INTRODUCTION TO CONSTITUTIONAL INTERPRETATION AND JUDICIAL REVIEW.

INTRODUCTION TO CONSTITUTIONAL

INTERPRETATION AND JUDICIAL REVIEW

I. A Basic Constitutional Timeline

Depending on our individual histories, we each encounter the course Liberty, Equality, and Due Process

with different understandings of American history, political philosophy, government, or social justice.

Here is a basic timeline of texts that might be helpful:

The Declaration of Independence, 1776

Authored by Thomas Jefferson, the Declaration’s most famous passage is this:

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. That to

secure these rights, Governments are instituted among Men, deriving their just powers from the consent of

the governed.

The Declaration of Independence also includes a list of grievances regarding Acts of King George III

against the “American” colonies; some of these reappear as specific guarantees in the Constitution, for

example, the grievance “quartering large bodies of armed troops among us” is echoed in the Third

Amendment.

One of the grievances in the draft Declaration by Jefferson is an explicit attack on slavery and the “slave

trade”: “He has waged cruel war against human nature itself, violating its most sacred rights of life and

liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery

in another hemisphere or to incur miserable death in their transportation thither. This piratical warfare, the

opprobrium of infidel powers, is the warfare of the Christian King of Great Britain. Determined to keep

open a market where Men should be bought & sold . . . .”

The Articles of Confederation and Perpetual Union, drafted 1776, ratified by 13 states 1781.

This is the precursor to the United States Constitution, sometimes known as the United States’ “first

constitution” or “failed constitution,” usually simply called the “Articles of Confederation.” The generally

accepted rationale for the failure of the Articles of Confederation was that the national government was too

weak when compared with state governments.

The United States Constitution, including the Bill of Rights, drafted 1787; became effective 1789.

In addition to the text of the Constitution, there are three textual sources that are often cited in historical

sources:

The Debates at the Constitutional Convention; The Anti-Federalist Papers (arguments circulated to the

states during the ratification process generally against the Constitution); The Federalist Papers (arguments

circulated to the states during the ratification process in favor of the Constitution; generally anonymous but

attributed and many still influential).

The Constitution structures the federal government into three parts: Article I establishes and concerns the

Legislative branch (“All legislative Powers herein granted shall be vested in a Congress of the United States,

which shall consist of a Senate and House of Representatives.” It provides specific enumerated powers to

Congress, specific limitations, and provides limitations on the powers of States.)

Article II establishes and concerns the Executive branch (It establishes the office of President and Vice

President, the manner of election by “Electors,” specific roles of the President, and impeachment).

Article III establishes and concerns the Judicial Branch (It provides that the “judicial power” is vested in

one supreme court and such inferior courts as Congress may establish, extending to “all Cases, in Law and

Equity, arising under this Constitution,” and in other instances.)

Articles IV – VII also structure the government.

Article IV regards relations among the states and among “citizens” of each state; Article V pertains to the

mode of amendment;

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Article VI includes the Supremacy Clause declaring that the Constitution (and the laws made pursuant to

the Constitution) are the supreme “Law of the Land”);

Article VII outlines the process for ratification of the Constitution.

The Amendments to the Constitution as originally proposed were twelve; only ten passed and these are

known as the Bill of Rights.

The “Reconstruction Amendments,” after the Civil War (1861-1865)

The Thirteenth Amendment (abolition of slavery) (1865)

The Fourteenth Amendment (Citizenship Clause, “No state shall”; Equal Protection, Due Process,

Privileges or Immunities) (1868)

The Fifteenth Amendment (voting shall not be deprived on basis of race) (1870)

II. Judicial Review

Judicial review—the power of the judiciary to declare acts of a usually elected legislative or executive body

void as unconstitutional—is both a cornerstone and a divisive subject of United States constitutional law.

Judicial review is a feature of most, but not all, constitutional democracies in the world, as well as a feature

of many nations that are considered less than democratic. In the so-called American model, general courts

hear constitutional as well as nonconstitutional issues. In the so-called European model, there is one or

more special “Constitutional Court” devoted exclusively to hearing cases challenging the constitutionality

of government laws or acts.

In addition to the judicial power to declare legislative (or executive) acts invalid, the question of judicial

independence is important. In the federal system, judges are not elected but are nominated by the President

and confirmed by the Senate, adding to the anti-democratic critique. Further, in many nations, the term for

judges is a definite one, such as ten or twelve years. In the United States Constitution, Article III § 1 provides

that federal judges “shall hold their Offices during good Behaviour” which has meant life-tenure, although

subject to impeachment. The central concern is that judges be able to exercise independent judgment

without fear of reprisal or losing their positions. Simply put, if a judge can be terminated by the Executive,

she may be more cautious in ruling that a law signed by the Executive is invalid.

In the United States, Marbury v. Madison (1803) is considered the landmark case that “established” judicial

review and is the case that has “tortured generations of law students” as they confront Constitutional Law

and the issue of judicial review. It is in virtually every Constitutional Law Casebook in the United States,

including this one.

Marbury v. Madison

5 U.S. (1 Cranch) 137 (1803)

Mr. Chief Justice Marshall delivered the opinion of the Court.

At the last term, on the affidavits then read and filed with the clerk, a rule was granted in this case requiring

the Secretary of State to show cause why a mandamus should not issue directing him to deliver to William

Marbury his commission as a justice of the peace for the county of Washington, in the District of Columbia.

* * * * The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty

attending the points which occur in it require a complete exposition of the principles on which the opinion

to be given by the Court is founded.

In the order in which the Court has viewed this subject, the following questions have been considered and

decided.

1. Has the applicant a right to the commission he demands?

2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

3. If they do afford him a remedy, is it a mandamus issuing from this court?

The first object of inquiry is:

1. Has the applicant a right to the commission he demands? * * * *{The Court considered the

nomination process and whether it had been followed.} To withhold the commission, therefore, is an act

deemed by the Court not warranted by law, but violative of a vested legal right.

This brings us to the second inquiry, which is:

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2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of

the laws whenever he receives an injury. One of the first duties of government is to afford that protection.

In Great Britain, the King himself is sued in the respectful form of a petition, and he never fails to comply

with the judgment of his court. * * * *

The Government of the United States has been emphatically termed a government of laws, and not of men.

It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a

vested legal right. * * * *

{The Court ultimately concluded that Marbury} having this legal title to the office, he has a consequent

right to the commission, a refusal to deliver which is a plain violation of that right, for which the laws of

his country afford him a remedy.

It remains to be inquired whether,

3. He is entitled to the remedy for which he applies. This depends on:

1. The nature of the writ applied for, and

2. The power of this court.

* * * * {The Court ultimately concluded that} This, then, is a plain case of a mandamus, either to

deliver the commission or a copy of it from the record, and it only remains to be inquired:

Whether it can issue from this Court.

The act to establish the judicial courts of the United States authorizes the Supreme Court

“to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts

appointed, or persons holding office, under the authority of the United States.”

{This is from Section 13 of the 1789 Judiciary Act, reproduced in the Notes.}The Secretary of State, being

a person, holding an office under the authority of the United States, is precisely within the letter of the

description, and if this Court is not authorized to issue a writ of mandamus to such an officer, it must be

because the law is unconstitutional, and therefore absolutely incapable of conferring the authority and

assigning the duties which its words purport to confer and assign.

The Constitution vests the whole judicial power of the United States in one Supreme Court, and such

inferior courts as Congress shall, from time to time, ordain and establish. This power is expressly extended

to all cases arising under the laws of the United States; and consequently, in some form, may be exercised

over the present case, because the right claimed is given by a law of the United States.

In the distribution of this power it is declared that

The Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers

and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have

appellate jurisdiction.

It has been insisted at the bar, that, as the original grant of jurisdiction to the Supreme and inferior courts is

general, and the clause assigning original jurisdiction to the Supreme Court contains no negative or

restrictive words, the power remains to the Legislature to assign original jurisdiction to that Court in other

cases than those specified in the article which has been recited, provided those cases belong to the judicial

power of the United States.

If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between

the Supreme and inferior courts according to the will of that body, it would certainly have been useless to

have proceeded further than to have defined the judicial power and the tribunals in which it should be

vested. The subsequent part of the section is mere surplusage—is entirely without meaning—if such is to

be the construction. If Congress remains at liberty to give this court appellate jurisdiction where the

Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution

has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without

substance.

Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this

case, a negative or exclusive sense must be given to them or they have no operation at all.

It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore

such construction is inadmissible unless the words require it.

If the solicitude of the Convention respecting our peace with foreign powers induced a provision that the

Supreme Court should take original jurisdiction in cases which might be supposed to affect them, yet the

clause would have proceeded no further than to

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provide for such cases if no further restriction on the powers of Congress had been intended. That they

should have appellate jurisdiction in all other cases, with such exceptions as Congress might make, is no

restriction unless the words be deemed exclusive of original jurisdiction.

When an instrument organizing fundamentally a judicial system divides it into one Supreme and so many

inferior courts as the Legislature may ordain and establish, then enumerates its powers, and proceeds so far

to distribute them as to define the jurisdiction of the Supreme Court by declaring the cases in which it shall

take original jurisdiction, and that in others it shall take appellate jurisdiction, the plain import of the words

seems to be that, in one class of cases, its jurisdiction is original, and not appellate; in the other, it is

appellate, and not original. If any other construction would render the clause inoperative, that is an

additional reason for rejecting such other construction, and for adhering to the obvious meaning.

To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction,

or to be necessary to enable them to exercise appellate jurisdiction.

It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that,

if it be the will of the Legislature that a mandamus should be used for that purpose, that will must be obeyed.

This is true; yet the jurisdiction must be appellate, not original.

It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause

already instituted, and does not create that case. Although, therefore, a mandamus may be directed to courts,

yet to issue such a writ to an officer for the delivery of a paper is, in effect, the same as to sustain an original

action for that paper, and therefore seems not to belong to appellate, but to original jurisdiction. Neither is

it necessary in such a case as this to enable the Court to exercise its appellate jurisdiction.

The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of the United

States to issue writs of mandamus to public officers appears not to be warranted by the Constitution, and it

becomes necessary to inquire whether a jurisdiction so conferred can be exercised.

The question whether an act repugnant to the Constitution can become the law of the land is a question

deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest. It seems

only necessary to recognise certain principles, supposed to have been long and well established, to decide

it.

That the people have an original right to establish for their future government such principles as, in their

opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has

been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be

frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority

from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government and assigns to different departments their

respective powers. It may either stop here or establish certain limits not to be transcended by those

departments.

The Government of the United States is of the latter description. The powers of the Legislature are defined

and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what

purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may

at any time be passed by those intended to be restrained? The distinction between a government with limited

and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed,

and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested

that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the

Constitution by an ordinary act.

Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law,

unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is

alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if

the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a

power in its own nature illimitable.

