Legal 177 Midterm 1 Key Terms Reviewhttps://knowt.com/flashcards/02707d33-9559-4ca3-acac-7e4955d693cc/edit

Hhhhwite men enacting some crazy laws and coming up with intersting legal justifications

Benjamin Butler

American major general of the Union Army who refused to return three escaped Black slaves, justifying them as 'contraband of war' under international law rules.

Social Equality

The state of having equal social status and access to public goods, spaces, and housing without a rigid class structure or prejudice, distinguished by Lincoln from political equality and the right to benefit from one's labor.

• Equality in social relationships.

• All people have equal social status and access to public goods without a rigid class structure 

• Ensuring people from all social groups have the same access to public spaces, housing, and social respect without facing prejudice

  • Legal equality doesn’t mean social equality per train cars examples 

  
  

• 
  

  • Lincoln, 1858

• Distinguished between political/___ equality and the right to benefit from one's own labor. → no desire to introduce political and ___ equality between the white and black races 

  • Said black people deserved political equality and not to be enslaved while not thinking they were socially equal 

    • White people were still superior 

    • Didn’t want interracial marriage and social integration 

    • Didn’t even want some political equality with jurors

• \

• 
  

The Grasp of War Theory

A legal theory holding that a victorious nation may lawfully hold a conquered enemy under military occupation until the fundamental purposes and safety of the war are fully secured.

"the fatal poison of irresponsible power"

Frederick Douglass's characterization in his autobiography of the corrupting and dehumanizing effect of slavery on slaveholders, which perverts religion and makes masters cruel and autonomous.

Assumption of Risk Rule

A legal rule established in Farwell v. Boston and Worcester Rail Road Corp stating that an employer is not liable for an injury sustained by an employee due to the negligence of a co-worker.

- since the employee knows the risk when signing the contract and the salary is part of that rule

• overtruned english common law precedent

Police Power

The inherent power vested in the legislature to enact wholesome and reasonable laws for the good and welfare of the public, aimed at preventing public nuisances rather than taking property for public use, as long as it doesn’t denegrade the Constitution

- for a while, it gave state governments the power to do as they wished as long as ti was reasonable and for the common

-KEPT VERY LOCAL

- first came up during Farwell v. Boston

Cyrus Alger

A Boston property owner who built a wharf past legal boundary lines, sued claiming his private property was taken without compensation, and lost in Commonwealth v. ___, creating the first precedent for state police power.

Lemuel Shaw

Chief Justice of the Massachusetts Supreme Judicial Court who defined state police power in Commonwealth v. Alger and established the fellow-servant rule in Farwell.

The People's Welfare

The primary justification for state police power, asserting that state authority inherently exists to enact regulations that protect public health, safety, morals, and general welfare.

Personal Liberty Law

A series of state statutes passed in Northern free states between the 1780s and 1850s to protect escaped slaves and free African Americans from kidnapping and to obstruct federal fugitive slave law enforcement.

Fugitive Slave Act (1850)

A federal law requiring the return of escaped slaves even in free states, denying accused persons a jury trial or right to testify, and paying commissioners $10 if ruled a slave versus $5 if ruled free.

Contrabands

The legal classification used by General Benjamin Butler for escaped Black slaves who entered Union military lines, treating them as illicit military goods or enemy property under international law.

Enforcement Act of 1871

Also known as the Ku Klux Klan Act or Civil Rights Act of 1871, a federal law signed by President Grant that made conspiring to deprive constitutional rights a federal crime and authorized presidential military intervention.

• purpose

  • Enforce the 14A and protect constitutional rights.

  • Gives the federal government tools to respond when states fail to protect people from political violence and rights violations.

• Section 1

  • Applies to people acting under color of state law who deprive someone of constitutional rights.

    • A person who violates protected rights can be held liable to the injured person.

• Section 2

  • Targets conspiracies involving force, intimidation, or threats.

  • Includes efforts to prevent citizens from exercising their right to vote.

• Section 3

  • Applies when insurrection or conspiracies prevent enforcement of laws and deprive people of constitutional rights.

  • If state authorities fail or refuse to protect people, the federal government can respond.

