Thursday, October 20, 2011

McAllister on Kentucky v. Dennison (1861)

A Marbury v. Madison Moment on the Eve of the Civil War has just been posted by Stephen R. McAllister, University of Kansas - School of Law.  It appeared in Green Bag 2D, Vol. 14, p. 405, Summer 2011.  Here's the abstract:
On the occasion of its 150th anniversary, this article explores the background and the story of Kentucky v. Dennison, 65 U.S. (24 How.) 66 (1861), an important extradition case that the Supreme Court decided on the eve of the start of the Civil War. The case arose after Kentucky indicted a “free man of color” in Ohio for the crime of aiding the escape of a Kentucky slave. The Governor of Kentucky requested that Ohio extradite the defendant, and the Governor of Ohio refused. Kentucky brought an original mandamus action in the Supreme Court against the Ohio Governor in the fall of 1860, the case was heard in February, 1861, and decided in mid-March of that year, only a few weeks before Confederate forces fired on Fort Sumter. Chief Justice Taney wrote the unanimous opinion of the Court, which held that the Ohio Governor had a clear constitutional duty to turn over the fugitive Kentucky sought, but that the Court and Congress lacked the constitutional power to compel the Ohio Governor to do so. The article examines the events surrounding the case, and offers some comments on “Marbury v. Madison moments,” the legacy of Chief Justice Taney, the subsequent career of Governor Dennison, and the principles the case established, one of which the Supreme Court expressly overruled 125 years later.