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental

and paramount law of the nation, and consequently the theory of every such government must be that an

act of the Legislature repugnant to the Constitution is void.

This theory is essentially attached to a written Constitution, and is consequently to be considered by this

Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further

consideration of this subject.

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If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind

the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a

rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and

would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive

consideration.

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply

the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each

other, the Courts must decide on the operation of each.

So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular

case, so that the Court must either decide that case conformably to the law, disregarding the Constitution,

or conformably to the Constitution, disregarding the law, the Court must determine which of these

conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the

Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount

law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and

see only the law.

This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act

which, according to the principles and theory of our government, is entirely void, is yet, in practice,

completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such

act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a

practical and real omnipotence with the same breath which professes to restrict their powers within narrow

limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions—a

written Constitution, would of itself be sufficient, in America where written Constitutions have been viewed

with so much reverence, for rejecting the construction. But the peculiar expressions of the Constitution of

the United States furnish additional arguments in favour of its rejection.

The judicial power of the United States is extended to all cases arising under the Constitution.

Could it be the intention of those who gave this power to say that, in using it, the Constitution should not

be looked into? That a case arising under the Constitution should be decided without examining the

instrument under which it arises?

This is too extravagant to be maintained.

In some cases then, the Constitution must be looked into by the judges. And if they can open it at all, what

part of it are they forbidden to read or to obey?

There are many other parts of the Constitution which serve to illustrate this subject.

It is declared that “no tax or duty shall be laid on articles exported from any State.” Suppose a duty on the

export of cotton, of tobacco, or of flour, and a suit instituted to recover it. Ought judgment to be rendered

in such a case? ought the judges to close their eyes on the Constitution, and only see the law?

The Constitution declares that “no bill of attainder or ex post facto law shall be passed.”

If, however, such a bill should be passed and a person should be prosecuted under it, must the Court

condemn to death those victims whom the Constitution endeavours to preserve?

“No person,’ says the Constitution, ‘shall be convicted of treason unless on the testimony of two witnesses

to the same overt act, or on confession in open court.”

Here the language of the Constitution is addressed especially to the Courts. It prescribes, directly for them,

a rule of evidence not to be departed from. If the Legislature should change that rule, and declare one

witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the

legislative act?

From these and many other selections which might be made, it is apparent that the framers of the

Constitution contemplated that instrument as a rule for the government of courts, as well as of the

Legislature.

Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an

especial manner to their conduct in their official character. How immoral to impose it on them if they were

to be used as the instruments, and the knowing instruments, for violating what they swear to support!

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The oath of office, too, imposed by the Legislature, is completely demonstrative of the legislative opinion

on this subject. It is in these words:

“I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor

and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as

according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United

States.”

Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that

Constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him?

If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath

becomes equally a crime.

It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land,

the Constitution itself is first mentioned, and not the laws of the United States generally, but those only

which shall be made in pursuance of the Constitution, have that rank.

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the

principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is

void, and that courts, as well as other departments, are bound by that instrument.

Notes

1. Marbury is not an easy case, in part because of Chief Justice Marshall’s style. There are many

issues in the case and the order in which they are presented is not necessarily logical. But the central feature

of the case is the Supreme Court’s power, including the “power” that Congress sought to confer on the

Court by § 13 of the Judiciary Act of 1789:

And be it further enacted, That the Supreme Court shall have exclusive jurisdiction of all controversies of

a civil nature, where a state is a party, except between a state and its citizens; and except also between a

state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive

jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors,

or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise

consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by

ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial

of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by

jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the

several states, in the cases herein after specially provided for; and shall have power to issue writs of

prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and

writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or

persons holding office, under the authority of the United States.

Be prepared to articulate the Court’s holding regarding the statute.

2. While Chief Justice Marshall alludes to the “peculiar delicacy” of the case, that is not apparent

from the opinion. The underlying events start with the election of 1800, a contentious election in the early

history of the United States, marking the rise of political parties. The Federalist party had been in power,

led by John Adams who had lost his re-election for President to Thomas Jefferson, a Republican-Democrat.

John Marshall served as the Secretary of State under Adams. When John Jay declined an offer to resume

his position as Chief Justice, Adams nominated Marshall to be the new Chief Justice of the United States

Supreme Court. Marshall assumed his position on the Supreme Court on February 4, 1801, and continued

to simultaneously serve as Adams’ Secretary of State until March 4, 1801, when Thomas Jefferson was

inaugurated as President.

During Adams’ last days in office, he worked to fill the numerous new judicial vacancies created by the

lame-duck Congress. Many commentators believe the Federalist’s goal was to take control of the judicial

branch, having lost power in the executive and legislative branches.

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Marbury filed his original action before the United States Supreme Court in December 1801. In those early

days of the Court, the docket was small and the Court should have been able to decide the case promptly.

However, the new Congress had abolished the June and December 1802 Terms of the Court and had

repealed the Judiciary Act of 1801, which returned the Supreme Court Justices to the busy task of “circuit-

riding.” Thus, the Court did not hear Marbury v. Madison until 1803.

3. Scholars have argued that Marbury v. Madison did not “establish” judicial review. For example,

William Michael Treanor, in Judicial Review Before Marbury, 58 Stan.L.Rev. 455, 457-58 (2005),

examines thirty-one pre-Marbury cases in which a statute was invalidated and seven additional cases in

which, although the statute was upheld, one judge concluded that the statute was unconstitutional. The

United States Supreme Court itself had previously invalidated a Virginia statute in Ware v. Hylton, 3 U.S.

(3 Dall.) 199 (1796), known as the British Debt Case, as inconsistent with the Treaty of Paris. (The Virginia

statute had sought to nullify Revolutionary War debts which the treaty had agreed were enforceable). In

Federalist No. 78, attributed to Alexander Hamilton, there is an argument for judicial review including the

proposition that the United States Supreme Court would be the ultimate arbiter of the Constitution. Note

that in Marbury, Chief Justice Marshall implies that judicial review is an inherent feature of the judiciary.

Nevertheless, Marbury is generally cited as the landmark case establishing judicial review. As such, it could

be cited by courts whenever they are considering the constitutionality of government actions, but in fact it

is cited only occasionally. Consider what circumstances cause a court (or a litigant) to cite Marbury v.

Madison.

Further Your Understanding

CALI Lesson: Marbury v. Madison

CALI, The Center for Assisted Legal Instruction, has a lesson designed to assist and further your

understanding of Marbury v.

Madison and its relevance. The above-linked lesson includes 25 questions and should take 30 – 45 minutes

to complete.

III. Constitutional Interpretation

The question of how courts should interpret the constitution – – – and the question of how we might

understand judicial opinions and construct legal arguments – – – is a vexed one. There are many types of

constitutional theories, but below is a broad outline.

A. Originalist Theories

Originalist theories generally look to the “framers” of the Constitution to derive meaning. Different types

of originalist theories include:

Textualism: Centers the words of the Constitution. Questions include whether the specific phrase has a

plain meaning. Broader questions include inquiry into the Constitution as a whole: surrounding content;

repeat of the words elsewhere in the Constitution; absent words.

Original intent: Focuses on the framers of the specific phrase. What did they intend.

Original meaning: Broader than original intent, considers what persons at the time would have understood

by the specific phrase.

Original purpose: Broader than original intent, considers what the framers of the “ultimately” meant, even

if they did not have a specific intent that governs the problem under consideration.

B. Pragmatic Theories

Pragmatic theories, sometimes also called legal process theories, generally consider the place of the courts

in a democracy. The two major types of this theory take somewhat opposing perspectives:

Representation-Reinforcement: Championed by John Hart Ely in his famous work Democracy and Distrust,

this theory focuses on the role of the unelected federal judicial branch in a democracy. It posits that the role

of the courts should be to “reinforce” representative democracy by preventing a tyranny of the majority and

thus, ultimately, to forestall violent uprisings by minorities.

Passive Virtues: Championed by Alexander Bickel in his famous work The Least Dangerous Branch, this

theory also focuses on the role of the unelected federal judiciary in a democracy. However, it posits that the

role of the courts should be to exercise restraint and allow the democratic process to “work itself out” lest

the judiciary itself be compromised. Courts should not decide controversies too early and should always

decide controversies on the narrowest grounds possible.

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C. Evolutive Theories

Evolutive theories generally posit that the Constitution should “evolve.” Under this view, the past may be

a guide but should not be determinative. Types of evolutive theory include:

Living Constitutionalism: This theory posits that constitutional meaning evolves and it is subject to

reinterpretation by each generation. Justice Stephen Breyer has been a strong advocate of this theory, most

notably in his 2005 book, Active Liberty: Interpreting Our Democratic Constitution.

Critical Theories: Like living constitutionalism, these theories advocate for a progressive interpretation, but

often from a specific vantage point. For example, Critical Race Theory would advocate that the Constitution

enshrined slavery and white supremacy, so present interpretive strategies should attempt to reject that

legacy. Similarly, Critical Feminist Theory would advocate that the Constitution erases women and

preserves patriarchy, so present interpretive strategies should attempt to reject that legacy. There are also

queer, dis/ability, class-based, Native, and other theories.

Popular Constitutionalism: This theory calls for de-centering the judiciary and advocates recognizing how

“average people” today understand and enact constitutional norms.

Check Your Understanding

Notes

1. The late Justice Antonin Scalia, well-known as an orginalist, and Justice Stephen Breyer,

advocating living constitutionalism both wrote books advocating their positions and together participated

in many public conversations and debates about their respective constitutional interpretative philosophies.

2. Regarding originalist interpretative strategies, consider what type of documentary evidence would

be used in making arguments about intent, meaning, and purpose.

3. Judicial activism and judicial restraint overlap with constitutional theories, but theories do not

necessarily coincide with “activist” or “restrained” outcomes.

At its most basic, an activist constitutional decision elevates a judicial determination over a democratic one:

it declares the “state action” unconstitutional. Likewise, at its most basic, when a court practices judicial

restraint, it allows the democratically-enacted government action to stand.

Note also that activist/restrained decisions do not necessarily coincide with “liberal” or “conservative”

outcomes.

This page titled 1.2: CHAPTER TWO- Introduction to Constitutional Interpretation and Judicial Review is

shared under a CC BY-NC-SA 4.0 license and was authored, remixed, and/or curated by Ruthann Robson

(CALI- The Center for Computer-Assisted Legal Instruction) via source content that was edited to the style

and standards of the LibreTexts platform; a detailed edit history is available upon request.

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1.3: CHAPTER THREE- Slavery and Racial Equality

I. Constitutional Equality Before the Reconstruction Amendments

Recall that although the notion of equality is in the Declaration of Independence, it is not in the Articles of

Confederation or the Constitution before the Reconstruction Amendments.

