,
applicable to all cases of this sort, would seem to be, that where the end is
required, the means are given; and where the duty is enjoined, the
ability to perform it is contemplated to exist on the part of the
functionaries to whom it is entrusted."'
Story supported his interpretation of the Constitution by attributing
it to the Founders. But even "independent of [the Founders and] the
vast influence [that] ... a contemporaneous exposition of the
provisions [of the Constitution] by those, who were its immediate framers,
or intimately connected with its adoption" should have in
constitutional interpretation,78 Story, like Chief Justice Marshall, Justice
Johnson, and other federal and state appellate judges, assumed political
practice defined the Constitution. Indeed, Story cited Supreme Court
precedents in support of this method of constitutional interpretation."
He noted that Congress had acted on a "rule of interpretation" which
assumed the Constitution delegated "the right as well as the duty" on
Congress to legislate on the subject of fugitive slaves.80 He thus relied
on the political practice of the Framers of the 1793 statute, of state
and federal judges, and of other governmental officers who universally
accepted and acted upon the statute and considered it "a binding and
valid law."'" Finally, Story asserted a structural theory that attributed
to Congress plenary power to enforce constitutional rights and duties:
The Constitution required the national government "through its own
proper departments, legislative, judicial or executive, as the case may
require, to carry into effect all the rights and duties imposed upon it
by the Constitution."' Story quoted Madison's FederalistNo. 43 as
78. Il at 621.
79. Id (citing Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803); Martin v. Hunter's
Lessee, 14 U.S. (1 Wheat.) 304 (1816); and Cohens v. Virginia, 19 U.S. (6 Wheat.) 264
(1821)). Story declared: "Especially did this Court, in [these cases] rely upon
contemporaneous expositions of the Constitution, and long acquiescence in it, with great
confidence, in the discussion of questions of a highly interesting and important
80. Idt at 620.
81. Id at 621.
82. Id at 616. The full statement is as follows:
The clause is found in the national Constitution, and not in that of any state.
It does not point out any state functionaries, or any state action to carry its
provisions into effect. The states cannot, therefore, be compelled to enforce
them; and it might well be deemed an unconstitutional exercise of the power
of interpretation, to insist that the states are bound to provide means to
carry into effect the duties of the national government, nowhere delegated
or intrusted to them by the Constitution. On the contrary, the natural, if not
the necessary conclusion is, that the national government, in the absence of
all positive provisions to the contrary, is bound, through its own proper
deauthority for the proposition that a right recognized in the
Constitution implies a delegation of power to the national government to
secure and enforce it. 3 The power of the states to ignore the slave
owner's constitutional right of recapture was an additional reason for
the necessity, as well as the constitutionality, of congressional
legislation to enforce the right.' A majority of the Court held that Congress
could enforce such rights and duties only through federal agencies.8"
This ruling, and growing Northern resistance to the enforcement of
the 1793 Act, led to Southern demands for a more effective federal
statute. Congress complied by enacting the Fugitive Slave Act of
1850.86 The 1850 statute represented an even more remarkable
exercise of national authority to enforce constitutional rights than its
earlier counterpart. Congress established an enforcement mechanism
analogous to an administrative agency by authorizing the appointment
of United States commissioners to enforce its provisions.
Moreover, the 1850 statute imposed upon federal legal officers the
duty to enforce its provisions under penalty of heavy fines of $1,000
payable to the slave owner.88 Should the fugitive slave escape while in
the custody of federal officials, such officials were held liable for the
full value of the slave.8 9 The statute also imposed on private citizens
the duty to enforce the slaveholder's constitutional and statutory
partments, legislative, judicial, or executive, as the case may require, to carry
into effect all the rights and duties imposed upon it by the Constitution.
Id at 615-16.
83. "The remark of Mr. Madison, in the Federalist, (No. 43,) would seem in such
cases to apply with peculiar force. 'A right (says he) implies a remedy; and where else
would the remedy be deposited, than where it is deposited by the Constitution?'
meaning, as the context shows, in the government of the United States." Id. at 616.
84. See id. at 620-21.
85. Id.at 625-26. Three of Story's judicial brethren, while concurring in the
judgment, disagreed with the majority's statements that the jurisdiction Congress
conferred on state judges to enforce the 1793 statute was unconstitutional and that
Congress's power to enforce the Fugitive Slave Clause was exclusive and could be
exercised only through federal agencies. Id at 627 (Taney, C.J., concurring); id. at 635
(Thompson, J., concurring); id.at 650 (Daniel, J., concurring).
