Dred Scott v. Sanford (Part II)

The “Diverse Citizenship” clause was widely used over the years to give both slaves and free-Negroes the right to sue in a federal court. In fact, Taney used the clause in LeGrand v. Darnall (1829). In this case, Taney used the diverse citizenship clause so a former slave, one of the parties in this federal suit, had a right to file suit in federal court. Dred Scott’s defense successfully used the diverse citizenship clause in his defense to bring his case before the Missouri Supreme Court. However, Taney’s ruling changed the meaning of the diverse citizenship clause. Taney’s opinion changed the diverse citizenship clause from “the judicial power shall extend to controversies between citizens of different states” to “the judicial power shall extend to controversies between citizens of the United States residing in different states”. Taney’s decision carefully distinguishes between state and United State citizenship: that the two were mutually exclusive statuses.

Ely v. Thompson and State v. Manuel are also good examples of precedent reached in state cases that would refute Taney’s citizenship claims about free-Negroes. In fact, in State v. Manuel, North Carolina declared free-Negroes were in fact citizens of the state. Marshall exclaimed in the 1832 case Gassies v. Ballon “a citizen of the United States, residing in any State of the Union, is, for purposes of jurisdiction, a citizen of that State.” In other words, United States citizenship was synonymous with State citizenship during our founding. The Constitution does not deprive any class of people citizenship. In fact, the Constitution does not define citizenship except for the naturalization of aliens. Hence, any free-Negro in North Carolina was citizen of that state (State v. Manuel) and therefore any North Carolina Citizen was a citizen of the United States (Gassies v. Ballon). I use the North Carolina example since they were a slave-state. Obviously free-states had similar laws or statutes that made free-persons including free-Negroes citizens.

Chief Justice Taney wrote the majority opinion (7-2) for the Court. He asserted that both free-Negroes and Slaves had the same status and could never be citizens of the United States. According to Taney’s reasoning in his opinion and noticed by Don Fehrenbacher “American Negroes, free and slave, were the only people on the face of the earth who were forever ineligible for American citizenship”. Even foreign nationals who were black could be naturalized, but not any American born black (slave or free) could earn United States citizenship regardless of his state citizenship status. This violates the precedent in Gassies v. Ballon set 25 years earlier.

Furthermore, Don Fehrenbacher identifies “There were no equivalent slave-states where slavery was universal and freedom forbidden.” There were however universally free-states and states were slavery and freedom existed side by side. So the analogy to the Dred Scott case would be if a free-citizen entered a slave state and became a slave and upon his return to a free-state would remain a slave. That would not happen since free-states did not have slavery. And this is why the converse should also not happen. Logic from the above analogy suggests a slave entering a free-area should earn his freedom regardless of the duration of his or her stay.

Taney uses substantive due process when he asserts “the right of property in a slave is distinctly and expressly affirmed in the Constitution.” He continues by saying that states had a right to “traffic in it (slave trade)” for 20 years, but Jefferson ended slave trade when that memorandum expired in 1808. Taney furthermore proclaims “And the government in express terms is pledged to protect it in all future time, if the slave escapes from his owner” referring to the “Fugitive (Slave)” clause. But the Fugitive (Slave) clause was an agreement in the Constitution between states: that is why the clause was listed in Article IV and not in Article I Section 8 which denotes Congress’s enumerated powers. Taney also wrongly asserts “and no word can be found in the Constitution which gives Congress a greater power over slave property, or which entitles property of that kind to less protection than property of any other description.” Taney mentions both the “(Slave) Migration and Importations” clause and the “Fugitive (Slave)” clause where the Constitution does place more restrictions on slavery than “other property” (although these clauses only refer to persons and not property). Taney conveniently fails to mention the “Three-Fifths” clause which states: “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.” This clause refers to “free persons” and “three fifths persons” and makes it impossible to infer that slaves are property. The clause clearly states persons and the clause can be interpreted as follows: free persons are citizens and three fifths of slaves are citizens. It is ironic that the “Three-Fifths” clause gave Southern Democrats control over Congress, the Executive, and the judicial branches of government. This power enabled them to denigrate the rights of all Negroes, rule the Missouri Compromise was unconstitutional, and essentially give them the power to nationalize slavery. However, the Court firmly neglects to even acknowledge the existence of such a clause in the Constitution because it pokes holes in their “property” argument.