Wednesday, February 22, 2017

Will the United States survive the 2016 election (and 2017 Inauguration of Donald Trump)? Continuing

Sandy Levinson

Tomorrow I shall teach Prigg v. Pennsylvania to my class.  For non-professors, it is what I think is the worst single decision in our 225 year history.  Justice Story not only upheld the constitutionality of the Fugitive Slave Law of 1793, but also declared a constitutional right to "self-help repossession" by slaveowners who could kidnap purported fugitives without recourse to the slightest legal process (inasmuch as Story also declared unconstitutional Pennsylvania's "personal liberty" law that required going before a Pennsylvania court (or a federal court) before purported fugitives could be taken from the state.  Enforcement of Fugitive Slave Laws of 1793 and then 1850 helped to contribute to the breakdown of the Union, renting the "mystic chords of memory" that resulted in secession and then the slaughter of 750,000 persons between 1861-1865.

Donald Trump's truly wicked order makes deportation applicable to the following:

(a) have been convicted of any criminal offense; (b) have been charged with any criminal offense that has not been resolved; (c) have committed acts that constitute a chargeable criminal offense; (d) have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; (e) have abused any program related to receipt of public benefits; (f) are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or (g) in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
Even (a) is unsettling, depending on what means by "any criminal offense."  Does this apply to traffic offenses?  Etc.  If we agreed on the magnitude of what constituted an adequate "criminal offense," though, it is hard to argue against deportation.  Perhaps even (b) is defensible if there is probable cause to believe that a truly serious felony has been committted.  All of the others are more disturbing Most telling, of course, is (g), which seems to give unfettered discretion to an extraordinarily low-visibility bureaucrat to destroy a person's life.  Perhaps there will be some kind of judicial review, but we can be sure that the authoritarians who now purport to speak in our collective behalf have no respect whatsoever for any semblance of "rule of law" save for the continuing secrecy of Donald Trump's tax returns.

More than ever, I strongly suspect that violence will break out in the foreseeable future when one of the modern slave-catchers, called employees of ICE (most of whom are undoubtedly honorable men and women being enlisted to behave in quite dishonorable ways), attempt to seize a purported undocumented alien and move immediately to place him/her in a modern concentration camp to be built along the Mexican border, prior to summary deportation.  As happened in the 1850s, I would be not be surprised if there were many loyal Americans who wished to stand in solidarity with the contemporary analogue to people who are going to be hunted down and subjected to merciless treatment at the behest of a sociopathic President and his fanatically anti-immigration minions.  Someone in going to to use readily available firearms, and it will not be good for the country.  (For one thing, the authoritarians in the White House and, thanks to the spinelessness of Republicans in the Senate, the office of Attorney General, are undoubtedly eager to move toward martial law and suspension of habeas corpus if at all possible.)

One argument that one often hears, as I did literally moments ago on an NPR interview with the sheriff of Bristol County, Massachusetts, is that the crackdown is unexceptionable because, after all, we are a country that believes that people should obey the law.  Where does one start with such pietistic foolishness?  (This is not the occasion for a full-fledged examination of "prosecutorial discretion.")  Let me begin only with the following:  Will Trump and Sessions immediately send federal authorities to arrest everyone in Colorado who is undoubtedly and unequivocally violating the perfectly constitutional (see Raich) federal laws prohibiting the possession and sale of marijuana?   Eric Holder backed down, allowing de-facto "neo-nullification"--this is treated in an excellent essay by Duke's Ernie Young in my recent edited book Nullification and Secession in Modern Constitutional Thought--by Colorado because he sensibly believed that it would simply be too costly politically to move against the reefer-loving Coloradans.  For similarly prudential reasons, the Obama Administration refrained from prosecuting anyone for the torture that occurred in our name during the Bush Administration.  But what about Trump and Sessions?  Will they be willing to move against Colorado and other states that have adopted extremely sensible policies of "legalization" of drugs in contravention of undoubtedly valid and superseding federal laws? Or is the difference that the Coloradans who are enjoying their freedom (and feeding lots of tax revenue to the Colorado state government) are largely white yuppies who vote (and, no doubt, contribute to political campaigns), whereas a bully like Trump need not fear any political retribution from the poor wretches whose lives he wishes to destroy?

