Legislative history, Taney maintained, supports the view that Africans were not citizens, but in fact the leading documents of the day make a strong case against Taney’s claim. The Articles of Confederation confer citizenship on all freemen: the qualifier “white” was explicitly rejected. The signatories to the Declaration, it is true, did not literally believe that “all men are created equal,” but the inequalities they implicitly excepted were not defined by “race”: the author of those words, Thomas Jefferson, never admitted to more than the “possibility” of racial inferiority, and this possibility he happily rejected when the evidence came due. As for the Constitution, it says not a word about “slavery,” and no more about “race,” and its framers certainly had no unifying “intent.” Benjamin Franklin had expressed his view that all races were intellectual equals as early as 1763; and, as McLean puts it, “we know as a historical fact, that James Madison, that great and good man, a leading member in the Federal Convention, was solicitous to guard the language of that instrument so as not to convey the idea that there could be property in man.”18
For all his protests to the contrary, it is not the “true intent and meaning” of the Constitution that Taney announces; it is instead the meaning that he chooses, informed by the “public opinion” of his day. It was Taney’s generation, not Jefferson’s and Madison’s, that finally resolved slavery’s paradox in racial terms; it was his generation, not the founders’, that condemned an “unfortunate race” to perpetual servitude. It was one of many ironies that, in this sense, Frederick Douglass was correct after all: the Constitution was what its interpreters make of it.
And some, following Curtis and McLean, continued to insist even after Scott v. Sandford that the Constitution could yet be made into something more. Its principles had been betrayed by the Supreme Court’s decisions, but at some level they endured, and in some fashion they would be redeemed. Congressman John A. Bingham of Ohio addressed the House of Representatives in January 1857: “It must be apparent that the absolute equality of all, and the equal protection of each, are principles of our Constitution . . . The Constitution provides . . . that no person shall be deprived of life, liberty, or property without due process of law. It makes no distinction on account of complexion or birth . .. This is equality.” The Constitution, Bingham went on to observe, permits no title of nobility; this was more than a matter of form:
Why this restriction? Was it not because all are equal under the Constitution; and that no distinctions should be tolerated, except those which merit originates, and no nobility except that which springs from the practice of virtue, or the honest, well-directed effort of brain, or heart, or hand? There is a profound significance in this restriction of the Constitution. It is an announcement of the equality and brotherhood of the human race.
A decade later, Bingham would write the Fourteenth Amendment.
The First Reconstruction
In April 1860, the United States Senate took up the question whether public education should be afforded to the District of Columbia’s children, black and white alike. No large sum of money was implicated, nor was the number of prospective students very large; but the principle, such as it was, certainly seemed worth fighting for.
For some, the attempt to educate black children was a waste of time and money; for others, like James A. Bayard of Delaware, the inherent limitations of “the black race” simply meant that “the extent of education ought to be limited, and precise in its character.” Still others had grown tired of these and similar claims: “I have heard long enough,” said Daniel Clark of New Hampshire, “in the Senate and elsewhere that the colored people cannot be elevated. They cannot be elevated because you will not try to elevate them.”
Yet another view was offered by Albert G. Brown, Democrat from Mississippi. “I will not,” Brown insisted, “in this slaveholding community, vote for any proposition which proposes to mingle the negro and the white child in the same school.” Brown was willing, however, to allow the black and white communities to be separately taxed to fund separate schools; “but I will vote for no proposition which looks to put white children on an equal footing with negro children, here or elsewhere.” Brown preferred that his colleagues concentrate their attention on the needs of white children:
these children are dearer to us than the little darkies . . . children of your own blood; of your own complexion; of your own race . . . as the white boy is better than the black boy in the judgment of some of us, as the white girl is more entitled to our kindness than the black girl, let us take the whites first; let us provide for our own people, precisely as any man would do for his own children in preference to the children of his neighbor; precisely as a man would take care of his own kith and kin in preference to strangers. These white children are of our own race.
James Harlan of Iowa was moved to inquire: “If it is cheaper to educate the white child at the public expense than to support him as a pauper, or to punish him after years as a criminal, is it not equally true of colored children?”
One answer came from Mississippi Democrat Jefferson Davis:
In this District of Columbia you have but to go to the jail and find there, by those who fill it, the result of relieving the negro from that control which keeps him in his own healthy and useful condition. It is idle to assume that it is the want of education; it is the natural inferiority of the race; and the same proof exists wherever that race has been left the master of itself—sinking into barbarism or into the commission of crime. . . . In the law, sometimes, it has been attempted to declare their equality; but in fact, socially, and as a practical question, I say it is done nowhere.
“Do gentlemen need more,” Davis asked:
to convince them of the distinction between the races? Do they hope, offending against all the teachings of history; against the marks of God; in violation of the Constitution; and by trampling upon the feelings of the southern representatives here, to found in the District of Columbia an experimental establishment to disprove the inequality of the races?
Bayard concurred, and thus prompted another inquiry from Harlan: “If the negro population were all as well educated as the white people, would they then be our equals?”
Bayard did not hesitate:
Without entering into the question, which I leave to philologists and ethnologists, as to the unity or diversity of the races, I have no shadow of a doubt, from my own observation of the negro race, of its inferiority. . . . My answer to the honorable Senator is, that, from my reading of the history of the past, from my own personal observation of the character of the race, I believe it would be impossible to carry the civilization of the negro race as a race—I do not speak of individual cases—to equality with the white man with any benefit either to them or the white race.
It was the response Harlan had anticipated. Harlan’s defense of black education was, after all, a pragmatic one: it was better to afford education than to absorb the social costs of ignorance. It was not a defense rooted in equality, at least, not the kind of equality Davis and Bayard seemed to fear:
What do Senators mean by the term equality? Do they mean physical equality? Who has proposed to make the Negro, by law, as beautiful as the Anglo-Saxon; as symmetrical in his proportions; as capable of enduring fatigue, or enduring toil? Who has proposed to make him his equal in intellectual development, or in moral sensibilities? Who has proposed to make him his equal in a social point of view? Nobody. Social equality, I suppose, depends on entirely different laws, and on that subject everybody must be a judge for himself. Will either of those Senators tell me that he will meet on terms of perfect equality every man of his own race, admit every man to his own table, or as a suitable suitor for the hand of his own daughter in matrimony? I apprehend not. Then what kind of equality is referred to? . . . Well, is it political equality that is referred to? Who has proposed to make them the equal of the white race in a political point of view? Nobody.
Henry Wilson of Massachusetts shared Harlan’s views: “This negro equality seems to run through the heads of southern gentlemen. There is