Today in Supreme Court History: December 1, 1897

12/1/1897: Justice Stephen Field resigns.

Justice Stephen Field

Comments

[Dan Schiavetta]

Moore v. Illinois, 55 U.S. 13 (decided December 1, 1852): upholding Illinois statute criminalizing hiding an out-of-state slave (not preempted by Const. art. IV, §2, which speaks only of delivery to owner upon demand)

McAfee v. Crofford, 54 U.S. 447 (decided December 1, 1851): recovery in trespass (invading property and carrying off slaves) includes consequential damages such as property lost due to not having slaves to watch over things (logs allowed to float away on river, invading cattle destroying corn crop) and also merits punitive damages

Clay v. Field, 138 U.S. 464 (decided December 1, 1891): complicated case involving the valuation of a plantation before, during, and after the Civil War, counting in the value that slaves (pre-manumission) added to the property but not the value of the slaves themselves

[The Margrave of Azilia]

Slavery Day on the Supreme Court?

[Dan Schiavetta]

For 90 years this was a slave nation. I’m thinking of working up a presentation for one of the CLE people I do work for, “Slave Law”. It will be a dispassionate survey (e.g., at no point will I use the words “horrible”, “indefensible”, “offensive” or “shameful”) and I think I’ll have no problem filling up the hour.

Westlaw used to have a key number topic, “Slaves”. Even though West didn’t start publishing until 1883, issues concerning past slavery (as in Clay v. Field) continued to occupy the courts for decades afterwards.

(There also used to be a key number topic, “Miscegenation”. In law school I pointed this out to my black girlfriend. She said, “Let’s!” It's a better world now.)

[Dr. Ed 2]

Lawyers deal with what words mean, and I think that a far better CLE topic would be how pretty much the same words, written by the same man (John Adams) and based on the same Enlightenment concept wound up meaning two very different things.

The Massachusetts Constitution of 1780 (still in effect as amended) said that "all men are born free" and between 1781 & 1783, slaves asked "what about me" and the SJC said "you're right."

See: https://www.mass.gov/guides/massachusetts-constitution-and-the-abolition-of-slavery

The US Constitution (and Declaration of Independence) said pretty much the same thing, yet SCOTUS came to the opposite conclusion. Flesh that out with cites and text from various SCOTUS dissents and you'd have a nice seminar.

[Dan Schiavetta]

"It is not an unusual judicial problem to have to seek the meaning of a law expressed in words not doubtful of themselves, but made so by circumstances or the objects to which they come to be applied." United States v. American Sugar Refining Co., 202 U.S. 563 (1906).

“Words in statutes can enlarge or contract their scope as other changes, in law or in the world, require their application to new instances or make old applications anachronistic [citations]." West v. Gibson, 527 U.S. 212 (1999).

"A word is the skin of a living thought." -- Oliver Wendell Holmes, Jr. (emphasis added)

[apedad]

"The US Constitution (and Declaration of Independence) said pretty much the same thing, yet SCOTUS came to the opposite conclusion."

Maybe because the Constitution had that 3/5s thing so SCOTUS had to go with that (not arguing, just making a suggestion).

[Noscitur a sociis]

What part of the U.S. Constitution are you referring to?

[bernard11]

Good question.

[The Margrave of Azilia]

"For 90 years this was a slave nation."

For around 90 years the country squirmed under the thumb of what opponents called the Slave Power, but the conquest was never total, as evidenced by all the whining by the slavers that they weren't always getting their way.

[Dan Schiavetta]

During the entire time before the Civil War, a majority of the Supreme Court consisted of slaveowner. For 50 of those 72 years, the President was a slaveowner. The only Presidents who got re-elected (Washington, Jefferson, Madison, Monroe, Jackson) were slaveowners.

The free part of the country kept growing, so that by the 1850’s the slaveholding South made up only one-fourth the population. But they were still in control, because of Northern Presidents who upheld the Slave Power (Fillmore, Pierce, Buchanan). Only with the election (barely) of Lincoln did the logjam break.

[The Margrave of Azilia]

Yes, as I said, squirming under the thumb etc. The slavers complained about getting resisted in the North w/r/t their fugitives, not getting the bits of Latin America they wanted, not getting free access to the West, Northern free speech allowing criticism of slavery, etc.

[Rev. Arthur L. Kirkland]

I don't remember being taught those points in school ('60s and '70s). I doubt those facts are being taught in todays classrooms in our can't-keep-up, Republican backwaters.

[Alpheus W Drinkwater]

And Lincoln only happened because the fire-eaters in the south had already decided on secession, and wouldn't agree to any compromise candidates to ruin their plans.

[Dr. Ed 2]

Sorta like Gaza, I didn't realize the extent to which the slaveholders were provoking the North. "Carrying off slaves" indeed -- like they were chickens carried off in baskets.

I'd blame the slave owner for negligence -- he should have been supervising his slaves better. I consider this kettle pleading -- arguing that the slaves were children incapable of not being "carried off" while concurrently adult enough to be trusted with serious responsibilities involving log drives and shepherding animals. At least in the North, log drives were dangerous, lots of men got pinned under the logs and drowned.

As offensive as it is, they considered slaves to be farm animals, like horses and dogs. And neither horses nor dogs could drive logs, you needed people who could think, work together, and occasionally use dynamite to clear jams. The concept of trusting that level of responsibility to a farm animal is mindboggling.

(Oh, and 10% of the logs sank. That and the bark off the other ones sucked all the oxygen out of the rivers and killed all the fish, which is why Maine banned log drives in 1975.)

