Slavery and the Supreme Court, 1825-1861 / Earl M. Maltz -- Lawrence, Kan.: University Press of Kansas, 2009

In the decades preceding the Civil War, the question of slavery grew to be all consuming: morally, politically, socially, economically, and legally. Maltz's Slavery and the Supreme Court is a close analysis of the legal issues related to slavery. Often the cases that were before state and federal courts directly addressed a particular issue among a nexus of slavery issues, but more often jurists chose to skirt the central issue and argue their cases on the tangential grounds of jurisdiction and standing. Consequently, a study of the antebellum slavery cases is complex and technical. Maltz does not shy away from these details, making his work difficult and sometimes turgid for anyone without a legal background.

Despite the challenge, Slavery and the Supreme Court repays careful the attention of a lay reader. Four issues dominated the legal history of slavery: the international slave trade, the interstate slave trade, fugitive slave laws, and the territorial expansion of slavery. Among these, fugitive slave laws were the most contentious, though the issue of the expansion of slavery into the territories ultimately led to the war.

Maltz describes the suppression of the international slave trade and the 1825 Supreme Court case known as The Antelope which established the power of the federal government to enforce the Constitutional ban on the international slave trade. A more complex legal struggle followed in 1841 when the power of the federal government to regulate the interstate slave trade came before the Court in Groves v. Slaughter. Here the constitution of the state of Mississippi banned the importation of slaves, but nonetheless slaves were imported during the 1830s. So many so, that promissory notes were issued to pay for them. When the Mississippi economy collapsed, purchasers relied on the constitutional ban to renege on their promises. In a split and complicated set of opinions, the Court was understood to have denied the authority of the federal government to regulate the interstate slave trade and endorsed the power of states to regulate it; however, the Courts opinions indicated an unwillingness to deal directly with the central legal issues and instead the Court fashioned a decision that would avoid sectional conflict.

The issue of Fugitive Slaves was more complicated still. Ostensibly protected by a Constitutional guarantee, slave catchers were retrieving runaway slaves through out the North -- much to the disapproval of Northerners. By the 1820s, many free states had passed "personal liberty laws" requiring slave catchers to establish the identity of runaway slaves before a state court. Essentially, the legal obstacles would put them out of business. In Prigg v. Pennsylvania, these laws were put to the test. Again, the Court's opinion was based less on legal principle and more on political expedience. While striking down Pennsylvania's personal liberty law and allowing slave catchers to transport their captives back into slavery, Prigg v. Pennsylvania denied that the federal government or state governments had any obligation to assist in the capture of runaway slaves. In practice, this turned out to be a victory for the anti-slavery forces.

In 1850, Congress addressed the issue in the Fugitive Slave Act which was part of a set of compromise laws related to slavery. The Fugitive Slave Act required federal and state governments to assist in the capture of runaways. It even authorized the authorities to require private citizens to participate in the capture. Anti-slavery forces were, of course, outraged and often attempted to avoid abiding by this law. Among the most important cases that came of this resistance was Ableman v. Booth in which the Wisconsin Supreme Court attempted to nullify the 1850 Fugitive Slave Act and acquit Sherman Booth of assisting in the escape of a Joshua Glover, a runaway slave. The incident took place in 1854, but the case dragged on until 1859 with Wisconsin curiously rejecting the authority of the federal government to enforce federal law. Ultimately, the Supreme Court held in favor of federal authority.

While Ableman v. Booth was being litigated, the most famous Supreme Court slavery case, Dred Scott v. Sandford, was tried. Here the critical issue turned on the authority of the federal government to prohibit slavery in the territories. Famously, Chief Justice Roger Taney wrote for the majority of a divided court that the federal government had no such power. This clearly established a central aim of the pro-slavery forces, but according to Maltz, even this ruling was an attempt by the Court to fashion a solution that would end sectional strife, this time by taking a contentious issue out of the political arena. Of course it did nothing of the sort, and opposition to the Dred Scott decision was a powerful force leading to the election of Abraham Lincoln and other Republican law makers.

One last case, Kentucky v. Dennison (1860), that Maltz describes clearly expressed the dominant judicial view in the South just prior to secession. Here the Court ruled that the Governor of Ohio, William Dennison, was required to extradite a man accused of assisting the escape of a slave, but that the federal government had no power to enforce this mandate. This was precisely the view that leading Southerners and President Buchannan held with regard to secession. Southern states had no constitutional right to secede, but the federal government had no authority to take action against them if they did.

In all, the judicial issues related to slavery prior to the war turned on numerous judicial principles and constitutional issues that did not always speak directly to slavery: most important was the power of states vis-a-vis the federal government, but also the commerce clause, the comity clause, the relationship between the fugitive slave clause and the extradition clause, and the power of states to establish who among their residents would be citizens. Maltz's treatment of these issues makes it clear that the pro-slavery and anti-slavery advocates were willing to adopt any position on these issues that would further their cause and that the Supreme Court justices sought to avoid sectional conflict by issuing opinions that dubiously respected judicial and constitutional principles in favor of sectional harmony. Nonetheless, in the words of William Seward, the country was heading into and "irrepressible conflict," where antagonistic political forces would not be denied by Court rulings.