Archive | History

Whence Comes Section One? (Second Notice)

Last week, when I posted a link to my new article, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, I received several messages telling me that SSRN was inaccessible. Presumably, it is working now, so if you were unable to download it, you should try again. Here is the link, and here is the abstract:

The contribution of abolitionist constitutionalism to the original public meaning of Section One of the Fourteenth Amendment was long obscured by a revisionist history that marginalized abolitionism, the “radical” Republicans, and their effort to establish democracy over Southern terrorism during Reconstruction. As a result, more Americans know about “carpetbaggers” than they do the framers of the Fourteenth Amendment. Although this cloud began to lift with the work of Jacobus tenBroek, Eric Foner, and William Wiecek, knowledge of abolitionist constitutionalism among constitutional scholars was all but snuffed out by the dismissive writings of William Nelson and Robert Cover.

This study provides important evidence of the original public meaning of Section One. All the components of Section One were employed by a wide variety abolitionist lawyers and activists throughout the North. To advance their case against slavery, they needed to appeal to the then-extant public meaning of the terms already in the Constitution. Moreover, their widely-circulated invocations of national citizenship, privileges and immunities, the due process of law, and equal protection made their own contribution to the public meaning in 1866 of the language that became Section One.

The more one reads these forgotten abolitionist writings, the better their arguments look when compared with the opinions of the antebellum Supreme Court. But even if the Taney Court was right and the abolitionists wrong about the original meaning of the Constitution, the Thirteenth and Fourteenth Amendments were enacted to reverse the Court’s rulings.

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Happy Birthday Lysander Spooner!

Lysander SpoonerToday is Lysander Spooner’s birthday. Born in 1808, Spooner was a lawyer, abolitionist, entrepreneur, prolific writer and eventually an individualist anarchist. Political science professor and Spooner scholar Helen Knowles offers her birthday tribute on her new blog, Irresistible Clearness, which is named after a passage from United States v. Fisher by Chief Justice John Marshall that Spooner promoted as a vital principle of constitutional construction and that became a staple in the arsenal of abolitionist constitutionalism:

Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.

As my own tribute to Spooner, later today, I will be uploading to SSRN my new paper, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, which I have been writing for over a year. In this paper I situate Spooner among 12 other abolitionists who made constitutional challenges to various legal aspects of slavery. [...]

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A 1788 Dublin Edition of Pleas of the Crown — And A Possible Supreme Court Connection

I recently purchased a copy of Volume I of the early criminal law treatise, William Hawkins, A Treatise of Pleas of the Crown; or, a system of the principal matters relating to that subject, digested under proper heads. At common law, non-misdemeanor English crimes were the causes of action brought in the King’s court — thus a treatise on pleas of the Crown was a treatise on major crimes. The Hawkins treatise was first published in 1716, and it is one of the handful of sources regularly used to understand the common law of crimes (together with Volume 4 of Blackstone’s Commentaries, the Third Part of Coke’s Institutes, and Hale’s Pleas of the Crown).

The copy I purchased is a 6th edition as reworked by Thomas Leach and published in Dublin in 1788. My understanding is that the Dublin editions were pirated: They were published in Dublin to get around English copyright law. Pirated or not, I found this one on the cheap. Nice original copies of Hawkins seem to run around $700 to $1,000, but I found this for only $30 (albeit just the 1st of two volumes, and in need of rebinding).

I mention all of this in the spirit of my recent post on the 19th Century Supreme Court letter because I found some intriguing markings in and on the book. Inside the front cover, I found two stamped markings, “Rockingham County.” And on the spine, there is a black label that says “Woodbury.” Here are photos of the spine, inside the front cover, and the title page of the treatise:

The combination of “Woodbury” and “Rockingham County” is intriguing because Justice Levi Woodbury, a Justice of the Supreme Court from 1845-1851, was born, raised, and buried in Rockingham County, New [...]

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U.S. Supreme Court Correspondence From March 6, 1865

A few months ago I bought an interesting 1865 letter on U.S. Supreme Court stationery:middleton
Here is what it says, as best I can tell:

Washington City Mar 6th 1865

Curtis & Scribner, Esqs

Your favor of the 25th ult, is received.

The case of Sam R. Curtis et. al., applnts v. Mr. D. Brown was reached in the regular call of the docket on the 1st of February, when Mr. Carlisle associated with Mr. Woolworth, for the appellee had the case called under the rule, and dismissed at the costs of the appellents, for want of prosecution.

It is therefore off the docket.

Yours truly,
D.W. Middleton

In this letter, the court clerk responds to a law firm’s inquiry about a case. Specifically, the letter informs the firm that the case was dismissed when the appellants’ lawyers didn’t show up in court. The law firm had inquired about the case in a letter dated February 25th — “25th ult,” shorthand for 25th ultimo, or the 25th day of the previous month.

But what was the case about, and who were the people named in the letter? I did some hunting around, and here’s what I could figure out. The author of the letter is easily identified: D.W. Middleton was the Clerk of the Supreme Court from 1863 to 1880.

The named appellant, “Sam R. Curtis,” was Major General Samuel Ryan Curtis, a Union general who months earlier had led his troops to a decisive victory over the Confederates in The Battle of Westport.

The law firm of Curtis & Scribner was an Ohio law firm, and the “Curtis” in the firm name referred General Curtis’s older brother Henry Barnes Curtis, a very prominent Ohio attorney.

The “Mr. [...]

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