Tuesday, May 29, 2018

Schmitt and the Backlash to Prigg

Jeffrey M. Schmitt, University of Dayton School of Law, has posted Courts, Backlash, and Social Change: Learning from the History of Prigg v. Pennsylvania, which is to appear in the Penn State Law Review 123 (2018):
Scholars have repeatedly looked to the history of cases like Dred Scott, Brown, and Roe for guidance on whether courts should issue broad decisions on contentious issues. Some scholars contend that these cases triggered backlash that undermined the very causes the Court sought to promote, while others minimize the Court’s role in creating backlash and emphasize the decisions’ positive results. This Article contributes to this debate by providing a new account of the social and political consequences of Prigg v. Pennsylvania. The Court in Prigg rendered a broad interpretation of the Fugitive Slave Clause that was not necessary to resolve the facts of the case before it. The Court did so because the Justices sought to head off sectional conflict over fugitive slaves. Using original historical research, this Article argues that the decision had the effect, however, of helping to create a national policy on fugitive slaves that provoked an antislavery backlash in the North and strengthened the case for secession in the South. A more restrained decision from the Court could have produced a less divisive regime that provided greater legal protections for people claimed as fugitive slaves. The history of Prigg therefore suggests that courts should consider issuing limited and incremental rulings when attempting to produce social change on divisive issues.

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