Slavery and Federal Preemption: Prigg v Pennsylvania, 1842

The Prigg case has always been overshadowed by Dred Scott, yet in many ways, it was of equal importance. Edward Prigg had conspired with his neighbors to return a runaway slave and her children to her purported master in Maryland. Pennsylvania's law required a certificate from a magistrate to remove a slave to be sure that it was indeed a slave. In this case they were unable to get a certificate because there was doubt whether the woman was indeed enslaved.  The woman, Margaret Morgan, was considered to be free by the community and had been living as such for many years.  Indeed, she had been listed as a free black in the 1830 census. Her children had been born in Pennsylvania and were therefore free under Pennsylvania law.

Prigg and his companions seized the entire family and took them to Maryland after they were denied a certificate by a York County magistrate. They were charged with kidnapping but Maryland refused to extradite the conspirators. His conviction was upheld by the Pennsylvania Supreme Court, but he appealed to the U.S. Supreme Court arguing that Pennsylvania law was unconstitutional given the Fugitive Slave Law of 1793.

The opinion by Justice Story overturned Prigg’s conviction,  It (1) upheld the constitutionality of the 1793 Fugitive Slave Law; (2) struck down Pennsylvania’s 1826 “personal liberty law,” and by implication all similar laws in other states; (3) declared that no state could pass any law that interfered with or supplemented the federal Fugitive Slave Law; (4) declared that masters or their agents had a common law right recapture their runaway slaves, without fulfilling any of the requirements of the federal Fugitive Slave Law; and (5) asserted that every state was morally obligated to help enforce the federal Fugitive Slave Law of 1793, but that Congress lacked the power to require the states to do so. 

The decision was unusual in that it was not unanimous.  There were multiple concurring opinions, most notably Chief Justice Taney,  but only one dissent, Justice McLean.  (He also dissented in the infamous Dred Scott decision.)  It was clearly a strong pro-slavery opinion from a Justice who heretofore had been considered to be anti-slavery. 

The Prigg decision came to be overshadowed by Dred Scott, which had political ramifications, but Prigg would have been much more famous for its judicial implications. Two aspects of Story’s opinion touch on thoroughly modem constitutional issues: preemption and unfunded mandates. Story argued that the 1793 statute gave the federal government authority over state actions  and said that since it was an interstate action, even in the absence of a federal law, federal would preempt state. (Whether the federal government would have enforced a non-existent statute to return slaves to the south, was another issue; Jackson was president at the time who probably would have, but JQ Adams, Jackson’s predecessor, most notably, would not have.)

Story also held that in the absence of the 1793 law, Article IV, Section 2 would take precedent over state law making the Fugitive Slave Clause, as that section is known, self-executing. *

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.

Story also ruled that while the 1793 Act provided for federal jurisdiction, it could not force the states to enforce it, i.e. it was an unfunded mandate. This provided an excuse for northern states to ignore the 1793 Act ** creating pressure for the new Fugitive Slave Law of 1850, which made the federal government responsible for enforcement providing for a federal commissioner in every county in the United States.  The pro-slavery states triumphed once again in the guise of Story’s constitutional nationalism. Even though he abhorred slavery, he believed that the national Constitution provided national guarantees. That his decision resulted in the 1850 law and that he provided a mechanism for its enforcement (federal commissioners) and Dred Scott is another of history’s ironies and unintended consequences.

*Article IV, Sec. 2 of the Constitution

• 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.

** For example, “Latimer Law” passed in Massachusetts forbade the use of state facilities in fugitive slave cases. Other states passed similar acts, and many state judges refused, on their own, to hear cases under 1793 law.

Review: Never Go Back by Lee Child

"Nothing happens in the movies that doesn't happen in real life." (Really? Living Dead?  Zombies? Godzillas?) One of the most ridiculous comments ever made, and made by someone who, apparently having nothing else to do, had read through Reacher's file -- begun on him before age six when, at a special screening put on by Army Psy-Ops, he attacked a monster on the screen with a switchblade. Age six mind you.  Apparently, they loved his instant aggression, when all the other kids recoiled in fear.

Such an implausible story. Reacher, who never seems to lack for funds and always has cash on hand, (or just happens on his version of an ATM, a burning meth lab) travels across multiple states to visit Major Susan Turner, the commander of his old outfit, because he liked the sound of her voice. Then it turns out he is the object of a huge conspiracy that he, of course, solves forthwith after having been reinstated into the army. It would seem none of the new brass, including his JAG lawyers like him -- I can understand why, he's about the most abrasive personality ever -- but the non-coms all seem to fawn over him. He also remembers the smallest details of those who had served under him even after 16 years and knows what they are currently up to in spite of his peripatetic lifestyle with no home base, nor cell phone, etc. Banking for him must be a nightmare.

