In 1981, Congress established National Women’s History Week to be commemorated the second week of March. In 1987, Congress expanded the week to a month. Every year since, Congress has passed a resolution for Women’s History Month, and the President has issued a proclamation. Nevertheless, some things haven’t changed…. From the U.S. Census Bureau:
Prigg v. Pennsylvania, 41 U.S. 539 (1842) is considered to be one of the most important Supreme Court decisions on slavery. In this case, a badly split court (the decision included seven separate opinions, a rare practice in antebellum America), held that a Pennsylvania state law prohibiting blacks from being taken out of Pennsylvania into slavery was unconstitutional.
The Fugitive Slave Clause of the U.S. Constitution (Article 4, Section 2, Clause 3 superseded by the Thirteenth Amendment) provided:
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.”
That clause clearly prohibited the Northern states from “discharging” any former slaves from their obligations of “service or labor,” but did not provide a mechanism for slave owners to recover their slaves. The clause said only that the slaves shall be “delivered up” [by whom is unstated] upon assertion of a “claim.”
Congress passed the 1793 Fugitive Slave Act to provide specific procedures and remedies for slave owners. However, Sections 3 and 4, which dealt with the rendition of fugitive slaves, neither vested responsibility for the enforcement of the law in any person or official nor set a standard by which the seized person’s status as a fugitive was to be proved.
In 1826 Pennsylvania passed an extensive anti-kidnapping law, making it difficult under Pennsylvania law to kidnap blacks or mulattos to take them into slavery or servitude.
In 1837, Edward Prigg entered the state of Pennsylvania as the agent of Margaret Ashmore, a slave owner from Maryland, in order to find Ashmore’s alleged escaped slave Margaret Morgan. Pennsylvania law required Prigg to show documentary evidence proving Ashmore’s ownership for the legal removal of Morgan and her two children. The state magistrate to whom Prigg submitted his evidence denied his “claim.” Prigg seized the family nonetheless, and removed them to Maryland. Indicted and convicted under Pennsylvania’s anti-kidnapping statute, Prigg appealed on the grounds that Pennsylvania’s law violated both Article IV of the Constitution and the federal Fugitive Slave Law of 1793.
The case raised numerous issues, among them the complicated definition of the status of Margaret Morgan, the supposed slave in question. Her parents had been the slaves of a Marylander named Ashmore. Without formally emancipating them, sometime before 1812 he allowed them to live as free blacks. Margaret was born subsequent to this informal declaration. She grew up and married a free black, and they moved across the state line to Pennsylvania, all with the acquiescence of the senior Ashmore. Regardless of their status, their several children were free under Pennsylvania law.
When Ashmore died, his estate passed to his niece Margaret. Her husband, Nathan Bemis, hired Prigg and two others to go with him to retrieve and enslave Margaret Morgan. Historian Paul Finkelman opines: “The fact that Bemis and Prigg were immediately able to locate Morgan suggests that she did not see herself as a fugitive slave and had never tried to hide her whereabouts from Ashmore or his niece. That the Morgans lived along the Maryland border also suggests they believed Margaret was a free person.” (Paul Finkelman, “Sorting out Prigg v. Pennsylvania,” 24 Rutgers L.J. 605, 611 1992-1993)
Nevertheless, and after being denied authorization by a Pennsylvania Justice of the Peace, Prigg and Bemis took Margaret and the children (but not the husband) to Maryland where they were sold to a trader for shipment to the South. Clearly Bemis was not interested in getting back a slave but in punishing a presumptuous black. However, the Fugitive Slave Act placed no limitations on what could or could not be done with recovered slaves. In any event, the question of whether Margaret and her children should have even been considered as slaves was a fuzzy one.
(Justice McLean, in dissent, addressed these ambiguities extensively).
In addition, the case highlighted the increasing animosities between slave and free states, which did not always cooperate with one another in matters of extradition. (The Supreme Court did not decide whether states could be compelled to cooperate with extradition requests until Kentucky v. Dennison, 65 U.S. (24 How.) 66, 1861.)
Most importantly, the case raised the issue of the interplay of state and federal power.
Writing for the Court, Justice Joseph Story reversed Prigg’s conviction, ruling that the Pennsylvania act was unconstitutional, at least as applied to fugitive former slaves.
He held that Congress had exclusive jurisdiction in this area, citing The Federalist to bolster his argument that the rights and duties imposed by the Constitution implies a remedy, “and where else would the remedy be deposited (Madison asked in The Federalist), than where it is deposited by the Constitution?” (Prigg at 617). But while all of the justices agreed that the states could not pass laws creating additional requirements to the federal law or impeding the return of fugitive slaves, they disagreed on how to define these terms; what obligation state officials had to aid in the rendition process; and if they did have such an obligation, what it should be.