Anyone who is not terrified about the future of our country is in extreme denial.  Is King Lear really correct when he declared that "even a dog's obeyed in office"?  We must increasingly begin addressing some of the most fundamental questions of what constitutes a legitimate government and, consequently, when its unjust commands compel the disobedience of loyal citizens.   The deportation order, let me suggest, is the equivalent of Dred Scott:  According to the Trump Administration, undocumented aliens (and Muslims from around the world) have no rights that the rest of us are bound to respect.  It will be up to the judiciary, whose record over our entire history does not entitle one to exhibit great optimism, to decide how true this will turn out to be.  More important, I suspect, is the extent to which Americans loyal to the best vision of our Constitution, as found in the Preamble or Martin Luther King's "I Have a Dream" speech, will decide to engage in collective opposition.  And if this opposition takes the form of "sanctuary states" (like California) and not only "sanctuary cities," we might be well on our way to a serious secessionist movement that many of us would find altogether defensible politically.  


It's interesting to see conservatives that used to preach subsidiarity and anti-commandeering drop both so fast in their attack on sanctuary cities.

I've been saying for some time now that people need to read up on the Anthony Burns case. And, though I hope it won't come to that, Christiana.

None of these are unsettling, because they all relate to people whose very presence in the country is an ongoing crime. It's like complaining that somebody doesn't have adequate cause to eject a burglar from their home.

And, while Prigg v. Pennsylvania is a very morally troubling decision, from a legal standpoint, isn't it rock solid? There IS a fugitive slave clause in the Constitution, after all. I'd say Dred Scott was much worse, because it combined moral iniquity with an utter lack of any constitutional basis.

To put it bluntly, where the Constitution is evil, a judge should either deliver up evil rulings, or resign his office.


Slavery was a great evil but like all evils, there were means to temper it in the real world. It is a matter of how you go about it. Others will oppose some of these remedies, arguing something "compels" you not to do it. This compulsion is often questionable. Note, e.g., the reference in Justice Blackmun's famous dissent in DeShaney.

A problem with Prigg was how it clashed with a possible safeguard, state personal liberty laws, that protected "persons" ... as Lincoln noted, the Constitution does not say "slave." Limited they might be, especially in practice, even slaves had rights under American law. [Whenever I think of Lincoln's Cooper Union speech, I hear Sam Waterson's voice, his reading of it available online.]

The order is fictional on a basic level. It is too broad. "Crime" is too broad to realistically be applied. It will be applied selectively, by clear rule or sub silento. Discretion will be applied, but some will find that more okay. Since the guy in power is someone they like more. With the right enemies. To be clear, many will be hurt. Still, limitation of human ability is a rough sort of safeguard.

The writer and a long term commentator here, Shag, have lived through some bad times in our history. I recently saw "Allegiance," the musical concerning the Japanese Internment. A conservative I went with was appalled that the government did that. People live in terror today in various ways. How much worse will it be?

To quote Blackmun again, a chill wind blows.

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None of these are unsettling, because they all relate to people whose very presence in the country is an ongoing crime.

It's not a crime. It's a civil violation.

The issue with Prigg is whether the obligation to return "fugitives" (Art. IV, Sec. 2, cl. 2) created a federal power to pass a law (in this case, the 1793 Fugitive Slave Law), or whether it merely stated an obligation for states, which the federal government could not compel them to perform.

It's notable that the Court treated Art. IV, Sec. 1 (privileges and immunities clause) as essentially voluntary for states, but allowed the feds to compel the return of slaves.

The "ongoing crime" part is confusion. There is "crime" involved.

But, lots of things involve some sort of crime, but we don't have a zero tolerance policy about it. It would be a troublesome usage of governmental power (or power itself), but perhaps libertarians would be more concerned about that as a general matter.

I deleted a previous comment since it was not able to be edited before I was cut off, but there are various differences between that "burglar" and the people here. This is why we treat them differently in various ways. "Like" has degrees of generality.

A wrinkle to Mark Field's latest comment is that even if the states cannot be compelled to perform it, the question remained if a personal liberty law was preempted by federal law here. And, even if it was, if there still needed to be some sort of protections for the "persons" involved, some of whom were not legally slaves. Leaving their safe being to Southern courts and the good judgment of slave-owners was not the only way to go there.

Justice Story in Prigg might have ventured into originalism without calling it such because of the existence of the Constitution's fugitive clause (which as noted did not reference slaves). But he found a way to limit the 1793 Fugitive Slave Act by not requiring the states to cooperate/participate in the recoveries of fugitives. In effect, at least in many non-slave states, the 1793 Act was not that effective. Perhaps Justice Story may have wished to hold the 1793 Act as not in conformity with the Constitution's fugitive clause. But perhaps the makeup of the Court at the time did not permit as many Justices were from slave states and may have been slave owners.