86. Act of Sept. 18, 1850, ch. 60, 9 Stat. 462.
87. It authorized federal judges to appoint commissioners with "the powers that
any justice of the peace, or other magistrate of any of the United States" had to
arrest, imprison, or bail offenders of any crime against the United States. Id. § 1, 9
Stat. at 462. Moreover, it granted concurrent jurisdiction among federal circuit,
district, and territorial court judges to grant certificates of removal to claimants of
fugitive slaves "upon satisfactory proof being made." Id. § 4, 9 Stat. at 462. A scholar
early in this century correctly analogized this federal enforcement structure to federal
administrative commissions, such as the Interstate Commerce Commission and
boards of immigrant inspectors. Allen Johnson, The Constitutionalityof the Fugitive
Slave Acts, 31 Yale LJ.161, 181-82 (1921); see also Morris, supranote 56, at 132 ("The
primary purpose of the bill was to increase the number of officials involved in
adjudicating claims under the federal law by spreading the responsibility to nonjudicial
officers, such as postmasters and collectors of customs.").
88. Act of Sept. 18, 1850, ch. 60, §§ 1, 5, 9 Stat. at 462.
89. Id.§ 5, 9 Stat. at 462.
ute whenever their aid was required?0
fights. It authorized commissioners to call a posse comitatus and
"commanded" "all good citizens" to assist in the execution of the
The 1850 statute combined the right of self-help recapture with
compulsory federal summary legal process. 91 By its terms, the statute
prohibited the alleged fugitive slave from entering evidence on her
behalf and provided that the certificate of removal was conclusive of
the right of the claimant or his agent to remove the fugitive to the
state from which she escaped. The 1850 statute expressly invoked the
Supremacy Clause92 and made the certificate an absolute bar to "any
process issued by any court, judge, magistrate, or other person
The Fugitive Slave Act of 1850 supplemented the civil penalty
provided for in the Fugitive Slave Act of 1793 by imposing criminal
penalties for knowingly and willingly violating the statute. On conviction,
the defendant was subject to a fine of up to $1,000 and imprisonment
for up to six months. 94 This provision doubled the amount of the civil
penalty recoverable under the 1793 Fugitive Slave Act. Violators
were also subject to "civil damages" in the amount of $1,000 for each
fugitive slave lost, payable to the owner in an action of debt.95 The
statutory "civil damages" of $1,000 in the 1850 Fugitive Slave Act
benefitted slaveholders because it was greater than the damages
awarded in tort actions under the 1793 Fugitive Slave Act.9 The
90. Id § 5, 9 Stat. at 463.
91. Id. § 6, 9 Stat. at 463. The statute authorized slave owners and their agents to
reclaim runaway slaves either by warrant issued by a federal judge or commissioner or
by seizing the fugitive without legal process and bringing her before a federal judge or
commissioner "whose duty it shall be to hear and determine the case of such claimant
in a summary manner, and on satisfactory proof being made," to issue a certificate
authorizing the claimant or his agent to remove the slave back to the state in which
she owed service with "such reasonable force and restraint as may be necessary." Id.
92. U.S. Const. art. VI, cL 2.
93. Act of Sept. 18, 1850, ch. 60, § 6, 9 Stat. at 464. The only concessions to state
powers that Congress included in the 1850 statute was a provision permitting
"satisfactory testimony, duly taken and certified by some court, magistrate, justice of the
peace, or other legal officer authorized to administer an oath and take depositions
under the laws of the State or Territory from which such person owing service or labor
may have escaped," accompanied by a certificate of the authority of the officer and
the seal of the proper state court or officer, to serve as conclusive evidence of the
identity and service owed by the alleged fugitive. Id. § 6, 9 Stat. at 463. The last
section of the statute described the state process permitted as conclusive evidence of
escape and the service owed to the claimant as "satisfactory proof" recorded in a
court transcript authenticated by the clerk and court seal. The claimant or his agent
could present this record to a federal officer in any state or territory in which the slave
had escaped, and, being conclusive evidence, the federal officer was obliged to issue
the certificate of removal. Id. § 10, 9 Stat. at 465.
94. Id. § 7, 9 Stat. at 464.
96. See, e.g., Jones v. Vanzandt, 13 F. Cas. 1040, 1045 (C.C.D. Ohio 1843) (No.
7,501) (fixing value of escaped slave at $600); Driskel v. Parish, 7 F. Cas. 1095, 1100
(C.C.D. Ohio 1849) (No. 4,088) (fixing value of two escaped slaves at $500); Giltner v.
courts interpreted these civil damages as a tort remedy that claimants
might seek as an alternative to the tort action provided in the 1793
Fugitive Slave Act.97
The fee structure provided in the 1850 Act also appeared to favor
slave owners. The fees of federal marshals, deputy marshals, and
court clerks in fugitive slave cases were set at $10 if a certificate of
removal was issued and only $5 if the certificate was denied. 98 The
federal officer who executed process, however, was entitled to a fee of
$5 and reimbursement for any other necessary costs incurred, such as
food and lodging, during the fugitive slave's detention, which were to
be paid by the claimant. 9 Should the return of fugitive slaves be met
with local resistance in a free state, Congress provided for the removal
of the fugitive by federal force at federal expense. 100
By the 1850s, Northern resistance to federal enforcement of
slaveholders' rights reached crisis proportions. Northern states exercised
their police powers to protect the civil liberties of Black Americans
accused of being runaway slaves. Wisconsin presented the most
notorious example of state interposition, for the state's executive,
legislative, and judicial branches joined its citizens in strenuous efforts to
nullify federal law.' Indeed, the Wisconsin Supreme Court rejected
precedents of the United States Supreme Court and lower federal
Gorham, 10 F. Cas. 424, 427 (C.C.D. Mich. 1848) (No. 5,453) (fixing value of six
escaped slaves at $2,752); Ray v. Donnell, 20 F. Cas. 325, 329 (C.C.D. Ind. 1849) (No.
