The Political Economy of Blackness: Citizenship, Corporations, and Race in Dred Scott
Allen, Austin, Civil War History
On March 6, 1857, Chief Justice Roger B. Taney lashed out against the antislavery movement and simultaneously reaffirmed his court's support for the emerging corporate order. He did both in Dred Scott v. Sandford when he declared, accurately, that the Constitution recognized no black person as a citizen of the United States. The Dred Scott case, which also found that the federal government possessed no authority to limit the expansion of slavery into the territories, has long invoked contempt. As the antislavery lawyer John Appleton wrote shortly after the decision, "that the law has been disregarded or rather trampled under foot few will doubt." (1) Appleton's perception of a "mutilation of fact [and] subversion of the law" in Dred Scott anticipated the stance that underpins recent investigations into the citizenship question, which scholars now realize raised fundamental questions concerning race relations within American society. (2) By law, citizenship signified a legal relationship in which purportedly free individuals gave their allegiance to a sovereign community in exchange for the protection of a shifting bundle of rights that varied by race, gender, and jurisdiction. (3) According to Taney, however, no such relationship existed between the federal citizenry and free blacks: "They are not included and were not intended to be included." To the contrary, they were "considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race ... and had no rights or privileges but such as those ... the Government might choose to grant them." (4) The chief justice supported his contentions with a lengthy historical argument that Appleton, among others, described as "falsified."
The most striking aspect of Taney's argument involved not so much what he said but rather the excessive manner in which he said it. The assertion that the constitutional order existed for white people only was hardly a novel stance. Taney expressed a belief--widely held at all levels of society and throughout every region of the Union--that the perceived inherent inferiority of black people rendered them unfit for citizenship. Taney himself began working out his thoughts on the subject as early as 1832, when, as Andrew Jackson's attorney general, he defended South Carolina's policy of imprisoning every free black sailor that entered the state. (5) Despite its widespread character, the ideology of white superiority became increasingly contested in the antebellum period. Even in the Jacksonian South, as Lacy K. Ford has argued, the question of citizenship for free blacks remained open and deeply contentious; the debate was even more intense in the North and West. (6) Taney's analysis in Dred Scott was sophisticated enough to handle the resulting ambiguity and in fact represented an accurate reading of American law and history. Even so, the chief justice went out of his way to stress what he saw as the inferiority of African Americans before the law and within society. He could have presented the substance of his argument in a paragraph or two--perhaps in five pages if he wanted to be thorough. Instead, he allotted more space (twenty-four pages) to the citizenship question than he did to any other, including the explosive territorial issue (twenty-one pages). In those two dozen pages A. Leon Higginbotham counted twenty-one separate references to either black inferiority or white superiority. (7)
Behind the excessive display lay a pro-Southern political agenda. Taney's opinion, according to historian Don E. Fehrenbacher, expressed "the southern mood--fearful, angry, and defiant--in the late stages of a national crisis," and it launched "a sweeping counterattack on the antislavery movement." (8) This interpretation contains merit. The Taney Court's members, with a few exceptions, revealed little patience for antislavery legal arguments, and they had no qualms about undercutting antislavery litigation strategies. Taney's opinion closed a jurisdictional pathway that the Court's previous rulings unintentionally had left open to free black people, but this interpretation does not explain fully why Taney devoted nearly half of his opinion to what scholars characterize as a "rambling and repetitious argument" or, even less charitably, a "tortuous forced march." (9) In contrast to the territorial question, the justices faced no public pressure for a ruling on black citizenship, and, even if necessary to the resolution of the case, there was little need to address it at the level of detail that Taney employed. Historians at this point generally fall back on Taney's seething sectionalism, as Paul Finkelman terms it, and treat the ruling as a vicious, unprovoked, and unnecessary attack on free blacks and their white allies. (10)
These interpretations only partially account for the politics of Taney's citizenship ruling. The failure stems from an assumption that the Court mainly reflected the larger sectional crisis raging around it. In the leading work on Dred Scott, for example, Fehrenbacher located the explanation for the decision's outcome in the Southern-dominated Supreme Court's response to the political expressions of the crisis as it intensified in the 1850s. He consequently devoted the bulk of his study to explaining the origins of the political crisis and Dred Scott's impact on its subsequent development. Fehrenbacher certainly paid a great deal of attention to legal issues. His book's main contribution, although its interpretations are debatable, was the argument that Taney's rulings in the case were partisan in intent and wrong in substance. Even as he dealt with legal issues, however, Fehrenbacher gave high politics a privileged position. The cases he discussed, with a few exceptions, concerned only slavery, which his narrative easily accommodated, and he consistently fell back on the justices' partisan affiliations to explain judicial outcomes. In the end, Fehrenbacher's analysis of the Dred Scott case amounts to an analysis of the Southern mood as reflected in legal sources. (11)
Taney was certainly a Southern partisan, but the excess in his citizenship ruling stemmed as much from his desire to address an underlying issue of political economy as it did to strike against the antislavery movement. The issue in question did not concern abstract matters like the irreconcilability of legal regimes recognizing human property with those that did not. The members of the Taney Court--with perhaps two exceptions--believed fervently, if incorrectly, that the federal system allowed a reconciliation of those regimes. (12) The point of division, rather, centered on a concrete question concerning the standing of corporations. In the mid-1850s three of the Court's Southern justices formed a faction committed to closing the federal courts to corporate litigants, contrary to the practice that had reigned without controversy for nearly a decade. The Southern faction--which consisted of Peter V. Daniel of Virginia, John Catron of Tennessee, and John A. Campbell of Alabama--called for a significant shift in court policy and demanded a complete reconceptualization of corporate law. The Court's treatment of corporations, they argued, showed insensitivity to states' rights. Welcoming corporations into its jurisdiction, moreover, provided a body of precedent that free blacks could use to plead into the federal courts and evade the discriminatory laws of the Southern states and undermine the slave regimes. Instead of risking a destruction of corporate law as he knew and built it, Taney implicitly responded to his Southern colleagues in the citizenship portion of his Dred Scott opinion. Taney argued that black people had suffered such extreme discrimination because they were perceived as threatening by the white population. Consequently, they could in no sense be citizens of the United States. The excessive character of his argument quietly, and successfully, sought to convince his Southern colleagues on the Court that this exclusion applied only to black people as a consequence of their unique legal history, which singled them out for treatment different from corporations, women, and even other nonwhite people.