Despite the Constitution’s Preamble, “We the People,” generally speaking, people who counted as “people”

in the Constitution were white and male.

As for women, despite Abigail Adams’ well-known letter to her husband John Adams at the Continental

Congress in 1776 to “Remember the Ladies,” the Declaration of Independence, Articles of Confederation,

and pre-Reconstruction Constitution do not address sex/gender, implicitly assuming a male political body

despite a population of roughly 50% women.

As for Native Americans, the Constitution recognizes the sovereignty of Indian Tribes, explicitly in Article

I, § 8, cl. 3, which gives Congress (rather than states) the power to “regulate commerce” with “the Indian

Tribes” and implicitly in Article VI, the Supremacy Clause, which declares the Constitution supreme, also

provides that treaties entered into by the United States “shall be the supreme Law of the Land.” (In 1789,

there were at least 9 treaties with Indian nations.)

Most contentious in the Constitution was the status of enslaved persons. The 1789 Constitution enshrined

slavery, albeit without ever using the term. Despite the absence of the word, the so-called compromise

among the framers of the Constitution regarding slavery appears in a number of provisions.

One of most well-known compromises also implicates women and Native Americans, as well as federal-

state relations (federalism) and democracy (another term that does not appear in the Constitution).

Article I § 2 cl. 3, regarding representation in the House of Representatives of Congress, provides:

Representatives and direct Taxes shall be apportioned among the several States which may be included

within this Union, according to their respective Numbers, which shall be determined by adding to the whole

Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not

taxed, three fifths of all other Persons.

This provision itself was itself a compromise regarding how representation among the states in the House

of Representatives should be apportioned. The competing proposition was that representation should be

linked to commerce or taxes paid to the federal government; this would essentially be representation of

states based on their wealth.

Once it was decided it should be people rather than money, however, the question was which people should

be counted.

The initial proposal was that population should be “the whole number of white & other free Citizens and

inhabitants of every age sex & condition including those bound to servitude for a term of years and three

fifths of all other persons not comprehended in the foregoing description, except Indians paying taxes, in

each state.” Supposedly for stylistic reasons, “every age sex & condition” was omitted. As applied, women

(and children) were counted as part of the population.

The provision explicitly excluded “Indians not taxed” from being counted in the population to be

represented in the House of Representatives of Congress. This assumes that Indians who did not reside on

sovereign tribal lands would pay taxes and be part of the population.

The inclusion of all persons who were free (even if not white) or indentured for a term of years in the

population calculation recognized both free people of color and all indentured servants. Note that indentured

servants were usually Europeans who had obtained passage to the United States. Sometimes this passage

was as punishment for a crime or as a release from debtors’ prison. Sometimes persons bought passage for

economic advancement or personal reasons; sometimes persons were assigned passage by their families.

Indentured servants were to work without pay for a set period, often 7 years, although the term could be

extended for infractions including minor crimes, inadequate service, or pregnancy. During the time of

servitude one could not “quit,” but one was considered a servant and not property (chattel) and after the

term ended one was a free person.

The “three fifths of all other Persons” portion of Article I § 2 cl. 3 is the most infamous. “All other persons”

meant enslaved persons. In general, the Northern states in which slavery was minimal wanted slaves to not

count as persons; the Southern states in which enslaved persons were a majority of the population wanted

slaves to be counted as full persons. This may seem paradoxical, but what was at stake was how large the

number of representatives in Congress would be. The compromise was that each enslaved person would be

counted as “three-fifths” of a person when calculating the total population as a basis for representation.

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Gouverneur Morris (who despite his first name was never governor but was later a United States Senator

from New York) famously excoriated such a compromise during the Constitutional Convention: “Upon

what principle is it that the slaves shall be computed in the representation? Are they men? Then make them

Citizens & let them vote? Are they property? Why then is no other property included?”

However, the presumptive author of Federalist Paper No. 54 James Madison argued that the Constitution

was correct to view “our slaves” as possessing “the mixed character of persons and of property.” Madison

contended that this was “in fact their true character,” although it was not necessarily a natural one: “it is

only under the pretext that the laws have transformed the negroes into subjects of property, that a place is

disputed them in the computation of numbers; and it is admitted, that if the laws were to restore the rights

which have been taken away, the negroes could no longer be refused an equal share of representation with

the other inhabitants.”

In addition to Article I § 2 cl. 3, several other provisions in the 1789 Constitution recognized slavery, again

without using the term.

First, Article I, § 9, cl. 1 and Article V guaranteed the importation of slaves into the United States until

1808.

Article I, § 9, cl. 1, prohibited Congress from acting. It provided that “The Migration or Importation of such

Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress

prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such

Importation, not exceeding ten dollars for each Person.”

Article V, regarding amendments to the Constitution, exempted Article I, § 9, cl. 1 from the amendment

process until then.

Note that Congress did pass the Act Prohibiting Importation of Slaves of 1807, signed (and championed)

by President Thomas Jefferson, which became effective January 1, 1808.

Second, Article IV mandated the recognition of slave status by all states. Article IV is best known for

requiring states to give “full faith and credit” to the proceedings of other states and to grant “all privileges

and immunities” to citizens of other states, but it also contained the so-called Fugitive Slave Clause. It

provided that: “No Person held to Service or Labour 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

Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.”

Lastly, and perhaps most obliquely, the Article I, § 8 powers of Congress include “calling forth the Militia

to execute the Laws of the Union, suppress Insurrections and repel Invasions,” implying the possibility of

slave or other rebellions.

II. Litigating Slavery and Equality Before the Reconstruction Amendments

Prigg v. Pennsylvania

41 U.S. (16 Pet.) 539 (1842)

Mr. Justice Story delivered the opinion of the Court.

This is a writ of error to the Supreme Court of Pennsylvania . . . in a case involving the construction of the

Constitution and laws of the United States.

The facts are briefly these: The plaintiff in error {Edward Prigg} was indicted in * * * * York County

{Pennsylvania} for having, with force and violence, taken and carried away from that county, to the State

of Maryland, a certain negro woman, named Margaret Morgan, with a design and intention of selling and

disposing of, and keeping her, as a slave or servant for life, contrary to a statute of Pennsylvania, passed on

the 26th of March, 1826. That statute, in the first section, in substance provides that, if any person or persons

shall, from and after the passing of the act, by force and violence, take and carry away, or cause to be taken

and carried away, and shall, by fraud or false pretence, seduce, or cause to be seduced, or shall attempt to

take, carry away or seduce, any negro or mulatto from any part of that Commonwealth, with a design and

intention of selling and disposing of, or causing to be sold, or of keeping and detaining, or of causing to be

kept and detained, such negro or mulatto, as a slave or servant for life, or for any term whatsoever, every

such person or persons, his or their aiders or abettors, shall, on conviction thereof, be deemed guilty of

felony, and shall forfeit and pay a sum not less than five hundred, nor more than one thousand dollars, and

moreover shall be sentenced to undergo servitude for any term or terms of years, not less than seven years

nor exceeding twenty-one years, and shall be confined and kept to hard labor, &c.

There are many other provisions in the statute, which is recited at large in the record but to which it is in

our view unnecessary to advert upon the present occasion.

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The plaintiff in error pleaded not guilty to the indictment, and, at the trial, the jury found a special verdict

which in substance states that the negro woman, Margaret Morgan, was a slave for life, and held to labor

and service under and according to the laws of Maryland, to a certain Margaret Ashmore, a citizen of

Maryland; that the slave escaped and fled from Maryland into Pennsylvania in 1832; that the plaintiff in

error, being legally constituted the agent and attorney of the said Margaret Ashmore, in 1837 caused the

said negro woman to be taken and apprehended as a fugitive from labor by a state constable under a warrant

from a Pennsylvania magistrate; that the said negro woman was thereupon brought before the said

magistrate, who refused to take further cognizance of the case; and thereupon the plaintiff in error did

remove, take and carry away the said negro woman and her children out of Pennsylvania into Maryland,

and did deliver the said negro woman and her children into the custody and possession of the said Margaret

Ashmore. The special verdict further finds that one of the children was born in Pennsylvania more than a

year after the said negro woman had fled and escaped from Maryland.

Upon this special verdict, the Court of Oyer and Terminer of York County adjudged that the plaintiff in

error was guilty of the offense charged in the indictment. A writ of error was brought from that judgment

to the Supreme Court of Pennsylvania, where the judgment was, pro forma, affirmed. From this latter

judgment, the present writ of error has been brought to this Court. * * * *

The question arising in the case as to the constitutionality of the statute of Pennsylvania, has been most

elaborately argued at the bar. The counsel for the plaintiff in error have contended that the statute of

Pennsylvania is unconstitutional, first, because Congress has the exclusive power of legislation upon the

subject matter under the Constitution of the United States and under the act of the 12th of February 1793,

ch. 51 {the federal Fugitive Slave Act} which was passed in pursuance thereof; secondly, that, if this power

is not exclusive in Congress, still the concurrent power of the state legislatures is suspended by the actual

exercise of the power of Congress; and thirdly, that, if not suspended, still the statute of Pennsylvania, in

all its provisions applicable to this case, is in direct collision with the act of Congress, and therefore, is

unconstitutional and void. The counsel for Pennsylvania maintain the negative of all those points.

Few questions which have ever come before this Court involve more delicate and important considerations,

and few upon which the public at large may be presumed to feel a more profound and pervading interest.

We have accordingly given them our most deliberate examination, and it has become my duty to state the

result to which we have arrived, and the reasoning by which it is supported.

Before, however, we proceed to the points more immediately before us, it may be well, in order to clear the

case of difficulty, to say that, in the exposition of this part of the Constitution, we shall limit ourselves to

those considerations which appropriately and exclusively belong to it, without laying down any rules of

interpretation of a more general nature. It will indeed probably be found, when we look to the character of

the Constitution itself, the objects which it seeks to attain, the powers which it confers, the duties which it

enjoins, and the rights which it secures, as well as the known historical fact, that many of its provisions

were matters of compromise of opposing interests and opinions, that no uniform rule of interpretation can

be applied to it which may not allow, even if it does not positively demand, many modifications in its actual

application to particular clauses. And perhaps the safest rule of interpretation, after all, will be found to be

to look to the nature and objects of the particular powers, duties, and rights with all the lights and aids of

contemporary history, and to give to the words of each just such operation and force, consistent with their

legitimate meaning, as may fairly secure and attain the ends proposed.

There are two clauses in the Constitution upon the subject of fugitives, which stands in juxtaposition with

each other and have been thought mutually to illustrate each other. They are both contained in the second

section of the fourth Article, and are in the following words:

“A person charged in any State with treason, felony, or other crime who shall flee from justice and be found

in another State shall, on demand of the executive authority of the State from which he fled, be delivered

up, to be removed to the State having jurisdiction of the crime.”

“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.”