11,590) (awarding damages of $1,500 for one adult woman slave and her four
children); Oliver v. Weakley, 18 F. Cas. 678, 679 (3d Cir. 1853) (No. 10,502) (awarding
damages of $2,800 for twelve escaped slaves-two husbands, two wives and eight
children-on retrial after jury split 10 to 2 for plaintiff in Oliver v. Kauffman, 18 F. Cas.
657, 664 (C.C.E.D. Pa. 1850) (No. 10,497)).
97. See Norris v. Crocker, 54 U.S. (13 How.) 429, 439-40 (1851). In Oliver v.
Kauffnan, Justice Grier held that the 1850 Fugitive Slave Act did not repeal the tort
action of compensatory damages provided for under the 1793 Fugitive Slave Act.
Indeed, he declared:
In case of a rescue of a captured fugitive, or of an illegal interference to
hinder such recapture, when the master had it in his power to effect it, the
defendant would be liable, not only to the penalty, but also to pay the full
value of the slave thus rescued, and even punitive or exemplary damages, as
in other actions for a tort.
18 F. Cas. 657, 660 (C.C.E.D. Pa. 1850) (No. 10,497).
98. Act of Sept. 18, 1850, ch. 60, § 8, 9 Stat. at 464.
100. Id. § 9, 9 Stat. at 465. On mere affidavit by the claimant or his agent that he
had reason to believe that a rescue would be attempted by force before he could
return the fugitive to the state from which she had fled, the federal officer who made
the initial arrest was required to retain as many persons as necessary to overcome
such force and to return the fugitive to the claimant in the state from which the
fugitive slave escaped. The fees and costs of this process were to be paid out of the
United States Treasury. Id.
101. See 5 Carl B. Swisher, History of the Supreme Court of the United States: The
Taney Period 1836-64, at 654-56 (1974); Vroman Mason, The Fugitive Slave Law in
Wisconsin, with Reference to Nullification Sentiment, 43 Proc. St. Hist. Soc'y Wis.
courts' °2 and declared the Fugitive Slave Act of 1850 unconstitutional,
issued a writ of habeas corpus directing the federal marshal to release
defendants arrested under the statute for leading a mob that stormed
the jail and freed the alleged fugitive slave, and refused to recognize
the Supreme Court's appellate jurisdiction over its decisions.'03 The
United States Supreme Court vehemently asserted its appellate
jurisdiction"° and affirmed the constitutionality of the Fugitive Slave Act
of 1850 in an opinion written by Chief Justice Roger B. Taney in
1858.105 Chief Justice Taney grounded the Court's appellate
jurisdiction on section 25 of the Judiciary Act of 1789,106 the sovereign nature
of Congress's legislative powers, and the theory of constitutional
interpretation derived from political practice. 0 7 He cryptically affirmed
the constitutionality of the Fugitive Slave Act of 1850, "in all of its
provisions," 08 in an unequivocal rejection of Wisconsin's attempted
interposition and nullification of federal law. The Wisconsin Supreme
Court subsequently failed to decide whether to concede to the
Supreme Court's appellate jurisdiction." °
RECONSTRUCTION AMENDMENTS AND FEDERAL
STATUTORY CIVIL RIGHTS GUARANTEES
The Civil War interrupted the states' efforts to protect the personal
liberties of alleged runaway slaves in the face of federal efforts to
enforce the constitutional and statutory rights of slave owners. The
constitutional crisis relating to individual liberty reemerged after the Civil
War. The Thirteenth Amendment"' abolished slavery when the
Thirty-Ninth Congress announced its ratification of the Amendment
in December 1865. Republicans in this Congress announced their
intention of making the Amendment's promise of freedom a practical
reality."' They asserted the constitutional theories of broad
delegation adopted in McCulloch and in Prigg and the other fugitive slave
cases, and interpreted the Thirteenth Amendment's abolition of
slavery as an affirmative guarantee of freedom and the fundamental rights
of free men of which freedom consists. They also interpreted this
constitutional guarantee of freedom as a delegation of plenary power to
Congress to secure the status and enforce the rights of free men as the
status and rights of all United States citizens.' 2 Senator John
Sherman, for example, declared that the Thirteenth Amendment's
prohibition of slavery "secures to every man within the United States liberty
in its broadest terms.""13 The House floor manager of the Civil Rights
Bill, Congressman James Wilson, expressly cited McCulloch and Prigg
as authority for the framers' broad theory of constitutional delegation
under the Thirteenth Amendment and declared that "[t]he possession
of the rights by the citizen raises by implication the power in Congress
to provide appropriate means for their protection; in other words, to
supply the needed remedy.""' Because of Section 2, however, the
Thirteenth Amendment was a more explicit delegation of legislative
power than the Fugitive Slave Clause. Thus, Senator Sherman quoted
Section 2 of the Thirteenth Amendment and declared: "Here is not
only a guarantee of liberty to every inhabitant of the United States,
but an express grant of power to Congress to secure this liberty by
appropriate legislation."'' 5
As Congress had exercised plenary power under the Fugitive Slave
Clause to enforce the constitutional property right of slaveholders in
1793 and 1850, so Congress exercised plenary power under the
Thirteenth Amendment to enforce the fundamental rights of free men by
enacting the Civil Rights Act of 1866.116 Senator Lyman Trumbull,
the principal author of the Civil Rights Act of 1866, made this point
when he introduced the Civil Rights Bill to the Senate: "Surely we
