I. The Constitution and Law Before the Civil War
a. Slavery & Constitution Before the 14th Amendment – Groves v. Slaughter; Prigg v. PA
i. Constitution
1. Slavery not explicitly mentioned, but are averted to as “other persons” or “such persons”:
a. Art. I(3): 3/5 clause
b. Art IV(2)(3): fugitive slaves must be returned to “party whom such Service or Labour May be due”
c. Art IV(2)(1): privileges & immunities
d. Art. IV(4): domestic violence averts to slave insurrections
e. Art. I(9)(1): Congress could always tax but couldn’t bar slave trade until 1808
2. The North agreed to a Constitution that fails to mention slaves because reality was that the South wouldn’t agree to be part of Union unless they kept slavery (the economic and political advantages of forming a union with slavery outweighed potential backlash)
ii. Groves v. Slaughter
1. Law: no importation of slaves: increased economic benefit to state of Mississippi (created monopoly for slave trade & forced whites to pay premium for slaves); also conserved aristocracy of current slave owners because lower white class couldn’t afford.
2. Holding: law violated Art. I(8)(3) [interstate commerce clause] because Congress has power to regulate importation of slaves, not the states. If commerce is a creature of federal law, it interferes with uniformity of federal commerce regulation by allowing states to infringe upon that power.
a. McLean (textual): slaves not item of commerce because they are people, not merchandise (although seems contradictory when there’s 3/5 clause & when they are treated as property – bought/sold).
i. McLean was Northerner who reached this opinion because he wanted to further the argument that slaves were people.
ii. Also worried that interpreting commerce clause to include slavery (a) might impinge on free states’ ability to ban importation of slavery and (b) would make slavery a core federal issue. This would upset the delicate of keeping fed. gov’t from what is essentially state law.
b. Taney (original intent): framers of the amendment intended that the power to regulate slavery would lie with the states.
c. Baldwin (purposive): states can abolish slavery entirely, but it cannot allow slavery but prohibit slave tradeàslaves were items of commerce and commerce within federal government’s power.
i. 5th Amendment states that government can’t deprive people of life, liberty and property w/out due process of law – because slaves are property, Congress can’t free slaves w/out compensation.
ii. Purposive because what he’s doing is reading the provision’s text in light of the historical context and mischief that the amendment was meant to solve; the constitution meant slavery to continue b/c 5th amendment guarantees that.
iii. Methods of Constitutional Interpretation
1. Textual: examine provision & surrounding provisions to glean the phrase’s meaning and resolve ambiguities and vagueness (plain meaning).
2. Original Intent: look to the text, but we are not interpreting the plain meaning of the text; we look outside text & look at circumstances at time text written to figure out what the framers intended amendment to mean.
a. Arguments in Favor of Original Intent
i. Concern about counter-majoritarian difficulties of judicial review: since judges not elected, concern about their legitimacy to decide issues, or to make and interpret laws outside of their jurisdiction (e.g., if they strike down a law, they are overriding majority will).
ii. What framers intended at the time doesn’t change over time
iii. Enhances legitimacy of the court because court is relying on some evidence of meaning that is external to their personal judgments.
b. Arguments Against
i. Whose intent are we really talking about? There are multiple framers and possible each had different intent
ii. Changed circumstances: may have changed so dramatically that the original intent is no longer relevant today.
iii. Impossible to find original intent
iv. Originalism often provides incomplete answers
3. Purposivism: read provision’s text in light of the historical context & mischief the amendment was meant to solve. Not same as textualism because we are more concerned with the historical context, not the framers’ frame of mind, to determine what the policies and concerns were at the time (trying to find out what text means in light of policies & controversies). However, it’s sometimes hard to differentiate btw original and purposive.
a. One of main interpretive methodologies used w/ 14th amendment
b. We want to interpret words of constitution so as to effectuate the broad concerns and solve problems that the constitution was meant to solve.
iv. Why do we worry about how judges interpret constitution?
1. Fidelity to law and rule of law (we want predictability)
2. Limit judicial discretion & enhance democratic self-ruleàjudges don’t have tools to make good policy or to second-guess legislature’s policy conclusions (“institutional competence”)
3. Fairness: we want to ensure consistency among cases (like cases should be treated alike = horizontal coherence.
v. Prigg v Pennsylvania
1. Facts: F slave informally set free, and she married a free black. They moved to PA, were captured by Prigg, and sold. Prigg went to trial for violating PA statute (“Fugitive Slave Act”) prohibiting self-help in return of fugitive slaves.