The last clause is that the true interpretation whereof is directly in judgment before us. Historically, it is

well known that the object of this clause was to secure to the citizens of the slave-holding States the

complete right and title of ownership in their slaves, as property, in every State in the Union into which

they might escape from the State where they were held in servitude. The full recognition of this right and

title was indispensable to the security of this species of property in all the slave-holding States, and indeed

was so vital to the preservation of their domestic interests and institutions that it cannot be doubted that it

constituted a

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fundamental article without the adoption of which the Union could not have been formed. Its true design

was to guard against the doctrines and principles prevalent in the non-slaveholding States, by preventing

them from intermeddling with, or obstructing, or abolishing the rights of the owners of slaves.

By the general law of nations, no nation is bound to recognize the state of slavery as to foreign slaves found

within its territorial dominions, when it is in opposition to its own policy and institutions, in favor of the

subjects of other nations where slavery is recognized. If it does it, it is as a matter of comity, and not as a

matter of international right. The state of slavery is deemed to be a mere municipal regulation, founded

upon and limited to the range of the territorial laws. * * * It is manifest from this consideration that, if the

Constitution had not contained this clause, every non-slaveholding State in the Union would have been at

liberty to have declared free all runaway slaves coming within its limits, and to have given them entire

immunity and protection against the claims of their masters—a course which would have created the most

bitter animosities and engendered perpetual strife between the different States. The clause was therefore of

the last importance to the safety and security of the southern States, and could not have been surrendered

by them, without endangering their whole property in slaves. The clause was accordingly adopted into the

Constitution by the unanimous consent of the framers of it—a proof at once of its intrinsic and practical

necessity.

How then are we to interpret the language of the clause? The true answer is in such a manner as, consistently

with the words, shall fully and completely effectuate the whole objects of it. * * * The clause manifestly

contemplates the existence of a positive, unqualified right on the part of the owner of the slave which no

state law or regulation can in any way qualify, regulate, control, or restrain. The slave is not to be discharged

from service or labor in consequence of any state law or regulation. Now certainly, without indulging in

any nicety of criticism upon words, it may fairly and reasonably be said that any state law or state regulation

which interrupts, limits, delays, or postpones the right of the owner to the immediate possession of the slave

and the immediate command of his service and labor operates pro tanto a discharge of the slave therefrom.

The question can never be how much the slave is discharged from, but whether he is discharged from any,

by the natural or necessary operation of state laws or state regulations. The question is not one of quantity

or degree, but of withholding or controlling the incidents of a positive and absolute right.

We have said that the clause contains a positive and unqualified recognition of the right of the owner in the

slave, unaffected by any state law or legislation whatsoever, because there is no qualification or restriction

of it to be found therein, and we have no right to insert any which is not expressed and cannot be fairly

implied. Especially are we estopped from so doing when the clause puts the right to the service or labor

upon the same ground, and to the same extent, in every other State as in the State from which the slave

escaped and in which he was held to the service or labor. If this be so, then all the incidents to that right

attach also. The owner must, therefore, have the right to seize and repossess the slave, which the local laws

of his own State confer upon him, as property, and we all know that this right of seizure and recaption is

universally acknowledged in all the slaveholding States. Indeed, this is no more than a mere affirmance of

the principles of the common law applicable to this very subject. * * * *

Upon this ground, we have not the slightest hesitation in holding that, under and in virtue of the

Constitution, the owner of a slave is clothed with entire authority, in every State in the Union, to seize and

recapture his slave whenever he can do it without any breach of the peace or any illegal violence. In this

sense and to this extent, this clause of the Constitution may properly be said to execute itself, and to require

no aid from legislation, state or national.

But the clause of the Constitution does not stop here, nor, indeed, consistently with its professed objects,

could it do so. * * * And this leads us to the consideration of the other part of the clause, which implies at

once a guarantee and duty. It says, “but he [the slave] shall be delivered up on claim of the party to whom

such service or labor may be due.” {note: brackets in original} Now we think it exceedingly difficult, if not

impracticable, to read this language and not to feel that it contemplated some further remedial redress than

that which might be administered at the hands of the owner himself. A claim is to be made! What is a claim?

It is, in a just juridical sense, a demand of some matter, as of right, made by one person upon another, to do

or to forbear to do some act or thing as a matter of duty. * * *

The slave is to be delivered up on the claim. By whom to be delivered up? In what mode to be delivered

up? How, if a refusal takes place, is the right of delivery to be enforced? Upon what proofs? What shall be

the evidence of a rightful recaption or delivery? When and under what circumstances shall the possession

of the owner, after it is obtained, be conclusive of his right, so as to preclude any further inquiry or

examination into it by local tribunals or otherwise, while the slave, in possession of the owner, is in transitu

to the State from which he fled?

These and many other questions will readily occur upon the slightest attention to the clause; and it is obvious

that they can receive but one satisfactory answer. They require the aid of legislation to protect the right, to

enforce the delivery, and to secure the subsequent possession of the slave. If, indeed, the Constitution

guaranties the right, and if it requires the delivery upon the claim of

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the owner (as cannot well be doubted), the natural inference certainly is that the National Government is

clothed with the appropriate authority and functions to enforce it. The fundamental principle, applicable to

all cases of this sort, would seem to be that, where the end is required, the means are given; and where the

duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom

it is entrusted. The clause is found in the National Constitution, and not in that of any State. It does not

point out any state functionaries, or any state action, to carry its provisions into effect. The States cannot,

therefore, be compelled to enforce them, and it might well be deemed an unconstitutional exercise of the

power of interpretation to insist that the States are bound to provide means to carry into effect the duties of

the National Government, nowhere delegated or entrusted to them by the Constitution. On the contrary, the

natural, if not the necessary, conclusion is, that the National Government, in the absence of all positive

provisions to the contrary, is bound, through its own proper departments, legislative, judicial or executive,

as the case may require, to carry into effect all the rights and duties imposed upon it by the Constitution. *

* * *

The remaining question is whether the power of legislation upon this subject is exclusive in the National

Government or concurrent in the States until it is exercised by Congress. In our opinion, it is exclusive * *

* *

It is scarcely conceivable that the slaveholding States would have been satisfied with leaving to the

legislation of the non-slaveholding States a power of regulation, in the absence of that of Congress, which

would or might practically amount to a power to destroy the rights of the owner. * * * *

These are some of the reasons, but by no means all, upon which we hold the power of legislation on this

subject to be exclusive in Congress. To guard, however, against any possible misconstruction of our views,

it is proper to state that we are by no means to be understood in any manner whatsoever to doubt or to

interfere with the police power belonging to the States in virtue of their general sovereignty. That police

power extends over all subjects within territorial limits of the States, and has never been conceded to the

United States. It is wholly distinguishable from the right and duty secured by the provision now under

consideration, which is exclusively derived from and secured by the Constitution of the United States and

owes its whole efficacy thereto. We entertain no doubt whatsoever that the States, in virtue of their general

police power, possesses full jurisdiction to arrest and restrain runaway slaves, and remove them from their

borders, and otherwise to secure themselves against their depredations and evil example, as they certainly

may do in cases of idlers, vagabonds and paupers. The rights of the owners of fugitive slaves are in no just

sense interfered with or regulated by such a course, and, in many cases, the operations of this police power,

although designed generally for other purposes—for protection, safety and peace of the State—may

essentially promote and aid the interests of the owners. But such regulations can never be permitted to

interfere with or to obstruct the just rights of the owner to reclaim his slave, derived from the Constitution

of the United States, or with the remedies prescribed by Congress to aid and enforce the same.

Upon these grounds, we are of opinion that the act of Pennsylvania upon which this indictment is founded

is unconstitutional and void. It purports to punish as a public offense against that State the very act of seizing

and removing a slave by his master which the Constitution of the United States was designed to justify and

uphold. The special verdict finds this fact, and the state courts have rendered judgment against the plaintiff

in error upon that verdict. That judgment must, therefore, be reversed, and the cause remanded to the

Supreme Court of Pennsylvania with directions to carry into effect the judgment of this Court rendered

upon the special verdict, in favor of the plaintiff in error.

{The separate concurring opinions of Chief Justice Taney, and Justices Thompson, Wayne, Daniel, and

McLean are omitted.}

Scott v. Sandford

60 US (19 How.) 393 (1857)

{Dred Scott, his wife Harriet, and his daughters, Eliza and Lizzie, were slaves conveyed as property to the

defendant, John Sanford, whose name is mistakenly spelled in the case with an extra “d.” In 1834, Scott’s

former slaveowner, an Army surgeon named Emerson, had taken him from Missouri, where slavery was

legal, to Illinois, where slavery was not legal. They then traveled to Fort Snelling in now-Minnesota

(Wisconsin Territory) which had been part Louisiana Purchase, and was north of 36° 30’, an area in which

slavery was forbidden by the Missouri Compromise, codified as Act of March 6, 1820, 3 Stat. 545. Dred

Scott had married Harriet Scott in Fort Snelling. There were also travels to Louisiana. Emerson brought

them back to Missouri and then “sold and conveyed” the Scotts to Sanford. More specific facts from the

Opinion are in the Notes.

Scott sued on behalf of himself and his family for freedom based on the argument that residence in a free

state and free territory had conferred freedom. He won in a state trial court in Missouri, but the Missouri

supreme court reversed. He then brought suit in

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federal court (the “plea in abatement”) against Sanford, who had moved to New York, on the basis of

diversity jurisdiction, allowed in the Constitution by Art. III § 2, which requires that the lawsuit be “between

Citizens of different States.” On a writ of error, from an adverse judgment, Dred Scott appealed to the

Supreme Court.}

Mr. Chief Justice Taney delivered the opinion of the Court.

* * * * The question is simply this: Can a negro, whose ancestors were imported into this country,

and sold as slaves, become a member of the political community formed and brought into existence by the

Constitution of the United States, and as such become entitled to all the rights, and privileges, and

immunities, guarantied {sic} by that instrument to the citizen? One of which rights is the privilege of suing

in a court of the United States in the cases specified in the Constitution.

It will be observed that the plea applies to that class of persons only whose ancestors were negroes of the

African race, and imported into this country and sold and held as slaves. The only matter in issue before

the court, therefore, is, whether the descendants of such slaves, when they shall be emancipated, or who are

born of parents who had become free before their birth, are citizens of a State in the sense in which the

word “citizen” is used in the Constitution of the United States. And this being the only matter in dispute on

the pleadings, the court must be understood as speaking in this opinion of that class only, that is, of those

persons who are the descendants of Africans who were imported into this country and sold as slaves.

The situation of this population was altogether unlike that of the Indian race. The latter, it is true, formed

no part of the colonial communities, and never amalgamated with them in social connections or in

government. But although they were uncivilized, they were yet a free and independent people, associated

together in nations or tribes and governed by their own laws. * * * *

The words “people of the United States” and “citizens” are synonymous terms, and mean the same thing.