have the authority to enact a law as efficient in the interests of
freedom, now that freedom prevails throughout the country, as we had in
the interest of slavery when it prevailed in a portion of the
country.""17 Senator Trumbull echoed Justice Story's interpretation of the
Fugitive Slave Clause's prohibition against state interference with the
right of recaption as an affirmative guarantee of the right which
delegated to Congress plenary power to enforce it.1 8 Trumbull asserted
that the Thirteenth Amendment's prohibition of slavery was a
declaration "that all persons in the United States should be free."" 9 He
declared that the framers of the Civil Rights Bill "intended to give
effect to that declaration and secure to all persons within the United
States practical freedom," that is, to secure the rights and privileges
"which are essential to freemen."'2" The purpose of this bill, Trumbull
elaborated, was to secure
the liberty which a person enjoys in society .... the liberty to which
every citizen is entitled; that is the liberty which was intended to be
secured by the Declaration of Independence and the Constitution of
the United States originally, and more especially by the
Amendment which has recently been adopted.12l
The framers equated the status and rights of free men secured by
the Thirteenth Amendment with the status and rights of citizenship.
In section I of the Civil Rights Act, the framers conferred citizenship
and certain civil rights they deemed essential to political and
economic freedom and individual autonomy.1'2 Senator Trumbull
To be a citizen of the United States carries with it some rights; and
what are they? They are those inherent, fundamental rights which
belong to free citizens or free men in all countries, such as the rights
116. Civil Rights Act, ch. 31, 14 Stat. 27 (1866).
117. Cong. Globe, 39th Cong., 1st Sess. 475 (1866) (statement of Sen. Trumbull).
118. L; cf.Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 615 (1842) ("If, indeed, the
Constitution guarantees the ight... the natural inference certainly is, that the
national government is clothed with the appropriate authority and functions to enforce
119. Cong. Globe, 39th Cong., 1st Sess. 474 (1866) (statement of Sen. Trumbull).
122. Kaczorowski, EnforcementProvisions,supra note 112, at 570.
enumerated in this bill, and they belong to them in all the States of
the Union. 23
As the Fugitive Slave Clause and the Fugitive Slave Acts of 1793 and
1850 secured the property rights of slave owners independent of state
law and state institutions, so did the
the civil rights of all American citizenCs.i'v2i4l Rights Act of 1866 secure
Ironically, the Fugitive Slave Act of 1850 also served as a model for
the remedial provision of the Civil Rights Act of 1866.125 The Civil
Rights Act of 1866 criminalized certain violations of the civil rights 126
the statute secured to citizens, 27 and it conferred primary civil and
criminal jurisdiction on the federal courts to enforce these rights
whenever the citizen was unable to enforce them through state law
enforcement institutions.'2 The 1866 Act, like the 1850 statute,
provided federal legal process and conferred on citizens causes of action
to vindicate their rights through federal institutions. In addition, it
provided for the judicial appointment of commissioners and imposed
on them and on United States Attorneys, Marshals, and Deputy
Marshals the duty, "at the expense of the United States, to institute
proceedings against all and every person who shall violate the provisions
of this act."'1 29 Federal attorneys and marshals who failed "to obey
and execute all warrants and precepts issued under the provisions of
this act" were subject to a fine of up to $1,000 payable to "the person
upon whom the accused is alleged to have committed the offence.' 130
This section also authorized commissioners "to summon and call to
their aid the bystanders or posse comitatus of the proper county, or
such portion of the land or naval forces of the United States, or of the
militia, as may be necessary," to enforce this act and to ensure the
"faithful observance" of the Thirteenth Amendment.' 3 1 The Act also
imposed a fine of up to $1,000 and imprisonment of up to six months
who shall knowingly and wilfully obstruct, hinder, or prevent any
officer, or other person charged with the execution of any warrant
or process issued under the provisions of this act ... from arresting
any person ...or [who] shall rescue or attempt to rescue such
person from the custody of the officer, other person or persons... or
[who] shall aid, abet, or assist any person so arrested as aforesaid,
directly or indirectly, to escape from the custody of the officer or
other person ... or [who] shall harbor or conceal any person for
whose arrest a warrant or process shall have been issued ....132
It also provided that all fees and other expenses incurred in the
execution of this statute, such as food and lodging for those detained for
violating the statute's provisions, were to be paid out of the United
States treasury, but were made "recoverable from the defendant as
part of the judgment in case of conviction."'1 33 Unlike the fugitive
slave statutes, however, the framers of the Civil Rights Act of 1866
intended the states to retain concurrent jurisdiction over citizens'
The framers of the Civil Rights Act of 1866 also drafted the
Fourteenth Amendment 35 with the understanding that it incorporated into
the Constitution their interpretation of the Thirteenth Amendment
and the plenary power to enforce citizens' rights that they had just
