The Volokh Conspiracy
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Today in Supreme Court History: April 4, 1861
4/4/1861: Justice John McLean dies.
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The State of Ohio v. Thomas D. Carneal
State v. Carneal, which occurred during McLean’s tenure on the Ohio Supreme Court, foreshadowed McLean’s future dissent in an important fugitive slavery case, Dred Scott v. Sandford (1857). In it, a black man named Richard Lunsford, a Kentucky slave, applied for a writ of habeas corpus to obtain freedom from his owner, Thomas D. Carneal. The Ohio Constitution of 1802 forbade slavery in the state, and at issue was whether slaves owned by a man traveling in Ohio became free once they traveled to Ohio and whether a slave who resided in Kentucky could be sent to work in Ohio without gaining his freedom. Lunsford, as a slave who was regularly sent to work in Ohio, sued on the grounds that, by having him travel to work in Cincinnati for periods of over a week, Thomas Carneal forfeited his property rights in Lunsford. The Court ruled, with McLean issuing its opinion, that since Carneal sold Lunsford to a Mr. James Riddle, the man who sent Lunsford to Cincinnati, he did in fact forfeit his right to be Lunsford’s owner. The most notable portion of this case was McLean’s opinion, which highlighted his personal distaste for the institution of slavery: “Were it proper to consider it, the Court, as well as from the principles recognized by our Constitution and Laws, could not hesitate in declaring that SLAVERY [emphasis in original], except for the punishment of crimes, is an infringement upon the sacred rights of man: Rights, which he derives from his Creator, and which are inalienable.”
Good guy….
Indeed.
During the entire time before the Civil War, a majority of the Court consisted of slaveholders.
Better than KJB who doesn’t believe we have any natural rights.
“Natural law” is not part of American law. The concept is too subjective to be workable.
The Constitution’s Bill of Rights doesn’t create rights; it recognizes their natural inalienable existence.
I didn’t know there’s a natural, inalienable right to:
A grand jury for a capital offense;
Have the assistance of counsel for defence (sic);
A trial by jury where the value in controversy shall exceed twenty dollars.
GTFO
I’m glad you recognized the exaggeration. Too bad you didn’t recognize it for your own comment.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Bob, and Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf, declaring something to be self evident does not make it self evident; that’s nothing more than a bald assertion.
But here’s the problem with the concept of natural rights: They are largely in the eye of the beholder. This person over here thinks the right to an abortion is a natural right, and that person over there doesn’t, and neither of them has any better arguments than “Do not” “Does so”. Since there is no cosmological legislature to tell us which rights are natural rights, it’s all left up to the highly subjective, confirmation-bias-saturated individual opinion of the speaker.
And, if you want to evoke an appeal to nature, in point of fact humans evolved to live in community. We don’t do well living off on our own. So I think there’s a far better natural law argument for communitarianism than there is for natural rights. I have occasionally told libertarians that their real argument is with evolution.
Except that we blame individuals when things go wrong. We don’t punish the family of rapists or murderers or thieves.
Genes and society work on individuals, not groups.
I’m right in the middle of a very interesting book, the point of which is that culture is beginning to replace natural selection as what drives evolution. You might be surprised at the extent to which genes work on groups.
That aside, if the conversation is shifting from whether natural law exists to what is good policy, both the extreme right and the extreme left are wrong. Neither pure individualism nor pure communitarianism offers solutions to most of our problems; as with many other things in life, the best course of action is typically more in the middle. Yes, we don’t incarcerate the family of someone who has been convicted of burglary, but maybe we look at policy choices that will reduce the number of people who become burglars.
I know from your previous comments on other threads that you consider anyone who wants to tell you what to do to be a “slaver”. Well, life is not that simple.
I would wager that if your political tribe didn’t wield so much institutional power to assert it’s wishes, you would be finding the idea we don’t have or even deserve natural rights to be as vulgar as I do presently.
We’ve evolved beyond such naive concepts.
Now we know that there’s no Creator, that He gives us no laws to observe, that in fact the only law that counts is rule by the strong over the weak.
/sarc?
I don’t quite understand the sequence of events here. If Lunsford was sold to Riddle, why was Carneal involved in the case at all? Wouldn’t Riddle be the defendant? He was “the man who sent Lunsford to Cincinnati.”
And why, given the sale, would anyone think Lunsford retained any property rights?
I take it the court freed Lunsford.
I’m thinking that Carneal was sued because he lost his right to own Lunsford when he had Lunsford work in Ohio. Thus the sale to Riddle was invalid.
Maybe. But it sounds like they both sent him to Cincinnati.
Lunsford, as a slave who was regularly sent to work in Ohio, sued on the grounds that, by having him travel to work in Cincinnati for periods of over a week, Thomas Carneal forfeited his property rights in Lunsford. The Court ruled, with McLean issuing its opinion, that since Carneal sold Lunsford to a Mr. James Riddle, the man who sent Lunsford to Cincinnati,
If the sale was invalid, why wasn’t Riddle asking for his money back?
McLean also dissented in Prigg v. Pennsylvania, which dealt with slavecatchers operating in free states. (This was before even the Compromise of 1850).
Did he die hard?