He insists he likes women, has as many affairs as possible, has no kids or responsibilities, yet when faced with a possible paternity issue from 16 years before (the timeline issue is another problem for me) he reveals little interest in the child.

Reacher has got to be the least likable paladin (I really hate to denigrate Richard Boone's character but don't want to call Reacher a hero.)  He's what one critic described as a "good" psychopath because he kills loads of people, but theoretically only those who "deserve" to die, so those of us in the audience rooting for the vigilante, are supposed to like him.

I think he's one of the most boring characters in any series.  He doesn't read, seemingly has no interests,  and evinces no interest in anything nor the least bit of introspection. At least Lisbeth Salamander She knows herself,  explaining to her rapist, as she’s about to take revenge, ‘Keep in mind that I’m crazy, won’t you.’ And yet, we read on, wondering what anti-social act is just around the corner. Feel free to skim. You'll miss little.

Review of Mayday 1971 from The Veteran

This is the first time I have ever quoted someone else's review, but I thought it was so good, I could not resist. I will read the book for sure and then write my own, but can't imagine it could be this good.

5.0 out of 5 stars Right in the middle of it all.

Reviewed in the United States on August 13, 2020

Verified Purchase

May Day 1971 by Lawrence Roberts—Review by Jack Mallory, written for the Vietnam Veterans Against the War quarterly, The Veteran.

“The peace movement has many martyrs but few heroes, and the veterans, who held the Mall for four nights against a stony-hearted government, had given it a victory that already has become a legend.”

I saw a very small part of the Vietnam War, restricted to the 11th Armored Cavalry Regiment area of operations in Binh Long and Tay Ninh provinces in 1969 and 70. My perspective was even more restricted by my particular job as a captain running MEDCAPs and doing leaflet and loudspeaker missions directed at North Vietnamese Army troops.

From the point of view of any individual, where we were and what we did were almost incomprehensible parts of the whole. We didn’t know much about what we were doing and why, especially in any larger sense. Who decided why we were where, why we were doing whatever we were doing? Who the hell knew? Maybe I knew what 1st Squadron was doing, but what about 2nd? We were attached to the First Air Cav—what the hell were they doing, and why? How did any of it fit into winning the war? At the time, ignoring all questions of whether the war needed to be won.

Similarly, none of us, at least at my level, had a clue what the NVA or the VC were thinking and planning, how/why they were motivated.

When I got back to the world and started working with Vietnam Veterans Against the War in D.C. the same kind of questions arose. I could see a bit more: I was higher in the planning hierarchy as an anti-warrior than as a warrior. I knew what VVAW was doing in DC because I helped plan it; ditto some of the VVAW decisions on the national level. Presuming that any of us knew what we were doing, which was often questionable.

Having been in the Army for four years and outside the US for three of those years I had no idea of the history of the antiwar movement, its factions, politics, and leadership over the preceding five years. What was The May Day Coalition, the People’s Coalition for Peace and Justice? Who were the Trots? Yippies? Dave Dellinger? Rennie Davis? Judy Gumbo? What was “the plan?”

And what was Jerry Wilson, Chief of the DC Police Department, thinking? How was the Nixon White House reacting to our plans and actions, and Tricky Dick himself? We had no idea.

May Day 1971 by Lawrence Roberts, is to the Spring antiwar offensive of 1971 and for those of us who were part of those actions what battle histories of the Vietnam War are to our experiences there. Like a history of the war focusing on my particular unit and time in-country, the book fascinates me because it’s about what I know directly. But in setting the Spring Offensive in the context of years of antiwar organizing by many organizations and individuals it helps me understand how we got to April and May of 1971. It’s not a history of the antiwar/anti-imperialist movement, but provides information on the organizations involved—Yippies, the Mobe and the New Mobe, SDS and the Weather Underground, the People’s Coalition for Peace and Justice, the National Peace Action Committee, the May Day Coalition, Vietnam Veterans Against the War, and the groups and factions they evolved from.

Similarly, the book introduces us to the multitude of anti-warriors that led the movement for years, names already familiar to many at the time but new to me and others who had been outside American culture and politics for a couple of years or more: Dave Dellinger (just an old lefty to many of us young farts, but who Roberts tells us had driven an ambulance in the Spanish Civil War!), Rennie Davis, Yippies like Judy Gumbo and Stew Albert, as well as more recent arrivals on the antiwar scene like John Kerry. And, of course, lesser knowns who really did all the work like my DC co-coordinator Mike Phelan, Tim Butz, and John O'Connor, who did FAR more work than any of us realized!

