You are right about the origin of racism; it first begins in a serious way after the REvolution, with Jefferson starting it off in the NOTES ON THE STATE OF VIRGINIA. Indeed, I argued in my most recent book, DEFENDING SLAVERY, that the Revolution and the ideas of "all men are created equal" necessitated the ideology of race; otherwise you would have to accept free blacks as citizens and give up slaveholding.
paul finkelman
Barksdale, Yvette wrote:
Sorry I'm late to this thread. I haven't checked in on list for a while. (And I'm not trying to restart it). One question:Paul Finkelman writes: "Can you imagine SC ratifiying if it pinckney had come back and said you will have to deal with black us citizens? " Paul, are you sure about this, re southern views re race (as opposed to slavery) in 1787. Much of the virulently racist defense of slavery by southerners was developed, wasn't it, in the Nineteenth century as a response to antislavery arguments. And with the exception of South Carolina and Georgia whose economies were most heavily dependent on slave labor, most slave states around the founding time, encouraging voluntary manumission of slaves. Also, free blacks often owned substantial property in many Southern states (don't know about South Carolina, per se) Is it so clear that SC at the time of the founding (as opposed to so pro-slavery) would have objected so automatically to a race-neutral concept of citizenship. I've learned the hard way to defer to you on the history questions but are you sure about this. (OF course, this discussion bypasses the question, of whether, even if you take an originalist approach, a pre-condition of fidelity to original intent, is the legitimacy of the group of persons whose original intent you are referencing. There is no reason why an African-American for example, should accept the legitimacy of any nation founding in which they were arbitrarily excluded from citizenship, even though African-Americans were the majority of the population in many states, had critical battleground roles in the Revolutionary War (including being members of the Boston Tea party), voted in the ratifying conventions for the Constitution, etc., etc. Some minimal form of inclusiveness is a necessary precondition to legitimacy of any founding isn't it? Unless, of course, power is justified solely by power. IOW, would Pinckney have had the legitimate authority to exclude African-Americans from citizenship, even if he had been determined to.) yb ********************************************* Professor Yvette M. Barksdale Associate Professor of Law The John Marshall Law School 315 S. Plymouth Ct. Chicago, IL 60604 (312) 427-2737 (email:) [EMAIL PROTECTED] *****************************************************---------- From: Paul Finkelman[SMTP:[EMAIL PROTECTED]] Reply To: Discussion list for con law professors Sent: Friday, August 01, 2003 9:43 PM To: [EMAIL PROTECTED] Subject: Re: Dred Scott (was Scalia's Originalism) I agree with Franck that it was reasonable to argue that free blacks were citizens of hte US if you lived in some parts of the north; one assumes the Mass. framers believed this, from their experience. but the va, sc and ga framers would never have understood this is what they were doing. Can you imagine SC ratifiying if it pinckney had come back and said you will have to deal with black us citizens? there wre multiple intentions, as mark graber pointed out. The problem with "originalism" and "intentions" is that we cannot know what it means; we can look at text (is Franck now a strict constructionist/textualist?); but the text says slavery is protected in many ways; intentions go beyond text to the debates (where they can help us, but of course mostly they can't). But on slavery it is quite clear the southern framers *intended* to support slavery and ratified with that intention. See Pinckney's speeches in SC or even Madison's and Randolph's in VA. Thus, on this point, it seems to be, as Mark Graber said earlier, that Taney's orginalism is as plausible as anyone else's; I would argue more so, given the proslavery nature of the constitution. I did not get into teh Dec of I, but the only reference to slavery there> is at the end, when the Dec complains about the king freeing slaves to fight against the patriots (He has incited domestic insurrections.) If something in the Dec. of I. was supposed to apply to slaves -- if that ws the *intent* of the DofI, I am sure the 40% of Virginia that was held in slavery would have been happy to know about it. But, neither the primary author (the Master of Monticello) nor very many other southern leaders, seemed to think that it applied. Now, that leaves Prof. Franck two alternatives. Either he can concede that the Dec. of I's authors did not intend it to apply to slavery or he can concend the founders, starting with TJ, of being dishonest, hypocritcal, etc. we agree on the territories clause; but I think Taney's 5th Amendment argument is powerful and goes to the heart of what slaveholders intended when the wrote and ratified that amendment. surely they did not intend it to be an abolitionist amendment; they intended it to protect their property. Lincoln's Cooper Union speech -- as well as his House Divided Speech and his debates with Douglas speeches are fine political rhetoric; I would have voted for him; but it is not great history. It is important for those of us who admire Lincoln, but who are modern scholars, to understand the difference between a great speech that fits and era, and serious historical analaysis. Lincoln was able to persuade the north that his view of history was how it ought to be, but that does not mean he was right about how it was. fortunately, Lincoln was neither an orginalist nor a text bound literalist. (ps, please excuse typoes, i am working with one hand, the other is taped up.) -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED]
-- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED]