They both describe the political body who, according to our republican institutions, form the sovereignty

and who hold the power and conduct the Government through their representatives. They are what we

familiarly call the “sovereign people,” and every citizen is one of this people, and a constituent member of

this sovereignty. The question before us is whether the class of persons described in the plea in abatement

compose a portion of this people, and are constituent members of this sovereignty? We think they are not,

and that they are not included, and were not intended to be included, under the word “citizens” in the

Constitution, and can therefore claim none of the rights and privileges which that instrument provides for

and secures to citizens of the United States. On the contrary, they were at that time considered as a

subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether

emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those

who held the power and the Government might choose to grant them.

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these

laws. The decision of that question belonged to the political or lawmaking power, to those who formed the

sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have

framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its

true intent and meaning when it was adopted.

In discussing this question, we must not confound the rights of citizenship which a State may confer within

its own limits and the rights of citizenship as a member of the Union. It does not by any means follow,

because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United

States. He may have all of the rights and privileges of the citizen of a State and yet not be entitled to the

rights and privileges of a citizen in any other State. For, previous to the adoption of the Constitution of the

United States, every State had the undoubted right to confer on whomsoever it pleased the character of

citizen, and to endow him with all its rights. But this character, of course, was confined to the boundaries

of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws

of nations and the comity of States. Nor have the several States surrendered the power of conferring these

rights and privileges by adopting the Constitution of the United States. Each State may still confer them

upon an alien, or anyone it thinks proper, or upon any class or description of persons, yet he would not be

a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue

as such in one of its courts, nor to the privileges and immunities of a citizen in the other States. The rights

which he would acquire would be restricted to the State which gave them. The Constitution has conferred

on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive,

and has always been held by this court to be so. Consequently, no State, since the adoption of the

Constitution, can, by naturalizing an alien, invest him with the rights and privileges secured to a citizen of

a State under the Federal Government, although, so far as the State alone was concerned, he would

undoubtedly be entitled to the rights of a citizen and clothed with all the rights and immunities which the

Constitution and laws of the State attached to that character. * * * * *

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This brings us to examine by what provision of the Constitution the present Federal Government, under its

delegated and restricted powers, is authorized to acquire territory outside of the original limits of the United

States, and what powers it may exercise therein over the person or property of a citizen of the United States

while it remains a Territory and until it shall be admitted as one of the States of the Union. * * * *

Now, as we have already said in an earlier part of this opinion upon a different point, the right of property

in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like an ordinary

article of merchandise and property, was guarantied to the citizens of the United States in every State that

might desire it for twenty years. And the Government in express terms is pledged to protect it in all future

time if the slave escapes from his owner. This is done in plain words—too plain to be misunderstood. And

no word can be found in the Constitution which gives Congress a greater power over slave property or

which entitles property of that kind to less protection that property of any other description. The only power

conferred is the power coupled with the duty of guarding and protecting the owner in his rights.

Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen

from holding and owning property of this kind in the territory of the United States north of the line therein

mentioned is not warranted by the Constitution, and is therefore void, and that neither Dred Scott himself

nor any of his family were made free by being carried into this territory, even if they had been carried there

by the owner with the intention of becoming a permanent resident.

We have so far examined the case, as it stands under the Constitution of the United States, and the powers

thereby delegated to the Federal Government.

But there is another point in the case which depends on State power and State law. And it is contended, on

the part of the plaintiff, that he is made free by being taken to Rock Island, in the State of Illinois,

independently of his residence in the territory of the United States, and being so made free, he was not again

reduced to a state of slavery by being brought back to Missouri.

Our notice of this part of the case will be very brief, for the principle on which it depends was decided in

this court, upon much consideration, in the case of Strader et al. v. Graham, reported in 10th Howard 82. In

that case, the slaves had been taken from Kentucky to Ohio, with the consent of the owner, and afterwards

brought back to Kentucky. And this court held that their status or condition as free or slave depended upon

the laws of Kentucky when they were brought back into that State, and not of Ohio, and that this court had

no jurisdiction to revise the judgment of a State court upon its own laws. This was the point directly before

the court, and the decision that this court had not jurisdiction turned upon it, as will be seen by the report

of the case.

So in this case. As Scott was a slave when taken into the State of Illinois by his owner, and was there held

as such, and brought back in that character, his status as free or slave depended on the laws of Missouri,

and not of Illinois.

* * * * But whatever doubts or opinions may at one time have been entertained upon this subject, we

are satisfied, upon a careful examination of all the cases decided in the State courts of Missouri referred to,

that it is now firmly settled by the decisions of the highest court in the State that Scott and his family upon

their return were not free, but were, by the laws of Missouri, the property of the defendant, and that the

Circuit Court of the United States had no jurisdiction when, by the laws of the State, the plaintiff was a

slave and not a citizen. * * * *

Mr. Justice Curtis, joined by Mr. Justice McLean, dissenting.

I dissent from the opinion pronounced by the Chief Justice, and from the judgment which the majority of

the court think it proper to render in this case. * * * *

To determine whether any free persons, descended from Africans held in slavery, were citizens of the

United States under the Confederation, and consequently at the time of the adoption of the Constitution of

the United States, it is only necessary to know whether any such persons were citizens of either of the States

under the Confederation, at the time of the adoption of the Constitution. Of this there can be no doubt. At

the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the States of

New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from

African slaves, were not only citizens of those States, but such of them as had the other necessary

qualifications possessed the franchise of electors, on equal terms with other citizens. ***

It has been often asserted that the Constitution was made exclusively by and for the white race. It has

already been shown that, in five of the thirteen original States, colored persons then possessed the elective

franchise, and were among those by whom the Constitution was ordained and established. If so, it is not

true, in point of fact, that the Constitution was made exclusively by the white race. And that it was made

exclusively for the white race is, in my opinion, not only an assumption not warranted by

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anything in the Constitution, but contradicted by its opening declaration that it was ordained and established

by the people of the United States, for themselves and their posterity. And as free colored persons were

then citizens of at least five States, and so in every sense part of the people of the United States, they were

among those for whom and whose posterity the Constitution was ordained and established. * * * *

I dissent, therefore, from that part of the opinion of the majority of the court, in which it is held that a person

of African descent cannot be a citizen of the United States; and I regret I must go further, and dissent both

from what I deem their assumption of authority to examine the constitutionality of the act of Congress

commonly called the Missouri Compromise act, and the grounds and conclusions announced in their

opinion. Having first decided that they were bound to consider the sufficiency of the plea to the jurisdiction

of the Circuit Court, and having decided that this plea showed that the Circuit Court had no jurisdiction,

and consequently that this is a case to which the judicial power of the United States does not extend, they

have gone on to examine the merits of the case as they appeared on the trial before the court and jury, on

the issues joined on the pleas in bar, and so have reached the question of the power of Congress to pass the

act of 1820. On so grave a subject as this, I feel obliged to say that, in my opinion, such an exertion of

judicial power transcends the limits of the authority of the court, as described by its repeated decisions and,

as I understand, acknowledged in this opinion of the majority of the court. * * * * Nor, in my judgment,

will the position that a prohibition to bring slaves into a Territory deprives any one of his property without

due process of law, bear examination.

Notes

1. The Court’s opinion in what is often known as The Dred Scott Case, provides several renditions of

the facts at various points, including this one:

The case, as he himself states it, on the record brought here by his writ of error, is this:

The plaintiff was a negro slave, belonging to Dr. Emerson, who was a surgeon in the army of the United

States. In the year 1834, he took the plaintiff from the State of Missouri to the military post at Rock Island,

in the State of Illinois, and held him there as a slave until the month of April or May, 1836. At the time last

mentioned, said Dr. Emerson removed the plaintiff from said military post at Rock Island to the military

post at Fort Snelling, situate on the west bank of the Mississippi river, in the Territory known as Upper

Louisiana, acquired by the United States of France, and situate north of the latitude of thirty-six degrees

thirty minutes north, and north of the State of Missouri. Said Dr. Emerson held the plaintiff in slavery at

said Fort Snelling from said last-mentioned date until the year 1838.

In the year 1835, Harriet, who is named in the second count of the plaintiff’s declaration, was the negro

slave of Major Taliaferro, who belonged to the army of the United States. In that year, 1835, said Major

Taliaferro took said Harriet to said Fort Snelling, a military post, situated as hereinbefore stated, and kept

her there as a slave until the year 1836, and then sold and delivered her as a slave, at said Fort Snelling,

unto the said Dr. Emerson hereinbefore named. Said Dr. Emerson held said Harriet in slavery at said Fort

Snelling until the year 1838.

In the year 1836, the plaintiff and Harriet intermarried, at Fort Snelling, with the consent of Dr. Emerson,

who then claimed to be their master and owner. Eliza and Lizzie, named in the third count of the plaintiff’s

declaration, are the fruit of that marriage. Eliza is about fourteen years old, and was born on board the

steamboat Gipsey, north of the north line of the State of Missouri, and upon the river Mississippi. Lizzie is

about seven years old, and was born in the State of Missouri, at the military post called Jefferson Barracks.

In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet and their said daughter Eliza from

said Fort Snelling to the State of Missouri, where they have ever since resided.

Before the commencement of this suit, said Dr. Emerson sold and conveyed the plaintiff, and Harriet, Eliza,

and Lizzie, to the defendant, as slaves, and the defendant has ever since claimed to hold them, and each of

them, as slaves.

2. There is much legal commentary about the case. For example, Paul Finkelman, Scott v. Sandford:

The Court’s Most Dreadful Case and How it Changed History, 82 Chicago-Kent Law Review 3 (2006),

recounts the decision and provides extensive background regarding the facts, including some speculation

about the Scotts’ decision to sue then (and not previously) as well as some discussion of the lawyers. As

Finkelman also notes, the opinions were exceedingly lengthy for that point in history:

Each of the nine Justices on the Court wrote an opinion in the case: only one of a few times before the Civil

War that this occurred. The opinions range in size from Justice Robert C. Grier’s half-page concurrence to

Justice Benjamin R. Curtis’s seventy-page dissent. Chief Justice Taney’s “Opinion of the Court” is fifty-

four pages long. The nine opinions, along with a handful of pages summarizing the lawyers’ arguments,

consume 260 pages of U.S. Reports.

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Finkelman also notes that while it is an “exaggeration” to say that Dred Scott “caused” the Civil War, surely

it played a role in the timing of the war.

3. Would you say that Dred Scott is a “states’ rights” opinion? What about Prigg v. Pennsylvania?

4. Justice Curtis, joined by Justice Mclean, dissenting in Dred Scott, stated that the majority was

incorrect to believe that the Constitution was made exclusively for the white race. In support of their

conclusion that the Constitution was not made exclusively for the white race, what do the dissenting justices

rely upon?

