Earl writes: "...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." *** This is usually the place where we start revising our premises... Incidentally, Fehrenbacher's massive (741 pp. all told) "The Dred Scott Case," Oxford Univ. Press, 1978, of course discusses the notion underlying that case, i.e., on which Scott sued, that movement of a slave onto 'free soil' effected an automatic emancipation, raising the question of why a master would ever want to bring such a valuable commodity as a slave into freedom forevermore. In Scott's case it was apparently for the convenience of the master, perhaps on the theory that the slaves were too ignorant or powerless to do anything about the resulting change in legal status from slave to free. I wondered whether some masters might have intentionally effected emancipation as to (what I assume may have been) favored slaves, such as their sons and daughters, by bringing them onto free soil, to evade restrictions on emancipation in the local state. Can anyone advise whether the children of slave masters were treated any better than other children? Wasn't Jefferson's body servant alleged to be his son? How did a master justify in his own mind treating his own son or daughter as a slave, I wonder. Can you imagine selling your own child down the river? How hopelessly anachronistic is this? Robert Sheridan [EMAIL PROTECTED] > [Original Message] > From: Earl Maltz <[EMAIL PROTECTED]> > To: <[EMAIL PROTECTED]> > Date: 8/2/2003 5:19:18 AM > Subject: Re: Dred Scott (was Scalia's Originalism) > > > > 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.