On the other side were those whose words and work were invisible to us at the time: DC Police Chief Jerry Wilson, who comes across as a decent, capable officer caught between the rock of keeping the peace and the hard place of honoring the First Amendment, along with his own desires to someday be head of the FBI ; the White House cabal of Nixon and his aides like Kleindienst, Rehnquist, and Haldeman; and the loathsome (I didn’t promise an objective review) J. Edgar Hoover

Speaking of Nixon and his crew: Mayday reminds me that it’s been 50 years, and there’s a lot I’ve forgotten. The politics of the last three or four years to some degree removed Nixon from the spotlight as the most dishonest, dangerous and despicable president we’ve ever had, surrounded by his equally dishonest, dangerous, and despicable aides. Robert's book restores them to their rightful place next to Trump, Barr, et al.

Quotes from the Nixon administration are eerily reminiscent of Trump’s: Referring to protestors. Nixon is described as saying disdainfully, “Goddamit these people are thugs, vandals, terrorists . . . dope addicts . . .” And Roberts describes Haldeman’s comments on VVAW: “Haldeman complained that there were ‘about six paraplegics’ in the crowd and the press was writing ‘nauseating stories’ about them. ‘God, everything you read would make you think all those guys out there had no legs!’”

The book’s introductory epigraph sets a tone of past-present similarities which Roberts doesn’t overstress but which may be in the back of the reader’s mind throughout the book. Judge Harold Greene, who oversaw the resolution of many of the approximately 12,000 unjustified arrests during the Offensive, is quoted, "Whenever American institutions have provided a hysterical response to an emergency situation, we have come later to regret it."

I queried Roberts about the incredibly apropos nature of the quote, incorporated into the book well before this spring’s protests and police/military over-response. He responded, ”Wrote it long before the current mess, but I was confident America would be in an emergency again at some point . . .” He was certainly prescient, as recent events around the country have shown us.

Another recurring past-present parallel is the Chief Executives' use of law enforcement for political ends, in decisions about how to enforce the law and in images of that enforcement in campaign media. Roberts writes, “In one Nixon campaign ad, the candidate’s voiceover said, ‘I pledge to you we will have order in the United States,’ while scenes flashed by showing bloodied demonstrators, a burning building, and menacingly lit protesters holding up two fingers in a “V,” the peace sign.” I’m writing this prior to the November election—we’ll see what the Trump campaign produces.

Fortunately for VVAW, DC Police Chief Jerry Wilson was willing to ignore White House pressure to get tough with the vets. After Chief Justice’s Berger’s decision that we could be forced to leave our campground on the Mall, “the police chief, Jerry Wilson, took a call from the Justice Department on his hot line. The chief had turned red in the face and told his caller that none of his cops were moving in on crippled veterans, whether they were camping illegally or not. The chief . . . nearly broke the phone when he slammed it down.”

“Jerry had already sent one of his most trusted deputies, Maurice Cullinane, down to the Mall to ensure there was no trouble, that no renegade city or park police would do something stupid. ‘Cully,’ the chief had said, “make sure nobody locks them up' . . . Standing there in the dark, on the edge of the encampment, Cullinane could see these guys weren’t the bums that Nixon had described, but rather people who’d suffered, some grievously, for their country, in a war they believed was wrong. As far as he was concerned, they could camp anywhere they wanted. If they camped right inside his own office, that would have been fine with Cully.”

The micro-level detailing of the Mayday events provides other facts and anecdotes that will be familiar to many readers, and brand new snatches of life from the time period for others. Just a few that struck me:

—Phil Hirschkop, another one of the “old guys” who was a regular antiwar movement lawyer in DC was well respected but none of us really knew anything about him. Turns out to have been an Army paratrooper!

—The review of antiwar movement history includes the imaginary threat to put LSD in the Chicago water supply during the demonstrations around the 1968 Democratic Convention. And not to forget Pigasus the pig, nominated by the Yippies as their presidential candidate!

—Beat poet Allen Ginsberg's suggestion to Henry Kissinger that they meet with Nixon, Rennie Davis and others to discuss ending the war. When Kissinger appeared to be taking the idea seriously, Ginsberg added, “It would be even more useful if we do it naked on television.” Needless to say . . .

—Norman Mailer’s description of the 1967 Pentagon Marchers as looking “like the legions of Sgt. Pepper’s Band . . . assembled from all the intersections between history and the comic books, between legend and television, the Biblical archetypes and the movies.”