exercised in enacting the Civil Rights Act under the Thirteenth
Amendment.136 Indeed, many of its supporters expressly stated their
intention to incorporate the 1866 Act into the Fourteenth
Amendment to ensure the statute's constitutionality. 137 Like the statute, the
Fourteenth Amendment confers citizenship on all Americans, but it
prohibits the states from infringing the rights of United States citizens
and from denying all persons due process and equal protection of the
law. The Amendment prohibits the states from infringing its
guarantees for several reasons. The framers wanted the Amendment to be
self-enforcing to avoid the possibility that a future Congress might
repeal the Civil Rights Act or refuse to enact additional legislation that
might be required to secure citizens' rights more effectively.'3
Despite the Amendment's wording as prohibitions against the states, the
framers understood these clauses as affirmative constitutional
guarantees of citizenship and the fundamental rights of citizenship which
delegated plenary power to Congress to enforce them.'3 9 In other words,
they understood the Fourteenth Amendment in the same way that the
congressional drafters of the Fugitive Slave Acts of 1793 and 1850 and
the state and federal judges who upheld their constitutionality
interpreted the Fugitive Slave Clause. Indeed, many of the framers of the
Fourteenth Amendment exercised plenary power under it and
enacted more far-reaching civil fights enforcement statutes in 1870140
The lower federal courts expressed this understanding of the
Thirteenth and Fourteenth Amendments in enforcing these statutes and
affirming Congress's plenary power to secure citizens' rights.142
Justice Noah Swayne upheld the Civil Rights Act of 1866 shortly after its
enactment. 43 Citing Prigg v. Pennsylvania and McCulloch v.
Maryland among other authorities, he interpreted the Thirteenth
Amendment as an affirmative guarantee of freedom which conferred the
status and fundamental fights of citizenship on all Americans,
rendering the Civil Rights Act merely declaratory in this regard.'" 4 United
States Circuit Court Judge William B. Woods, a few years before his
appointment to the United States Supreme Court, interpreted the
Fourteenth Amendment as a guarantee of all the fundamental rights
of citizenship, including "the right of freedom of speech, and the other
rights enumerated in the first eight articles of amendment to the
constitution of the United States," which delegated to Congress "the
power to protect them by appropriate legislation.' 4 5 With the
election of Ulysses S. Grant to the Presidency in 1868, all three branches
of the national government shared the same understanding of the
national government's plenary power to enforce citizens' rights and
united in protecting citizens' personal liberties from terrorists'
violence. 146 The Department of Justice and the lower federal courts
enforced the Reconstruction civil rights statutes so vigorously they
almost destroyed the first Ku Klux Klan.' 47
In a stunning rejection of national civil rights enforcement policy,
the United States Supreme Court reversed the lower federal courts,
rejected Congress's plenary power to enforce citizens' fundamental
rights under the Thirteenth and Fourteenth Amendments, and
eliminated much of the legal authority exercised by the Department of
Justice to protect citizens' fundamental rights. 14 Instead of fully and
completely effectuating the objects of the Constitution, as Justice
Story defined the judicial function and antebellum judges enforced the
Fugitive Slave Clause, the Court in the 1870s and 1880s applied a
textual literalism in interpreting the Thirteenth and Fourteenth
Amendments. In doing so, the Court diminished their plenary guarantees of
fundamental rights to the abolition of slavery and its badges and
prohibitions against racially discriminatory state action 4 9
These choices the Founders made, and their subsequent
implementation, evince a conception of the Constitution as a
dynamically-evolving, power-enhancing governmental structure that was to be shaped
by political experience. One could argue that fidelity to the
Constitution through history is possible with fidelity to history if we emulate
these choices and adopt the conception of the Constitution and the
theory of constitutional interpretation they reflect. This constitutional
conception and interpretive theory, however, will not necessarily
determine the choices that should be made in specific constitutional
questions today, for the Founders' choices are ambiguous in terms of
the justice they served. The Supreme Court upheld Congress's
contempt powers over the contemnors' claims of separation of powers
and procedural rights violations. It upheld Congress's power to
charter the National Bank, an institution that served the interests of
financial elites over those of the general public. It upheld Congress's
plenary power to enforce a fundamental constitutional right, but it
was the property right of slaveholders in human beings. It struck
down Congress's plenary power to enforce fundamental human rights
even though federal judges universally affirmed its power, federal
attorneys uniformly acted on the belief that Congress constitutionally
had conferred such power on them, and Congress in fact conferred
such plenary power on federal legal officers and judges in 1866, 1870,
This ambiguity raises questions of whether fidelity through history
as a method of constitutional interpretation can always serve the ends
of justice in specific cases, for justice, as well as history, is malleable.