Justice Story noted that the section of the Act of 1793 conferring jurisdiction on state magistrates was very troublesome, expressing doubt that Congress had power to compel state judges to act. He stated that state officials had no obligation to enforce federal penal law in this area because the Constitution does not provide for “any state functionaries, or any state action, to carry its provisions into effect.” (at 615) Presumably Story was trying to lay the basis for a possible legislative attack upon slavery in the future. His son, at any rate, in his biography of his father (Life and Letters of Joseph Story by William Wetmore Story) argued that his father’s opinion constituted a not-too-subtle sabotage of the practical enforceability of the Fugitive Acts.
Others, however, argue that Justice Story actually aided in nationalizing the institution. As Finkleman observes:
Any notion of freedom – or even of the localization of slavery – in the opinion has to be balanced against Story’s assertions that the master’s right to his slave was “positive,” “unqualified,” and ”absolutely secured.” As Story’s greatest biographer noted, “[H]ere, in language all too plain for some, was an argument for the return of fugitive slaves anchored solidly in the Constitution and backed by the greatest living authority on American constitutional law.” (citations omitted; Finkleman, op. cit. at 659)
The question of interpretation is relevant because Justice Story was known as a passionate advocate of abolition. In 1819, he even publicly called for the eradication of slavery from the territories. He also wrote the famous opinion for United States v. The Amistad (40 U.S. 518, 1841) ruling that the Africans on board the Amistad were free individuals; that having been kidnapped and transported illegally, they had never been slaves.
On the other hand, he recognized that appeasing the slave-holding states had been necessary to make an American union possible, and in Prigg even characterized the Fugitive Slave Act as an indispensable element in that regard. He wrote that the Constitution gave slave holders:
…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 slaveholding States, and indeed was so vital to the preservation of their domestic interests and institutions that it cannot be doubted that it constituted a fundamental article without the adoption of which the Union could not have been formed.” (Prigg at 540)
In spite of his personal loathing of the Fugitive Slave Act, he perceived his primary obligation to be to the Constitution. Of course, Lincoln’s position was quite similar, and like Story, Lincoln decided that although the rule of law should obtain, there was more than one way to skin the cat.
But both Story and Lincoln faced a formidable obstacle in the Chief Justice of the Supreme Court, Roger Taney, whose concurrence in Prigg averred:
I dissent, therefore, … from that part of the opinion of the court which denies the obligation and the right of the state authorities to protect the master, when he is endeavoring to seize a fugitive from his service, in pursuance of the right given to him by the constitution of the United States; provided the state law is not in conflict with the remedy provided by congress.”
The Prigg decision angered opponents of slavery. As the famous abolitionist Wendell Phillips lamented the next year, when another fugitive slave challenge arose:
There stands the bloody [fugitive slave] clause – you cannot fret the seal off the bond. The fault is in allowing such a Constitution to live an hour….” (W. Phillips, Speech at Faneuil Hall, Boston, Oct. 30, 1842, quoted in I. Bartlett, Wendell Phillips: Brahmin Radical, 1961)
Following Prigg, however, some state judges refused to participate in federal fugitive slave proceedings, and there were not enough federal magistrates to process applications. Southern slaveholders then agitated for new legislation, which they received as part of the famous “Compromise of 1850,” a package of legislative measures enacted by Congress to reconcile the differences existing between the North and South concerning the issue of slavery in newly formed U.S. territories. The Fugitive Slave Act of 1850 authorized the appointment of a federal commissioner in every county in the United States who could issue certificates of removal for fugitive slaves. It also added additional punishments for lack of citizen cooperation, and denied a slave the benefit of a trial. The statements of the alleged slave’s owner (who did not even have to appear in court) would constitute sufficient evidence for the action.
It would take a war to imbue the Constitution with moral justice.
On this day in history, the Department of Justice released a statement by Eric H. Holder, Jr., the 82nd Attorney General of the United States, declaring:
[President Obama] has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases.”
Much controversy ensued over the putative duty of the executive branch to defend laws enacted by the legislative branch. In light of this uproar, Neal Devins (Goodrich Professor of Law and Professor of Government, College of William and Mary) and Saikrishna Prakash (David Lurton Massee, Jr., Professor of Law & Sullivan & Cromwell Professor of Law, University of Virginia), made a detailed analysis of whether there is in fact (i.e., in law), any basis for this charge. You can read their arguments, posted from the Columbia Law Review, here, which in essence find:
…there simply is no duty to defend federal statutes the President believes are unconstitutional. Contrary to his defenders, there likewise is no duty to enforce such laws. Given President Obama’s belief that the DOMA is unconstitutional, he should neither enforce nor defend it.”
On June 26, 2013, The Supreme Court, in United States v. Windsor, struck down part of DOMA, holding that it “violates basic due process and equal protection principles applicable to the Federal Government.”