—And for any readers who remember attending grotesquely long, tedious political meetings, “At one such session, the steering committee for a New York march wrangled bitterly for hours over whether to stick the word ‘Now’ at the end of its official slogan, ‘Stop the War in Vietnam.’” Been there, done that.

Mayday pays often omitted attention to ways that sexism affected the workings of the antiwar movement and its social dynamics, especially in the entirely male VVAW:

“This (sexism) also played out in the group house where John lived with leaders of the Vietnam Veterans Against the War. Their female roommates frequently called all-hands meetings to complain they were sick of doing all the cooking and cleaning. He and the other guys would dread these sessions, where invariably the woman leading the talk would sit in the one overstuffed living room chair, with her lieutenants perched on the arms. The men were appropriately shamed, and the housework situation would get better afterwards. But usually just for a few days.” Shudder—I remember those meetings: combat-hardened veterans fidgeting nervously in the face of irate female house-mates.

Jerry Wilson was also dealing with gender discrimination issues inside the police department, where he had to fight plans for different shields and pastel uniforms for female officers!

The gender politics of the day were at play as well in the DC Public Defender's Office, headed by Barbara Bowman. She was one of the 4% of lawyers of the era who were women, and supervised the 100 male public defenders. Their work, and the legal and Constitutional issues created by the 12,000 mass arrests, are an important focus of the book.

I'll end my review with some of the conclusions Mayday 1971 draws on the importance of the Spring Offensive and its after-effects.

—“A poll commissioned by the White House found that an astonishing 77 percent of the country had heard or read about the week’s events . . . the vets were garnering a far more positive rating than the typical demonstrators . . . the president’s credibility rating dropped by three percentage points overnight, while the bump in approval for his Vietnam policy, which he celebrated after his Laos speech, had vanished. 'The only conclusion can be that the veterans’ deal, and the coverage of it, is the cause,' Haldeman recorded in his diary.”

—“The protests certainly contributed to the decision made that season by Kissinger and Nixon to soften at last their secret negotiating position in Paris.”

—“The lessons (of the arrests and failed prosecutions) of May Day restored the rights of dissent to the streets of Washington.”

—Quoting John Froines, “When Mayday was over that was, in a sense, the end of the anti-war movement.”

—And finally, quoting Washington Star columnist Mary McGrory, “The peace movement has many martyrs but few heroes, and the veterans, who held the Mall for four nights against a stony-hearted government, had given it a victory that already has become a legend.”

Review: Garbage Land: On the Secret Trail of Trash by Elizabeth Royte

 Elizabeth Royte decided one day to find out what happened to her garbage. The result is Garbage Land, a mesmerizing trip through the hidden, but necessary, side of the consumption society.

The waste stream has tripled since 1960, 4.3 pounds per person. In 2003, every American generated 1.31 tons of trash each year, about 2.5 times what a resident of Oslo, Norway produces. The quantities of waste that we produce each day is staggering and technological approaches to managing the waste have evolved rapidly even since the eighties. Sanitary landfills, invented during the fifties in an attempt to control leachate, the intermixing of chemicals and organic materials, and prevent it from entering the groundwater supply, have become hugely expensive to build and maintain. They contain pipes to collect the leachate and return it to the top of the landfill, believing that it stimulates the breakdown of organic materials and speeds up the creation of methane, a valuable gas that is used to produce electricity in many locations.

Other installations produce electricity by burning trash (WTE, or waste-to-energy, plants.) Metal and other obvious non-flammables are pulled from the huge daily loads by large magnets and recycled. The rest is burned and toxic chemicals (remember, people throw out all sorts of hazardous stuff in the trash) are scrubbed from the smoke (most of it anyway) and the resulting ash (at least that's the plan.) The problem is that evidence is mounting that people who live close to WTE plants and landfills (because methane that leaks out often contains a variety of really awful chemicals) show much higher incidence than normal of a variety of ailments.

The numbers are staggering and ironically the costs drive policy (so what else is new.) New York can no longer afford to recycle because the cost of shipping trash off to Pennsylvania (largest importer of trash in the country) is so high they can't afford the additional manpower and vehicles to process the recylables. That means more goes into the landfills or is burned, creating an even more bizarre mixture of chemicals to form who knows what in the landfill. And even 40 mm plastic sheathing at the bottom of these things is not 100% effective.

For those of you wanting to return to the simpler days of yore, a few facts:

1. In mid-nineteenth century New York, residents simply threw their trash out the window for scavengers to ravage. Often, by spring, garbage and less savory material might be two to three feet deep on the streets. Only the wealthy could afford trash collection.

