Nine Stories of Baby Ninths: One—No Dueling
[This is the first in a series of nine posts on nine stories of how Baby Ninth Amendments made a difference in real cases. They’re part of the lead-up to the publication of the book Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters.]
Today “I challenge you to a duel!” generally elicits rounds of laughter. At most, the minds of modern American might wander to the Hamilton-Burr affair, and if of a certain age to the declaration that “I am not throwin’ away my shot.”
So it’s a little odd that one of the most detailed and far-ranging cases about natural rights and natural justice in United States history concerned the right to not take an oath about dueling. And yet it did. What was this firestorm of legal exposition in 1838 Alabama, and why did it make such a big deal about a lawyer pledging he had not fought “in single combat or otherwise, with any deadly weapon”?
We discuss the law and the facts here. But some things will remain mysterious when we explore this mysterious case—the first case to use a “Baby Ninth Amendment” in a judicial opinion. Thus, to round things out we’ll also talk a bit about dueling and what it meant in the early history of our country.
No dueling in the bar
The Alabama Supreme Court handed down In re Dorsey in 1838. The facts underlying the case are pretty sparce. A John L. Dorsey wanted to be admitted to the Alabama Bar. He objected, however, to taking a required oath. He didn’t object to oaths generally at all. He just refused to take one particular oath where he didn’t just pledge to not partake of a duel, but that he hadn’t in the past.
The state legislature had mandated the oath in 1826. It was required of Alabama elected and appointed officials but also of all licensed attorneys of any kind. It read as follows:
I do solemnly swear that I have neither directly nor indirectly given, accepted, or knowingly carried a challenge, In writing or otherwise, to any person or persons, (being a citizen of this State,) to fight in single combat or otherwise, with any deadly weapon, either in or out of this State, or aided or abetted in the same, since the first day of January, one thousand eight hundred and twenty-six; and that I will neither directly nor indirectly, give accept, or knowingly carry a challenge in any manner whatsoever, to any person or persons, (being a citizen of this State,) to fight in single combat or otherwise, with any deadly weapon, either in or out of this State, or in any manner aid or abet the same, during the time for which I am elected, or during the time of my continuance in office, or during the time of my continuance in the discharge of any public function.
There’s also a qualification that for applicants who have moved into Alabama since the law’s adoption in 1826, they only need to swear that they haven’t previously engaged in dueling since moving there—plus swearing they won’t in the future.
Dorsey filed a motion to be admitted without having to take the oath. It’s hard to tell from the opinion, but it appears he filed it in the state supreme court itself. He made a number of constitutional challenges to the oath requirement, invoking all manner of legal authorities, from Lord Coke to Magna Carta, to various decisions of other state supreme courts, to a slew of provisions of Alabama’s bill of rights. Included among these was Alabama’s Baby Ninth Amendment, which at the time said, “This enumeration of certain rights shall not be construed to deny or disparage others retained by the people.”
Dorsey prevailed by a vote of two to one, with the majority declaring the law unconstitutional and void, meaning Dorsey could become a licensed Alabama lawyer without taking the oath. Although two justices voted in his favor, they each wrote separately with slightly different reasoning.
Lines of (Lord) Coke
There is no way I can do justice to any of the three opinions in this short blog post. They’re truly amazing works of legal reasoning and rhetoric of their time. Fans of Lord Coke will be tickled by the citation to Dr. Bonham’s Case in one opinion. There’s also a discussion of the 1798 U.S. Supreme Court case Calder v. Bull and the “dueling” arguments over natural justice by Justices Chase and Iredell.
How do the opinions tie-in to the Baby Ninth? In my book, I explain how each of the three discuss the Baby Ninth in a way that implies it recognizes rights beyond those enumerated in the Alabama Constitution, and that those “others retained by the people” are themselves protected by the constitution. That’s something on which all the judges agree. And that is a big deal, as again, it’s the first judicial opinion in American history to interpret a Baby Ninth.