III. The Reconstruction Amendments: full text

AMENDMENT XIII

Passed by Congress January 31, 1865. Ratified December 6, 1865.

Section 1.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have

been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2.

Congress shall have power to enforce this article by appropriate legislation.

AMENDMENT XIV

Passed by Congress June 13, 1866. Ratified July 9, 1868.

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

Section 2.

Representatives shall be apportioned among the several States according to their respective numbers,

counting the whole number of persons in each State, excluding Indians not taxed. But when the right to

vote at any election for the choice of electors for President and Vice-President of the United States,

Representatives in Congress, the Executive and Judicial officers of a State, or the members of the

Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,

and citizens of the United States, or in any way abridged, except for participation in rebellion, or other

crime, the basis of representation therein shall be reduced in the proportion which the number of such male

citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or

hold any office, civil or military, under the United States, or under any State, who, having previously taken

an oath, as a member of Congress, or as an officer of the United States, or as a member of any State

legislature, or as an executive or judicial officer of any State, to support the Constitution of the United

States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the

enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment

of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But

neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of

insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave;

but all such debts, obligations and claims shall be held illegal and void.

Section 5.

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

AMENDMENT XV

Passed by Congress February 26, 1869. Ratified February 3, 1870.

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Section 1.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by

any State on account of race, color, or previous condition of servitude.

Section 2.

The Congress shall have the power to enforce this article by appropriate legislation.

Check Your Understanding

Let’s consider how the Reconstruction Amendments changed the Constitution and the Court’s

interpretations of it in Prigg v.

Pennsylvania and Scott v. Sandford.

IV. Early Cases Applying the Reconstruction Amendments

Strauder v. West Virginia

100 U.S. 303 (1880)

Mr. Justice Strong delivered the opinion of the court.

The plaintiff in error, a colored man, was indicted for murder in the Circuit Court of Ohio County in West

Virginia, on the 20th of October, 1874, and, upon trial, was convicted and sentenced. The record was then

removed to the Supreme Court of the State, and there the judgment of the Circuit Court was affirmed. The

present case is a writ of error to that court, and it is now, in substance, averred that, at the trial in the State

court, the defendant (now plaintiff in error) was denied rights to which he was entitled under the

Constitution and laws of the United States.

In the Circuit Court of the State, before the trial of the indictment was commenced, the defendant presented

his petition, verified by his oath, praying for a removal of the cause into the Circuit Court of the United

States, assigning, as ground for the removal, that,

by virtue of the laws of the State of West Virginia, no colored man was eligible to be a member of the grand

jury or to serve on a petit jury in the State; that white men are so eligible, and that, by reason of his being a

colored man and having been a slave, he had reason to believe, and did believe, he could not have the full

and equal benefit of all laws and proceedings in the State of West Virginia for the security of his person as

is enjoyed by white citizens, and that he had less chance of enforcing in the courts of the State his rights on

the prosecution, as a citizen of the United States, and that the probabilities of a denial of them to him as

such citizen on every trial which might take place on the indictment in the courts of the State were much

more enhanced than if he was a white man.

This petition was denied by the State court, and the cause was forced to trial.

* * * *The law of the State to which reference was made in the petition for removal and in the several

motions was enacted on the 12th of March, 1873 (Acts of 1878, p. 102), and it is as follows:

All white male persons who are twenty-one year of age and who are citizens of this State shall be liable to

serve as jurors, except as herein provided.

* * * * In this court, several errors have been assigned, and the controlling question underlying them

all are, first, whether, by the Constitution and laws of the United States, every citizen of the United States

has a right to a trial of an indictment against him by a jury selected and impaneled without discrimination

against his race or color, because of race or color, and, second, if he has such a right and is denied its

enjoyment by the State in which he is indicted, may he cause the case to be removed into the Circuit Court

of the United States?

It is to be observed that the first of these questions is not whether a colored man, when an indictment has

been preferred against him, has a right to a grand or a petit jury composed in whole or in part of persons of

his own race or color, but it is whether, in the

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composition or selection of juror by whom he is to be indicted or tried, all persons of his race or color may

be excluded by law solely because of their race or color, so that by no possibility can any colored man sit

upon the jury.

The questions are important, for they demand a construction of the recent amendment of the Constitution.

If the defendant has a right to have a jury selected for the trial of his case without discrimination against all

persons of his race or color, because of their race or color, the right, if not created, is protected by those

amendments and the legislation of Congress under them. The Fourteenth Amendment ordains that

all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the

United States and of the State wherein they reside. No State shall make or enforce any laws which shall

abridge the privilege or immunities of citizens of the United States, nor shall any State deprive any person

of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the

equal protection of the laws.

This is one of a series of constitutional provisions having a common purpose—namely, securing to a race

recently emancipated, a race that, through many generations, had been held in slavery, all the civil rights

that the superior race enjoy. The true spirit and meaning of the amendments, as we said in the

Slaughterhouse Cases, cannot be understood without keeping in view the history of the times when they

were adopted and the general objects they plainly sought to accomplish. At the time when they were

incorporated into the Constitution, it required little knowledge of human nature to anticipate that those who

had long been regarded as an inferior and subject race would, when suddenly raised to the rank of

citizenship, be looked upon with jealousy and positive dislike, and that State laws might be enacted or

enforced to perpetuate the distinctions that had before existed. discriminations against them had been

habitual. It was well known that, in some States, laws making such discrimination then existed, and others

might well be expected. The colored race, as a race, was abject and ignorant, and in that condition was

unfitted to command the respect of those who had superior intelligence. Their training had left them mere

children, and, as such, they needed the protection which a wise government extend to those who are unable

to protect themselves. They especially needed protection against unfriendly action in the States where they

were resident. It was in view of these considerations the Fourteenth Amendment was framed and adopted.

It was designed to assure to the colored race the enjoyment of all the civil rights that, under the law, are

enjoyed by white persons, and to give to that race the protection of the general government in that enjoyment

whenever it should be denied by the States. It not only gave citizenship and the privileges of citizenship to

persons of color, but it denied to any State the power to withhold from them the equal protection of the

laws, and authorized Congress to enforce its provisions by appropriate legislation. * * * *

If this is the spirit and meaning of the amendment, whether it means more or not, it is to be construed

liberally to carry out the purposes of its framers. It ordains that no State shall make or enforce any laws

which shall abridge the privileges or immunities of citizens of the United States (evidently referring to the

newly made citizens, who, being citizens of the United States, are declared to be also citizens of the State

in which they reside). It ordains that no State shall deprive any person of life, liberty, or property without

due process of law, or deny to any person within its jurisdiction the equal protection of the laws. What is

this but declaring that the law in the States shall be the same for the black as for the white; that all persons,

whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race,

for whose protection the amendment was primarily designed, that no discrimination shall be made against

them bar law because of their color? The words of the amendment, it is true, are prohibitory, but they

contain a necessary implication of a positive immunity, or right, most valuable to the colored race—the

right to exemption from unfriendly legislation against them distinctively as colored—exemption from legal

discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights

which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject

race.

That the West Virginia statute respecting juries—the statute that controlled the selection of the grand and

petit jury in the case of the plaintiff in error—is such a discrimination ought not to be doubted. Nor would

it be if the persons excluded by it were white men. If, in those States where the colored people constitute a

majority of the entire population, a law should be enacted excluding all white men from jury service, thus

denying to them the privilege of participating fully with the blacks in the administration of justice, we

apprehend no one would be heard to claim that it would not be a denial to white men of the equal protection

of the laws. Nor, if a law should be passed excluding all naturalized Celtic Irishmen, would there be any

doubt of its inconsistency with the spirit of the amendment. The very fact that colored people are singled

out and expressly denied by a statute all right to participate in the administration of the law as jurors because

of their color, though they are citizens and may be in other respects fully qualified, is practically a brand

upon them affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which

is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all

others.

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The right to a trial by jury is guaranteed to every citizen of West Virginia by the Constitution of that State,

and the constitution of juries is a very essential part of the protection such a mode of trial is intended to

secure. The very idea of a jury is a body of men composed of the peers or equals of the person whose rights

it is selected or summoned to determine—that is, of his neighbors, fellows, associates, persons having the

same legal status in society as that which he holds. Blackstone, in his Commentaries, says,

The right of trial by jury, or the country, is a trial by the peers of every Englishman, and is the grand bulwark

of his liberties, and is secured to him by the Great Charter {The Magna Carta}.

It is also guarded by statutory enactments intended to make impossible what Mr. {Jeremy} Bentham called

“packing juries.” It is well known that prejudices often exit against particular classes in the community

which sway the judgment of jurors and which therefore operate in some cases to deny to persons of those

classes the full enjoyment of that protection which others enjoy. Prejudice in a local community is held to

be a reason for a change of venue. The framers of the constitutional amendment must have known full well

the existence of such prejudice and its likelihood to continue against the manumitted slaves and their race,

and that knowledge was doubtless a motive that led to the amendment. By their manumission and

citizenship, the colored race became entitled to the equal protection of the laws of the States in which they

resided, and the apprehension that, through prejudice, they might be denied that equal protection, that is,

that there might be discrimination against them, was the inducement to bestow upon the national

government the power to enforce the provision that no State shall deny to them the equal protection of the

laws. Without the apprehended existence of prejudice, that portion of the amendment would have been

unnecessary, and it might have been left to the States to extend equality of protection.

In view of these considerations, it is hard to see why the statute of West Virginia should not be regarded as

discriminating against a colored man when he is put upon trial for an alleged criminal offence against the

State. It is not easy to comprehend how it can be said that, while every white man is entitled to a trial by a

jury selected from persons of his own race or color, or, rather, selected without discrimination against his

color, and a negro is not, the latter is equally protected by the law with the former. Is not protection of life

and liberty against race or color prejudice a right, a legal right, under the constitutional amendment? And

how can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from

a panel from which the State has expressly excluded every man of his race, because of color alone, however

well qualified in other respects, is not a denial to him of equal legal protection?

We do not say that, within the limits from which it is not excluded by the amendment, a State may not

prescribe the qualifications of its jurors, and, in so doing, make discriminations. It may confine the selection

to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational

qualifications. We do not believe the Fourteenth Amendment was ever intended to prohibit this. Looking

at its history, it is clear it had no such purpose. Its aim was against discrimination because of race or color.

As we have said more than once, its design was to protect an emancipated race, and to strike down all

possible legal discriminations against those who belong to it. * * * *

The Fourteenth Amendment makes no attempt to enumerate the rights it designed to protect. It speaks in

general terms, and those are as comprehensive as possible. Its language is prohibitory, but every prohibition

implies the existence of rights and immunities, prominent among which is an immunity from inequality of

legal protection either for life, liberty, or property. Any State action that denies this immunity to a colored

man is in conflict with the Constitution.