2. Horses left 500,000 pounds of manure a day on Manhattan streets, and 45,000 gallons of urine. Horses worked hard; their average life span was 2.5 years and in 1880 15,000 dead horses littered the streets. Again, wild animals were expected to make the carcasses more portable by stripping the flesh off them so they could be dumped into the bay.

3. Ocean dumping virtually destroyed the famous oyster beds, but provided the land for the World's Fair and today's airports. It wasn't until 1948 that the public opinion demanded the first city dump.

4,  We have also recently learned that solar panel farms will be the next ecological disaster.  Aside from using up vast amounts of land, the glass and electronics are virtually impossible to recycle at the end of the panel's lifespan, usually, about 30 some years. "PV modules have a 30-year lifespan. There is currently no plan for how to manage this at end of their lifespan. The volume of modules no longer needed could total 80 million metric tons by 2050. In addition to quantity, the nature of the waste also poses challenges. PV modules are made of valuable, precious, critical, and toxic materials. There is currently no standard for how to recycle the valuable ones and mitigate the toxic ones." (https://techxplore.com/news/2020-07-strategies-recycling-solar-panels.html")

Don't forget that today is the good old days of tomorrow.

Review: Curran Vs. Catholic University: A Study Of Authority And Freedom In Conflict by Larry Witham

 This is a fascinating study in the conflict between academic freedom and the authority of the church to determine what is to be orthodox and how to maintain that orthodoxy. I find it particularly relevant as we now see individual Catholic bishops trying to deny communion to Catholic candidates who are pro-choice.

The author takes the reader through a fascinating tour of trends in moral theology. including consequentialism *the consequences of an action form the basis for judgment as to its morality,) proportionalism (moral principles should never be violated unless the good resulting outweighs the bad of breaking the rule,) the relative merit of a principle may be determined by the number of adherents, i.e. the probability that a moral position is "safe",) among others, leading to a discussion of relativism. (Geez, I hope I got that right.)

During the 1960's, casuistry, the case-by-case examination of an ethical issue, was making a comeback and Curran was an adherent of this method. Even though casuistry had been adopted by 17th century Jesuits, it had fallen out of favor in the church which had moved toward the development of absolutes (see Humanae Vitae). It was a "concrete methods for concrete problems." Curran's contribution to moral theology was a "theology of compromise, i.e. choosing the lesser of evils. *

Curran's philosophy leaned to Protestant moral theology, so much so, that he became the first Catholic president of the predominantly protestant Society of Christian Ethics. I doubt if that endeared him to his masters at Catholic University.

The Vatican, especially under Ratzinger's reign at the Congregation for the Doctrine of the Faith, was interested in making sure that ecclesiastical courses were taught by ecclesiastically approved teachers. It's ironic that universities, a product of Christian humanism and its attempt to reconcile Greek and Roman philosophy with the teachings of the Church, have much to thank the church for with regard to academic freedom. In the 12th century, teachers would look to the Church for protection against the interference from merchants and bankers and the rest of the rising capitalist class who wanted to interfere with the academic program. On the other hand, the 12th century provided the roots for subjectivism and personalism in morality thanks to Peter Abelard (whether his little dalliance with Heloise influenced his thinking or not remains speculative.) In any case moral absolutes developed by the Church (which themselves had their roots in Cicero and Greek thought) came under pressure. Abelard insisted that intention was the key to determining the sinfulness of an action, not the action alone. (Of course, this guy gave us the idiotic concept of Limbo, too.)  In any case, Ratzinger, later to be known as Benedict XVI, was a firm believer in moral absolutes and the antithesis of the new moral theology and personalism represented by Curran. Raztinger believed that moral decline stemmed from economic liberalism and could only be countered by a return to authority.  This appealed to Catholics outside the West who still conflated authority with the supernatural.

Admittedly, this might seem like a strange reading selection. Given the recent flap at Notre-Dame over whether they should give Obama an honorary degree, or even invite him to speak, I think the relevancy of the desire for authoritarian control and orthodoxy, particularly with a pope who some might consider an extension of Pius's anti-modernist philosophy, I think it's more than relevant. One could argue that the authority would extend only to the ecclesiastical, perhaps, but in the case of Curran, the Vatican, which had to approve all tenure applications, also wanted to prohibit Curran from teaching Catholic theology in non-ecclesiastical classes.

I find the demand for orthodoxy and authoritarian control inimical to a healthy democratic society. This book provides appropriate historical background and context for those discussions.

*As an aside, I once heard Rushworth Kidder discuss his book [book:How Good People Make Tough Choices  Resolving the Dilemmas of Ethical Living|46683] in which he suggests that the tough choices are never between good and evil, but rather between two shades of good.