your top 10 (or 15) con law cases of all time

[Finkelman, Paul <paul.finkelman@albanylaw.edu>]

Interesting question.  I think terrible decision come back to be useful in odd way.
I love Dred Scott these days for the proposition that the Bill of Rights does indeed follow the flag all the way to Gitmo.  And Korematsu gave us strict scrutiny for race case; and so Prigg says we should not force the states to enforce federal law.  My view is that Prigg is useful for that principle, but I see it in very practical terms:  I think we do not want to rely on conscripted state and local officials to enforce federal law; it is better to bribe them with grants and funds so they will do a good job and we have some control over them.


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Paul Finkelman
President William McKinley Distinguished Professor of Law and Public  Policy
Albany Law School
80 New Scotland Avenue
Albany, NY  12208-3494

518-445-3386 (o)
518-445-3363 (f)

www.paulfinkelman.com

From: John Bickers [mailto:bickersj1 at nku.edu]
Sent: Friday, December 10, 2010 9:55 PM
To: Finkelman, Paul <paul.finkelman at albanylaw.edu>; d.r. dow; conlawprof at lists.ucla.edu
Subject: RE: your top 10 (or 15) con law cases of all time


Agreed, absolutely.  I teach Prigg for the same reason I teach Dred Scott: I think American law students need to confront them.  I also have them read Pres. Lincoln's first inaugural--having read Prigg, they see Lincoln's rejection of it that most of their undergrad history professors missed.

My point was only this: the slavery portion having now been stripped away by the Reconstruction Amendments, the only meaning that could be left to Prigg is that the federal government cannot order states to enforce federal law (what your superb article, if memory serves, calls nullifying the federal law).  That doesn't, at least to me, seem very far from the matter of Sheriff Printz.  I think the majority in Printz simply wasn't quite ready to cite Prigg as authority.  I believe, though, that last year Justice Thomas paired Printz with Prigg.

Do you think I am overreading Printz?

John Bickers
Salmon P. Chase College of Law
Northern Kentucky University


-----Original Message-----
From: Finkelman, Paul <paul.finkelman at albanylaw.edu> [mailto:Paul.Finkelman at albanylaw.edu]
Sent: Fri 12/10/2010 9:24 PM
To: John Bickers; d.r. dow; conlawprof at lists.ucla.edu
Subject: RE: your top 10 (or 15) con law cases of all time

It was a very wrong decision to the extent that it held that no state could do anything to prevent the kidnapping of its free black citizens at a time when there was no federal anti-kidnapping protection.  At least one of the children (and maybe two)  taken by Prigg was born in Pennsylvania and therefore free.  Prigg and his three cohorts knew this at the time; so too did Justice Story who simply lied about some of the facts in his summary of the case and ignored the other ones.

No matter what you think about the return of fugitive slaves, or whether Margaret Morgan was even a slave at all, it is clear that everyone understood her child was born free under Pa law.  Story and the majority all agreed Pa. had not power to prevent that sort of kidnapping.  If you can come up with a worse holding, offer it up.

There was no justification for this outcome or constitutional requirement under Art. IV, Sec. II, Par. 3.  It was all about Story's obsession with have a national system of law and his utter disregard for the rights of the 150,000 or so free blacks living in the North.

There is much more to say about how bad the decision was. I have said most of it in Paul Finkelman, Story Telling on the Supreme Court:  Prigg v. Pennsylvania and Justice Joseph Story's Judicial Nationalism, 1994 Supreme Court Review 247-94 (1995).


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