Courts, Backlash, and Social Change: Learning from the History of Prigg v. Pennsylvania

My article, Courts, Backlash, and Social Change: Learning from the History of Prigg v. Pennsylvania, will be published in the Penn State Law Review.  Here is the abstract:

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.

 

Comments

[Enrique Guerra Pujol (priorprobability.com)]

Doesn’t this logic apply to a case like Obergefell v. Hodges?

[Jeff]

Yes, Obergefell is directly on point. In Romer, Windsor, and Obgergefell, I think the Court issued relatively narrow and incremental rulings to avoid the type of backlash I talk about in the paper. None of the cases is clear with respect to the applicable standard of review, and Obergefell reads more as a case about the right to marriage than a prohibition against discrimination based on sexual orientation. In each case, moreover, I think the court used the narrowest reasoning possible to reach the holding it desired, and its decisions always followed rather than led public opinion. I don't mean to suggest, however, that bold and decisive action from the Court is always wrong. As Michael Klarman explains in detail in From the Closet to the Altar: Courts, Backlash and the Struggle for Same-Sex Marriage, there were/are reasons to think that backlash to same sex marriage is different than, for example, backlash to school integration. Every issue is unique, and the point of the paper is just to provide another example calling for caution.

[Enrique Guerra Pujol (priorprobability.com)]

Well said ...