DWORKIN ON SLAVERY-ACCOMMODATING JUDGES

On December 5, 1975, Ronald Dworkin published in The Times Literary Supplement a review of Robert M. Cover's now-classic Justice Accused: Antislavery and the Judicial Process. Cover's central subjects were Northern judges, many of them professing to be antislavery, who nonetheless asserted that they were duty bound to enforce the iniquitous Fugitive Slave Laws of 1793 and 1850. Perhaps the most notable example was the 1842 decision in Prigg v. Pennsylvania, written by Joseph Story, perhaps the most eminent member of the Court at that time in part because of his extrajudicial status both as the Dane Professor of Law at the newly founded Harvard Law School as well as the author of a three-volume treatise on the Constitution. In Prigg, Story described the Constitution as containing a “fundamental” recognition of the rights of slaveowners, which meant not only that the Fugitive Slave Act passed by Congress in 1793 was perfectly constitutional but also, and just as ominously, that Pennsylvania's “liberty law,” designed to accord suspected fugitives some basic rights of due process of law, was unconstitutional as an interference with the national rights granted slaveholders by the Constitution. Dworkin aptly wrote that “these statutes, particularly the [Fugitive Slave Act of 1850], offended ordinary notions of due process in several ways: the federal official was a mere commissioner who received a higher fee if the alleged slave was sent back than if he was not, there was no question of jury trial, and the defendant was not allowed to contest whether he was in fact a slave, that issue being left to be decided in the slave state after his return.”