‘RIGHT TO REFUSE’ Pleau.
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Governor Lincoln Chafee has won plaudits from liberals for refusing to hand over accused bank robber and killer Jason Pleau to federal authorities, because a conviction could lead to the death penalty.But in standing up to federal authority, the governor has turned himself into an unwitting advocate of the conservative doctrine of states' rights that undergirded slavery and decades of Jim Crow.
The case, which will be heard by the full US First Circuit Court of Appeals next week, is on some level a bureaucratic squabble over a 1970 federal law that says governors can refuse to turn over prisoners to other states or the federal government, as long as they do so within 30 days of receiving the request.
But this "right to refuse" is rooted in an antebellum US Supreme Court decision, Kentucky v. Dennison, that more or less supported Ohio governor William Dennison in his refusal to hand over a freed slave to Kentucky.
The 1860 ruling might seem a rare legal victory for blacks in pre-Civil War America, but it really wasn't. In fact, it was affirming the states' rights doctrine that served as the legal underpinning of slavery — a doctrine the court had upheld just three years prior in the infamously racist Dred Scott decision, which found that even freed slaves could not be citizens.
"It definitely came from this suspect legal . . . culture," said Matthew Fabisch, the attorney for a local libertarian legal institute, the Stephen Hopkins Center for Civil Rights, which has submitted a brief to the appeals court that takes Chafee's side in the dispute, but does not come anywhere close to the governor's embrace of states' rights.
In 1868, the Dred Scott ruling was condemned to the dustbin of history with adoption of the Fourteenth Amendment, which gave blacks citizenship. And a century later, that other vestige of antebellum states rights, Kentucky v. Dennison, was formally overturned by the Supreme Court in a case known as Puerto Rico v. Branstad.
Chafee's appeal to "state sovereignty," in this era of largely unquestioned federal supremacy, has already raised some eyebrows on the court. In October, a three-judge panel on the First Circuit issued an initial decision in favor of Chafee. But dissenting Judge Michael Boudin wrote, "State interposition to defeat federal authority is a doctrine that was thought to have vanished with the Civil War."
Chafee, to be sure, is not trying to resurrect the ghost of antebellum states' rights. His executive counsel, Claire Richards, says he is appealing to the contractual elements of the 1970 federal law, which serves as a pact between the states and the federal government over the handling of prisoners. "You could interpret it as [a] states' rights issue," she says, "but we are interested in our rights as a signatory to the federal compact."
Whatever the intent, though, the irony is rich: a governor, intent on saving a life, is drawing — even indirectly — on a doctrine that helped reduce so many lives to mean chattel.
