Constitutional Law II Outline - Professor Wallace - Campbell Law - Part 1

Section Two, cl. Two: Extradition Clause:

• Slaves who escape to another state “shall be delivered up” on claim of the person to whom that service may be due

Section Two, cl. Three: Fugitive Slave Clause: “ No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due. ”

• Prigg v. PA
  • PA anti-kidnapping law prohibited self-help to retrieve fugitive slaves and required legal proceedings to retain slaves
    • Fugitive Slave clause invalidates PA law affecting fugitives
    • Yet it provides Congress the power to pass legislation for rendition of fugitive slaves
      • Thus → this power preempts state power even if Congress has not exercised its legislative power in a manner preempting these state laws
    • Likely that textualist approach would not have struck down state law seen in Prigg

Section Three: Admission of New States:

Section Four: Guarantee Clause: Guarantees every state a republican form of government

Territories Clause, New States Admission Clause, and citizenship

• Dred Scott
  • Scott was slave in VA, owners sell him to Emerson
    • Emerson brings Scott to areas that barred slavery by national legislation, lets Scott marry in WS (free state), Emerson later dies in LS and his wife inherits Scott.
    • Scott sues wife in MS fed court trying to get his freedom → MS state law (diversity jurisdiction) didn’t recognize him as citizen based on MS P&I
  • What “citizenship” rights each state may confer that are binding on other states?
    1. Court: African Americans are “inferior race”, can’t sue or be part of relevant political community
       1. Invents national citizenship requirement. At the time, state citizenship provided platform for national citizenship (before 14A)
       2. Even though “foreign citizens” still have the right to sue
    2. Whether one state (MO) must apply another state’s law (IL) to adjudicate the legal status—slave or free—of someone before its courts?
    3. Whether Congress has plenary legislative power for territories under the Territory Clause?
    4. Whether the Missouri Compromise is unconstitutional? (substantive due process)
       1. Unconstitutional because it deprives slave owners of their property without due process
       2. Since Scott is not a citizen, court didn’t actually have jurisdiction → proceeded anyways to invalidate Missouri compromise for political reasons
       3. Court says territories clause is limited to territories existing at the time of its adoption
  • Scott probs would have won if he brought suit in IL or WS, but didn’t have that judgment from the free
    • If Scott would have sued in Illinois, would have been similar to Lemmon v. The People
      • Gained freedom in Illinois, and if Missouri tried to make him a slave, would have violated the Full Faith and Credit Clause

Thirteenth Amendment (1865)

• Forbids slavery and involuntary servitude (repudiates Missouri Compromise Holding of Dred Scott → owning slaves is not a right)
• Regulates private conduct as well as government action
• Grants congress power to regulate

Fourteenth Amendment (1868)

• Establishes substantive protections (citizenship, privileges or immunities, Due Process, Equal Protection) which can be enforced by courts against state action
  • Not federal or private
• Grants Congress the power to legislate these types of acts
• Requires State Action!
• Repealed ⅗ compromise
  • But reduces representation for states that wouldn’t let blacks vote
• Slaughter House Cases: Soon after 14A, NOLA monopolized the butcher industry to abate an ongoing nuisance problem, butchers association sued alleging that the law violated the servitude substantive due process, Privileges & Immunities Clause, and the EP Clause
  • Due Process: Fundamentally unfair
    • Arg.- law strips butchers of life, liberty
    • Dismissed quickly
  • Equal Protection?
    • Court limits EP to race
  • Privileges or Immunities?
    • Court focused on race issues 14A was meant for, N/A here
    • P or I Clause only protects narrow range of rights related to national citizenship
      • Federal rights: assert claims, free access to seaports, pursuit of LLP, peaceably assemble, redress grievances, habeas corpus, use of waters of the U.S.
      • But – Did not explicitly hold BOR doesn’t apply to the states
        • *OG understanding of P or I seems to include BOR, court was just trying to preserve discriminatory practices in this case
        • Modern view incorporates BOR through Due Process Clause