Dred Scott and the Origins of American Citizenship Introduction The goal of this program is to utilize primary historical documents to aid in facilitating conversations and civil discourse on topics that once led to – and in some instances continue to lead to – sharp schisms in society. By exploring previous moments of division, the conversations both highlight our history and provide a framework for creating a civil discourse around currently divisive issues. This conversation will focus on questions of slavery and citizenship during the first century of American statehood. It is centered around the Supreme Court case of Dred Scott v. Sanford, but reaches both backward to the Declaration of Independence and forward to the Emancipation Proclamation and 14th Amendment. This guide provides four resources to facilitate the conversation. First, it provides several key topics and questions that can be used to direct both the reading of the primary source material by individual participants and the subsequent conversation by the group. Second, it provides brief contextual information aimed to put the primary source material into a broader narrative in American history. This material is italicized. Third, it provides the primary source material itself – selections from key documents that have impacted this debate over time. And finally, it provides direction to additional resources that participants may turn to to continue exploring similar topics. Guiding Questions for Reading and Discussion -­‐ What does it mean to be a citizen? What are the rights and responsibilities of being a citizen? Can one be free, but not a citizen? -­‐ Who grants the status of citizenship and under what circumstances should it be granted? -­‐ What purpose does a Constitution serve? -­‐ Can a governing document like a constitution contain ideals that are inconsistent with practical reality of the society it is meant to govern? If there is such a disconnect, which is more authoritative – the constitutional ideal or the practical custom? -­‐ Is the meaning of governing documents like the Constitution fixed in time or may it change with changes in a society’s understanding of right and wrong? -­‐ Is it possible for “all men” to mean something other than the plain meaning of the language? -­‐ Should a constitution be forward-­‐looking or be reflective of the sentiments of the moment? Is it possible to be both? -­‐ Where there are disagreements about what is permitted by a constitution, what are the various ways in which such disagreements may be settled? What are the advantages of these ways? When a disagreement is settled, what are the choices of individuals dissatisfied with the settlement? -­‐ Can citizenship be earned? If so, how? -­‐ To what extent should moral laws impact the meaning of a society’s laws? DRAFT Context and Primary Source Material
The Declaration of Independence (July 4, 1776)
We hold these truths to be self-evident: that all men are created equal; that
they are endowed by their Creator with certain unalienable rights; that
among them is life, liberty, and the pursuit of happiness.
At the time of the drafting of the United States Constitution, slavery was permitted in 12
of the 13 colonies and nearly 20% of the persons in the new nation were slaves, including
as many as 43% in South Carolina. The Constitution reflects this context in several
places.
United States Constitution (1787)
Representatives and direct Taxes shall be apportioned among the several
States which may be included within this Union according to their
respective Numbers, which shall be determined by adding to the whole
Number of free Persons, including those bound to Service for a Term of
Years, and excluding Indians not taxed, three fifths of all other Persons.
(Article I, Section 2)
The Migration or Importation of such Persons as any of the States now
existing shall think proper to admit shall not be prohibited by the Congress
prior to the Year 1808… (Article I, Section 9)
The Constitution’s Three-Fifths Compromise was just the first in a series of compromises
over the question of slavery and by the mid-1800s, the nation was finding the divide
between slave states and free states increasingly difficult to maintain. During this
period, Dred Scott, a slave owned by John Emerson and living in the slave state of
Missouri, traveled with Emerson to the free state of Illinois and the free territory of
Wisconsin. Subsequently, Dred Scott and his family returned to Missouri and brought a
lawsuit asserting that they were, in fact, free. The United States Supreme Court heard
the case and issued an opinion in 1857. At issue for the Court was the question: did
Dred Scott, regardless of whether he was a slave or free, have the right as an member of
the Negro race to sue in the federal courts of the United States?
Dred Scott v. Sanford (majority opinion of Justice Taney) (selected and edited
portions) (1857)
This is certainly a very serious question, and one that now for the first
time has been brought for decision before this court…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?