Since Prigg failed to accomplish what slave holders wanted under the 1793 Act, this rankled the slave states. The 1850 Fugitive Slave Act came about with other federal legislation in compromises between the slave and free states. This compromise was aided by certain structural aspects of the Constitution that from the beginning protected slavery. (Sandy has been pointing out these aspects in his posts at this Blog and elsewhere in his calls for a second constitutional convention.) The 1850 Act closed loopholes and otherwise expanded the rights of recovering fugitives, including financial rewards to the fugitive catchers, burdening state officials from hindering recovery, and higher payments to federal commissioners when ruling in favor of the slave owner than a ruling for the claimed fugitive. The 1850 Act grossly limited rights of a claimed fugitive such that the 1850 Act could "return" former slaves/freemen.

I would suggest those who are skeptical to read the 1793 Act and then the 1850 Act. The current immigration order is mort like the 1850 Act. Jobs are to be created at the federal level, jobs that will be compensated. State and locals can be brought in to assist the feds. I share Sandy's concern.


What on God's green Earth is wrong with any of the elements of this order, all of which were previously advocated by Bill Clinton and Barrack Obama to your complete indifference.

Criminal means criminal and includes misdmeanors and felonies, not traffic infractions. Our jurisdiction's criminal plea forms include a warning to foreign citizens that entry of a guilty plea to a crime can result in deportation.

ID and welfare fraud is a felony under both state and federal law. It is interesting that many of the same people who claimed no illegal aliens were getting welfare benefits are now howling that enforcement of this provision will harm multitudes.

Finally, the chance a ICE officer may deport an illegal alien who she deems is a national security threat, but has not yet committed a crime, is hardly an afront to the law. The alien is violating our law an should be deported when idenitified regardless of national security.

Enforcing our immigration laws, especially in this limited fashion, is in no way comparable to returning fugitive slaves and enslaving free African Americans.

Your further comparison to enforceing federal marijuana prohibitions in my free state of Colorado which (with the help of my vote) decriminalized most possession and use of marijuana is similarly inapt. Under our Constitution, immigration is a federal matter, the intra-state use and trade of marijuana is not. But for the progressive expansion of the Commerce Clause beyiond its plain meaning, federal drug laws would be limited to interstate commerce and we Coloradans would be free from federal prosecution.

In my semi-retirement in late 1998, I audited courses at a local university and got entrenched in the history of the 1850s in MA. I learned of the MA Supreme Judicial Court Historical Society Journal that first published in 1995 with 10 issues through 2004, curtailed because of lack of funding. I assume many law libraries may have these 10 lean issues. The 1850 Act is of course addressed as several prominent cases under the Act arose in Boston. I checked the Internet but could not locate these issues on line.

Tomorrow, if I get the time, I'll reference the split on the 1850 Act at the law school at Cambridge (later called Harvard Law School).

Robert Cover (cited by Justice Blackmun) early on in his most famous work referenced a novella by Melville, suggesting a character might be based on his father-in-law, the great Chief Justice Shaw.

I have a used copy of the book. My copy is from the Calhoun College (Yale) Library. There has recently been a decision to rechristen it.

I'm a Democrat who has proudly voted for Hillary Clinton and Barrack Obama. I've donated to Democratic candidates and the ACLU.

The analogy drawn in this post between escape from slavery and remaining in the United States after having immigrated here illegally is absurd. Freedom from slavery is a universal human right; immigrating to the United States is not. There are prudential, practical and policy reasons not to engage in wholesale deportation of illegal immigrants, but with limited exceptions (such as the Dreamers) the moral argument is not that strong.

If there is violence between American law enforcement and illegal immigrants or those who oppose their deportation, Americans will overwhelmingly support the American government in enforcing the law. However, I think that this is sufficiently clearly recognized that advocates for illegal immigrants will not resort to violence under almost any circumstances.

(And the argument with respect to non-enforcement of the Federal ban on pot against Colorado proves that no law should be enforced...which is also patently absurd.)

And as for secession...that was settled with fire and sword in the 1860s.

Ah. "Illegal immigrants."

