Monday, January 16, 2006

Early congressional actions

David Currie's awesome book series, "The Constitution in Congress", discusses the subject of constitutional interpretation outside the supreme court. The first book, "The Federalist Period," also has special importance because the actions of the first few congresses, filled with folks who'd also drafted the constitution, seem to have special importance.

These actions cut both ways in two cases we studied. In Dred Scott, Taney is pretty off base saying that congress can't constitutionally forbid slavery in the territories. The Northwest Ordinance was reaffirmed under the constitution in 1789, and it prohibited slavery everywhere around the Great Lakes and west of the Ohio river.

On the other hand, Prigg v Pennsylvania finds Story arguing that the Fugitive Slave Clause can be enforced by congress. One of his strongest arguments is that the Fugitive Slave Act was passed in 1793, by folks who had reason to know. This cuts directly against Amar, who, for example, cites Marshall's presence at Valley Forge as important in his understanding of the National Bank's necessity, and uses the fact that the first congress supported the bank as indicative of their understanding of the constitution.

Some of this stuff is in 24 Rutgers L J 613, Sorting out Prigg.

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