Reply To: Dred Scott and U.S. Citizenship


Abraham Lincoln showed wisdom and executive independence from the Supreme Court by treating free black Americans as citizens (while simultaneously tolerating legal black slavery until the Emancipation Proclamation) in ways relevant to the executive department; for example, he allowed them to apply for and receive passports on the same terms as white citizens. He realized that he was bound by oath to the Constitution independent of the judiciary and that he owed no compliance to judicial constitutional errors; this does not relieve him from responsibility for other actions of doubtful constitutional standing. It also does not mean that the Dred Scott decision was entirely wrong; it must be parsed most carefully and meticulously. Slavery itself was absolutely constitutional until the 13th Amendment; that was upheld by Taney. The heart of the case about whether slaves as constitutionally recognized property in the Southern states continued to be property when taken to a free state had no clear answer in the original constitution that I am aware of. Taney expressed his biased racist opinion that property rights superseded the freedom laws of the North, but contrary constitutional opinions seem to me to be equally reasonable; I see the 10th Amendment as allowing states to choose to be totally free territory without any recognition of slavery property ownership within their boundaries, especially slaves intentionally brought into those states; in that situation I see no place for the “fugitive slave” provisions of the Constitution. Taney lost his way, however, due to the deep passion of his racist beliefs, when he declared free blacks in free northern states to be noncitizens; nothing in the original Constitution or its amendments stated or implied any such interpretation.
Daniel Clyde Cummings