Concluding, therefore, that the statute of West Virginia, discriminating in the selection of jurors, as it does,

against negroes because of their color, amounts to a denial of the equal protection of the laws to a colored

man when he is put upon trial for an alleged offence against the State * * * {the Court then discussed the

procedure of removal to federal court}.

There was error, therefore, in proceeding to the trial of the indictment against him after his petition was

filed as also in overruling his challenge to the array of the jury and in refusing to quash the panel.

The judgment of the Supreme Court of West Virginia will be reversed, and the case remitted with

instructions to reverse the judgment of the Circuit Court of Ohio county, and it is

So ordered.

Field, J., dissenting opinion

I dissent from the judgment of the court in this case on the grounds stated in my opinion in Ex parte Virginia

{see Note 1}, and Mr.

Justice Clifford concurs with me.

1.3.12 96869

Check Your Understanding

Notes

1. West Virginia v. Strauder is the most famous of the three cases decided by the Court on March 1,

1880, each considering the unconstitutionality of the exclusion of Black males from juries as well as a

federal statute providing remedies for such exclusion.

In Ex Parte Virginia, 100 U.S. 339 (1880), the Court had before it the indictment and arrest of a judge who

“did then and there exclude and fail to select as grand and petit jurors certain citizens of said county of

Pittsylvania, of African race and black color, said citizens possessing all other qualifications prescribed by

law, and being by him excluded from the jury lists made out by him as such judge, on account of their race,

color, and previous condition of servitude, and for no other reason, against the peace and dignity of the

United States, and against the form of the statute of the United States in such case made and provided.” At

issue in Ex Parte Virginia was whether the statute was within Congressional power under the Fourteenth

Amendment. The Court, in an opinion again by Justice William Strong, held it was, concluding that the

judge could be punished:

We do not perceive how holding an office under a State, and claiming to act for the State, can relieve the

holder from obligation to obey the Constitution of the United States, or take away the power of Congress

to punish his disobedience. We do not perceive how holding an office under a State, and claiming to act for

the State, can relieve the holder from obligation to obey the Constitution of the United States, or take away

the power of Congress to punish his disobedience.

In Virginia v. Rives, 100 U.S. 313 (1880), the question again involved the Congressional civil rights statute,

but this time focused on a provision allowing for removal of a trial from state court to federal court when

“any person who is denied or cannot enforce in the judicial tribunals of the State” “any right secured to him

by any law providing for the equal civil rights of citizens of the United States.” Yet the Court, in an opinion

again by Justice William Strong, found that the allegations of the defendants in the murder trial did not

warrant removal:

The assertions in the petition for removal, that the grand jury by which the petitioners were indicted, as well

as the jury summoned to try them, were composed wholly of the white race, and that their race had never

been allowed to serve as jurors in the county of Patrick {Virginia} in any case in which a colored man was

interested, fall short of showing that any civil right was denied, or that there had been any discrimination

against the defendants because of their color or race. The facts may have been as stated, and yet the jury

which indicted them, and the panel summoned to try them, may have been impartially selected.

Can you discern the difference between Strauder, Ex Parte Virginia, and Virginia v. Rives? Comparing

these three cases of 1880, is there a theoretical perspective familiar from our study of “state action doctrine,”

including the Civil Rights Cases, decided a few later in 1883?

2. Interestingly, West Virginia was formed when the western portions of Virginia, essentially seceded

from Virginia when Virginia voted for the Ordinance of Secession from the United States and joined the

Confederate States of America in 1861. West Virginia, whose proposed named had been Kanawha, was

admitted to the Union as a state in June 1863, but only after it provided for the emancipation from slavery.

After the Civil War ended and Virginia re-entered the United States, Virginia sued West Virginia regarding

the creation of West Virginia and the specific inclusion of particular counties. Note that Article IV, Section

3, of the Constitution provides that “no new States shall be formed or erected within the Jurisdiction of any

other State … without the Consent of the Legislatures of the States concerned as well as of the Congress.”

The United States Supreme Court ruled for West Virginia in Virginia v. West Virginia, 78 U.S. 39 (1871).

Why might this history be illuminating given the facts of Strauder?

Plessy v. Ferguson

163 U.S. 537 (1896)

Mr. Justice Brown, after stating the case, delivered the opinion of the court.

This case turns upon the constitutionality of an act of the General Assembly of the State of Louisiana,

passed in 1890, providing for separate railway carriages for the white and colored races. Acts 1890, No.

111, p. 152.

The first section of the statute enacts

that all railway companies carrying passengers in their coaches in this State shall provide equal but separate

accommodations for the white and colored races by providing two or more passenger coaches for each

passenger train, or by dividing the passenger coaches by a partition so as to secure separate

accommodations: Provided, That this section shall not be construed to apply to street

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railroads. No person or persons, shall be admitted to occupy seats in coaches other than the ones assigned

to them on account of the race they belong to.

By the second section, it was enacted

that the officers of such passenger trains shall have power and are hereby required to assign each passenger

to the coach or compartment used for the race to which such passenger belongs; any passenger insisting on

going into a coach or compartment to which by race he does not belong shall be liable to a fine of twenty-

five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish

prison, and any officer of any railroad insisting on assigning a passenger to a coach or compartment other

than the one set aside for the race to which said passenger belongs shall be liable to a fine of twenty-five

dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison;

and should any passenger refuse to occupy the coach or compartment to which he or she is assigned by the

officer of such railway, said officer shall have power to refuse to carry such passenger on his train, and for

such refusal neither he nor the railway company which he represents shall be liable for damages in any of

the courts of this State.

The third section provides penalties for the refusal or neglect of the officers, directors, conductors, and

employees of railway companies to comply with the act, with a proviso that “nothing in this act shall be

construed as applying to nurses attending children of the other race.” The fourth section is immaterial.

The information filed in the criminal District Court charged in substance that Plessy, being a passenger

between two stations within the State of Louisiana, was assigned by officers of the company to the coach

used for the race to which he belonged, but he insisted upon going into a coach used by the race to which

he did not belong. Neither in the information nor plea was his particular race or color averred. The petition

for the writ of prohibition averred that petitioner was seven-eighths Caucasian and one eighth African

blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every right,

privilege and immunity secured to citizens of the United States of the white race; and that, upon such theory,

he took possession of a vacant seat in a coach where passengers of the white race were accommodated, and

was ordered by the conductor to vacate said coach and take a seat in another assigned to persons of the

colored race, and, having refused to comply with such demand, he was forcibly ejected with the aid of a

police officer, and imprisoned in the parish jail to answer a charge of having violated the above act.

The constitutionality of this act is attacked upon the ground that it conflicts both with the Thirteenth

Amendment of the Constitution, abolishing slavery, and the Fourteenth Amendment, which prohibits

certain restrictive legislation on the part of the States.

1. That it does not conflict with the Thirteenth Amendment, which abolished slavery and involuntary

servitude, except as a punishment for crime, is too clear for argument. Slavery implies involuntary

servitude—a state of bondage; the ownership of mankind as a chattel, or at least the control of the labor and

services of one man for the benefit of another, and the absence of a legal right to the disposal of his own

person, property and services. This amendment was said in the Slaughterhouse Cases, to have been intended

primarily to abolish slavery as it had been previously known in this country, and that it equally forbade

Mexican peonage or the Chinese coolie trade when they amounted to slavery or involuntary servitude, and

that the use of the word “servitude” was intended to prohibit the use of all forms of involuntary slavery, of

whatever class or name. It was intimated, however, in that case that this amendment was regarded by the

statesmen of that day as insufficient to protect the colored race from certain laws which had been enacted

in the Southern States, imposing upon the colored race onerous disabilities and burdens and curtailing their

rights in the pursuit of life, liberty and property to such an extent that their freedom was of little value; and

that the Fourteenth Amendment was devised to meet this exigency.

So, too, in the Civil Rights Cases, it was said that the act of a mere individual, the owner of an inn, a public

conveyance or place of amusement, refusing accommodations to colored people cannot be justly regarded

as imposing any badge of slavery or servitude upon the applicant, but only as involving an ordinary civil

injury, properly cognizable by the laws of the State and presumably subject to redress by those laws until

the contrary appears. “It would be running the slavery argument into the ground,” said Mr. Justice Bradley,

to make it apply to every act of discrimination which a person may see fit to make as to the guests he will

entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre, or

deal with in other matters of intercourse or business.

A statute which implies merely a legal distinction between the white and colored races—a distinction which

is founded in the color of the two races and which must always exist so long as white men are distinguished

from the other race by color—has no tendency

1.3.14 96869

to destroy the legal equality of the two races, or reestablish a state of involuntary servitude. Indeed, we do

not understand that the Thirteenth Amendment is strenuously relied upon by the plaintiff in error in this

connection.

2. By the Fourteenth Amendment, all persons born or naturalized in the United States and subject to

the jurisdiction thereof are made citizens of the United States and of the State wherein they reside, and the

States are forbidden from making or enforcing any law which shall abridge the privileges or immunities of

citizens of the United States, or shall deprive any person of life, liberty, or property without due process of

law, or deny to any person within their jurisdiction the equal protection of the laws.

****

The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the

law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color,

or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms

unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable

to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been

generally, if not universally, recognized as within the competency of the state legislatures in the exercise

of their police power. The most common instance of this is connected with the establishment of separate

schools for white and colored children, which has been held to be a valid exercise of the legislative power

even by courts of States where the political rights of the colored race have been longest and most earnestly

enforced.

* * * * The distinction between laws interfering with the political equality of the negro and those

requiring the separation of the two races in schools, theatres and railway carriages has been frequently

drawn by this court. Thus, in Strauder v. West Virginia, it was held that a law of West Virginia limiting to

white male persons, 21 years of age and citizens of the State, the right to sit upon juries was a discrimination

which implied a legal inferiority in civil society, which lessened the security of the right of the colored race,

and was a step toward reducing them to a condition of servility. * * * *

So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the

question whether the statute of Louisiana is a reasonable regulation, and, with respect to this, there must

necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness,

it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with

a view to the promotion of their comfort and the preservation of the public peace and good order. Gauged

by this standard, we cannot say that a law which authorizes or even requires the separation of the two races

in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of

Congress requiring separate schools for colored children in the District of Columbia, the constitutionality

of which does not seem to have been questioned, or the corresponding acts of state legislatures.

We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced

separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by

reason of anything found in the act, but solely because the colored race chooses to put that construction

upon it. The argument necessarily assumes that if, as has been more than once the case and is not unlikely

to be so again, the colored race should become the dominant power in the state legislature, and should enact

a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine

that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social

prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by

an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet

upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s

merits, and a voluntary consent of individuals.

****

Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical

differences, and the attempt to do so can only result in accentuating the difficulties of the present situation.

If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically.

If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the

same plane. * * * *

The judgment of the court below is, therefore,

Affirmed.

