Taney suggested that people can be members of a political community without the same rights, such as requiring a property qualification to vote. The poor so excluded from the vote are still citizens. Some states allow aliens to vote, and some allow slaves or their descendants the right to vote, but this does not make them citizens of that state, and certainly not of the United States. The privileges and immunities clause does not apply to such people. Citizenship granted by one state to these people does not transfer to citizenship in another; full faith and credit is of no avail. In any event, privileges and immunities applies only to visitors and passers-through. If a person moves from one state to another, that person is subject to the laws of the receiving state. If that person be a citizen of the United States, that citizenship carries from state to state, with the rights and privileges of any national citizen.
The line of argument is peculiar, because in making his case for separating state and national citizenship, Taney argued that state lines and state laws are secondary to the set of rights and privileges of every national citizen. No state can withhold the rights and privileges of a national citizen. Taney also gave a twisted and inconsistent response to an earlier circuit court decision in Legrand v. Darnell, 2 Peters 664. The defendant was mulatto, owned land in Maryland, and sold same to Legrand. Legrand gave his notes but wanted to make sure Darnell could give clear title, even though born a slave and manumitted by his white father plantation owner. Darnell filed against Legrand for recovery. Legrand got an injunction against recovery. Darnell satisfied the federal court that he was a free man capable of transferring title. The federal circuit court dissolved the injunction and awarded Darnell recovery. The basic difference here is that Sanford appealed the Scott case to SCOTUS, but the Darnell matter was not. The Maryland cases clearly assumed Darnell could sue in federal court. Taney danced around the obvious by claiming that this was a friendly suit simply seeking legal assurance on the title transfer. Neither the Scott nor Legrand cases raised the issue of right to sue; this was precisely one of the grounds Taney earlier argued gave SCOTUS grounds for overruling the circuit court.
To Sue
Taney tried to distinguish a right to sue based on status as free or slave and a right to sue based on being a national citizen. Scott was suing for his freedom; Darnell had to establish his status as a free man. Taney substituted his purposes rather than Scott’s actual suit. Taney then stooped to a red herring, suggesting that the Darnell case illustrated the evils of states conferring national citizenship, which had little correspondence to the Legrand suit and Darnell countersuit. Taney again asserted that the Constitutional power to determine national citizenship is the nation, not the state. Taney insisted that he constructed the Constitution as the Founding Fathers intended (originalism?), and if slaves or their descendants want national citizenship, a Constitutional amendment would be in order. Popular opinion or passion of the day cannot determine the construction of the Constitution.
The Taney presentation bordered on harangue. His decision line, for example, held an oddity. Taney had perseverated over national citizenship for several pages. His decision line stated that Scott cannot be a citizen of Missouri and hence is not entitled to sue in its courts. The federal circuit court had no jurisdiction because Scott is of a class denied national citizenship. Is Taney arguing that national citizenship determines state citizenship? If not, why is SCOTUS deciding a state law, especially when the state courts and federal circuit court made no such determination? The oddity here is that Taney used a set of arguments about the Constitutional meaning of citizenship. He has admitted that states may have given state citizenship to slaves or their descendants. He has clearly separated state and national citizenship. So how do we go from an exegesis on national citizenship to denial of state citizenship? Whether Missouri law considered a slave or their descendants free is a different matter determined by state law.
Various owners took Scott and family into states and territories where slavery is illegal. Scott claimed freedom, and the Missouri municipal court agreed. This was the subject of the suit and was quite independent of his status as a resident of Missouri. Taney made the argument that, if removal into free territories did not give him freedom, then he is still a slave. Taney argued that a slave must be either a citizen of a state or the nation or both, but Scott was not a citizen of Missouri and could not be a national citizen. Taney then insisted that the circuit court should dismiss the case because Scott was a slave. He then wanted to pursue other questions, including the circuit court abatement agreement, even though that was not in the writ of error. Taney rejected the claim that his ruminations from this point were merely dicta. He argued that SCOTUS had the right to reverse the lower court for any error on the record, even though he has just decided the court had no jurisdiction. Taney wanted to draw a distinction between whether SCOTUS had no jurisdiction, or the circuit court had no jurisdiction. If the former, the record examination is at an end; if the latter, SCOTUS is free to examine the entire record for other errors even if the circuit court sent the writ of error on a single point. The act of sending the writ was enough for expansive SCOTUS jurisdiction. Large controversies gave SCOTUS jurisdiction and the right and duty to examine the whole case. Taney concluded his assertion of review that if he found an error, SCOTUS would reverse and remand the case to the court that he had just decided had no jurisdiction. Ignoring SCOTUS procedures emphasizing the narrowest possible decision, Taney set the stage for a massive foray over legislation on slavery by arguing that the judgment below erroneously favoring one party was as grave an error as a court can commit, even though he was about to make law favoring the other party and then sought error made by a court lacking jurisdiction and a writ of error on an entirely different issue.
Law and Politics
Taney was about to stray from established court procedures unexpected in a decision at law but clearly within the orbit of political decisions. Taney claimed that the lower court erred in accepting the abatement and causing great injury that needed remedy, although the lower court was still waiting for the SCOTUS decision and could simply have ordered a dismissal for lack of jurisdiction. The abatement agreement hurt no one, save in Taney’s effort to justify what he was doing in this case. He even averred that his reviews were quite typical of appeals court proceedings. The problem was that he has already adjudged the lower court had no jurisdiction. He used the writ of error as a fishing expedition. Taney did not want these “errors” repeated by future courts, even though the initial judgment was for the defendant that Taney also supported. This case was poorly reasoned, a stretch well beyond normal practice, and of course an excuse to undue decades of Congressional legislation.
Taney would have us believe that returning the case for dismissal, even though the circuit court suspended its activities while Scott filed his writ of error, would leave the judgment for Sanford on the record, used as precedent, and lead to mischief and injustice when drawn into some future suit. It is unclear what type of barrister would use a dismissed case for precedent, but it is rather clear that Taney’s protests here are a very weak justification for what he does next. Scott’s journey as a slave through free territories included free states and territories designated free by Congress north of the 36th parallel. Scott married another slave, with their owners’ permission, in free territory. The couple had two children, one born on a steamboat on the Mississippi River and the second in the state of Missouri. Sanford bought the entire family in Missouri, where Scott filed his bill for freedom.
Taney asked whether the entire family be free consequent to their stay in free territory and, if not, whether Scott was free because of his stay in a free state. Taney then took a turn to whether Congress had the power to declare the Louisiana Purchase above the 36th parallel, excluding Missouri, free of slavery. The Constitution gives Congress the power to dispose of and make the necessary regulations for territories or other property belonging to the United States. Taney argued that this Constitutional provision applies only to lands within the treaty with Great Britain ending the Revolutionary War. The resulting states ceded their unoccupied lands to the central government under the Articles of Confederation. Taney argues that the Constitutional provision and any consequences simply apply only to territories already owned. The Ordinance of 1787, prohibiting