I would question how weak the moral argument really is against "wholesale deportation," including given lack of clean hands (e.g., undocumented immigration was encouraged in various respects by government action and inaction), the reality of how it actually will be applied and how it would affect third parties, especially citizen children. Morality isn't independent from prudential and other reasons here.

Granting it isn't quite slavery, I'm sure the U.N. will find some serious human rights issues here, down to denial of water to those crossing border areas.

What is "absurd" more than Prof. Levinson's argument is the strawman version of it that "no law shall be enforced." What he said more accurately is some piety that law simply has to be enforced is not how things are done. There is discretion applied & that is a core concern for him here as to the strictness of the policy here.

I also don't think history is settled so neatly. Who is to say how things will go 160 years later under certain conditions? I don't think we are close to there yet, but the idea we never will get to the point where secession will be deemed possible as a serious plan is dubious to me. The future remains to be seen.

"including given lack of clean hands"

Now, there you actually have an argument that has some force. There can be no questioning that while illegal immigration IS illegal, and involves further acts that are illegal, (Such as identity theft.) and the illegal immigrants, (Excepting minors brought here by their parents.) knew it... It none the less remains that they are largely here as a result of deliberate non-enforcement of the law, and they know that, too.

And that needs to be taken into account, it does at least partially reduce their guilt. I think there are certainly some limited classes of illegal immigrants, not remotely all of them, who should receive some consideration on that basis.

We can exclude from that group anybody who committed a non-immigration related crime while here; You could be a Green card holder and be deported under those circumstances.

We can exclude anybody who failed to comply with a deportation order, and anybody who returned after being deported; Those people were under particularized notice they weren't wanted here.

And we can exclude anybody who came here after, say, last year's Republican primary. They were on notice that the policy of non-enforcement was coming to an end.

But if you came here in reliance of the understanding that, despite the law, it was unofficial government policy to look the other way, fine, no penalty should be imposed beyond deporting you.

And, if you were dragged here by your parents as a minor, and subsequently have led a blameless life, fine, after a process comparable to legal immigration in its rigor, you might get a green card, and start the process of applying for citizenship. Congress should certainly pass an actual law to make that legal.

Huh, funny. That pretty much mirror's Trump's orders to the ICE. Fancy that.


I'll be taking a pause until later this afternoon as the Thursday liberal (some progressives) lunch beckons. In the meantime, perhaps some may be interested in James Q. Whitman's LATimes OpEd "When the Nazi wrote the Nurenberg laws, they looked to racist American statutes" available at:

which I think is timely to Sandy's post. A direct link is available at the Legal History Blog. Whitman is a law professor at Yale with a specialty in comparative laws, an area that Sandy is familiar with.

As an aside, CONGRATS! to Heather Gerken, sometime poster at this Blog, to the deanship of Yale Law School. I trust her new job will permit her to continue to post here occasionally.

I think the real problem with the XO is its underlying bad faith. On its face it could be sustainable but the fear of how it was going to be executed carried the day, blurring the question of standing, etc.. Blame Trump's rhetoric. Courts don't operate in a vacuum. I take comfort in the judiciary's willingness to keep this administration on a tight constitutional lease. Ultimately it will be the judicial department, and not Trump's band of sychofants, to say what the law is. Next his LGBT XO will find its way into the courts and will run into problems. Expect another round of unpresidential middle-of-the-night tweets when that happens. Ultimately this president's disdain for the judicial branch of government may be his undoing.

I don't mind the judiciary keeping the administration on a "tight constitutional leash", I just don't want it to be any tighter than the actual Constitution. Trump is NOT constitutionally barred from exercising the normal powers of the Executive branch just because he's Trump, and a lot of people are engaged in a screaming fit about Trump having been elected President.

As a contrast to Whitman's OpEd, take a peek (a long peek is required) at Brad Evans' NYTimes essay "Humans in Dark Times" addressing violence. Here's the closing of the last paragraph:

"Now more than ever, we need to find reasons to believe in this world, for it is the only world we have. So as we look toward the future, let’s acknowledge the downtrodden who refuse to accept the oppressive weight of history, the writers who bring tears to our eyes, the artists who resist the graying of existence, the poets who dare to write about a love that cannot be put into words, the musicians who rock our souls and the children who are never defeated by the limits of present."

While equitable doctrines were not incorporated into our Constitution, such doctrines have in varying ways filtered down into American values. The common law was by means of federalism a part of the laws of states. Some claim our Constitution is a common law Constitution at the federal level. (Richard Primus' recent post at this Blog on originalism is a most thoughtful post and I await further developments on what seems to be a newer generation of new Originalism. Originalism has come a long way, baby, and still has a long way to go. But I digress.)

