Constitutional right to bring property into a territory?

Margo Schlanger mschlanger at wulaw.wustl.edu
Wed Oct 5 18:29:48 PDT 2005


Doesn't the answer to Marty's original question lie in the Court's review of the provisions of the constitution that contemplate slavery?  I would think that Taney's point is that slaves are non-contraband as a matter of constitutional law.  

Margo



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>>> "James G. Wilson" <james.wilson at law.csuohio.edu> 10/5/2005 10:28 AM >>>
   Dred Scott can be seen as the first "right to travel" case.  For the 
United States to have open internal markets, it is very important that 
people be able to bring their property with them when they migrate from 
one state to the other.  But that right was not absolute.  In American 
Insurance Co. v. Canter, Chief Justice Marshall concluded that Congress 
has the power to establish property laws in the Territories.  Taney 
solved this problem by concluding that Congressional power to regulate 
property was constrained by the Constitution.  Thus, Congress would 
violate the due process clause by taking legitimate property away from 
innocent people. Underlying this approach was Calhoun's claim that the 
Territories belonged to the States and to the citizens of each State, 
retained a right of equal access to the Territories.  

   Dred Scott articulates another doctrine that seems quite progressive, 
once removed from the slavery context.  Taney held that Congress could 
not create permanent colonies: all Territories had to become States 
eventually. Taney probably designed that doctrine to facilitate further 
Southern expansion into the Carribean and Latin America.   Many years 
later, the Court in the Insular Cases minimized this long-standing, 
pre-Revolutionary commitment to "equalilty throughout the republic" by 
allowing Congress to set up permanent colonies that provided inhabitants 
with less than full constitutional rights.  The majority pointed out 
Dred Scott's dubious reputation and than held that the needs of the 
American "empire" prevailed over complete extension of Constitutional 
rights.  In other words, one can fashion an originalist argument, 
supplemented by parts of Dred Scott that were not overruled by the 
Fourteenth Amendment, to hold that Puerto Rico must be a State or must 
be made independent.

   These themes, along with many more, are explored in my The Imperial 
Republic: A Structural History of American Constitutionalism from the 
colonial era to the beginning of the Twentieth Century (Ashgate, 2002)>.

Crispin Sartwell wrote:

> maybe it's an application of article 2, section 4? "the citizens of 
> each state shall be entitled to all privileges and immunities of 
> citizens of the several states.
> "
> On Oct 4, 2005, at 6:26 PM, Marty Lederman wrote:
>
>> 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 gvpt.umd.edu <mailto:mgraber at gvpt.umd.edu>>
>> To: <tgrey at law.stanford.edu <mailto:tgrey at law.stanford.edu>>; 
>> <hartneed at shu.edu <mailto:hartneed at shu.edu>>
>> Cc: <conlawprof at lists.ucla.edu <mailto:conlawprof at lists.ucla.edu>>
>> 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 law.stanford.edu 
>> <mailto:tgrey at law.stanford.edu>> 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 law.stanford.edu <mailto:tgrey at law.stanford.edu>
>> >
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