Friday, May 31, 2013

The Time Has Come to Abolish the Slave Law

Slavery was abolished with the passage of 13th Amendment in 1865, and now, with the State of Mississippi completing formalities of filing their ratification this year, it seems fully and universally approved, nationwide. It should be only logical that the "slave law," a body of pre-Amendment court decisions regarding slavery aspects, would become outlawed just as its subject did, instantaneously with it. I was surprised to find out that it didn't. Majority of the slave cases are still marked as "good law." Many of them are cited in decisions made decades after the Amendment. Some are even recognized authority in up-to-date treatises. I think this is an important issue, worthy of our attention, something we should, and now can, fix.

1. The issue.
To cure a problem we first have to identify its cause. Technically, this old slave caselaw became obsolete at the moment the XIII and XIV Amendments were ratified by the required minimum of the voting states. It seems then, there is no issue. The example was made of a well-known case, Dred Scott v. Sandford, 60 U.S. 393 (1856). Many following cases acknowledged Dred Scott's decision being superseded by the Amendments. E.g., "Despite the fact that the United States Supreme Court has never expressly overturned the Dred Scott case, the decision is no longer law in light of the adoption of the Thirteenth and Fourteenth Amendments to the United States Constitution, ratified in 1865 and 1868, respectively." Scott v. Comptroller of Treasury, 105 Md.App. 215, 659 A.2d 341 (Md.App., 1995).

Some decisions provided even an all-inclusive acknowledgement, such as one made in In re: Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18 (U.S. 1883): "The Fourteenth Amendment, U.S.C.A. is not intended to protect individual rights against individual invasion, but to nullify and make void all state legislation and state action which impairs the privileges of citizens of the United States, etc.; ... [including] judicial or executive proceedings."

So, there should be no legal issue with the old slave cases. Yet they remain to be marked and reported as "good law" (some sample citations are given at the end of this article). The issue has more to do with the technology rather than the law, because, up until recently, cases were reported exclusively in paper printed form, bound in reporter's books and resting on the shelves, undisturbed. Upon the passage of a new law, the books with the already printed cases would not suddenly turn "red" or get a "superseded by statute" mark on all relevant older cases. Same no effect would be casted on old indexes, digests, hornbooks, treatises, or any collection of those cases, if such collection was itself printed before the change.

Recently, starting about a couple decades ago, cases became digitized and digitally organized in databases, hyperlinked to its supporting citations, and followed for the consequent development. There are recognized leaders in the digital reporting, LexisNexis and Westlaw, with many rivaling systems growing their muscle, offering different approaches to the research. All of them present the entire body of all known reported cases in a form of some inter-related database. Problem with the slavery cases (decisions published before 1865) is that they were entered "as is" when and where their printed reporter book was found and scanned. The old books showed no indication whether a particular case was overruled. The technician who scanned the cases most likely had no time and no decision-making power to mark any of the scanned cases "good" or "bad." Following up quality assurance checkers could have easily skipped it, because there is no formal decision outlawing each of the slave cases in particular, naming each case by its citation. Even the famous Dred Scott was "never expressly overturned." Id., 105 Md.App. 215. (Dred Scott is marked as "bad law" though).

The result is simple: majority of the cases judicially enforcing slavery is still presented to us as "good law" and remains an active integrated part of our legal system's fabric today.

2. Why is it a problem?

Courts' decisions comprise the country's case law, and, being a part of the "common law," establish the "maxims and customs" of the land, giving "it its weight and authority." Blackstone, Book 1, p. 52 [68]. On the general issue of how our case law remains the basis "for the designing of laws" and provides stability in execution of the judiciary branch of governmental powers I invite you to read Justice Scalia's dissent in Roger v. Simmons, 543 U.S. 551, 125 S.Ct. 1183 (2005). See also, City of Boerne v. Flores521 U.S. 507, 117 S.Ct. 2157 (1997), for a detailed discussion of XIV Amendment's enactment and how Congressional powers became extended over the states' judicial decisions.

May be I am too pedantic, but I view the current situation with the slavery case law as a shaky pillar to our law, a questionable foundation for contemporary and future cases. With the passage of time, our courts and law practitioners will only be further removed from these slave cases, and a chance that someone would actually check the underlying authorities from 19th century will only decrease. Yet if the underlying case was obsolete since 1865 or 1868, would it be helpful to identify it as such, so that it may be then gradually driven off the legal highway to its historical sidewalk?

Since majority of slave cases was resolved on the property law reasoning and now remains a part of property law rules' set, an argument can be made that letting these cases to stay as "good law" on the books constitutes the "badges and incidents" of slavery, something the XIII Amendment was bound to absolve. See Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), for the discussion. Elimination of slave law cases from the current body of law seems then even more appropriate, since not doing it appears to let "badges and incidents" of slavery remain present.

3. Why it is not easily curable?

As much as the subject Amendments were "self-executing," applying their holdings to the indexation of old cases is not self-executing at all. We have to mend to amend. We can't let a computer to run an algorithm to find all cases and statutes containing the words "slave" or "slavery" and to mark them "obsolete." Such program would start with obsoleting the very Constitution (which happened to contain the word "slavery" in the 13th Amendment). This means that the determination of what cases should be marked as obsolete must be done by a human being. Several factors will be involved:

  • whether the slavery topic is only incidental to the case's holding, or is it a part of the rule;
  • if it is substantively related to the holding, whether the resulting rule would be now (a) against the Amendments; (b) against some other subsequent laws (such as acts prohibiting human trafficking); or (c) would be in fact in harmony with the current law. For instance, see Forsyth v. Nash, 4 Mart. (o.s.) 385 (La. 1816), showing restrictions against slave trade being enforced 50 years before the Amendment. See also A. D. Adams's book "The neglected period of anti-slavery in America (1808-1831)," showing many samples of pro-slave decisions;
  • if the case was decided after the Amendments' enactment, whether it can still be found as superseded by some later developed law;
  • whether the given case is obsolete altogether, or only a certain part shall be affected;
  • whether the holding framed the rule in past, then present, or future/continuous form. Our focus is only on the latter group, while other decisions shall remain marked as "good law," as they were decided when and where the slavery was then legal.