Laches comes to mind as well as other equitable principles with immigration. Humanity is involved. Do unto others .... Early in my career, I convinced a Lebanese-American judge in the Boston Municiapl Court to reopen a civil action that had resulted in a default judgment and issuance of an execution. In response to the objections of opposing counsel, the judge said "It's a short alley that doesn't have ashcans." Following a trial, another judge found in favor of my client. What was involved? A contract claim involving about $400.00. We don't have ashcans anymore - although President Trump as King Coal might bring them back. Remember compassionate conservatism that really wasn't compassionate? Due process, really, really due process, did not exist under the 1850 Act. We need the judiciary today to make sure that Trump's immigration order provides really, really due process.

Brett: It none the less remains that they are largely here as a result of deliberate non-enforcement of the law, and they know that, too. And that needs to be taken into account, it does at least partially reduce their guilt. I think there are certainly some limited classes of illegal immigrants, not remotely all of them, who should receive some consideration on that basis.

Think about the implications of that for a moment.

If past non-enforcement of the law or grants of amnesty caused the latest wave of illegal immigration, what do you think the effects of a new non-enforcement of the law or grants of amnesty would be?

The problem is the non-enforcement. You cannot expect to have the rule of law unless you consistently and fairly enforce the law.

I didn't suggest non-enforcement, I suggested that they might not be further penalized beyond being deported. Unlike aggravated cases, where it would be appropriate to levy additional penalties beyond deportation.


SPAM I AM! displays his ignorance of cause and effect:

"The problem is the non-enforcement. You cannot expect to have the rule of law unless you consistently and fairly enforce the law."

While SPAM includes the word "fairly," based upon his screeds at this Blog over the years, he clearly has no concept of its meaning. Imagine if in America over its history the "rule of law" were consistently enforced what America might look like today.

While Brett was attempting his version of compassion, SPAM continues to demonstrate his utter lack of compassion.


Compassion in the enforcement of the law is like due process - limited to situations where the government seeks to take your liberty, property or life.

Foreign citizens have no right to residence in or citizenship of the United States. Illegal aliens are stealing this right like a thief steals property.

In deporting illegal aliens, the government is not taking anything from them to which they have a right. It is not compassion to allow a thief to keep what she stole.

Such "compassion" harms American who pay the taxes for the goods and services provided to illegal aliens and the foreign citizens who perform the tasks required to legally enter the country.


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I think that's the precise situation here. Illegal immigrants have stolen something they're not entitled to, residence in the US. It's perfectly understandable they'd want it, but it's not something they have a right to, and taking it back away from them is not a punishment, it is simply depriving them of the fruits of their crime.

The problem here is that the opposition doesn't want to admit that living here is not a right for anybody but a citizen. And they want to pretend that the illegal immigrant has imposed no costs on anybody by taking it.

But, that's not the case. If it weren't for illegal immigration, we could feasibly have much higher *legal* immigration, every illegal immigrant is displacing a potential legal immigrant.

And as we can be very selective about legal immigrants, illegal immigrants will virtually always impose more costs upon society, and bring fewer benefits, than legal immigrants.

It's a crime, and it's not a victimless crime, either.

Our own Brettbart (the really, really "unBreit," but which one is in the image of Bannon and which one in the image of Milo?) continue with their trolling at this Blog. Perhaps our hapless dynamic dyslexic duo, Brat and Bert, are victims of the crimes of illegal immigration. I assume at least one of them considers mail order spouses distinct from illegal immigrants because the Constitution provides for the post office. I wonder what thed think of the free-range immigration that perhaps accommodated their forbears. Of course neither of them has any understanding of the economic contributions of illegal immigrants, especially with the decline in "productivity" - wink, wink - of white males.

"I assume at least one of them considers mail order spouses distinct from illegal immigrants because the Constitution provides for the post office."

You don't regard legal immigrants as distinct from illegal ones? We both had to jump through bureaucratic hoops to get her here. I even had to put up my home and future income as collateral, obligate myself to pay for all costs the government incurred if she had to be tracked down and deported.

Might as well refuse to distinguish between bank depositors and bank robbers; They're both just making transactions, the latter are merely "undocumented".

And, yes, I think the largely unregulated immigration which led to America is a warning to us: We could suffer the same fate as the Indians if we let it happen.