Justice Anthony M. Kennedy wrote the majority opinion and was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Chief Justice John G. Roberts Jr. wrote a dissenting opinion, as did Justice Antonin Scalia, whose opinion was joined by Justice Clarence Thomas and Justice Roberts in part. Justice Samuel A. Alito Jr. filed another dissenting opinion, which Justice Thomas joined in part.
Jefferson Davis was born in Kentucky and raised in Mississippi. He entered the U.S. Military Academy at West Point in 1824, graduating in 1828 twenty-third in a class of thirty-four.
A slaveholder, Davis firmly believed in the importance of the institution of slavery for the South.
Davis served in both the U.S. House and the U.S. Senate, and in 1853, President Franklin Pierce appointed him U.S. Secretary of War. In 1857, Davis returned to the Senate as a vocal proponent of states rights. He formally withdrew from the U.S. Senate on January 21, 1861 after Mississippi seceded from the Union.
One month later, the Confederate Congress selected Davis to become the provisional President of the Confederacy. He was inaugurated for a six-year term as President on February 22 of the following year. Davis was a compromise candidate chosen to appease both the moderate and radical factions in the Congress.
Unfortunately for the South, Davis was an ineffective president and had a disagreeable personality. Moreover, the growing number of Confederate defeats also affected his popularity. On April 2, 1865, he and the other members of the Confederate government were forced to flee from Richmond before the advancing Union Army.
Union cavalrymen arrested Davis near Irwinville, Georgia, on May 10, 1865. He was taken into custody as a suspect in the assassination of Lincoln, but no link could ever be established. The U.S. Government then charged him with treason against the United States for organizing and arming the 1864 military invasions of Maryland and the District of Columbia during the American Civil War (1861–1865). Davis demanded a trial as the best forum for proving the constitutionality of secession, and the government requested numerous time extensions to prepare its case.
There were a number of other delays in bringing the case to trial, including the bringing of impeachment charges against President Andrew Johnson. The U.S. Circuit Court for the District of Virginia finally heard preliminary motions for Davis’s trial in December 1868. The defense asked for a dismissal claiming that the Fourteenth Amendment to the U.S. Constitution already punished Davis by preventing him from holding public office in the future, and that further prosecution and punishment would violate the double jeopardy restriction of the Fifth Amendment. The Circuit Court was divided and certified the question to the United States Supreme Court. Fearing the Supreme Court would rule in favor of Davis, President Johnson released an amnesty proclamation on December 25, 1868, issuing a pardon to all persons who had participated in the rebellion.
Becoming a free man, Davis traveled with his family to Europe and then returned first to Tennessee and shortly after to Mississippi. Mississippi tried sending Davis back to the U.S. Senate, but he was not legally qualified to serve since he refused to request an official pardon from the United States for his role in the Civil War.
Jefferson Davis died on December 6, 1889. The year before his death he implored the men of Mississippi to “lay aside all rancor, all bitter sectional feeling, and to make your places in the ranks of those who will bring about a consummation devoutly to be wished—a reunited country.”
On February 11, 2014, the U.S. Court of Appeals for the Fourth Circuit ruled that the State of North Carolina will not be allowed to produce “Choose Life” license plates without offering a pro-choice alternative.
The panel of judges unanimously struck down as unconstitutional a law passed by the North Carolina General Assembly in June, 2011 which would have allowed North Carolina drivers to buy a pro-life license plate for $25, with no option for a pro-choice alternative. The Court wrote:
Chief amongst the evils the First Amendment prohibits are government “restrictions distinguishing among different speakers, allowing speech by some but not others.” … In this case, North Carolina seeks to do just that: privilege speech on one side of a hotly debated issue— reproductive choice—while silencing opposing voices. Specifically, though North Carolina invites citizens to “[m]ake a statement,” and “promote themselves and/or their causes” with specialty license plates, it limits this invitation to only those citizens who agree with North Carolina’s “Choose Life” stance. North Carolina contends that it may so discriminate because specialty plate messages constitute pure government speech free from First Amendment viewpoint-neutrality constraints. With this, we cannot agree. [footnotes omitted]”
During the same 2011 legislative session during which the enabling bill was passed, lawmakers voted down amendments to the bill for additional license plate options that would read either “Trust Women. Respect Choice.” or “Respect Choice.”
DMV spokesperson Marge Howell said North Carolina has 14 days to appeal to the full district Court of Appeals or 90 days to request a U.S. Supreme Court review of the decision, but had no further information.
On this day in history, the U.S. battleship Maine blew up in Havana Harbor, killing 260 crew members and resulting in an escalation of tensions with Spain. The cause of the catastrophe was unclear, but, goaded by inflammatory articles by William Randolph Hearst and Joseph Pulitzer, the public demanded a declaration of war with Spain. “Remember the Maine, to Hell with Spain!” became a rallying cry for action.