2. Holding: Court strikes down lad prohibiting self-help in catching fugitive slaves.
3. Story (Majority – Purposive): it was a design of the constitution to permit slave holding states to remain as such. Anticipated that slave owners had unqualified right to possess their slaves – this is for federal gov’t to decide.
4. Taney (Concurrence – Textual): “language used in constitution…contains no words prohibiting the several states from passing laws to enforce this right. They are, in express terms, forbidden to make any regulation that shall impair it.”
5. McLean(Dissent – Purposive): Congress has legislated on constitutional power and has directed the mode in which it shall be executed.
b. Dred Scott
i. P was slave in Missouri. Owner moved P to Illinois (free state) then to Minnesota/Louisiana territory (free state). Here, P gets married (even though slaves were not allowed to marry). Afterwards, P goes back to Missouri. P never knew if he was still a slave or if had been freed. Is he a ctizen?
ii. Holding: Dred Scott was not a citizen even though there was some common law doctrine that stated that when a slave is moved by his owner to a free territory, the slave is free. At that point, he is living under the laws of the state that he has moved to.
1. Taney (Original Intent): “duty of court is to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.” – looked to state laws, constitution, as well as to practices at the time (slaves were property, not people).
a. “Citizen,” as intended by framers, not meant to include free blacks
b. Court sh
iii. Minor v. Hapersett
1. Minor, a woman, attempted to register to vote in St. Louis & was refused. Sued, arguing she had constitutional right to vote.
2. SC rejected her arguments – no mention in 14th of suffrage for women. If so important, they would have put it in. Even though she was citizen, “citizenship has not in all cases been made a condition precedent to the enjoyment of the right to suffrage.”
c. Race Discrimination & the 14th Amendment (Strauder v. West Virginia)
i. Strauder v. West Virginia
1. Strauder was black convicted of murder in state court by jury from which blacks were excluded by law.
2. Issue:
a. Whether the 14th amendment gave black defendants the right to be judged by a jury upon which blacks are eligible to sit.
i. Not: if blacks had rights under 14th to serve on a jury.
3. Holding: 14th amendment assured blacks (“abject and ignorant”) all the civil rights that whites enjoyed
a. Methodology: purposivism grounded in historical context. 14th amendment intended to keep states from replicating conditions of slavery through passage of laws that rendered blacks inferior à badge of inferiority.
b. Serving on jury was civil right because the right to serve on a jury relates to one’s core civil right of enforcing one’s contract & property rights. Right to testify in trial and to sue/be sued also protected as civil right; serving on jury is analogous.
4. Dissent: serving on jury is political right (not civil right) – we deny this right to women!
d. “Separate but Equal” Doctrine (Plessy v. Ferguson)
i. Plessy v. Ferguson
1. LA statute gave “officers of…passenger trains” the power and the legal obligation to “assign each passenger to the coach compartment used for the race to which such passenger belongs.” Law was neutral on its face (have to look behind words of statute to find true intent). Plessy challenged law on 13th & 14th amendment.
a. No as to 13th – slavery implies involuntary servitude
b. No as to 14th – purpose of 14th was to ensure absolute equality of races, not to abolish distinctions based upon color, or to enforce social equality or a commingling of the two races upon terms unsatisfactory to either.
2. Separation doesn’t (1) abridge his privileges and immunities; (2) deprive him of his property; (3) deny equal protection.
3. This is within state police power. Law is not unreasonable and is not contrary to 14th
4. P argues that law labels blacks as inferior – court says this is only because blacks put that construction to it – law applies equally to both races (whites excluded from black cars)
5. Not equal protection violation because EPC only deals with civil rights, not social rights, and riding the train deals with social standing, which Constitution doesn’t care about.
6. Harlan (Dissent): considering race in legislation “inconsistent not only with that equality of rights which pertains to citizenship, National and State, but with the personal liberty enjoyed by every one within the United States.”
a. Obvious purpose of statute to exclude blacks – law doesn’t treat everyone equally
b. This law creates a caste system and “a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established in the Constitution.”
c. “Our Constitution is colorblind”