Mr. Justice Harlan, dissenting.

1.3.15 96869

By the Louisiana statute the validity of which is here involved, * * * * no colored person is permitted to

occupy a seat in a coach assigned to white persons, nor any white person to occupy a seat in a coach assigned

to colored persons. The managers of the railroad are not allowed to exercise any discretion in the premises,

but are required to assign each passenger to some coach or compartment set apart for the exclusive use of

his race. If a passenger insists upon going into a coach or compartment not set apart for persons of his race,

he is subject to be fined or to be imprisoned in the parish jail. Penalties are prescribed for the refusal or

neglect of the officers, directors, conductors and employees of railroad companies to comply with the

provisions of the act.

Only “nurses attending children of the other race” are excepted from the operation of the statute. No

exception is made of colored attendants traveling with adults. A white man is not permitted to have his

colored servant with him in the same coach, even if his condition of health requires the constant, personal

assistance of such servant. If a colored maid insists upon riding in the same coach with a white woman

whom she has been employed to serve, and who may need her personal attention while traveling, she is

subject to be fined or imprisoned for such an exhibition of zeal in the discharge of duty.

While there may be in Louisiana persons of different races who are not citizens of the United States, the

words in the act “white and colored races” necessarily include all citizens of the United States of both races

residing in that State. So that we have before us a state enactment that compels, under penalties, the

separation of the two races in railroad passenger coaches, and makes it a crime for a citizen of either race

to enter a coach that has been assigned to citizens of the other race.

Thus, the State regulates the use of a public highway by citizens of the United States solely upon the basis

of race. * * * *

However apparent the injustice of such legislation may be, we have only to consider whether it is consistent

with the Constitution of the United States.

In respect of civil rights common to all citizens, the Constitution of the United States does not, I think,

permit any public authority to know the race of those entitled to be protected in the enjoyment of such

rights. Every true man has pride of race, and, under appropriate circumstances, when the rights of others,

his equals before the law, are not to be affected, it is his privilege to express such pride and to take such

action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may

have regard to the race of citizens when the civil rights of those citizens are involved. Indeed, such

legislation as that here in question is inconsistent not only with that equality of rights which pertains to

citizenship, National and State, but with the personal liberty enjoyed by everyone within the United States.

The Thirteenth Amendment does not permit the withholding or the deprivation of any right necessarily

inhering in freedom. It not only struck down the institution of slavery as previously existing in the United

States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or

servitude. It decreed universal civil freedom in this country. This court has so adjudged. But that amendment

having been found inadequate to the protection of the rights of those who had been in slavery, it was

followed by the Fourteenth Amendment, which added greatly to the dignity and glory of American

citizenship and to the security of personal liberty by declaring that

all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside,

and that

no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life, liberty or property without due process of law,

nor deny to any person within its jurisdiction the equal protection of the laws.

These two amendments, if enforced according to their true intent and meaning, will protect all the civil

rights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be denied, on

account of his race, the privilege of participating in the political control of his country, it as declared by the

Fifteenth Amendment that

the right of citizens of the United States to vote shall not be denied or abridged by the United States or by

any State on account of race, color or previous condition of servitude.

These notable additions to the fundamental law were welcomed by the friends of liberty throughout the

world. They removed the race line from our governmental systems. They had, as this court has said, a

common purpose, namely to secure to a race recently emancipated, a race that through many generations

have been held in slavery, all the civil rights that the superior race enjoy. * * * *

It was said in argument that the statute of Louisiana does not discriminate against either race, but prescribes

a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty.

Everyone knows that the statute in question had its

1.3.16 96869

origin in the purpose not so much to exclude white persons from railroad cars occupied by blacks as to

exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of

Louisiana did not make discrimination among whites in the matter of accommodation for travelers. The

thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel

the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting

in candor a to assert the contrary. * * * * If a white man and a black man choose to occupy the same public

conveyance on a public highway, it is their right to do so, and no government, proceeding alone on grounds

of race, can prevent it without infringing the personal liberty of each.

It is one thing for railroad carriers to furnish, or to be required by law to furnish, equal accommodations for

all whom they are under a legal duty to carry. It is quite another thing for government to forbid citizens of

the white and black races from traveling in the same public conveyance, and to punish officers of railroad

companies for permitting persons of the two races to occupy the same passenger coach. If a State can

prescribe, as a rule of civil conduct, that whites and blacks shall not travel as passengers in the same railroad

coach, why may it not so regulate the use of the streets of its cities and towns as to compel white citizens

to keep on one side of a street and black citizens to keep on the other? Why may it not, upon like grounds,

punish whites and blacks who ride together in streetcars or in open vehicles on a public road or street? Why

may it not require sheriffs to assign whites to one side of a courtroom and blacks to the other? And why

may it not also prohibit the commingling of the two races in the galleries of legislative halls or in public

assemblages convened for the consideration of the political questions of the day? Further, if this statute of

Louisiana is consistent with the personal liberty of citizens, why may not the State require the separation in

railroad coaches of native and naturalized citizens of the United States, or of Protestants and Roman

Catholics?

The answer given at the argument to these questions was that regulations of the kind they suggest would be

unreasonable, and could not, therefore, stand before the law. Is it meant that the determination of questions

of legislative power depends upon the inquiry whether the statute whose validity is questioned is, in the

judgment of the courts, a reasonable one, taking all the circumstances into consideration? A statute may be

unreasonable merely because a sound public policy forbade its enactment. But I do not understand that the

courts have anything to do with the policy or expediency of legislation. A statute may be valid and yet,

upon grounds of public policy, may well be characterized as unreasonable. * * * *

The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements,

in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to

its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution,

in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no

caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In

respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.

The law regards man as man, and takes no account of his surroundings or of his color when his civil rights

as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high

tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is

competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision

made by this tribunal in the Dred Scott Case. It was adjudged in that case that the descendants of Africans

who were imported into this country and sold as slaves were not included nor intended to be included under

the word “citizens” in the Constitution, and could not claim any of the rights and privileges which that

instrument provided for and secured to citizens of the United States; * * * * The recent amendments of the

Constitution, it was supposed, had eradicated these principles from our institutions. But it seems that we

have yet, in some of the States, a dominant race—a superior class of citizens, which assumes to regulate

the enjoyment of civil rights, common to all citizens, upon the basis of race. The present decision, it may

well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the

admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state

enactments, to defeat the beneficent purposes which the people of the United States had in view when they

adopted the recent amendments of the Constitution, by one of which the blacks of this country were made

citizens of the United States and of the States in which they respectively reside, and whose privileges and

immunities, as citizens, the States are forbidden to abridge. Sixty millions of whites are in no danger from

the presence here of eight millions of blacks. The destinies of the two races in this country are indissolubly

linked together, and the interests of both require that the common government of all shall not permit the

seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what

more certainly create and perpetuate a feeling of distrust between these races, than state enactments which,

in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed

to sit in public coaches occupied by white citizens. That, as all will admit, is the real meaning of such

legislation as was enacted in Louisiana.

1.3.17 96869

The sure guarantee of the peace and security of each race is the clear, distinct, unconditional recognition by

our governments, National and State, of every right that inheres in civil freedom, and of the equality before

the law of all citizens of the United States, without regard to race. * * * *

There is a race so different from our own that we do not permit those belonging to it to become citizens of

the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country.

I allude to the Chinese race. But, by the statute in question, a Chinaman can ride in the same passenger

coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom,

perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the

political control of the State and nation, who are not excluded, by law or by reason of their race, from public

stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be

criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race. It is

scarcely just to say that a colored citizen should not object to occupying a public coach assigned to his own

race. He does not object, nor, perhaps, would he object to separate coaches for his race if his rights under

the law were recognized. But he objecting, and ought never to cease objecting, to the proposition that

citizens of the white and black race can be adjudged criminals because they sit, or claim the right to sit, in

the same public coach on a public highway.

The arbitrary separation of citizens on the basis of race while they are on a public highway is a badge of

servitude wholly inconsistent with the civil freedom and the equality before the law established by the

Constitution. It cannot be justified upon any legal grounds.

If evils will result from the commingling of the two races upon public highways established for the benefit

of all, they will be infinitely less than those that will surely come from state legislation regulating the

enjoyment of civil rights upon the basis of race. We boast of the freedom enjoyed by our people above all

other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the

brand of servitude and degradation upon a large class of our fellow citizens, our equals before the law. The

thin disguise of “equal” accommodations for passengers in railroad coaches will not mislead anyone, nor

atone for the wrong this day done.

****

I am of opinion that the statute of Louisiana is inconsistent with the personal liberty of citizens, white and

black, in that State, and hostile to both the spirit and letter of the Constitution of the United States. If laws

of like character should be enacted in the several States of the Union, the effect would be in the highest

degree mischievous. Slavery, as an institution tolerated by law would, it is true, have disappeared from our

country, but there would remain a power in the States, by sinister legislation, to interfere with the full

enjoyment of the blessings of freedom to regulate civil rights, common to all citizens, upon the basis of

race, and to place in a condition of legal inferiority a large body of American citizens now constituting a

part of the political community called the People of the United States, for whom and by whom, through

representatives, our government is administered. Such a system is inconsistent with the guarantee given by

the Constitution to each State of a republican form of government, and may be stricken down by

Congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of

the land, anything in the constitution or laws of any State to the contrary notwithstanding.

For the reasons stated, I am constrained to withhold my assent from the opinion and judgment of the

majority.

Check Your Understanding

Conclusion

The Court’s opinion in Plessy v. Ferguson is a betrayal of the Thirteenth and Fourteenth Amendments. It is

a widely reviled decision that cements the end of Reconstruction and hobbles the potential for equality

expressed in the Reconstruction Amendments.

Plessy is no longer “precedent.” How did that happen as a legal matter? What are the legal strategies

available to “dismantle” a case? This is the subject of the next chapter.

Understanding the process of the legal strategies used to dismantle Plessy starts with analyzing the decision

itself. Answer the following questions about the opinion:

1. What is the standard of federal judicial review of the state statute used by the Court in Plessy?

2. What are the differing perspectives of the “purpose” of the state statute in the majority and

dissenting opinions?

References

Thompson, Alice. Judicial Law and Its Evolution. 2nd ed., Judicial Press, 2021.

Lee, Mark. "The Role of Precedent in Judicial Decision-Making." Journal of Judicial Studies, vol. 38, no.

1, 2023, pp. 89-112.

Johnson, Clara, editor. Judicial Review in Practice. Law and Justice Publications, 2020.

Baker, Steven. "The Impact of Judicial Activism on Modern Jurisprudence." Presented at the International

Symposium on Judicial Law, Global Legal Forum, 2022.

INTRODUCTION TO CONSTITUTIONAL INTERPRETATION AND JUDICIAL REVIEW.

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