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Wednesday, August 05, 2009

John Brown, Dred Scott, Obama, and Citizenship

There is very little to do in the small Connecticut village where my partner and I have a summer house, and when there is something on the local calendar, we treat it as an event.

Yesterday's event was Tuesday's at Six, a weekly lecture, and yesterday's topic was John Brown, the abolitionist.  I mention this because as I listened to the lecture, drifting in and out, I found myself thinking of the Dred Scott decision, which so outraged Brown that it spurred him to draft his own Provisional Constitution and Ordinances for the People of the United States.  I also found myself thinking about President Obama and citizenship.  But more on that later.  First, I want to talk about John Brown.

In part, I want to talk about John Brown because I used to fantasize about writing a legal article about his trial on charges of treason, inciting slaves to revolt, and murder arising from his failed raid on Harper's Ferry.  (Robert Ferguson and Steven Lubet beat me to the article.)  Brown had already gained notoriety before then, of course.  In 1855, as a leader of anti-slavery guerrillas, he had brutally murdered several settlers in a pro-slavery town in Kansas.  But it was the Harper's Ferry raid, combined with his subsequent trial, that immortalized him.  Both Emerson and Thoreau championed him as a hero, a martyr.  And the legal question Thoreau raised in Brown's defense is one that still resonates: "Is it not possible that an individual may be right and a government wrong?  Are laws to be enforced simply because they were made? Or declared by any number of men to be good, if they are not good?"

In his speech to the Virginia Court, Brown framed the issue as one of natural law versus positive law. But he also seemed to claim classic justification defenses: his right to defend others, as well as a necessity defense.  He argued, "[H]ad I so interfered on behalf of the rich, the powerful, the intelligent, the so-called great, or in behalf of any of their friends . . . [e]very man in this Court would have deemed it an act worthy of reward rather than punishment."  It is a powerful argument, but one could imagine the same argument being made today by an eco-terrorist or pro-life terrorist.

Brown did not expect his speech to win him sympathy from the court.  Nor did it.  On December 2, 1859, Brown was hanged.  Later, during the Civil War, Union soldiers would commemorate him by marching to "John Brown's Body."  In a few months, it will be the 150th anniversary of his death.  We should all take note.

Of course, none of this explains what got me thinking about Dred Scott, Obama, and citizenship.  I'll save that for my next post.

Posted by Bennett Capers on August 5, 2009 at 11:51 AM | Permalink


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"John Brown's Trial," by Brian McGinty, will soon be published by the Harvard University Press.

Posted by: Steven Lubet | Aug 5, 2009 12:17:14 PM

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