On April 11, 1898, McKinley asked the Congress for permission to use force in Cuba. Senator Henry M. Teller of Colorado proposed an amendment to the declaration, proclaiming that the U.S. “hereby disclaims any disposition of intention to exercise sovereignty, jurisdiction, or control over said island except for pacification thereof, and asserts its determination, when that is accomplished, to leave the government and control of the island to its people.”
Nevertheless, the occupation of Cuba by U.S. troops continued for several years after the war was over. The hegemony of the U.S. was formalized by the Platt Amendment, introduced by Senator Orville Platt (R-Connecticut). Senator Platt also influenced the decision to annex Hawaii and occupy the Philippines. Approved on May 22, 1903, The Platt Amendment allowed the United States “the right to intervene for the preservation of Cuban independence, the maintenance of a government adequate for the protection of life, property, and individual liberty…” This amendment also permitted the United States to lease or buy lands for the purpose of the establishing naval bases (the main one was Guantánamo Bay) and coaling stations in Cuba. It barred Cuba from making a treaty that gave another nation power over its affairs, going into debt, or stopping the United States from imposing a sanitation program on the island.
The Platt Amendment supplied the terms under which the United States intervened in Cuban affairs in 1906, 1912, 1917, and 1920. By 1934, rising Cuban nationalism and widespread criticism of the Platt Amendment resulted in its repeal on May 29, 1934 as part of Franklin D. Roosevelt’s Good Neighbor policy toward Latin America. The United States, however, retained its lease on Guantánamo Bay, where a naval base was established.
Brown v. Allen (344 U.S. 443) was part of a group of cases that was reargued before the Supreme Court since, as Justice Stanley Reed explained in writing his decision for the Court:
As the records raised serious federal constitutional questions upon which the carrying out of death sentences depended and procedural issues of importance in the relations between states and the federal government upon which there was disagreement in this Court, we decided to set the cases for reargument.”
This decision is notable because, beginning with this case, the Supreme Court expanded access to federal habeas corpus review for state prisoners. It is also in this decision that Justice Jackson offered, in his concurrence, his famous view about the nature of the Supreme Court, opining:
We are not final because we are infallible, but we are infallible only because we are final.”
Neither Justice Reed nor Justice Jackson, by the way, ever graduated law school.
On this day in history, the agreement was signed setting clear rules for a future single currency as well as for a foreign and security policy and closer cooperation in justice and home affairs. Under the treaty, known variously as The Treaty of Maastricht, The Amsterdam Treaty, or the Treaty on European Union, the name “European Community” was officially replaced by “European Union.”
You can read the full text of the treaty here.
You can see a list of countries in the EU and their year of entry here. You can also see a list of those “on the road to EU membership.”
The European flag was adopted in 1983 by the European Parliament and in 1985 by all EU leaders as the official emblem of the European Union (called the European Communities at the time).
The number of stars has nothing to do with the number of member countries. Rather it was chosen as a symbolic number representing perfection (the number of months in a year and the number of hours in a day, etc.). The circle is, among other things, a symbol of unity.
On this day in history, President Franklin Delano Roosevelt unveiled his Judicial Procedures Reform Bill of 1937, which proposed adding one new judge to the federal judical system for every active judge over the age of seventy. The result would create fifty new judgeships, including up to six new Supreme Court justices.
Roosevelt had been frustrated with the US Supreme Court’s treatment of some of his economic reforms. During his first term, the Supreme Court had struck down several New Deal measures intended to bolster economic recovery during the Great Depression. The President’s plan would allow him to appoint new judges friendly to his administration, although FDR couched it in terms suggesting that he was trying to streamline the Court system and ease its caseload.
The plan caused an uproar from legislators, bar associations, and the public. The Senate Judiciary Committee held hearings on the bill, and subsequently failed to report it favorably out of committee.
The full Senate began debating the measure in July, but FDR suffered a major setback when a key supporter died of a heart attack. The bill eventually passed in a greatly amended version which did not include the provision to increase the number of Supreme Court justices.
Nevertheless, FDR managed to get what he wanted eventually by serving twelve years in office, which enabled him to appoint eight justices to the Court.
You can listen to FDR’s “fireside chat” on March 9, 1937 in which he discusses the court packing proposal, here.
On this date in history, John James Marshall was appointed to be the fourth Chief Justice of the United States by President John Adams. Marshall dominated the Court for over three decades, serving as Chief Justice during all or part of the administrations of six presidents: John Adams, Thomas Jefferson, James Madison, James Monroe, John Quincy Adams and Andrew Jackson. He helped to establish the Supreme Court as the final authority on the meaning of the Constitution in cases and controversies that must be decided by the federal courts.
President John Adams is said to have told Marshall’s son in 1826, “My gift of John Marshall to the people of the United States was the proudest act of my life. There is no act of my life on which I reflect with more pleasure.”