If this is true, then what principle or principles should guide us in
determining when we should use history in constitutional interpretation
and when we should not? What view of history should be used if the
"best" history clashes with a particular view of justice? Or, should
history be used only if it supports a particular view of justice? If so,
on what principles does one distinguish one view of justice from
another? One interpretation of history from another?
17. 3 -4 G. Edward White , History of the Supreme Court of the United States: The Marshall Court and Cultural Change , 1815 - 1835 , at 189 ( 1988 ). Professor White observes, however, that Justice Johnson eventually acquiesced in the "'consolidationist' tendencies" of the Marshall Court . Id
18. Anderson , 19 U.S. ( 6 Wheat.) at 225.
21. Id at 226.
24. Idt In this theory of government and conception of constitutional powers, Justice Johnson echoed the comments expressed in the First Congress by Theodore Sedgwick: "[T]he whole business of Legislation was a practical construction of the powers of the Legislature ...." Currie, Substantive Issues, supra note 8 , at 775 n.1 (quoting Representative Theodore Sedgwick in 2 Annals of Congress 1960 (Gales & Seaton eds., 1791 )).
25. Anderson , 19 U.S. ( 6 Wheat.) at 227.
26. It at 229.
32. Thomas Jefferson , Opinion on the Constitutionality of the Bill for Establishing a National Bank , in 19 The Papers of Thomas Jefferson 275 , 279 - 80 (Julian P. Boyd & Ruth W. Lester eds., 1974 ).
33. Stanley Elkins & Eric McKitrick , The Age of Federalism 232 ( 1993 ). Madison's proposed veto message is in James Madison, The Bank Bill , in 13 The Papers of James Madison 383 ( Charles F. Hobson & Robert A . Rutland eds., 1981 ).
34. Rakove , Original Meanings, supranote 3, at 350-55; Benjamin B. Klubes , The First Federal Congress and the First National Bank: A Case Study in Constitutional Interpretation,10 J. Early Republic 19 , 20 , 39 - 41 ( 1990 ).
35. McCulloch v. Maryland , 17 U.S. ( 4 Wheat.) 316 , 424 ( 1819 ).
36. The case was so important that the Court permitted each side to be represented by three lawyers. The Bank's lawyers (McCulloch was cashier of the Bank's Baltimore branch) included the incomparable Daniel Webster; William Pinckney, who was characterized by the most eminent contemporary scholar of the Marshall Court as "the most eminent of the Marshall Court advocates" in 1819; and the United States Attorney General , William Wirt . Maryland was represented by its attorney general, Luther Martin, one of the few surviving members of the Constitutional Convention of 1787; Joseph Hopkinson, a frequent advocate before the Supreme Court who argued Trustees of Dartmouth College v . Woodward , 17 U.S. ( 4 Wheat.) 518 ( 1819 ), with Daniel Webster and was later appointed to the United States Circuit Court; and Walter Jones, who argued more than 169 cases before the Marshall Court and was destined to become United States Attorney for the District of Columbia . White, supra note 17, at 230 , 235, 238 , 243 , 289 .
51. The Fugitive Slave Clause states: 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 . U.S. Const. art. WY§ , 2 , cl. 3.
52. Act of Feb. 12 , 1793 , ch. 7 , 1 Stat. 302.
53. Act of Sept. 18 , 1850 , ch. 60 , 9 Stat. 462.
54. William R. Leslie , A Study in the Originsof InterstateRendition: The Big Beaver Creek Murders,57 Am . Hist. Rev. 63 , 72 - 73 ( 1952 ); Paul Fmkelman, The Kidnapping of John Davis and the Adoption of the FugitiveSlave Law of 1793 , 56 J.S. Hist . 397 , 411 ( 1990 ); Paul Finkelman, Sorting Out Prigg v. Pennsylvania , 24 Rutgers L.J. 605 , 621 ( 1993 ). Professor Finkelman argues, however, that the Framers did not intend to delegate enforcement power to Congress. See Paul Finkelman, Story Telling on the Supreme Court Prigg v . Pennsylvania and Justice Joseph Story's JudicialNationalism , 1994 Sup. Ct. Rev . 247 , 259 - 63 [hereinafter Finkelman, Story Telling].