  • The president can use federal military forces to suppress insurrection/domestic violence/combinations.

• Main issue:

  • How far can Congress go in using federal power to protect constitutional rights?

  • What happens when states are unwilling or unable to protect those rights?

Thirteenth Amendment

The constitutional amendment prohibiting slavery and involuntary servitude within the United States, except as punishment for a crime whereof the party has been duly convicted.

Civil Rights Act of 1866

The first U.S. federal law defining national citizenship and guaranteeing all born citizens equal rights to make contracts, sue, give evidence, and hold property.

• National Citizenship: The act declared that all people born in the United States (except American Indians not taxed) were national citizens.

• Equal Legal Rights: It guaranteed all citizens the equal right to make and enforce contracts, sue and be sued, give evidence in court, and buy, sell, or hold property.

• Federal Enforcement: Violating these rights under official law was made a misdemeanor carrying fines or imprisonment. Federal courts were given jurisdiction over these cases

ACT TO PROTECT ALL PERSONS BORN IN THE US AND CIVIL RIGHTS

Compact Theory

A constitutional interpretation asserting that the United States was formed through a ___ among the states, making individual states the final arbiters over whether federal authority has overstepped its limits.

voluntary contract or partnership of independent states

 South Carolina used as a justification to secede from union since union didn’t hold up its end of the bargain by protecting their rights to own slaves

•  

• We hold that the government is subject to the fundamental principle the law of ___ 

  • Every compact between two or more pirates’ obligation is mutual → failure of one party to perform part of agreement releases obligation of other 

• In the years before the Civil War, the compact theory was used by southern states to argue that they had a right to nullify federal law and to secede from the union.

State v. Mann

An 1829 North Carolina Supreme Court decision establishing that the power of a master or hirer over an enslaved person must be absolute to render submission perfect, reversing a criminal conviction for shooting a hired slave.

POWER OF MASTER OVER SLAVE IS ABSOLUTE

• If the object of slavery is to funnel profit, how do we persuade someone for the profit of another → you have to coerce them 

  • You have to take away the slave’s will 

  • “Such obedience is the consequence of only uncontrolled authority over the body” → ABSOLUTE OBEDIENCE → at the heart of slavery 

• absolute property right as an individual right

• Ruffin says that his sympathy lies with Lydia, the slave Mann shot —> judicial mask of sorts

• How can Mann exercise such extensive power over a piece of property that is only temporarily in his possession 

  • Master and hirer are treated as one in the same thing → owners and hirers have the same goal to receive the services of the slave, so they are entitled to the same extent of authority 

"American aristocracy"

Alexis de Tocqueville's description of American lawyers, who derive exclusive power from interpreting precedent-based law and serve as an essential counterpoise to popular democracy.

Fellow-Servant Rule

A common law tort doctrine established in Farwell v. Boston & Worcester Rail Road Corp holding that an employer is shielded from liability when an employee is injured due solely to a co-worker's negligence.

Benjamin Tillman

A South Carolina Senator who openly defended white supremacy, voter disenfranchisement, and lynching, acknowledging that white Southerners used fraud and intimidation in the 1876 election.

• Tillman defended Southern Jim Crow laws and the systematic disenfranchisement of Black voters, stating on the Senate floor: "We of the South have never recognized the right of the negro to govern white men, and we never will. We have never believed him to be equal to the white man, and we will not submit.

• Wants the country to get the full view of the southern side of the question of race and justification 

• Did not disfranchise negroes until 1895 

  • Disenfranchised as many of them as they could under the fourteenth and fifteenth amendments 

  •  

• Don’t believe they are equal and will not submit to gratifying lust on their women without lynching him 

• Wants them to go to Africa 

• openly acknowledged that white southerners used fraud and intimidation to take control of the government during the 1876 election

• He unashamedly defended violent vigilantism and lynching, while accusing Northern Republicans of hypocrisy and claiming their Reconstruction policies were driven by a desire for political dominance and revenge against the South

Elizabeth Jones

The orphaned owner in State v. Mann who inherited the enslaved woman Lydia, whose guardian subsequently hired Lydia out to John Mann.

"counterpoise to the democratic element"

Alexis de Tocqueville's characterization of how the legal profession and judiciary balance and control popular democratic influence in the United States.

