A Marbury v. Madison Moment on the Eve of the Civil War

Green Bag 2D, Vol. 14, p. 405, Summer 2011

17 Pages Posted: 15 Oct 2011

Date Written: September 1, 2011


On the occasion of its 150th anniversary, this article explores the background and the story of Kentucky v. Dennison, 65 U.S. (24 How.) 66 (1861), an important extradition case that the Supreme Court decided on the eve of the start of the Civil War. The case arose after Kentucky indicted a “free man of color” in Ohio for the crime of aiding the escape of a Kentucky slave. The Governor of Kentucky requested that Ohio extradite the defendant, and the Governor of Ohio refused. Kentucky brought an original mandamus action in the Supreme Court against the Ohio Governor in the fall of 1860, the case was heard in February, 1861, and decided in mid-March of that year, only a few weeks before Confederate forces fired on Fort Sumter. Chief Justice Taney wrote the unanimous opinion of the Court, which held that the Ohio Governor had a clear constitutional duty to turn over the fugitive Kentucky sought, but that the Court and Congress lacked the constitutional power to compel the Ohio Governor to do so. The article examines the events surrounding the case, and offers some comments on “Marbury v. Madison moments,” the legacy of Chief Justice Taney, the subsequent career of Governor Dennison, and the principles the case established, one of which the Supreme Court expressly overruled 125 years later.

Suggested Citation

McAllister, Stephen R., A Marbury v. Madison Moment on the Eve of the Civil War (September 1, 2011). Green Bag 2D, Vol. 14, p. 405, Summer 2011, Available at SSRN: https://ssrn.com/abstract=1944335

Stephen R. McAllister (Contact Author)

University of Kansas - School of Law ( email )

Green Hall
1535 W. 15th Street
Lawrence, KS 66045-7577
United States

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