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Shag: I wonder what thed think of the free-range immigration that perhaps accommodated their forbears.

I am completely in favor of it.

My ancestors immigrated under laws which only barred the diseased, disabled and criminal. During wartime there would also be bars on travel from enemy nations.

My immigrant ancestors also had no access to welfare state benefits and had to work or go hungry.

Finally, my immigrant ancestors enjoyed a free market economy where jobs were plentiful and immigrants were not taking work from citizens.

I would wholeheartedly support a return to those norms.

"We could suffer the same fate as the Indians if we let it happen."

If we don't properly control those Irish and Italians ... this seems to be the point here, more a cultural change of some sort. Since, like a burglar not being quite "like" an undocumented immigrant, there are so many differences between that situation and the current one, including militarily, numbers, disease issues etc.

Sandy Levinson fears it is 1860. Mark Field aims more for 1852. Some Know-Nothing Party connotations are there. But, some prosecutorial discretion is offered. Like Obama. Different rules, but again, not some zero tolerance.

"illegal immigrants will virtually always impose more costs upon society, and bring fewer benefits, than legal immigrants"

This has not really been shown; see, e.g., a recent NYT article stating the evidence on crime data. A realistic sort like Brett, who at times is disdainful of those with flights of fancy, might look past this fear of Montezuma's Revenge and consider why state and federal policy so blithely accepted undocumented immigrants for so long, if as a sort of gray market so to speak. The reason is that immigrants of all types bring benefits to this country. Yes, even undocumented immigrants provide services, buy local goods that are taxed, demand less in way of wages, etc.

Some of this, especially wages for certain jobs like on farms and the like, is furthered by them being undocumented. But, it would be better to bring things aboveboard, such as protecting children here for a long time. That was blocked by Republicans though. Why? The argument was that Democrats wanted to make it too easy for the undocumented immigrants. Some wanted to give the federal government more power. Still, it seems there is some agreement the government didn't have clean hands, so some middle path is warranted there.

After all, need some help to work for Trump properties. I kid.

I am dedicating a chapter in my book on why immigration cannot save progressive political economies from collapse of their populations and labor forces. The introduction of low skill people into a welfare state creates a net drain on the economy and their reproduction rate falls to the level of the natives after about a generation.

I note a potential split in our own Brettbart (the really, really "unBreit") on what I phrased as "free range immigration." Brett claims Irish forbears who entered America in that manner at a time when the Irish were not considered white. And SPAM I AM! claims various ethnicities by that same method, but his swarthy Mediterranean ethnicity were described as "dark-whites" and not up to the standards of Anlo-Saxons. I'll be LOL-ing on this potential split at lunch. Maybe someone from Cajun country will step in to comment. Each of Brettbard has claimed from time to time to be anarcho libertarians.

By the Bybee (expletives deleted), I have no objection to Brett's playing post office as it produced a mixed race American citizen, keeping in mind the route another mixed race American citizen who served America well.

I wonder if SPAM I AM!'s "dedication" will provide his own example or reproduction rate failure; Cue to BB, as I'm leaving for lunch.

Back in the 1850s the law school at Cambridge faculty consisted of between 2 and 3 members. The student body for diverse in the sense that its students (all male) came from just about all of the then states, both slave and non-slave. Some faculty members served in government capacities, including as a MA Probate Court judge and a federal commissioner authorized to hear cases under the 1850 Fugitive Slave Act. With the wide attention given to fugitive slave cases in Boston at the time, the law school's faculty and student body were split on such cases. Perhaps this was an early originalists versus non-originalists situation. Those interested in details can delve into a History of HLS and various contemporary writings. Just as there were legal scholars a century later critical of Brown V. Bd. of Educ. legal scholars back in the 1850s supported the 1850 Act and its implementation. This took place before Dred Scott v. Sandford. The Baptist Tremont Temple was anti-slavery whereas the merchant-parishioners at nearby King's Chapel had pro-slavery sentiments as they profited from slavery in various ways.