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[Are negroes] 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.
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In the opinion of the court, the legislation and histories of the times, and
the language used in the Declaration of Independence, show that neither
the class of persons who had been imported as slaves nor their
descendants, whether they had become free or not, were then
acknowledged as a part of the people, nor intended to be included in the
general words used in that memorable instrument.
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[A] negro of the African race was regarded by them as an article of
property, and held, and bought and sold as such, in every one of the
thirteen colonies which united in the Declaration of Independence and
afterwards formed the Constitution of the United States.
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The general words [of the Declaration of Independence] would seem to
embrace the whole human family, and if they were used in a similar
instrument at this day would be so understood. But it is too clear for
dispute that the enslaved African race were not intended to be included,…
for if the language, as understood in that day, would embrace them, the
conduct of the distinguished men who framed the Declaration of
Independence would have been utterly and flagrantly inconsistent with the
principles they asserted, and instead of the sympathy of mankind to which
they so confidently appealed, they would have deserved and received
universal rebuke and reprobation. Yet the men who framed this
declaration were great men -- high in literary acquirements, high in their
sense of honor, and incapable of asserting principles inconsistent with
those on which they were acting.
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No one, we presume, supposes that any change in public opinion or
feeling, in relation to this unfortunate race, in the civilized nations of
Europe or in this country, should induce the court to give to the words of
the Constitution a more liberal construction in their favor than they were
intended to bear when the instrument was framed and adopted. ..If any of
its provisions are deemed unjust, there is a mode prescribed in the
instrument itself by which it may be amended; but while it remains
DRAFT unaltered, it must be construed now as it was understood at the time of its
adoption. It is not only the same in words, but the same in meaning…
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[U]pon a full and careful consideration of the subject, the court is of
opinion, that, upon the facts stated in the plea in abatement, Dred Scott
was not a citizen of Missouri within the meaning of the Constitution of the
United States, and not entitled as such to sue in its courts…
The result in the Dred Scott case is considered to have stoked the passions in the debate
over slavery, citizenship, and federal power that ultimately led to the Civil War in 1861.
The question of the role of “negroes” within the nation would thus be settled on a
battlefield rather than within a courtroom. Both during and after the Civil War, the
government took steps to redefine the status of African slaves, ultimately overruling the
Dred Scott decision.
Emancipation Proclamation (January 1, 1863)
That on the first day of January, in the year of our Lord one thousand eight
hundred and sixty-three, all persons held as slaves within any State or
designated part of a State, the people whereof shall then be in rebellion
against the United States, shall be then, thenceforward, and forever free;
and the Executive Government of the United States, including the military
and naval authority thereof, will recognize and maintain the freedom of
such persons, and will do no act or acts to repress such persons, or any of
them, in any efforts they may make for their actual freedom.
Post-Civil War Amendments to the United States Constitution (1868)
13th Amendment
Neither slavery nor involuntary servitude, except as a punishment for
crime whereof the party shall have been duly convicted, shall exist within
the United States, or any place subject to their jurisdiction.
14th Amendment
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
15th Amendment
The right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of race, color, or
previous condition of servitude.
DRAFT Additional Resources
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Origins of the Dred Scott Case: Jacksonian Jurisprudence and the
Supreme Court, 1837-1857, by Allen Austin
Democracy Reborn: the Fourteenth Amendment and the Fight for Equal
Rights in Post-Civil War America, by Garrett Epps
Dred Scott and the Problem of Constitutional Evil, by Mark Graber
The Dred Scott Case: Historical and Contemporary Perspectives on Race
and Law, eds. David Thomas Konig, Paul Finkleman, Christopher Alan
Bracey
Dred Scott and the Politics of Slavery, by Earl. M. Maltz
The Amendment That Refused to Die, by Howard Meyer
The Fourteenth Amendment: From Political Principle to Judicial
Doctrine, by William Edward Nelson
Mrs. Dred Scott: A Life on Slavery’s Frontier, by Lea VanderVelde