Stephen A. Douglas

An Illinois Senator who advocated for popular sovereignty and brokered the Compromise of 1850 and the Kansas-Nebraska Act.

An Act to confer Civil Rights on Freedmen

A set of Mississippi Black Codes that granted freedmen limited civil rights such as marrying and holding property, while placing strict restrictions on labor and political participation.

Slaughter-House Cases

An 1873 Supreme Court decision ruling that the Fourteenth Amendment's Privileges or Immunities Clause only protected rights tied specifically to national citizenship, not civil or economic rights granted by individual states.

Plessy v. Ferguson

An 1896 Supreme Court ruling that validated state-enforced racial segregation under the 'separate but equal' doctrine, claiming the 14th Amendment could not enforce social equality.

Separate Car Act

A Louisiana state statute requiring separate railway passenger cars for Black and white races, providing equal accommodations while penalizing violations.

"Our Constitution is color-blind"

The famous principle articulated by Justice John Marshall Harlan in his Plessy v. Ferguson dissent, asserting that the law tolerates no dominant class among citizens.

Bradwell v. Illinois

An 1873 Supreme Court case ruling that the right to practice law in state court was not a privilege or immunity guaranteed by the 14th Amendment, upholding Illinois's exclusion of women from the bar.

"badges and incidents of slavery"

Conditions or legal disabilities attached to enslavement; the Supreme Court ruled in the Civil Rights Cases (1883) that private racial discrimination in public accommodations did not constitute a badge or incident of slavery under the 13th Amendment.

Coverture

An English common law legal doctrine under which a married woman's legal identity was subsumed by her husband, leaving her without an independent legal personality to enter contracts or hold property alone.

Blackstone's Commentaries

The foundational English legal text by William Blackstone defining marriage as a civil contract under coverture, asserting that legal disabilities imposed on married women were intended for their benefit.

Our law considers marriage as a  civil contract …  By marriage, the husband and wife are one person in law:”

• Coverture: Coverture is a historical legal doctrine in English common law stating that a married woman's legal identity merged with her husband's, leaving her without an independent legal status

  • Don’t have a separate legal identity as the  man who acts for her 

• When a woman gets married and is underage, her legal identity is not separate from that of her dad or husband

  • Subsumed, under their recover 

• Doesn’t mean that the woman has no citizenship or legal identity, it just means that legal identity is subsumed

  • No legal personality:  status of an entity that is recognized by law as having its own distinct rights, duties, and obligations. This means the entity can own property, enter into contracts, sue, and be sued in its own name, separate from the individuals who comprise it.

    • Blackstone said this is a good thing for women because it’s for te protection of woman → woman is given “special treatment of the woman” in law 

      • These disabilities are for the most part intended for her protection and benefit

Whiteness as Property

A legal argument raised in Plessy v. Ferguson claiming that the reputation of belonging to the dominant white race constituted a valuable, legally protected form of property.

Plessy’s lawyers argued that by forcing Plessy—who was of mixed race and perceived as white—into a colored car, the state of Louisiana stripped him of the "reputation of belonging to the dominant race"

Civil Rights Act of 1875

A federal law guaranteeing equal access to public accommodations (inns, transportation, theaters) and jury service regardless of race, struck down by the Supreme Court in 1883.

• PROHIBIT RATIONAL DISCRIMINATION IN PUBIC ACCOMMODATIONS
  
  Civil rights cases struck this down since 14th amendment regulates state action rather than private individual discrimination 

State Action Doctrine

The constitutional doctrine established in the Civil Rights Cases of 1883 holding that the Fourteenth Amendment's Equal Protection Clause restricts only _____, not private individual or corporate discrimination.

"the special favorite of the laws" (Civil Rights Cases 1883)

• Justice Bradley wrote that after years of federal help following the Civil War, formerly enslaved African Americans had reached a point where they were just regular citizens. He stated they must "cease to be the ______" and rely on standard state laws to protect their rights

• must be like any other citizen

Plenary Power

Full, complete, and absolute authority held by a governing body over a specific area—such as Congress's authority over interstate commerce, territories, or foreign immigration—unconstrained except by express constitutional limits.

