“In Defiance of Judge Taney”: Black Constitutionalism and Resistance to Dred Scott TIMOTHY S. HUEBNER In 1857, in Dred Scott v. Sandford, the most infamous decision in the history of the United States Supreme Court, Chief Justice Roger B. Taney denied that African Americans, whether enslaved or free, could be citizens of the United States. In doing so, Taney wrote these memorable words: “It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence.... They had for more than a century before been regarded as being of an inferior order, and altogether unfit to associate with the white race ... and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.”1 Decades before the Court’s deci sion, African-American leaders in the North had fashioned their own understanding of their relationship to America and its founding documents. Confronted with the Supreme Court’s decision, African Americans refused to surrender. They neither accepted the rul ing’s legitimacy nor its claim that they had no place in the national community. In stead, African Americans held tightly to their own distinctive vision of equality—black constitutionalism—and in so doing helped redefine citizenship in the Civil War era. Black Citizenship and Black Constitutionalism Citizenship was an elusive concept in the early American republic. The Constitution itself used the term sparingly. The word “citizen” appeared mostly in referring to requirements for holding federal office and in describing the types of suits heard by federal courts. The one part of the Constitution that referred to the rights of citizenship—Article IV, Section 2—seemed to leave the matter of defining such rights to the states: “The 216 JOURNAL OF SUPREME COURT HISTORY Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” From the text alone, moreover, the relationship between U.S. cit izenship and state citizenship was unclear. Equally ambiguous was whether the Bill of Rights served as a list of rights for all U.S. citizens, or whether it also limited state power and thus related to state citizenship. In some instances, the Constitution and the Bill of Rights seemed to use the words “citizen,” “person,” and “people” interchangeably, a source of further confusion. During its early history, Congress passed no specific leg islation to clarify such matters. Given the indeterminate nature of the concept of citi zenship, as well as textual ambiguity about the institution of slavery (the word “slavery” was never actually mentioned in the Consti tution), the question of black citizenship was an open one.2 At the time of the ratification of the Constitution, apart from an enslaved population of nearly 700,000, approximately 59,000 free black people lived in the United States, which included about 27,000 free blacks who resided in the northern states.3 Soon after the ratification of the Con stitution, northern free blacks attempted to craft their own understanding ofthe founding documents and blacks’ relationship to the nation. In doing so, they championed citi zenship and rights for all African Americans, free and enslaved.4 In 1799,for example, the free black community of Philadelphia, an emerging center of black protest, submitted a petition to Congress making such an ar gument. Led by Absalom Jones, a remark able former slave from Delaware who had purchased his freedom and become the first priest of the first black Episcopal Church in the United States, the Philadelphia black community called for the end of the African slave trade and criticized the federal Fugitive Slave Act of 1793. The petitioners noted that neither the Constitution nor the Fugitive Slave Act mentioned black people or slaves. Rather, when slaves were referred to, it was Leader of the free black community of Philadelphia, Absalom Jones called for the end of the African slave trade. He argued it violated the Constitution, which referred to slaves as “persons.” always as “persons.”5 For...
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Apr 16, 2024
Anna V Stol 
Open Access
