A few weeks ago, I wrote a column that included a brief discussion of the Supreme Court’s decision in Dred Scott v. Sandford, the 1857 case that both invalidated the Missouri Compromise and closed the door to Black citizenship in the United States — until it was effectively overturned by the outcome of the Civil War and officially overturned by the 14th Amendment to the Constitution.
To write about Dred Scott meant I had to read — that is, reread — Chief Justice Roger Taney’s infamous opinion for the court, in which he tried to root his anti-Black constitutional vision in the nation’s history. And while I did not write about it in the column, I also read the major dissent in the case, written by Justice Benjamin Curtis.
Curtis had a tumultuous time on the court. Nominated by President Millard Fillmore in 1851 to replace Levi Woodbury, the 41-year-old Curtis was the first and only Whig appointee to the court. A Boston-based litigator and one-time state legislator, Curtis came to Washington with a stamp of approval from none other than Daniel Webster.
Curtis made an immediate mark on the court with his majority opinion in Cooley v. Board of Wardens, in which he charted a middle course between two opposing views of the Commerce Clause. The case, which concerned a Pennsylvania law that levied a fine on vessels entering the Philadelphia harbor without a local pilot, asked whether the Commerce Clause gave Congress exclusive authority over interstate commerce — precluding any state action whatsoever — or whether states could pass laws affecting interstate commerce as long as they did not conflict with existing federal statutes.
Curtis’s solution was to split the difference. “Whatever subjects of this power are in their nature national, or admit only of one uniform system or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress,” he wrote. But when the subject is “local and not national” regulation, it “should be left to the legislation of the states” until “Congress should find it necessary to exert its power.”
Although, as the legal scholar Alison LaCroix notes in “The Interbellum Constitution,” it would prove difficult to draw the line between the local and the national on questions of commerce, Curtis’s opinion would stand with John Marshall’s in Gibbons v. Ogden (1824) as one of the defining Commerce Clause decisions of the 19th century.
It was with this success to his name that Curtis leaped into the dispute over Dred Scott’s status as a free man and citizen. He was one of two justices, along with John McLean of Ohio, who wanted to resolve the case in favor of Scott’s claim to citizenship and in support of the idea that Congress had the power to regulate slavery in the territories. The majority of the court joined Taney’s opinion rejecting Scott’s claim to freedom, writing Black Americans out of the national community and invalidating the Missouri Compromise of 1820 because of its attempt to limit the introduction of slavery to the territories.
But Curtis’s dissent was not some stray afterthought. Just the opposite: It was a comprehensive attack on Taney’s theory of the case, and it moved the public debate in the wake of its publication. Both the Republican Party and the antislavery press seized on Curtis’s opinion in its attacks on Taney, and Abraham Lincoln, in a speech that summer in Springfield, Ill., relied on the dissent to rebuff Stephen Douglas’s view that the Declaration of Independence “referred to the white race alone.”
Curtis begins by taking aim at Taney’s decision to rule on Scott’s claim to citizenship and the question of the Missouri Compromise. Neither issue, he argued, was “legitimately” before the court and neither was “within the scope of the judicial power of the majority of the court” to decide. In Curtis’s view, the sole judgment of the court was that “the case is to be dismissed for want of jurisdiction” because Scott was not a citizen of Missouri. Everything beyond this was not relevant to the case itself and, in Curtis’s view, not binding law.
You’ll note that other political actors picked up on this move. Lincoln, for instance, insisted that the court had not actually settled the question. “We think the Dred Scott decision is erroneous,” he said in Springfield. “We know the court that made it has often overruled its own decisions, and we shall do what we can to have it to overrule this.”
Having criticized Taney and the majority’s decision to decide extraneous questions of constitutional law, Curtis makes the most important argument of his dissent: that Taney is wrong on the facts of citizenship. Asking “whether any person of African descent, whose ancestors were sold as slaves in the United States, can be a citizen of the United States,” Curtis answered in the affirmative. He pointed out that five states — New Hampshire, Massachusetts, New York, New Jersey and North Carolina — recognized free Black Americans as citizens under the Articles of Confederation. He noted that these states also permitted free Blacks to vote, which he viewed as “decisive evidence of citizenship.”
Curtis then asks whether the federal Constitution, which superseded the Articles, deprived either those free Blacks or their descendants of citizenship. He notes that the language, “a citizen of the United States at the time of the adoption of the Constitution,” would appear to be inclusive of free Backs. And so, he concludes,
I can find nothing in the Constitution which, proprio vigore [on its own], deprives of their citizenship any class of persons who were citizens of the United States at the time of its adoption, or who should be native-born citizens of any State after its adoption, nor any power enabling Congress to disfranchise persons born on the soil of any State, and entitled to citizenship of such State by its Constitution and laws. And my opinion is that, under the Constitution of the United States, every free person born on the soil of a State, who is a citizen of that State by force of its Constitution or laws, is also a citizen of the United States.
The idea that the Constitution was somehow made “exclusively for the white race,” Curtis writes, was “not only an assumption not warranted by anything in the Constitution, but contradicted by its opening declaration, that it was ordained and established by the people of the United States, for themselves and their posterity.” As for Taney’s claim that the founders did not mean to include Black Americans in the Declaration of Independence, Curtis thought this was wrong as well.