And the selected scope of the cases may not be limited to the US Supreme Court decisions or decisions of only the Southern states. States of the North had their portion of subject case law as well. For instance, People ex rel. Napoleon v. Lemmon, 7 N.Y.Super.Ct. 681, 26 Barb. 270 (1857) held that there is an exemption from a general prohibition of slavery in New York, under the Fugitive Clause.

In other words, plenty of old cases has to be individually looked at and decided against a set of multiple set of factors, whether the specimen deserves to remain a good law, or not.

4. Is it curable at all?

This problem, itself being caused by technology, can be resolved with the technology's help. Even though the computer may not do the entire process of weeding out bad precedents for us, computers still can do a large portion of the work. For example, tracking down subsequent instances of any given case's citations is already automated in most of the reporting systems.

Google Books contains an enormous collection of scanned old case books, all OCR-ed, indexed, and searchable, thus offering, free of charge, an opportunity to locate cases not included by the mainstream reporters. E. g. reports of Virginia cases, published in 1856.

Finally, an ability of crowd-sourcing and collective computing provides a truly 21st century recipe to resolve a 19th century problem. Cases can be proposed, located, analyzed, and discussed in a parallel and asynchronized mode, on a principle similar to how people edit and contribute entries for Wikipedia.  If there will be willing contributors, there is an already existing way to execute the process. This will resolve the first, probably the most laborious part of the problem--identification of the cases needed to be acknowledged as obsolete.

There is still another part--someone has to do the actual marking of the cases. Is it done on a reporter's level (i.e., the "good law" or "bad law" is a mere showing of the provider's private opinion of the case), or it must be first declared so by a legislative body, is an open question.

As to the former, I recently wrote about a sample of "good law" slave cases to Lexis and Westlaw and so far only received a response from Westlaw, stating that such determination has to come from a legislative or judiciary branch. It appears to me that the proper venue then will be to petition Congress: "By the Thirteenth Amendment, we committed ourselves as a Nation to the proposition that the former slaves and their descendants should be forever free. To keep that promise, ‘Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.’" Griffin v. Breckenridge403 U.S. 88, 91 S.Ct. 1790 (1971). If it comes to it, an assembled list of cases can be proposed to Congress for further review and consequential declaration as "superseded by statute."

5. Sample citations

Citations given here remained marked as "good law" as of May 31, 2013. This is in no way a complete list, just a food for thought. Some of these cases may still be found valid, even under a focused review, but they provide an illustration for this article's point.

McRea v. Branch Bank of Alabama, 60 U.S. 376 (U.S. 1856), holding that the slaves as security shall be sold to satisfy a debt. This case is currently cited in Footnote 8 of Cyclopedia of Federal Procedure, 15 Cyc. of Federal Proc. § 76:24 (3rd ed.) [Westlaw link is CYCFEDPROC § 76:24]. The database is stated to be "updated May 2013."
Shelton v. Tiffin, 47 U.S. 163 (U.S. 1848), and Brabston v. Gibson, 50 U.S. 263 (U.S. 1850) - issues of mixed security, slaves and land.
Williams v. Williams, 18 Tenn. 20, 10 Yer. 20 (1836) - an issue of bequesting slaves not specified in the will.
Spiers v. Willison, 4 Cranch 398, 8 U.S. 398, 2 L.Ed. 659 (1808) - whether a gift of a slave can be considered valid, when wasn't done in writing, or when the loss of the transferring deed and the loss of that deed's record are proven.
Baker v. Wise, 16 Gratt. 139, 57 Va. 139 (1861) - constitutionality of a statute providing additional protection for slave property of citizens of commonwealth.
Lewis v. Fullerton, 1 Rand. 15, 22 Va. 15 (1821) - an issue of removing a slave from Virginia to Ohio, where a material element was the consent of slave's master.
Charlotte v. Chouteau, 11 Mo. 193 (1847) - the existence of slavery may be its own warrant of legality.
Skillman v. Muir's Adm'r, 4 Met. 282, 61 Ky. 282 (1863) - an issue of a covenant to provide a borrowed slave with cloth and a blanket.
Parks' Ex'r v. Cooke, 3 Bush 168, 66 Ky. 168 (1867) - upholding a sale of a slave in satisfaction of debt.

6. Does the story ends here?

No. I wish that this article not only will call for attention to the slave law, but will also illustrate a general problem we face with determining which cases are still valid, in full or in any part, in the light of ever-developing evolution of our legal system. For instance, more recent changes with establishing equality of women, or gay rights, should mute the earlier decisions holding otherwise. Yet it remains currently unknown whether such cases were appropriately identified and labeled. Another white spot on our legal map calling for explorers.

Update 6-7-13. New York Times called the act "largely symbolic," but on June 7, 2013, Gov. Maggie Hassan of New Hampshire granted freedom to 14 slaves, who petitioned the state in 1779. To me, it shows that such symbols are still seen as important. May be not urgently important--since the culmination happened 30 years after the petition was found--but important enough to be made.

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