Justice Rehnquist, the Supreme Court, and the Bill of Rights. Steven T. Seitz
to the cross-border insurance problem in Allgeyer v. Louisiana, 165 U.S. 578 (1897). The insurance company had headquarters in New York and issued an open marine insurance policy for merchandise shipped from New Orleans. The state of Louisiana statute required all issuers to comply with all applicable Louisiana laws, found the insurer negligent, and fined it several thousand dollars. The defendants argued that the Louisiana statute deprived them of property without due process of law and denied them equal protection of the law. The plaintiff won in the lower state court but lost on one count in the state supreme court. The plaintiff-in-error asked for SCOTUS review.
The Louisiana Supreme Court agreed at the outset that a contract valid in New York was also valid elsewhere. The insurance company did not have a representative in Louisiana, so it was the act of sending by mail or telegram notice of shipment and assignment of its value against an open marine contract that violated the Louisiana act. SCOTUS distinguished a contract made within a state in Hooper v. California, 155 U. S. 648 (1895) and one made without. Even the Louisiana Supreme Court noticed an apparent interference with the defendant’s liberty. The insurance company made no contracts in Louisiana and thus had no duty to observe Louisiana obligations. SCOTUS found the Louisiana requirements a violation of the defendant-in-error’s liberty without due process.
The “liberty” mentioned in that amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.
The defendant made a valid contract outside of the state and performable outside the state, even though the defendant was temporarily within the instant state. A collateral act performed pursuant to a valid contract does not give a state power over that act. SCOTUS developed this logic under the 14th Amendment, which did not exist when Taney wrote the Scott decision. What did prevail was the initial sentiment of the Louisiana Court that a contract valid in one state was valid in another. Typical of the later Lochner period, liberty of contract superseded state boundaries. SCOTUS agreed. This pre-Civil War logic implicitly or explicitly elevated the logic of full faith and credit to its original intention, where the terms of a contract properly executed anywhere are valid everywhere.
Citizenship(s)
The full faith and credit clause reflects how one state accepts as official the acts of another. The privileges and immunities clause switches from the relation among states to the relation between the state and the citizen. The clause assumes that the relation between a state and one of its citizens is the same as the relation between itself and a citizen from another state but within its borders. Both clauses defy the separation of citizenships. If there are state citizenships and a national citizenship, what does either clause mean, and what are their purposes? Exactly how the Fugitive Slave Act of 1850 squares with these clauses also turns on the status of citizenship. Several states had given citizenship to former slaves or their descendants. If a runaway slave or descendants were to qualify for citizenship in a free state, the person would become a citizen of the free state, fully eligible for making contracts, and protected by that state’s laws against the statutory reach of the Fugitive Slave Act. Taney’s argument that there is a citizenship in a state and a different citizenship in the United States only further obfuscates. Each state grants its citizenship, but citizenship in a state does not grant citizenship in the nation. A freed black enjoying rights in a free state is a slave if traveling in a slave state. Since Taney held that no blacks voluntarily entered the United States, but all did so as property, no one or their descendants would ever qualify for national citizenship and thus forever remain property in the eyes of the central government. Changing attitudes in some states aside, the national legislation governing the return of slave property remained national law.
The implications go much further. The contracts clause applies only to national citizens, leaving different mixes of contracts with varying degrees of certainty and that certainty, in turn, varied by state. If the Fugitive Slave Act creates a contract between the federal government and both slave or free states, it in fact serves slave state interests and undermines citizenships granted in free states. No direct Constitutional clause mimics the Fugitive Slave Act. The Constitution allows the national government to end the slave trade in 1808, raising the further complication that a contract after that time may have different reach than one before that time. There is nothing in the Constitution forbidding the voluntary migration of Africans to America and hence Taney’s premise had its own sunset clause.
Two ironies appear. The first asks what happened with the full faith and credit clause. Each state should give full faith and credit to the public acts, records, and judicial proceedings in every other. The decision of one state to extend citizenship to a former slave or descendant then would be a recognized decision in every other. The Constitution has no formalism giving substance to Taney’s distinction between national citizenship and state citizenship, or for that matter the asymmetry between the two. SCOTUS had long recognized that these two Constitutional clauses, full faith and credit and privileges and immunities, struck at the heart of state sovereignty. SCOTUS would have to ignore or interpret one or the other into meaningless or innocuous construction. Second, the very court espousing states-rights relies on national legislation, the Fugitive Slave Act, to assert and assist state sovereignty. The logical difficulties here would be an important backdrop for the 14th Amendment.
Concurrences
In Scott, Justice Wayne concurred with Taney but tried to address the overreach on the Missouri Compromise. A writ of error from the state supreme court would trigger a check for jurisdiction. If not, SCOTUS returns the case to state court without further ado. Writs from the circuit courts follow different rules than in common law. If the writ is from a circuit court, SCOTUS reviews it to see if the lower court has jurisdiction. Averments made by the plaintiff that prove inaccurate should result in SCOTUS returning the case to circuit court even though it has decided the case on its merits. The court reviews the record on which the lower court determined merits if the plaintiff files an abatement on his status as a free man, the defendant objects, and then both plaintiff and defendant demur. The lower court erroneously sustained the plaintiff’s demurrer or declared the plea insufficient, requiring the defendant to answer on the merits. SCOTUS may correct the record as well as inquire into the lower court’s jurisdiction, because the law does not limit it from doing so. If the circuit courts followed common law, where the defendant has denied the plea, it would limit SCOTUS’s review of those judgments.
Justice Nelson wanted to recognize the decision of the lower court and affirm it. That meant that, while concurring in the result that Scott and family remained slaves, Nelson did not sign on to Taney’s reasoning. Nelson explained that, upon judgment of the plea on demurrer and the defendant answers, the defendant submitted to the court judgment on that matter and proceeded to plea the merits. The plea in abatement was no longer part of the record. Other assertions claimed a difference between federal and common law on this point.
Justice Johnson proceeded to the merits of the case. Does residence in a free state work an emancipation? Both the Missouri high court and the circuit court found that it did not. Doing so would allow the state of temporary residence to impress upon a person’s status a quality taken with him back to the state of origin. Reverse this: if a freeman temporarily resided in a slave state, would it impress the badge of slavery sufficiently permanent to weather border crossing into a free state? States legislate within their own territories; each are sovereign in their own territories and toward one another. The source state must determine whether it would honor a change of status made in another state. It may accept a law of another state as a matter of comity, but there is no obligation to do so and it cannot do so if it is prejudicial to its own state laws.
Johnson argued that Congress could have no more authority outside the state than could a state outside its own. In any event, Congress had no power to determine which states are free or slave, so it is clear