-usually something that’s not in Constitution

• UNQUALIFIED, UNLIMITED, OR FULL

• The Supreme Court has likewise recognized Congress’s ___ over immigration, including the admission and exclusion of non-citizens —> why it could abregate chinese exclusion act since excluding foreigners is inherent to the idea of sovereignty

"subject to the jurisdiction thereof."

The Fourteenth Amendment requirement for citizenship by birth, which demands complete governing subjection to U.S. law and historically excluded foreign diplomats, enemy armies, and tribal Native Americans.

"internal foreigners"

A concept describing individuals born within U.S. borders—such as free Black people or enslaved persons—who were denied full citizenship rights and treated as legal aliens domestically.

(organic) perpetual union theory

Abraham Lincoln's argument that the United States Constitution formed a permanent, perpetual union that could not be legally dissolved or rescinded without the mutual agreement of all member states.

Contract Freedom

The formal legal ability to enter into employment or property contracts, which during Reconstruction lacked economic freedom or meaningful choice for landless freedpeople.

Moral Freedom

Substantive autonomy that grants individuals genuine control over their life, land, economic future, and self-determination beyond formal legal contracts.

Colfax, Louisiana (1873)

The site of an Easter Sunday massacre where a white supremacist mob murdered between 62 and 150+ Black freedmen over disputed local elections, leading to U.S. v. Cruikshank.

U.S. v. Cruikshank

An 1876 Supreme Court decision overturning convictions from the Colfax Massacre, ruling that the 14th Amendment applied only to state actions and ending federal prosecution of private racial terrorism.

Baskerville Contract

A post-Civil War labor contract between ______ and former slaves, requiring complete obedience and farm work in exchange for a fraction of crops, illustrating formal contract freedom without economic choice.

"under color of law"

An action performed under the appearance of official legal authority or government position that misuses power to violate a person's constitutional rights.

Insurrection

An organized armed uprising against state or federal authority; Lincoln maintained Southern secession was an illegal ___ rather than a valid creation of a separate nation.

Privileges or Immunities Clause

A clause in Section 1 of the Fourteenth Amendment forbidding state governments from abridging the fundamental rights and privileges belonging specifically to national U.S. citizens.

• no state shall make or enforce any laws which shall abridge the ___ of citizens of the United States
  
  
  Slaughterhouse cause 

• The Court ruled that the Privileges or Immunities Clause only protected rights tied to national citizenship (like traveling to a seaport or running for federal office), not basic civil rights or economic privileges granted by individual states. [1, 2]

  •  "the citizens of each state shall be entitled to ____ the several states."  —>in Article 4

    •  protects the fundamental rights of individual citizens by restraining State efforts to discriminate against out-of-state citizens and requiring states to treat them as native citizens or residents of the state. However, the clause does not extend to all commercial activity and does not apply to corporations, only U.S. citizens.

    • Only protects a narrow set of rights tied to federal citizenship rather than broader rights granted by individual states 

      • Running for federal office

Article 4 Section 2:

No Person held to Service or Labour 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 Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Alexis Charles-Henri-Maurice Clérel, Viscount de Tocqueville

French author of Democracy in America who analyzed the unique status of American lawyers as an influential aristocracy and counterpoise to democratic majority rule.

the 'higher law'

An 1850s anti-slavery legal philosophy asserting that divine moral law and human equality principles superiorly override human statutory laws like the Fugitive Slave Act.

The Slave Power

• The distorted structure of slavery that has given slave owners a stranglehold on power 

• After north won the Civil WAR, CONGRESS BELIEVED THAT THE Union army’s purpose was to crush the slave power 

  • More than armies in the field, they mean the distorted structure of legal and political representation that had given slave owners a stranglehold in the national government 

    • Slave owners had distorted legal system to perpetuate themselves in power 

  • Rhetoric of slave power had been in place prior ot Civil war

    • War doesn't end when fighting stops, it end when the spirit of rebellion and when the structural distortion of the slave power has been removed 

  • 11 states no longer exist:

    • Not separate nation or dormant nations 

    • State governments don’t exist anymore

    • Territory that’s under control of the national government, not states with authority → Congress asserts direct plenary power over a place that is no longer deemed to be a state

The Judicial Mask

The rhetorical defense used by Northern judges who personally opposed slavery but claimed their legal duties strictly forced them to uphold pro-slavery statutes and constitutional provisions.

