> Please accept my apologies in advance for the length of this post. However, there issues do not lend themselves to sound bite treatment.
At the outset, we must decide whether we are talking about objective originalism (what Barnett calls "original meaning") or subjective originalism--an attempt to ascertain the actual intentions of the drafters and/or ratifiers). I have come to believe that objective originalism is the more defensible approach,, but even if one is a subjective originalist it is important to distinguish between two different situations. One might take the view that we should be bound by the subjective intent of the drafters if it is clearly expressed during the drafting process, but I think that it is implausible to suggest that we should be bound by their "intentions" on matters that they didn't even think about in the drafting (or ratifying) process--the situation here. In that case, it seems to me that even the subjective originalist should be thrown back to objective originalism.
Against that background:
On the issue of slavery in the territories, I think that the contemporaneous passage of the Northwest Ordinance and the treatment (or nontreatment) of slavery in the Southwest is compelling evidence that both Taney and Chase/McLean are wrong on the constitutional issue. It does suggest, however, that the Southerners are right on at least one important point--that inaction equates to tolerance for slavery in the territories--a view that seems to be generally held at least until the debate over Arkansas during the Missouri controversy.
The analysis of the citizenship issue is much more complex. At the outset, it is important to note that nobody in Dred Scott seems to have taken the view that, as a constitutional matter, free blacks could never become citizens. I think it is difficult to argue that Congress lacked the authority to naturalize black immigrants from Africa (although the immigration statutes of the time allowed naturalization only for free blacks.
Second, before answering the question of whether the descendants of slaves could be citizens, you have to deal with the antecedent question of whether the status of native-born people is to be determined by a national standard (the position of both Taney and McLean) or a state standard (the position of Curtis). There are good textual and structural arguments for both positions.
If a state standard applies, Curtis clearly has the better of the argument. However, if a national standard applies, on reflection I think Taney was probably right. I believe that at the time citizenship passed from father to child. Slaves were clearly not citizens, and emancipation by the master could not have conferred citizenship upon them. Thus, their descendants were not citizens either. Not my favorite result, but one that I think that I am stuck with.
