Читать книгу Justice Rehnquist, the Supreme Court, and the Bill of Rights - Steven T. Seitz - Страница 29

The Constitution has three clauses that make clear the status of slaves and their descendants. Each of the thirteen states could import slaves, if it so desired, until 1808. The second is the pledge by each state to return runaways escaping from service and found in their territory. These clauses conferred no rights or benefits on the slave or descendant. No one of this race entered the United States voluntarily; each entered as chattel or merchandise. The third provision, in proportioning representation, counted a slave as three-fifths of a person. Three early Congressional laws support the same line of reasoning. In the naturalization laws, the right of becoming a citizen confines to free white persons. The first militia law enrolled all free able-bodied white male citizens. With the third law, passed in 1813 but effective with the end of the then current war with Great Britain, Congress limited employment on public and private vessels to citizens of the United States, persons of color, or Amerindians, obviously excluding aliens. Taney feels that the breakout of the three classes—citizens, persons of color, and natives of the United States—made it clear that Congress considered these three classes exclusive of one another.

Taney remarked that to call slaves or their descendants as fellow citizens would diminish the character of American citizens in the eyes of other nations. An attorney general of Taney’s era refused to issue passports to this class of people as citizens of the United States. Taney recognized that not all citizens have the same rights. Women and minors cannot vote or hold offices. Under privileges and immunities, a person going into a state has the same rights and privileges as its citizens. If the state extends fewer rights to that class of persons, the relevant state laws may strip the newcomer of rights and privileges they had in their state of origin. Regardless, recognition of US white citizenship follows, even though there be variation in the rights and privileges provided to another class.

Taney suggested that people can be members of a political community without the same rights, such as requiring a property qualification to vote. The poor so excluded from the vote are still citizens. Some states allow aliens to vote, and some allow slaves or their descendants the right to vote, but this does not make them citizens of that state, and certainly not of the United States. The privileges and immunities clause does not apply to such people. Citizenship granted by one state to these people does not transfer to citizenship in another; full faith and credit is of no avail. In any event, privileges and immunities applies only to visitors and passers-through. If a person moves from one state to another, that person is subject to the laws of the receiving state. If that person be a citizen of the United States, that citizenship carries from state to state, with the rights and privileges of any national citizen.

The line of argument is peculiar, because in making his case for separating state and national citizenship, Taney argued that state lines and state laws are secondary to the set of rights and privileges of every national citizen. No state can withhold the rights and privileges of a national citizen. Taney also gave a twisted and inconsistent response to an earlier circuit court decision in Legrand v. Darnell, 2 Peters 664. The defendant was mulatto, owned land in Maryland, and sold same to Legrand. Legrand gave his notes but wanted to make sure Darnell could give clear title, even though born a slave and manumitted by his white father plantation owner. Darnell filed against Legrand for recovery. Legrand got an injunction against recovery. Darnell satisfied the federal court that he was a free man capable of transferring title. The federal circuit court dissolved the injunction and awarded Darnell recovery. The basic difference here is that Sanford appealed the Scott case to SCOTUS, but the Darnell matter was not. The Maryland cases clearly assumed Darnell could sue in federal court. Taney danced around the obvious by claiming that this was a friendly suit simply seeking legal assurance on the title transfer. Neither the Scott nor Legrand cases raised the issue of right to sue; this was precisely one of the grounds Taney earlier argued gave SCOTUS grounds for overruling the circuit court.