Why we should teach Prigg

Paul Finkelman paul-finkelman at utulsa.edu
Thu Oct 20 11:12:03 PDT 2005

I will take a shot at this, but also urge you to look at my article on 
the case
Story Telling on the Supreme Court:  Prigg v. Pennsylvania and Justice 
Joseph Story's Judicial Nationalism, 1994 SUP. CT. REV. 247-94 (1995).
Prigg is more than just about the nation's; the case is the first case 
to articulate clearly a number of important con law doctirines:  
1:  It is the first time that a majority opinion asserts that there are 
"dormant" powers of Congress which would overrule a state law (so that 
even without the 1793 fugitive slave law the Pa. Personal Liberty Law of 
1826 would be unconstitutional);
2: It is the first case to discuss unfunded mandates, and declare that 
Congress can't make state actors act; it was the precursor to Printz, 
even though the Court lacked the intellecual honesty to cite it;
3:  It is probably the best early articulation of the premption doctrine.

Besides all this, is shows how Story (an icon of con law) was willing to 
rewrite history to achieve a particular result.  Story was so anxious to 
create a federal common law and to please that South that he totally 
rewrote the history of the Fug. Sl. Clause including his early own 
history of the fugiive slave clause as he set out in his Commentaries on 
the Constitution ten year before Prigg.

On the Sins of the nation, it is more than about slavery.  One or more 
of Margaret Morgan's children was born free in Pennsylvania; Margaret 
herself may have been free under Md. Law.  But Story was willing to 
ignore the fate of these free people in order to placate the South about 

It is also a case that is cited later n in defense of federal civil 
rights acts -- if Congress can act -- and preempt state law -- to 
support slavery before the war, why can't Congress act and even preempt 
state law to protect civil rights?

I could say more, but I hope this is enough to set out what Prigg is 

Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK   74104-3189

918-631-3706 (office)
918-631-2194 (fax)

paul-finkelman at utulsa.edu

Tepker, Rick wrote:

> Could you elaborate on why you think Prigg is so important in an 
> introductory constitutional law survey?  When I taught it, it helped 
> satisfy my frustrated desires to be an American history teacher and to 
> introduce my students to the nation's sins.  But are you saying 
> something else?
> Rick Tepker
> Calvert Chair of Law and Liberty
>   & Professor of Law
> University of Oklahoma
> Norman, Oklahoma
> 405.325.4832
> __________________________
> ------------------------------------------------------------------------
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
> Sent: Thursday, October 20, 2005 11:05 AM
> To: whoooo26505 at yahoo.com; mgraber at gvpt.umd.edu; ebraman at indiana.edu
> Cc: lawcourts-l at usc.edu; conlawprof at lists.ucla.edu
> Subject: Re: politics and Marbury v. Madison.
> Simply to repeat the main point:  I have no doubt that one can make a 
> great show out of teaching Marbury for a week.  The question is the 
> opportunity cost.  The sad fact is that I all too easily imagine hosts 
> of students who are never introduced to Prigg and Dre Scott, and I 
> think that's a disgrace with pernicious consequences for the health of 
> a polity in which lawyers play a disproportionate role.
> While I'm at it, let me admit that I literally cannot understabd why 
> anyone would be "inspired" by Marbury:  Marshall may thunder about the 
> wrong fone to Marbury, but the final message is that he's left high 
> and dry, either because of a legal technicality involving jurisdiction 
> (assuming you take his argument seriously, which of course I don't) or 
> because of a ruthless calculation that Marbury's right takes second 
> place to protecting the institutional interest of the Supreme Court 
> and/or the personal interests of judges who wanted to avoid 
> impeachment.  I find Marbury as inspiring as Prigg.
> Sandy
> - Sanford Levinson
> (Sent from a Blackberry)
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