Levinson remarks on the relative standing in the legal academy of Dred Scott (1857) and Prigg (1842) in a comment on Greene. First, a reminder of the holding in Prigg, as formulated first by Levinson and then by by Greene:
Prigg v. Pennsylvania,27in which Justice Joseph Story, for the majority of the Court:
a. held that the Constitution gave slave owners a right of "self-help repossession" to snatch back anyone they deemed to be a fugitive slave;
b. upheld as an implied power of Congress its ability to pass the Fugitive Slave Law of 1793; and
c. struck down as preempted by the 1793 statute Pennsylvania's "personal liberty" law that at least would have required slave owners (or slave catchers, like Prigg) to go before a state court before taking the alleged fugitive -- and, as in the actual case, children who under no plausible theory could be deemed slaves at all -- out of the ostensibly free state and back to a slave state.
....
Prigg v. Pennsylvania could easily be called the worst Supreme Court decision ever issued. The human tragedy of the decision is breathtaking. In an opinion by Justice Story, the Court reversed the criminal prosecution of a slave catcher who had kidnapped and sold into slavery a woman, Margaret Morgan, who likely was not a fugitive slave, and her two children, who assuredly were not. The Court's holding was that the Fugitive Slave Clause prohibited states from subjecting slave catchers to a state-sanctioned civil process, except to prevent "breach of the peace, or any illegal violence." Under the logic of the opinion, however, the kidnapping could not itself be outlawed as "illegal violence." Put otherwise, violence against blacks was "legal" violence; "illegal" violence was violence against whites. The decision abided the constant threat of enslavement experienced by free brown-skinned Americans in both the North and the South. By constitutionally forbidding states from preventing private violence against blacks, Priggworked a simultaneous assault on due process and on equal protection, the twin pillars of the modern Fourteenth Amendment. . . . Prigg virtually made Dred Scott a fait accompli.28
....
Under the Court’s holding in Prigg v. Pennsylvania, which remained good law at the time of Dred Scott, a free state was constitutionally forbidden from providing a free black with due process of law if that person were kidnapped by a slave catcher. To hold in the face of such precedent that the same Constitution recognizes the citizenship of free blacks feels like the rankest sophistry. No nation worth its salt could abide the treatment of its citizens in this way. Either the treatment of blacks or their designation as citizens had to go.
Levinson goes on to complain that
the obvious question is why Prigg -- and its author [Joseph Story] -- have suffered neither the public obloquy nor the condemnation by professional legal academics, obsessed with theories of interpretation, as have Dred Scott and its principal author, Chief Justice Roger Taney. Consider that Taney, surely one our most important Chief Justices, has never been the subject of a commemorative stamp issued by the United States Postal Service (unlike, bizarrely enough, Jefferson Davis and Robert E. Lee).29 Joseph Story, on the other hand, was one of four justices honored in 2009 by the United States Postal Service as part of a series of forty-four-cent stamps commemorating Supreme Court justices.30 The other three were Louis D. Brandeis, William J. Brennan, and Felix Frankfurter...
