Note
1.
Interpretation of the privileges and immunities clause changes considerably over time. Justice Washington’s view of privileges and immunities as fundamental rights meant that the individual was so endowed and carried these along when the individual crossed state lines.
Chapter 2
Dred Scott
Chief Justice Taney wrote an infamous decision Scott v. Sandford, 60 U.S. 19 How. 393 393 (1856). The case introduced confusion regarding both federal and state sovereignty, with advantage to the latter. SCOTUS took the lead position on the most divisive issue since the founding of the country, namely slavery. The debate and tensions appeared in the text of the Constitution. Apportioning representation and direct taxes counted “all other persons” as three-fifths. Congress or Constitutional amendment cannot prohibit the importation of persons as each state may deem fit before 1808. A claimant in one state holding a person to service or labor who escapes to another may demand that person be delivered back.
Taney took full advantage of the importation, taxation and representation, and fugitive clauses to overrule decades of Congressional compromise. Ironically, Taney deemed the Dred Scott conflict non-justiciable. The non-decision should have ended there. Violating the court’s own norm of going no further than necessary in a decision, Taney instead extensively considered slaves taken into free territories by their owners, and Taney further expanded to the nature of Africans and distinguished territories acquired after adoption of the Constitution. The extended dicta created enormous legal havoc and became a contributory cause of the Civil War. The next section presents the Scott decision and the following section examines its impact. Taney’s sweeping policy pronouncement should never have occurred.
The Dreaded Decision
Taney claimed that when a writ of error brings forth the transcript of proceedings in a lower court, then the entire record is open to inspection and revision. This claim set the stage to wander far beyond the question brought forth by the writ of error. Scott won in the county court but lost in the Missouri Supreme Court. Parties in the lower federal court, in abatement, accepted the court’s jurisdiction. The defendant claimed in abatement to the court that Scott was not a citizen of Missouri because of his African descent. Both plaintiff and defendant demurred to the abatement plea. That court overruled the abatement and held hearings where the court decided the issue in Sanford’s favor. The court gave to the jury instructions unfavorable to Scott, and on these points, Scott filed the writ of error. Meanwhile, the Missouri Supreme Court had remanded the state case back to the lower state court, which continued the case until SCOTUS rendered its opinion.
Taney now took an axe to established court procedures. He began with the claim that any judgments below that are not in the writ of error are still open to inspection, even if the plaintiff bringing the writ got the favorable decision. He began with the two basic questions: did the circuit court have jurisdiction? If so, was its judgment erroneous? Scott pressed a diversity suit, with he and family citizens of Missouri and Sanford a citizen of New York. Taney used what at first appeared a counterfactual: if the jurisdiction is legally before the court, then the Constitution disqualifies Scott for citizenship. The circuit court is wrong, and its decision reversed. The plaintiff did not bring this question before SCOTUS and the defendant waived this defense below. Taney set the stage to convert the counterfactual into a finding by pointing out there are different rules for pleading jurisdiction in the federal courts than in those using English common law. The state courts of general jurisdiction assumedly have jurisdiction unless contraindicated. Such jurisdictional procedures in the state courts will not have influence in SCOTUS. It is incumbent on the plaintiff to show the pleading comes within the enumerated authorization of the federal court. If the plaintiff fails to do this but gets approval of the circuit court, the appellate court would reverse it. A diversity suit between citizens of different states requires an averment of citizenship for the plaintiff and defendant, respectively.
Taney then examined how the lower court established citizenship. The lower court accepted a plea in abatement, but the opposite is in the demurrer agreed by both parties. These issues were part of the circuit court record, and the writ of error brought the entire proceedings to the court. Taney reexamined the abatement plea. He argued:
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 [sic] 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?
The African descendants in this political community entered as slaves, and whether now emancipated or descendants of the emancipated, they can never be citizens by that term in the Constitution. Unlike Africans, the United States has always treated Indians as free; Congress may naturalize Amerindians and let them become citizens. Taney posits that “people of the United States” and “citizens” are synonymous. These are the sovereign people. Slaves or their descendants are not members of this class of people and the Constitution never intended such. These people are not eligible for rights or privileges afforded citizens; they are inferior and remain subjugated even if emancipated. Taney distinguishes citizenship in a state from citizenship in the United States. A state may give rights or privileges to a person of African descent, but that translates to nothing regarding US citizenship and its rights and privileges. Those of African descent cannot even sue in US courts. No state can endow federal citizenship. Scott cannot be a citizen of Missouri with correlative citizenship in the United States. No federal court can allow Scott to sue in that court. Slaves and their descendants are property.
Race and the Constitution
The Constitution has three clauses that make clear the status of slaves and their descendants. Each of the thirteen states could import slaves, if it so desired, until 1808. The second is the pledge by each state to return runaways escaping from service and found in their territory. These clauses conferred no rights or benefits on the slave or descendant. No one of this race entered the United States voluntarily; each entered as chattel or merchandise. The third provision, in proportioning representation, counted a slave as three-fifths of a person. Three early Congressional laws support the same line of reasoning. In the naturalization laws, the right of becoming a citizen confines to free white persons. The first militia law enrolled all free able-bodied white male citizens. With the third law, passed in 1813 but effective with the end of the then current war with Great Britain, Congress limited employment on public and private vessels to citizens of the United States, persons of color, or Amerindians, obviously excluding aliens. Taney feels that the breakout of the three classes—citizens, persons of color, and natives of the United States—made it clear that Congress considered these three classes exclusive of one another.
Taney remarked that to call slaves or their descendants as fellow citizens would diminish the character of American citizens in the eyes of other nations. An attorney general of Taney’s era refused to issue passports to this class of people as citizens of the United States. Taney recognized that not all citizens have the same rights. Women and minors cannot vote or hold offices. Under privileges and immunities, a person going into a state has the same rights and privileges as its citizens. If the state extends fewer rights to that class of persons, the relevant state