55. Article IV , Section 1 states: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congressmay by generalLaws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." U.S. Const . art. V, § 1 (emphasis added) . Article IV , Section 3 states: New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress .
71. The first part of the Fugitive Slave Clause states: "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." U.S. Const. art. IV, § 2, cl. 3. Story explained the obvious and literal meaning of this language: "The slave is not to be discharged from service or labor, in consequence of any state law or regulation . " Prigg ,41 U.S. ( 16 Pet.) at 612.
72. Prigg ,41 U.S. ( 16 Pet.) at 613. "The clause manifestly contemplates the existence of a positive, unqualified right on the part of the owner of the slave, which no state law or regulation can in any way qualify, regulate, control or restrain," Story declared . Id. at 612 . Story identified the common law origin of this constitutionally secured right of slave recaption with the following observation: [T]his is no more than a mere affirmance of the principles of the common law applicable to this very subject . Mr. Justice Blackstone (3 Bl. Comm . 4) lays it down as unquestionable doctrine. 'Recaption or reprisal (says he) is another species of remedy by the mere act of the party injured. This happens when any one hath deprived another of his property in goods or chattels personal, or wrongfully detains one's wife, child, or servant; in which case the owner of the goods, and the husband, parent, or master may lawfully claim and retake them, wherever he happens to find them, so it be not in a riotous manner, or attended with a breach of the peace . ' Id. at 613 (quoting 3 Blackstone , Commentaries, supra note 56, at *4).
74. "Upon this ground we have not the slightest hesitation in holding, that, under and in virtue of the Constitution, the owner of a slave is clothed with entire authority, in every state in the Union, to seize and recapture his slave, whenever he can do it without any breach of the peace, or any illegal violence." Id.
75. U.S. Const. art. IV, § 2 , cl3 ..
76. Prigg ,41 U.S. ( 16 Pet.) at 615.
102. The United States Supreme Court analyzed the Fugitive Slave Act of 1850 in Norris v . Crocker , 54 U.S. ( 13 How.) 429 ( 1851 ). It did not formally decide its constitutionality, however, because that question was not before it . Its discussion assumed its constitutionality . See idat 437 . For decisions of lower federal courts analyzing the Fugitive Slave Act of 1850, see, for example, Miller v . McQuerry , 17 F. Cas . 335 ( C.C.D. Ohio 1853 ) (No. 9,583); United States v . Scott , 27 F. Cas . 990 (D.C.D. Mass . 1851 ) (No. 16,240b); and Charge to Grand Jury-Fugitive Slave Law , 30 F. Cas . 1007 ( C.C.S.D.N .Y. 1851 ) (No. 18 ,261). U.S. District Court Judge Andrew G. Miller upheld the slave owner's right under the 1850 statute to seize his fugitive slave, with or without a warrant, and issued a writ of habeas corpus directed to the sheriff who held the slave owner on charges of kidnapping and assault and battery for exercising his federal right of recapture. United States ex reL Garland v . Morris , 26 F. Cas . 1318 , 1318 -19 (D.C.D. Wis . 1854 ) (No. 15 ,811).
103. In re Booth, 3 Wis . 13 , 20 , 28 - 29 , 52 - 53 ( 1854 ) (granting habeas) , afftd, 3 Wis . 54 , 71 ( 1854 ); Ex parte Booth, 3 Wis . 134 , 143 ( 1854 ) (denying habeas while case was within jurisdiction of another court) ; In re Booth & Rycraft, 3 Wis . 144 , 161 ( 1855 ) (granting habeas).
104. United States v. Booth , 59 U.S. ( 18 How.) 477 , 478 ( 1855 ).
105. Ableman v. Booth , 62 U.S. ( 21 How.) 506 , 525 - 26 ( 1858 ).
106. Act of Sept. 24 , 1789 , ch. 20 , § 25 , 1 Stat. 73 , 85 - 86 .
107. Ableman , 62 U.S. ( 21 How.) at 521-22.
108. Id at 526.
109. The state's Chief Justice decided in favor of the Court's appellate jurisdiction, a second justice decided against it, and the third justice, having been of counsel for Sherman Booth, recused himself . Ableman v. Booth , 11 Vis. 517 , 518 ( 1859 ).
110. The Thirteenth Amendment declares: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Congress shall have power to enforce this article by appropriate legislation . U.S. Const. amend. XIII, §§ 1 , 2 .