Prigg v. Pennsylvania

An 1842 Supreme Court ruling that ___ laws protecting Black residents against kidnapping violated Article IV Section 2 and the Fugitive Slave Act of 1793, establishing exclusive federal authority over fugitive slave laws.

Clause contains a positive and unqualified recognition of the right of the owner in the slave, unaffected by any state law 

Scott v. Sandford

The 1857 Supreme Court ruling holding that Black people were not citizens of the United States and that the Missouri Compromise was an unconstitutional violation of Fifth Amendment due process.

• Dred Scott is the first time that Congress passed a major law passed by Congress

• All 9 justices wrote separate opinions

  • 200 pages 

• The presented question is very narrow: Does Dred Scott have standing to sue?

  • Is Dred Scott a citizen of Missouri 

    • Citizen was never clearly defined in the US 

• Dred Scott filed under “diversity jurisdiction” ← how he got into federal court 

  • Federal courts are available to people bringing suit to citizens of different states

  • Dred Scott goes to federal court and says he’s a citizen of missouri and is filing a suit of John Sandford who is a citizen of New York 

• When he came back to Missouri was he a slave again 

• Dred Scott can’t sue because he’s not a slave because the Missouri compromise is unconstitutional

  • Article 1 on territory

    • Congress has power to sell off the land but does not have authority to govern it so Missouri Compromise

      • Taney has nationalized slavery 

  • Slaves as property under fifth amendment 

• A citizen does not lose his fundamental constitutional rights when he moves to other states → takes his right of property

  • Bill of Rights limits the powers of unorganized citizens in the territories 

    • Amendment 5: no person shall be deprived of life, liberty, or property, without due process of law → substantive due process (protects certain fundamental rights from government interference) 

      • You can’t take away a person’s private property without due process of law

  • Law unlawfully stripped slave owners of their property when they traveled in those areas 

• 
  

Roger Brooke Taney

Fifth Chief Justice of the U.S. Supreme Court who authored Dred Scott v. Sandford, asserting Black people had no rights white men were bound to respect and nationalizing slaveholder property rights.

Northwest Ordinance of 1787

An act setting up governance for the Northwest Territory that outlawed slavery north of the Ohio River (Article VI) while allowing the return of fugitive slaves.

Missouri Compromise of 1820

A federal law admitting Missouri as a slave state and Maine as a free state, banning slavery north of the 36°30′ parallel in the remaining Louisiana Purchase territory.

Warning Out

• In colonial American history, ___ was a legal practice used mostly in New England to notify newcomers that they lacked legal residency and would not be eligible for local poor relief or welfare support

• A formal notice served by a town official (like a constable or town clerk) telling a newcomer or transient to depart within a specific timeframe (often 14 days)

Fort Snelling

• Served as a

• U.S. Army surgeon Dr. John Emerson brought Dred Scott to ___ in 1836, located in the Wisconsin Territory (present-day Minnesota)

• Slavery was strictly prohibited at___

• by the Northwest Ordinance of 1787 and the Missouri Compromise of 1820, though the military often allowed officers to keep enslaved people

• Living on free soil for years inspired Dred and Harriet Scott to sue for their freedom in St. Louis courts in 1846 after Emerson's death

Fortress Monroe

A coastal Virginia Union fortress where Major General Benjamin Butler first declared escaped slaves from Confederacy 'contraband of war' in May 1861.

Black Codes

Restrictive laws enacted across Southern states in 1865 and 1866 to restrict African American freedom, enforce vagrancy penalties, and force freedmen into compulsory labor contracts.

Thomas Ruffin

North Carolina Supreme Court Justice who wrote the opinion in State v. Mann, ruling that the master's power over the slave must be absolute.

Political Equality

Equal access and participation in the political and electoral process, including voting rights, holding public office, and serving on juries.

Civil Equality

Equal protection and fundamental personal liberties guaranteed to individuals under the law, including contract rights, property rights, and equal legal standing in court.

