Alternate History and the Constitution. One of my resolutions for the new year has been to read at least one law review article a week. This isn't a discipline, so much as it is a treat -- yeah, it's good for me, but I also love it. I've come across quite a few things I should be sharing. Here are two bits of alternate history.

Both come from Michael Stokes Paulsen's "Captain James T. Kirk And The Enterprise Of Constitutional Interpretation: Some Modest Proposals From The Twenty-Third Century" 59 Alb. L. Rev. 671 (1995), which riffs off from the Star Trek episode The Omega Glory.

The gist of Paulsen's article is that the Constitution is for "WE THE PEOPLE" not just for the high priest known as the Supreme Court. In making his argument, he puts forth a number of hypotheticals and proposals. The first hypo is this one:

Consider another not too far-fetched hypothetical. The year is 1861. Abraham Lincoln has been inaugurated as President and southern states are seceding in droves. Suppose that the same southern-dominated Taney Court that decided Dred Scott ruled that the South could lawfully secede, and that President Lincoln's prosecution of the Civil War was therefore unconstitutional. If Lincoln is persuaded that the decision is wrong, lawless, and immoral, is he nonetheless bound to recall Union troops, vacate the White House, and move the capital of the remaining states in the United States of America somewhere north of the Maryland border? Or suppose instead - quite plausibly, in light of Dred Scott - that the Supreme Court declared the Emancipation Proclamation unconstitutional as a taking of property. Should Lincoln acquiesce in a judgment returning freed blacks to slavery?

I say, and Lincoln (by then) certainly would have said, absolutely not.

Notes omitted. Interesting question, no? Is the Supreme Court always right?

Okay, now consider this hypo, which relates to the doctrine of interposition:

As a way of trying to consider this issue afresh, and counteracting out instinctive biases, I ask you to consider the real-life case of Lemmon v. The People, decided by the highest court of the Empire State, the New York Court of Appeals, in 1860, on the eve of the Civil War. Lemmon is, in many ways, the companion piece to Dred Scott.

A Virginia family was travelling to Texas by way of New York City. (That was the most efficient route in those days, because of the efficiency of steamboat travel from New York City to New Orleans.) The Virginians brought their eight slaves into New York State, where they were freed on a writ of habeas corpus. New York was, of course, free soil. Under New York law, Negro slaves brought by their owners voluntarily into New York immediately became free. (Runaways were governed by the Fugitive Slave Cause and the Fugitive Slave Act of 1850.) The New York courts chose to apply their own state's law, rather than the law of Virginia, to this choice-of-law situation. The Court of Appeals affirmed the lower courts' holding that these were free men and women.

Suppose now that history had played out slightly differently in 1860 and 1861: Either Vice President John Breckenridge or Senator Stephen Douglas is elected President in 1860, rather than Lincoln, and the South stays in the Union. Lemmon goes up to the U.S. Supreme Court on appeal. The Taney Court reverses the New York Court of Appeals, on the authority of Dred Scott's recognition of the right to hold slaves as property and a determination that the Privileges and Immunities Clause of Article IV protects a slaveholder's right to keep that property when he travels to another state.

This was a foreseeable, even an expected result, noted by Lincoln and a good many others in the aftermath of Dred Scott. Lemmon would be simply the next logical step from Scott. And, as a consequence, it would require that slavery be tolerated in the North, confirming Lincoln's prophecy that the Nation could not survive half slave and half free. Lemmon would make slavery the law of the land. There could be no such thing as a "free" state.

Suppose now that you are the Governor of New York. The pro-slavery Taney Court has held that former slaves freed under the laws of New York must be returned to their Virginia masters. Indeed, anyone may move to New York from the South and keep their slaves. Moreover, it follows that native New Yorkers can start holding slaves too. Under the Supreme Court's ruling, which you firmly believe is both wrong under the Constitution and wrong as a matter of morality, New York harbor is about to become the largest slave-trading port in the world. What do you do? May you refuse to obey the Supreme Court's decision, refuse to return the freed slaves, and resist the Douglas or Breckenridge administration's attempted enforcement of the Lemmon decree?

I am inclined to say yes, yes, and yes. State government officials - governors, legislators, judges - also swear an oath to support the federal Constitution. Fidelity to that oath, I should think, requires resisting violations of the Constitution by the federal government with all the powers at your disposal as a state, including, perhaps, calling forth the militia. I have to tell you that, under this scenario, I would expect (or hope) that Governor Paulsen would be leading the Yankees into armed rebellion against the lawful government of the Union, rather than acquiescing in the extension of slavery to free soil and the sending of freed men back to bondage.

Now this should be disturbing. For, in a sense, this is Governor George Wallace blocking the schoolhouse doors to resist integration. My point here is simply that interposition can be used for good or for ill, and its legitimacy should not turn on the historical accident that it has been most regularly invoked for ill.

Again, note omitted.