111. Cong . Globe, 39th Cong., 1st Sess . 5 ( 1866 ) (statement of Rep . Colfax).
112. Robert J. Kaczorowski , To Begin the Nation Anew: Congress,Citizenship, and Civil Rights After the Civil War, 92 Am. Hist. Rev . 45 , 47 - 49 ( 1987 ) [hereinafter Kaczorowski, To Begin the Nation Anew]; Robert J. Kaczorowski, The Enforcement Provisions of the Civil Rights Act of 1866: A Legislative History in Light of Runyon v . McCrary, 98 Yale LJ . 565 , 567 - 73 , 581 ( 1989 ) [hereinafter Kaczorowski , Enforcement Provisions]; Robert J. Kaczorowski , Revolutionary Constitutionalismin the Era of the Civil War and Reconstruction, 61 N.Y.U. L. Rev. 863 , 895 - 99 ( 1986 ) [hereinafter Kaczorowski , Revolutionary Constitutionalism].
113. Cong . Globe, 39th Cong., 1st Sess . 41 ( 1866 ) (statement of Sen . Sherman).
114. Id at 1294 (statement of Rep . Wilson) ; see also id . at 1118 (statement of Rep . Wilson) (declaring that it is the "true office" of Government to protect civil rights); id. at 1836 (statement of Rep. Williams) (declaring that "[t]he national Government is the depository of the power to enforce the enjoyment of... fundamental rights when denied or destroyed" ).
115. Id at 41 (statement of Sen. Sherman).
123. Cong . Globe, 39th Cong., 1st Sess . 1757 ( 1866 ) (statement of Sen . Trumbull). Section 1 of the Civil Rights Act of 1866 enumerated the rights "to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property," as rights that all United States citizens would enjoy under the statute . Civil Rights Act , ch. 31 , § 1 , 14 Stat . 27 , 27 ( 1866 ).
124. Kaczorowski , Enforcement Provisions, supra note 112 , at 570.
125. Id at 588-90; Kaczorowski, To Begin the Nation Anew, supra note 112 , at 59.
126. Civil Rights Act, ch. 31 , § 2 , 14 Stat. at 27.
127. Id § 1 , 14 Stat. at 27.
128. Id § 3 , 14 Stat. at 27.
129. Id . § 4 , 14 Stat. at 28.
130. Id . § 5 , 14 Stat. at 28.
131. Id .
132. Id . § 6 , 14 Stat. at 28-29.
133. Id . § 7 , 14 Stat. at 29.
134. Kaczorowski , To Begin the Nation Anew, supra note 112 , at 56-57: Kaczorowski, Enforcement Provisions, supra note 112 , at 572-73.
135. Section 1 of the Fourteenth Amendment provides: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws . U.S. Const. amend. XIV, § 1 .
136. Kaczorowski , Revolutionary Constitutionalism, supra note 112 , at 910-13.
137. See id.at 910-12.
138. See Kaczorowski , Enforcement Provisions, supra note 112 , at 572-73; Kaczorowski, To Begin the Nation Anew, supra note 112 , at 56-58.
139. Kaczorowski , Revolutionary Constitutionalism, supra note 112 , at 922-25; Kaczorowski, To Begin the Nation Anew, supra note 112 , at 47-48.
140. Act of May 31, 1870 , ch. 114 , 16 Stat . 140. This statute also reenacted the first two sections of the Civil Rights Act of 1866 to secure its constitutionality under the Fourteenth Amendment, which was ratified in 1868 .
141. Act of Apr. 20 , 1871 , ch. 22 , 17 Stat . 13 .
142. Robert J. Kaczorowski , The Politics of Judicial Interpretation: The Federal Courts , Department of Justice and Civil Rights, 1866 - 1876 , at 1- 25 ( 1985 ) [hereinafter Kaczorowski, The Politics of Judicial Interpretation]; Kaczorowski, Revolutionary Constitutionalism , supra note 112, at 900-03 , 935 - 38 .
143. United States v. Rhodes , 27 F. Cas . 785 , 794 (C.C.D. Ky . 1866 ) (No. 16 ,151).
144. Idt at 791-94.
145. United States v. Hall, 26 F. Cas . 79 , 82 (C.C.S.D. Ala . 1871 ) (No. 15 ,282).
146. Kaczorowski , The Politics of Judicial Interpretation, supranote 142 , at 49-134.
147. Id . at 93-94.
148. See Blyew v. United States , 80 U.S. ( 13 Wall.) 581 ( 1871 ); Slaughter-House Cases , 83 U.S. ( 16 Wall.) 36 ( 1872 ) ; United States v . Cruikshank , 92 U.S. 542 ( 1875 ); Civil Rights Cases, 109 U.S. 3 ( 1883 ) ; see also Kaczorowski, Enforcement Provisions , supra note 112 , at 590-94 ( arguing that the Supreme Court has misinterpreted the Civil Rights Act of 1866 ).
149. Contrast Justice Story's analysis of the Fugitive Slave Clause . See supra text accompanying notes 66-85.