Civil Rights cases (1883)

These five legal actions represent the consolidated individual lawsuits that make up the landmark ____ In an 8–1 decision, the Supreme Court of the United States ruled that the Civil Rights Act of 1875 was unconstitutional. The Court held that neither the Thirteenth nor the Fourteenth Amendment gave Congress the power to prohibit racial discrimination by private individuals or businesses.

The specifics of each underlying case, grouped by the type of private business involved, include:

Hotels and Inns

• United States v. Stanley: A criminal indictment originating in Kansas for denying a Black citizen accommodations at an inn.

• United States v. Nichols: A criminal indictment originating in Missouri for refusing to provide hotel accommodations and privileges to a person of color. [1, 2]

🎭 Theaters and Entertainment

• United States v. Ryan: A legal information filed in California after a Black person was denied a seat in the dress circle at Maguire’s Theater in San Francisco. [1, 2]

• United States v. Singleton: A criminal indictment originating in New York after a theater worker denied a person full enjoyment of the Grand Opera House in New York City. [1, 2]

🚂 Public Transportation

• Robinson and Wife v. Memphis & Charleston Railroad Company: A civil action brought in Tennessee. A train conductor refused to allow a Black woman (Mrs. Robinson) to ride in the designated ladies' car because of her African descent. [1, 2]

Justice Harlan Dissent on Civil Rights Cases

• railroads and hotels are not private

  • They are for the public benefit → AGENTS OF THE STATE because they are charged with duties to the public, are amenable  …. To governmental regulation 

    • Corporations as 

    • Affected with a public interest

  • If open to the public can be regulated by the public 

    • State regulates railroad fares 

    • Regulates the price of freight (price charged to farmers)

    • State regulates where stations can be 

on the 13th amendment and ncidents and badges of slavery

• Did much more than end slavery upheld by positive law. Also ended all burdens that constitute badges of slavery and servitude.

  • Singling out in public like that is a sign of servitude

  • In purely private domain like having dinner, you can’t force social equality or someone to eat with a black person but something like a theater or a train carpublic enough 

Harlan dissent for Plessy v. Ferguson

the constitution doesn’t tolerate classes among people because it’s colorblind —> train ca is public

• well, except chinese people who are “a race so different

• Harlan: our condition is colorblind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.

  • Supposed to remove all badges of slavery 

  • Also says the white race is the dominant race and should be the dominant race 

  • Railroad car is a quasi public domain while brown says it’s a private place. 

    • Very specific distinction between social equality and political equality (per Lincoln Douglas debates)

• In a blank slate world, maybe separate could be equal but in this world with history of slavery, the history infuses the act of segregation with meaning.

Secton 2 of Amendments 13 and 15 and Section 5 of Amendment 14—> why can Congress pass these acts

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

• gave legal authority to Congress to pass laws to make sure things like no slavery, no discrimination in voting, equal protection

• first expansion of Congressional power since 1792

Farwell v. Boston and Worcester Rail Road Corp (1842)

• FELLOW SERVANT RULE: employer is not liable for injury inflicted upon an employee due to the negligence of a co-worker in the same business, provided that the employer used reasonable care in selecting competent staff and supplying proper equipment

  • assumes coworker was in a better position than employer to prevent this

• ASSUMPTION OF RISK: workers implicitly contract to accept the oridnay risks of employment (liek negligence of fellow workers) and that you’re compensated for your risk via wages —> overturned lots of English common law precedent

  • you knew about this because the risks of this job were very well published in local newspapers

SHAW

Article IV Section 2

Privileges and Immunities Clause 1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

• important for Slaugtherhouse cases

Interstate Extradiction Clause 2: 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.

CLAUSE 3 SLAVERY: No Person held to Service or Labour 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 Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

• Prigg v. Pennsylvania —> 1788 and 1826 Pennsylvania laws contradicted Article IV, Section 2 of the Constitution and the Fugitive Slave Law.

