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Originally Posted by Hugh Damright
I think Taney was correct. Black codes existed throughout the States and always had. The States would not have made a compact which they were all in violation of. To rule for Scott would have turned the compact against its parties.
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The question before the Court in this case had nothing to do with "Black codes" or whether or not they were constitutional. (They unfortunately were, I agree.) The decision was not whether or not to ban slavery in slave-permitting territories. The decision was whether Dred Scott was, by virtue of residing for a period of time in a free territory, entitled to sue for his freedom.
The court actually bypassed matters by deciding that it had no jurisdiction. The matter was brought to federal court on the basis that Scott and his mistress, Harriet Emerson, were citizens of different states, and the Supreme Court has jurisdiction over disputes between citizens of different states. Taney's words on the question are as follows:
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The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.
It will be observed, that the plea applies to that class of persons only whose ancestors were negroes of the African race, and imported into this country, and sold and held as slaves. The only matter in issue before the court, therefore, is, whether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State, in the sense in which the word citizen is used in the Constitution of the United States. And this being the only matter in dispute on the pleadings, the court must be understood as speaking in this opinion of that class only, that is, of those persons who are the descendants of Africans who were imported into this country, and sold as slaves.
. . .
The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the 'sovereign people,' and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.
. . .
In discussing this question, we must not confound the rights of citizenship which a State may confer within its own limits, and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States.
. . .
The question then arises, whether the provisions of the Constitution, in relation to the personal rights and privileges to which the citizen of a State should be entitled, embraced the negro African race, at that time in this country, or who might afterwards be imported, who had then or should afterwards be made free in any State; and to put it in the power of a single State to make him a citizen of the United States, and endue him with the full rights of citizenship in every other State without their consent? Does the Constitution of the United States act upon him whenever he shall be made free under the laws of a State, and raised there to the rank of a citizen, and immediately clothe him with all the privileges of a citizen in any other State, and in its own courts?
The court think the affirmative of these propositions cannot be maintained. And if it cannot, the plaintiff in error could not be a citizen of the State of Missouri, within the meaning of the Constitution of the United States, and, consequently, was not entitled to sue in its courts.
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Note that this language goes beyond the individual case of Scott, who was an actual slave suing to change that status, to imply that even unequivocally free
descendants of slaves -- basically, anyone black -- could never be a citizen of the United States. Taney claimed a racial basis for the United States' identity as a nation, implying that it was a white man's country. It is indeed arguable that this was a common attitude at the time the Constitution was adopted, but one must not read language into the document based upon that common attitude; the Constitution itself nowhere so specifies. Nor do I think the framers' attitude towards slavery was as uniform as Taney seems to imply. The practice was controversial, not universally accepted, and that is the reason why the Constitution never once uses the word "slavery," but instead uses circumlocution, referring to "the whole number of free persons . . . and . . . three-fifths of all other persons" (Article I, Section 2), and "The Migration or Importation of such Persons as any of the States now existing shall think proper to admit," which everyone knew to refer to the slave trade.
As to how I would have ruled -- I think I would have ruled the other way. I considered the possibility that the Fifth Amendment prohibitions against being deprived of property without due process might apply, but the Bill of Rights at that time, prior to the Fourteenth Amendment, did not restrain state governments, only the federal government, and so if Illinois saw fit to deprive Mrs. Emerson of her property then that was Illinois' privilege. (Ironically, the same Amendment that would have forbidden this at a later time would also have explicitly defined Scott as a U.S. citizen.)
Reading through the language of Taney's decision, the whole of which can be found here:
The case of Dred Scott in the United States Supreme Court<blockquote><i>THE DRED SCOTT CASE;</i> IN THE SUPREME COURT OF THE UNITED STATES, <i>December Term,</i> 1856.</blockquote> -- one is struck by the racist basis of it, not only racist in the sense that it holds black people to be inferior, but also and perhaps more relevantly in that it treats the United States as a nation defined by race. Yet the United States is, if that can be said of any nation in the world, a nation defined by ideals, not by race. And those ideals always, from the nation's founding, coexisted very uneasily with the institution of slavery.
EDIT: After considering the provision of Article IV specifically denying a state the right to free a slave belonging to a resident of a different state, I just changed my mind. I would have had to rule as the Court did. However, I still think the language of the decision is incorrect in its implications, and certainly should not have extended to deny the citizenship to free black people, nor was that necessary in this case, since Scott was not a free man.
01-25-2008
My introdution
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