The distinction between corporations and free blacks went to the core of Dred Scott's politics. The case concerned protecting the emerging corporate order from the Court's more extreme members as much as it did resistance to the antislavery movement. Taney handled both by invoking an antiblack form of federal citizenship that centered on legal and, to a lesser extent, social discrimination against people of sub-Saharan African descent as the justification for excluding them from the polity. This essay employs the term "antiblack" instead of "racist" because the term conveys Taney's deliberate choice to elaborate the nature of citizenship along a black-white axis.
As Ronald Takaki and David Roediger have argued, such conceptual opposition inaccurately described racial relations in the United States. By 1857 the Union and its territories included indigenous peoples, Mexicans, and Asians as well as men and women of African descent and those of European origin who grasped for the privileged status of whiteness. (13) With the possible exception of Asians, Taney and his colleagues were well aware of this diversity, and they considered all dark-skinned people, together with white women and "artificial persons" (such as corporations), to be inferior to white males. Taney explicitly exempted Indians and white women from his citizenship ruling, and his emphasis on black people likewise entailed an implicit exemption of corporations and probably Mexicans. There was more at work here than inconsistency. Taney's narrow focus on the legal ramifications of blackness served a specific function within the structure of the Court's own rulings. The invocation of a citizenship that excluded only African Americans allowed Taney to address Southern concerns--which he shared--about free blacks' access to the courts without conceding to their demands for a complete revision of corporate law. Taney's antiblack vision of citizenship thus protected corporations as much as it did the embattled South. (14)
Taney's citizenship ruling continued a practice to which a majority of the Court had been committed since slavery cases began making regular appearances on the docket in the early 1840s. This majority, which shifted in membership over the years, believed itself obligated to protect slavery but struggled to do so in manner that would not result in a subordination of Court doctrine to the perceived needs of the South. Although the majority of justices on the Taney Court dismissed antislavery arguments out of hand, they considered the amount of support the federal government extended to the peculiar institution to be an open question. During the 1840s a minority of justices, led by Taney, asserted that the states held unlimited authority to treat their internal populations as they saw fit. Such power, the chief justice argued, emanated from the states' inherent power of self-preservation. A majority of justices, consistently anchored by John McLean of Ohio and James M. Wayne of Georgia, repeatedly rejected the minority's arguments. They insisted that federal power, within its constitutional sphere, trumped state power, and the Court would not alter its doctrine merely because a case involved slavery. Thus, in Prigg v. Pennsylvania (1842) the Court ruled, among other things, that the government possessed full regulatory power over the matter of fugitive slaves and that the states could not pass legislation designed either to hinder or to help masters. Likewise, the Court held in the Passenger Cases (1849) that the states could not use their taxing authority to discourage immigration into their territory, which meant that they did not possess full control over their internal populations. None of these rulings revealed a hostile stance toward slavery, but the minority believed that they stripped from the states too much power and impeded state efforts to control subordinate populations. These issues produced sharp divisions on the Court. In 1850 the justices attempted a compromise, but the controversy emerged two years later in the context of corporate law. (15)
The brief compromise took place when Taney conceded that the Constitution placed limits on the states' inherent power of self-preservation. The shift occurred in Strader v. Graham (1850), where the Court dismissed for want of jurisdiction an appeal from Kentucky's highest court. The state court held that a group of slaves sent by their master into free territory to work as musicians lost their claim to freedom, if any, upon their voluntary return to Kentucky. (16) Speaking for the Court for the first time on a slavery question, Taney dismissed the case. "Every state" he wrote, "has an undoubted right to determine the status, or domestic and social condition, of the persons domiciled within its territory." The statement sounded similar to those he had made in his defense of Negro Seamen Act as well as his opinions in Prigg and Passenger Cases. Recognizing his colleagues' lack of patience for his self-preservation argument, Taney added a qualification: "except in so far as the powers of the states are restrained, or duties and obligations are imposed upon them, by the Constitution of the United States." This passage struck abolitionists and subsequent historians as invidious--a possible signal that Taney and his colleagues considered those "duties and obligations" as a mechanism to force slavery into the Northern states. (17) The argument goes too far. Taney's qualification more likely conceded the limitations on state authority that the court had outlined in Prigg and Passenger Cases and indicated the chief justice's willingness to pursue his agenda within the constraints established by his colleagues.
Taney conceded that federal power sometimes trumped the states' control over their internal populations, but his new position still supported slavery interests. The chief justice expected Strader to define the Court's response to all cases involving slaves spending time in free territory. The Court's refusal of jurisdiction in effect forced all such questions down to the states and permitted their courts to address the matters with little fear of federal intervention. Taney went even further. He expressed satisfaction with the substance of Kentucky's ruling--although the merits of the case were technically not before the Court--and attempted to lay a doctrinal …
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Publication information: Article title: The Political Economy of Blackness: Citizenship, Corporations, and Race in Dred Scott. Contributors: Allen, Austin - Author. Journal title: Civil War History. Volume: 50. Issue: 3 Publication date: September 2004. Page number: 229+. © 1999 Kent State University Press. COPYRIGHT 2004 Gale Group.
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