Alexis de Tocqueville: Democracy in America

• Looks at enormous power of lawyers → American aristocracy

  • Care more about establishing rules than about justice 

  • The nature of the profession makes them aristocrats → singular power of interpreting the law 

  • Master occult science → few outsiders can understand 

  • Everyone in france can read the law due to code civile, but in UK and US you need a professional lawyer to interpret

    • Job of a lawyers is to explain the law 

    • Legislation founded upon precedent → makes it harder 

• Lawyers form not just aristocracy, but powerful counterpoise to the democratic element 

  • Legal profession can control the democracy in the US 

    • Legislators

Frederick Douglass autobiography

• Autobiography that's making an argument against the institution of slavery

  • Giving a face to slavery 

Arguments

1. Slavery destroys family; law makes it profitable → treats plantation as a private property 

   1. His mother was separated from him 

   2. Siblings were strangers

   3. His father was his master 

   4. His grandmother gets abandoned in a hut when she can’t work 

   5. Split up families for money and to allocate labor more efficiently 

2. Fatal poison of irresponsible power 

1. Slaves have to learn how to seem ignorant → forced to 

2. Indicts slave system because of what it does to masters

   1. Slave owners are not born evil, it makes them evil → by making them lazy (his mistress was originally a skilled weaver and at the end she relies on Douglass) 

   2. Perverts religion by making it a justification 

   3. Releasing their passions

      1. Only concern for a slave owner is his reputation 

      2. Worst plantations are where the masters are autonomous 

1. 
   

South Carolina Declaration of Causes 1860 —> COMPACT THEORY

• We hold that the government is subject to the fundamental principle the law of compact 

  • Every compact between two or more pirates’ obligation is mutual → failure of one party to perform part of agreement releases obligation of other 

    • Fourteen of states have refused to fulfill constitutional obligation of maintaiing slavery with personal liberty laws

• Article four talks about fugitive slaves and fourteen states didn’t follow this 

  • Claims that without this stipulation, the compact would not have been made 

  • Did not fulfill obligation of institutes of slavery 

    • Cease the effect of objects of the constitution 

    • Several states nullify acts of congress or render useless any attempts to execute them 

• Compact has been deliberately broken by not delivering slaves 

• Further, party that doesn’t like slavery will take possession of government → sectional combination for the submission of the constitution 

• If slavery ceases to exist, the guaranties of the constitution will no longer exist → equal rights of states will be lost

  • Slaveholding states will no longer have the power of self-government or self protection 

 compact theory is an interpretation of the Constitution which asserts the United States was formed through a compact agreed upon by all the states, and that the federal government is thus a creation of the states.[1] Consequently, under the theory, states are the final arbiters over whether the federal government has overstepped the limits of its authority as set forth in the compact. 

Lincoln View on Confederate states rejoining the Union

SECESSION IS IMPOSSIBLE —> just insurrection and NO CIVIL WAR

• organic theory of union so PERPETUITY —> posits that the United States is a living, indivisible political organism rather than a mere voluntary contract or partnership of independent states → collective entity comparing its parts to organs

• confederate staets will have authroity over all of their residents once they go through will the formalization

• LET THEM UP EASY —> best way to acheive Reconstruction wihout Bloodshot

Congressional Republicans on Confederate States rejoining the Union

UNION ARMY’S PURPOSE WAS TO CRUSH SLAVE POWER

• distorted structure of legal and political representation that had given slave owners a stranglehold in the national government 

• grasp of war theory: you can conquer until you do what you achieve the purpose of war

• 11 states no longer exist

  • Not separate nation or dormant nations 

  • State governments don’t exist anymore

  • Territory that’s under control of the national government, not states with authority → Congress asserts direct plenary power over a place that is no longer deemed to be a state

    • This is conquered territory, we can rule this area 

Justice John McLean’s Dissent

• Focus on Precedent: McLean relied heavily on legal history, international law, and prior American court decisions to show that slavery was a local, state-created institution rather than a universal federal right.[1]

• Territorial Freedom: McLean argued that when an enslaved person was taken into free territory or a free state where slavery was outlawed by law (such as Illinois or the Louisiana Territory), federal and state precedent dictated that they became legally free. [1]

• Judicial Overreach: McLean publicly condemned the majority opinion as an unnecessary exercise in political engineering, pointing out that the court should have dismissed or decided the technical questions narrowly instead of stripping millions of people of their fundamental rights