Joe made reference to CJ Lemuel Shaw of the MA Supreme Judicial Court. In the 1830s Shaw applied Lord Mansfield's decision in the 1790s Somerset case to declare that the 1793 Act did not apply to a slave child who had been voluntarily brought into MA. Shaw was not in a position to declare the 1793 Act unconstitutional. I'm not sure if Shaw was still on the bench with the 1850 Act. That's when federal commissioners came into the picture in Boston fugitive slave trials. Abolitionists had problems with the municipal officials of Boston who assisted in the prosecutions. Accounts of the trials and their aftermaths are heart rending. My law office was within a block of where some of those trials took place and the State Street march of the convicted fugitive with federal and MA forces to keep the crowds away to an awaiting boat to be shipped back south to a slave owner. Bostonians lined the route in protest, including from office buildings. Then there were after stories of how the returned fugitives were treated. This was before CJ Taney's decision in Dred Scott.

In NY after Dred Scott the NYCourt of Appeals thumbed its nose at the feds in the Lemmon case. Before Lemmon could be appealed/heard by the Taney Court, the Civil War broke out. It is said that Taney was looking forward to overturning the Lemmon case by rejecting the Somerset case, which was a foundation of the Court of Appeal's decision. While Taney remained on the Court after the Civil War commenced, the Lemmon case was not considered.

Joe mentioned Yale's Calhoun Library and the very recent name change to remove slavery identity with Yale Law School. Last year Harvard Law School took similar action by removing a slaveholder's crest from a logo.

And those interested might Google Sen. Daniel Webster's role in compromises in the early 1850s.

Shaw was on the bench until 1860.


SPAM I AM! has strongly praised Trump's choice of Jeff Beauregard Sessions as AG. SPAM earlier (7:54 PM) responded to Sandy on Sandy's reference to the possibility of Trump/Bannon Administration attacks on state pot laws as follow:

"Your further comparison to enforceing federal marijuana prohibitions in my free state of Colorado which (with the help of my vote) decriminalized most possession and use of marijuana is similarly inapt. Under our Constitution, immigration is a federal matter, the intra-state use and trade of marijuana is not. But for the progressive expansion of the Commerce Clause beyiond its plain meaning, federal drug laws would be limited to interstate commerce and we Coloradans would be free from federal prosecution."

AG Beauregard is reported to be focusing on attacking recreational use of Ganja. So perhaps SPAM will soon describe AG Beauregard as a progressive. Are SPAM and fellow Coloradans (aka "potheads") prepared to fight for their freedom to be high not only in elevation but in Ganja recreation? Will Brett cross state lines to come to SPAM's aid in such an anarcho libertarian battle? Once again SPAM displays his inaptness ignorance of the late Justice Scalia's views in Raich. Brett has long been suffering from chronic Wickburn for which recreational Ganja may provide some relief at Brettbart (the really, really "unBreit") conspiracy conferences in the Mile High State (of mind). Will Brettbart toke the high or the low road?


Joe, thanks for the info on CJ Shaw. The Prigg decision per the Supremacy Clause was of course applicable to limit states from challenging the constitutionality of the 1793 Act. But the Somerset case was considered part of the common law and it was applied even in slave state cases, although this started to change with Dred Scott in its earlier stages at the state court level.


I support Sessions because he enforces the law as it is, not how I wish it would be. I know this is a radical concept to a lawless progressive.

SPAM I AM! supports AG Beauregard because he is of the same ilk. While SPAM doesn't say so specifically, he would support AG Beauregard's actions against Coloradans on recreational Ganja because that would be enforcement of the law as it is, not how SPAMwishes it would be. Earlier I had asked:

"Are SPAM and fellow Coloradans (aka "potheads") prepared to fight for their freedom to be high not only in elevation but in Ganja recreation?"

SPAM's silence suggests he will keep his Glock in his jock.


In case you missed it, the marijuana decriminalization we Coloradans pioneered is going national. Nothing changes government minds like the prospect of new tax revenue and marijuana taxes are a pot of gold. When we hit a critical mass of states decriminalizing marijuana, the Congress will start changing their laws.

This is how you change law in a democratic republic, not by lawless prosecutors declining to enforce the laws they dislike.

How would such a march to critical mass happen sans something like Obama's decision not to enforce federal marihuana laws in states that have legalized it?

It might actually be accelerated by Congressmen hearing from constituents pissed off that the federal government is undercutting their local decisions. The thing about using discretion to stop enforcement of a law that remains on the books, as open borders advocates are finding, is that a subsequent administration can decide to start enforcing it again.

For real legalization, you need either the federal law changed, or, ideally, the Supreme court ruling that it was none of the federal government's business in the first place.

Mr W: How would such a march to critical mass happen sans something like Obama's decision not to enforce federal marihuana laws in states that have legalized it?

