Constitutional right to bring property into a territory?

Marty Lederman marty.lederman at
Tue Oct 4 15:26:49 PDT 2005

It just so happens that I'm currently teaching Dred Scott in my ConLaw class, and this was one thing (apart from the obvious candidates) that really struck me as counterintuitive.  (Please excuse my ignorance if the answer to this is obvious.)

Putting aside the question of whether the question is properly viewed as one of "due process," and the question of treating slaves as the equivalent of ordinary property (and the question of Congress's power under Article IV to make needful rules . . . etc.), how is it that Taney, McLean and Lincoln all agree that there is some constitutional (or other) "right" to bring property from one jurisdiction, where it is lawful, into another, where it is not?  The scenario is, of course, common:  Jurisdiction A permits the possession of X (e.g., drugs, liquor, diseased livestock, etc.); Jurisdiction B does not.  There's a constitutional right for a property holder of X residing in State A to possess it -- indeed, to make public use of it -- in State B?  From the 21st Century perspective, this sounds very, very weird.  Forget the Due Process Clause -- why would there be any sort of common-law, statutory or constitutional right to bring contraband into Jurisdiction B just because it was not unlawful in the possessor's home state?  But hey, Lincoln and McLean agreed . . . so perhaps I'm missing some obvious historical understanding that has long since faded from view.  As Mark notes, it was a "completely different universe."   (Did it have something to do with the special status of territories, as opposed to states?)

Thanks in advance for any clarification.

----- Original Message ----- 
From: "Mark Graber" <mgraber at>
To: <tgrey at>; <hartneed at>
Cc: <conlawprof at>
Sent: Tuesday, October 04, 2005 6:07 PM
Subject: Re: Explaining 'what process is due' in 'substantive dueprocess' (cont.)

> To provide a little more support for Tom Grey (and to note that the
> historical research is being done by scholars on the left and right,
> proponents and opponents of judicial policymaking).  Both the Republican
> Platform of 1860 and the southern democratic platform clearly endorsed a
> version of substantive due process.  Indeed, both Lincoln and McLean
> believed that the due process clause protected the right to bring
> ordinary property in the territories.  One finds a substantive use of
> the due process clause in Bloomer v. McQuewan (sp) in Taney's opinion. 
> No one objected (of related interest is Rice v. Railroad co. where
> everyone apparently agrees the contracts clause limits federal power. 
> The big lesson is what we think are the natural meaning of words were
> not their natural meaning before the Civil War.  It's a completely
> different universe back there.  The only problem is that it is so
> different that it does not make sense to import their meanings to our
> time, even if we could recover them.
> Mark A. Graber
>>>> "Tom Grey" <tgrey at> 10/04/05 5:26 PM >>>
> Thanks to Ed Hartnett for coming up with the cite to the Risinger
> article. 
> I'd had a vague recollection of reading something good on this subject 
> many years ago --- and I'm quite sure now that this was it! The 
> right/remedy distinction is indeed quite different from our contemporary
> view of substance/procedure -- what remedy one can obtain, say specific 
> performance or damages, we think of as part of the substantive law of 
> contracts, not the trans-substantive law of civil procedure. The really 
> interesting thing to me is that there simply is no term or phrase 
> corresponding to our notion of "substantive law" before Bentham, who I 
> think of as inventing the distinction -- the concept seems not to have 
> been part of the mental equipment of lawyers.  And it wasn't until 
> Bentham-Austin-Holmes style positivism became orthodox (or at least 
> broadly familiar) among lawyers -- which wasn't really until the very
> late 
> 19th century -- that this concept came into general use. I think the 
> earliest characterizations of Lochner-style decisions as "substantive
> due 
> process" (aka, oxymoron) date from the decade 1900-1910.
> Thomas C. Grey
> Sweitzer Professor of Law
> Stanford Law School
> tgrey at
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