Justice Story, Slavery, and the Natural Law Foundations of American Constitutionalism

Abstract

Justice Joseph Story proclaimed his opinion for the Supreme Court in Prigg v. Pennsylvania to be a triumph of freedom.' The Court's decision in that 1842 case held unconstitutional a Pennsylvania law opposed by slaveholders because the statute interposed procedural barriers to the recapture of escaped slaves. Few commentators have shared Story's assessment of his opinion, and in recent years several prominent scholars have criticized Story's treatment of the slavery question on both ethical and jurisprudential grounds. This comment proposes to rehabilitate Justice Story's opinion in Prigg. In particular, the comment aims to show that proper attention to the natural law foundations of Story's thought provides a coherent and insightful account of the slavery problem and the American response to that problem. In so doing, the comment provides reasons to believe both that modern critics have misunderstood Story's thought and that Story's ideas may deserve the attention of the ongoing debate over the meaning and significance of natural law.2 Section I describes the facts and background of Prigg,