The other thing here is that SCOTUS was rubbing the North's face into the dirt, I didn't realize that it was more than just Dred Scott, and what eventually happened should be a lesson to those using lawfare against MAGA. And to Gaza, which somehow thinks that Israel won't do what Sherman did to Atlanta.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

It's long been my understanding that it wasn't slavery itself that pissed off the North. They were just as racist as Southerners. Rather, they were pissed that the 3/5 clause gave the slave owners so much extra voting power in Congress that they could ram pro-slavery legislation through when 2/3 of the nation was disgusted by it.

[Dan Schiavetta]

You say that the North didn't care about slavery, then you say that they were upset that pro-slavery legislation could be rammed through Congress "when 2/3 of the nation was disgusted with it". 2/3 of the nation (by voting population) was the North!

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Please try to understand the meaning.

One can hate the slavocracy’s disproportionate political power without hating slavery itself or tolerating blacks.

2/3 of the nation's whites were in the north. But the 1/3 in the South also voted for 3/5 of the slave population.

[apedad]

Just some data...

The 1850 United States census . . . determined the resident population of the United States to be 23,191,876 . . . . The total population included 3,204,313 slaves.

https://en.wikipedia.org/wiki/1850_United_States_census

The wiki link breaks it out by states but not how many whites were in the north (maybe you'd find that digging into other links).

[Dr. Ed 2]

You are right about one thing I know of -- the North was p*ssed that the slaves counted *at all* toward the number of Congressman the state got, what the 1619 crew forget is that they hadn't wanted slaves counted at all and the 3/5ths was a compromise between that and fully counting them in the census totals.

The South had a point -- there were still property qualifications for voting in 1787, and even in the North a lot of White males over age 21 couldn't vote because they didn't own enough real estate. Women wouldn't be able to vote for another 120 years, and people had lots of children back then. Hence even in the North, most of the people couldn't vote.

Look at the original allocation of seats in the Constitution:
" State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three."

That's 35 Free and 30 Slave if I did my math right, the North *always* had more Congressmen, but the other thing to remember is the Electoral College was only 49 to 42, with only two Presidents initially coming from the North (the Adams family).

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I had forgotten about so many qualifications to be a voter, which certainly exaggerated the slavocracy's voting power. I bet a lot fewer than 3/5 of "free white males" could vote.

[Dan Schiavetta]

It actually got worse after emancipation. Due to the “Black Codes”, for decades blacks were all but prevented from voting. So instead of getting apportionment for 3/5 of the black population (with only whites voting), the South now got credit for 5/5 (with only whites voting).

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

The south lost votes after the end of slavery.

[Noscitur a sociis]

If "the North didn't care about slavery", why would they care that it was easier than it should have been to enact pro-slavery legislation?

[The Margrave of Azilia]

It was a continuum, from the out-and-out "philanthropists" who hated slavery and racism altogether, to white racists who wanted the West for themselves, without blacks (enslaved or not) to compete with them. There were grades of opinion between these two poles, and in its own chaotic way the Republicans tried to accommodate the various types of antislavery sentiment.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Everything's a continuum, even transistors. Anti-black racism was the weighty end of its continuum.

[Krayt]

Also in Supreme Court history, Sandra Day O’Connor passed away Dec. 1st.

[Dan Schiavetta]

At the time, my friends and I were saying, “She’s probably the best we are going to get from Reagan.” She turned out to be a little better than expected.

She wrote about her childhood growing up on her family’s 250-square mile ranch. I thought that was a misprint — she must mean 250-acre ranch. But no. It was 250 square miles. That’s bigger than the borough of Queens.

BWT, Reagan should not have gotten so much credit for naming the first female Justice. He was the most anti-equal-rights President in recent history, and Nixon never considered appointing a woman. LBJ and Carter simply did not have the opportunity to do so. It just happened to end up being a Republican who did it.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

What a pathetic comment. "He shouldn't get credit for doing it. He just got lucky by being the first to do it. Others would have but they never got the chance."

Good grief.

[Bob from Ohio]

He had to pick an intermediate state appeals court judge, there were so few possible candidates back in 1981. Women were only 5%+/- of lawyers as late as 1970, so even less of a talent pool among possible S/C picks.

[Syd Henderson]

O'Connor turned out to be a pretty good choice. I used to enjoy reading her opinions since she was such a clear writer. She was a classmate of Rehnquist's at Stanford, Apparently they even dated for a while.

[Bob from Ohio]

She was ok, botched abortion and affirmative action. Better than Tony K by miles.

[Rev. Arthur L. Kirkland]

She deserves credit for a solid career as a reasonable person but she was mostly a go-along-get-along type, soldiering for the losing side of the culture war. She will be remembered as the first woman at the Court but not for much else. Former Justice Ginsburg will and should be better known as a much more influential and laudable figure.

[David Nieporent]

She may have been a clear writer in terms of purely technical aspects of writing, but she was a lousy writer from a substantive point of view because so many of her opinions ended up being multipart balancing tests that didn't make clear law.

[not guilty]

The third member of the Bush v. Gore five has now gone to eternal reward or torment. (I hope it is the latter.) That can't come soon enough for the remaining two.

[Bob from Ohio]

Resetting the "Days without captcrisis bragging about sex" clock to zero.

[Krayt]

[The Margrave of Azilia]

Charles Evans Hughes' beard made him look like a Chief Justice.

Field's glasses and beard made him look like an eccentric professor.