Legislatures enacting statutes and voters approving initiatives.

Colorado's decriminalization had nothing to do with Obama or the feds.

SPAM I AM! favors the Ganja Rainbow nationally not with pots of gold at its ends but golden pot. National high times should resolve our fisc? Can we excuse SPAM because he may be a pothead? The "productivity" of white males declines with increasing use of pot. Who needs to win the vagina lottery (thanks, Warren) with pot luck? Maybe the Revengelicals will join SPAM's crusade for national pot holes. What might be the impact on national security? Of course libertarians would challenge efforts at regulation. And while there are scientific tests that can detect the use of Ganja, there are no acceptable tests as yet on the extent of influence of Ganja use on situations involving dangers to the public, like driving, or even DUI criminal defense counsel being under the influence of Ganja in court while representing a DUI defendant. I imagine CO as the Smile Hight State (of mind).

Brett wants to "use discretion" too since (as is clear enough after the decades of modern immigration law) that simply has to be done given the numbers involved and all the realities of the situation. Congress can alter the law some, as they have over the years, but like with other things, there will be much executive discretion. And, yes, the details will change depending on the administration and current popular opinions.

Immigration is clearly the federal government's business, the Supreme Court clearly holding that back in the 1870s or so at the very least.

"It might actually be accelerated by Congressmen hearing from constituents pissed off that the federal government is undercutting their local decisions."

Perhaps, but that's different than the model Bart just proposed, that there's a march through the states which helps create/foster the political will to force federal change. I don't see how that happens unless you have a federal executive willing to 'lay off' while that gets underway

Bart, states aren't going to pass laws that are strangled in the grave, so to speak, by aggressive federal action on the same front.

Mr. W: Bart, states aren't going to pass laws that are strangled in the grave, so to speak, by aggressive federal action on the same front.

Voters will.

Colorado voters decriminalized pot BEFORE the Obama guidance to federal law enforcement.

And if the Feds had aggressively jumped in to enforce the CSA would the other states have followed?

Mr. W:

Because most marijuana decriminalization is done by voter initiative, yes.

But the feds largely don't have the resources to strangle this sort of thing in the cradle. Which I expect Trump is going to find out in his fight with the "sanctuary" cities.

An addendum.

The latest thread here is drug enforcement. Drug enforcement is also the federal government's business, especially to the degree it is a large national and international market. On that front, Gonzales v. Raich was correct, including Scalia's concurring opinion. Note how the majority and primary dissent's authors went against their apparent policy inclinations on medicinal marijuana.

As a matter of good policy, one thing constitutional principles factor in (leaving details largely to the political branches), discretion is appropriate here. Also, I think there is a good liberty argument to be made at least to the degree that medicinal marijuana is involved. Also, under current statutory drug laws, the medicinal value of marijuana would warrant a rules change.

Executive and congressional policy (including a bipartisan funding measure denying the power to prosecute in certain cases) is influenced by popular will and state experimentation here. Federal action can influence states there; there also can be pushback, as there was against Obama and now Trump.



"The latest thread here is drug enforcement. Drug enforcement is also the federal government's business,"

Right, just like alcohol before the Prohibition amendment. Heck, when they first started the war on drugs, it was done in the form of a tax law, because at the time they still understood it wasn't really within federal jurisdiction, but that they could sort of get away with taxing it heavily in interstate commerce, and then going after you for tax evasion because they wouldn't let you pay the tax.

It was tax laws that brought down Al Capone. Maybe that's why Trump declined to release his tax returns. Thanks for the thought, Brett.

But I'm surprised Brett has not brought into the drug discussion the opiod epidemic of while males, a serious matter that Brett was upset about because government wasn't doing much about it. The PBS Newshour has done some good work in the past few weeks on this subject, including the recent drop in longevity of white males. Perhaps Brett has in mind what is the cause, whom to blame, for this serious situation.

Or perhaps his tax returns are Trump's own "long form birth certificate", the meaningless bit of paperwork he's conned his foes into obsessing over, and laughs in private about because he knows that, so long as they're focused on trying to get it, they're not looking anywhere real dirt might be found.

As for the opioid 'epidemic', evolution in action. For every person who drowns their sorrows in booze or other drugs, (Alcohol is a drug, after all.) there are ten or more who just suck it up and deal with their sorrows. They're the people we should reserve our sympathy for.

I'm much more concerned about the victims of the gang violence that Prohibition fuels.

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