But how the Baby Ninth and the various other provisions in the Alabama Constitution at issue actually protect Dorsey from having to take the duel oath is a bit hard to follow, to be honest. It seems both judges in the majority do not like that the oath requires someone to swear they had not done something in the past—perhaps long in the past, before the applicant even thought of becoming a lawyer. In a way, it was seen as an ex post facto law. They also point out that the Alabama Constitution specifically allows for the legislature to address the problem of dueling, but not in this way. Thus, there’s an enumerated powers-type argument, which you’d expect to see more in connection with the United States Constitution. (In the book, I address how this was a not uncommon way of viewing state powers in the nineteenth century.) In addition, one judge was particularly concerned that the fact of whether an oath-taker had engaged in a duel was not to be found by a jury but instead was essentially to be extracted from him—almost as if he’s being forced to testify against himself.
The dissent, on the other hand, saw the oath as a pretty straightforward character qualification, like a background check today. Indeed, the majority judges said it is fine to take a lawyer’s license away if they commit an illegal act, such as engaging in a duel, while practicing law. It was the extreme, retroactive effect of the oath that was so disconcerting. Maybe one way to think about it is that the oath requirement was akin to laws today that bar someone who has done something wrong in the past from employment in the future, even when that wrong was a long time ago and the applicant has been reformed. IJ has worked to remove laws like these in our “fresh start” cases.
“We all did a little dueling in college”
Still, even if today we might sympathize with Mr. Dorsey about reaching deep into his past, it seems odd from our perspective why such a big deal was made about an oath about dueling, of all things. To us dueling is akin to attempted murder (even if “consensual attempted murder”). Lawyers can get barred from the bar for all kinds of past bad acts, many arguably not nearly as bad, such as embezzlement. Why was all this legal reasoning and rhetoric spilled on such an odd provision? And what was Mr. Dorsey’s story, anyway?
First let’s talk about dueling, then what we know about Dorsey.
Dueling is a fascinating aspect of early American culture. Various bars against dueling like this were common in the early United States, including in state constitutions themselves. (If you want a discussion of its roots in various English subcultures and how it tied into the fabric of early American life, a great source (and a great read otherwise) is David Hackett Fischer’s Albion’s Seed: Four British Folkways in America.) But these laws were often quite ineffective. Dueling was a widespread practice, especially among “gentlemen,” when honor or family, or both, were threatened.
And because it was so common among “gentlemen”—that is, what today we might call the upper-middle classes—it, of course, was common among applicants to the bar. These applicants were relatively young men who may or may not have recently been involved in spats involving their and their family’s reputation. And since dueling was, in a sense, a “victimless crime” (or at least a crime where the victim(s) opt into the crime) it was hard to police. What’s a parallel to that today? It’s pretty obvious. So just as laws forbidding young people who have ever used illegal drugs from certain jobs are seen as wildly overbroad today, a bar on anyone who has ever participated in a duel might have been seen the same way in 1838. I’m not saying dueling was the “did you smoke pot?” of the 1830s, but it was similarly popular among relevant circles. The judges in the In re Dorsey majority may have seen themselves in the position of policing how to deal with the vast numbers of young men who are put in the position of either lying or missing the legal profession because of a common “youthful indiscretion.”
As for Mr. Dorsey himself, we sadly know very little. The reported opinions tell us almost nothing about him other than his name, that he filed the motion, and that he argued the case pro se (his arguments, and his opponent’s, are included in the published case reporter). Despite some digging around, including on Ancestry.com, I was unable to find any other information about him, whether he went on to a legal career or where he came from. (If any reader knows, though, please feel free to reach out to me!) Indeed, his argument was impressive so he may have been a lawyer from elsewhere who moved to Alabama at some point and did not want to swear he hadn’t engaged in any duel since then. Whatever the story is, he knew enough to invoke his state’s Baby Ninth, a few other parts of its constitution, and a great many sources. Whether he actually had participated in a duel in the past and didn’t want that to become more widely known, we don’t know. But it wouldn’t be a surprise. And a story worth taking a shot at.
Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.