My own opinion is that a calm comparison of these assertions of universal abstract truths, and of their own individual opinions and acts, would not leave these men under any reproach of inconsistency; that the great truths they asserted on that solemn occasion, they were ready and anxious to make effectual, wherever a necessary regard to circumstances, which no statesman can disregard without producing more evil than good, would allow; and that it would not be just to them, nor true in itself, to allege that they intended to say that the Creator of all men had endowed the white race, exclusively, with the great natural rights which the Declaration of Independence asserts.
Now, Curtis did not hold the expansive view of American citizenship that Republicans would codify into the Constitution after the Civil War with the 14th Amendment. He did not think that birth automatically made one a citizen of the United States; like many jurists of his generation, he thought that state citizenship governed national citizenship. It was his view that “it is left to each State to determine what free persons, born within its limits, shall be citizens of such State, and thereby be citizens of the United States.”
States could deny citizenship to whomever they liked, Curtis argued. States could also determine what rights a person had within their borders. In his view, the only thing the Constitution required, with its “privileges and immunities” clause, was that states treat the citizens of other states no worse than their own.
And yet, even with its highly limited vision of citizenship — one that still allowed for a great deal of exclusion and disenfranchisement — Curtis’s dissent still stood out for his strong and explicit repudiation of both racial qualifications for citizenship and racial distinctions in citizenship. “Color,” he wrote, “is not a necessary qualification for citizenship under the Constitution of the United States.”
I mentioned earlier that Curtis had a tumultuous time on the Supreme Court, and it had everything to do with this dissent. Soon after the court announced its decision according to one source, Curtis sent a copy of his dissent to a Boston newspaper, where it was read and published before the release of the other opinions, including Taney’s. The chief justice was infuriated by this and went on to revise his opinion in response to Curtis’s dissent. This also began a period of bitter antagonism between the two men, which led to Curtis leaving the court later that year, in September.
Benjamin Curtis was neither an abolitionist nor a great egalitarian. He was, in most respects, a man of his time, which makes it all the more striking that he could see a truth that some Americans, in our time, are eager to deny: Our Constitution, and our political community, includes nothing less than the whole people.
What I Wrote
I haven’t sent a newsletter in a few weeks, so here are my two most recent columns.
I closed out July with a piece on the antebellum echoes of Vice President JD Vance’s vision of American citizenship and American identity:
Vance sees the egalitarian ideals of our founding documents but says, as Taney did, that we must look elsewhere for our vision of American citizenship. And that elsewhere is your heritage — your connection to the soil and to the dead.
And this week, I wrote about the importance of the Voting Rights Act of 1965, whether or not it survives the machinations of this Supreme Court.
If by American democracy we mean a pluralistic, multiracial society of political and social equals, then American democracy as we know it began with the signing of the Voting Rights Act of 1965, 60 years ago today.
I also joined my colleagues on a few episodes of The Opinions podcast: one with Michelle Cottle and Michelle Goldberg, as well as one with Cottle and Steve Rattner.
Now Reading
Nicole Hemmer on the heterodox “free speech” movement as a right-wing political project for Boston Review.
Samantha Hancox-Li on hierarchy, conservative ideology and sexual abuse for Liberal Currents.
Marisa Kabas on the starvation in Gaza for The Handbasket.
M.Z. Adnan on Sakir Khader’s photos of the Israeli occupation of the West Bank for The New Yorker.
Jackson Lears on the legacy of the war on terror for The London Review of Books.
Photos of the Week
I have two for you this weekend.
First, a photo of a derelict hotel on Afton Mountain outside Waynesboro, Va.
And second, a photo of the Brooklyn Bridge that I took during a brief stay in New York.
Now Eating: Sweet and Spicy Summer Fruit Salad
I have no comment other than that this is delicious. A perfect showcase for summer fruit and produce. The recipe comes from New York Times Cooking.
Ingredients
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2 tablespoons mild-tasting olive oil
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1 ½ tablespoons store-bought or homemade chile crisp
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1 tablespoon red wine vinegar
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1 tablespoon sugar
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1 ½ pounds stone fruit, such as plums, pluots, cherries, nectarines or peaches, or a combination
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10 ounces cherry tomatoes
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Salt
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¾ cup basil leaves, lightly packed
Directions
In a large bowl, whisk together the oil, chile crisp, vinegar and sugar.
Pit the stone fruit and cut the larger fruit into ½-inch wedges, then cut each wedge into ½-inch pieces. Halve the cherries, if using. Place the fruit in the vinaigrette bowl. Cut the tomatoes in half, add to the bowl, season with salt and toss very well. Taste and adjust vinaigrette seasonings as desired. (This salad can be made up to a day ahead and stored in an airtight container in the fridge.)
When ready to serve, cut or tear the basil into small pieces, add to the bowl and toss everything well to combine.
Jamelle Bouie became a New York Times Opinion columnist in 2019. Before that he was the chief political correspondent for Slate magazine. He is based in Charlottesville, Va.
The post What if Dred Scott Had Been Decided Correctly? appeared first on New York Times.
