Hi Paul
As to whether Southern Slave states, in particular in Virginia and Maryland,
"encouraged" manumission, I think that you can make this argument based upon their
liberalization of manumission statutes during the revolutionary/post- revolutionary
war period. IN these states, a political decision was made during that period, within
a Slave society, to remove restrictions on manumission, in response to antislavery
arguments. Against the background of a society which had previously severely
restricted manumission, (Colonial Virginia had required governmental consent to free
slaves, and permitted it only in exchange for meritorious service (such as revealing
slave resurrection plots). ), moving from this system, to one which freely permitted
manumission, I think can be construed as "encouraging. " See for example A. Leon
Higginbotham, In the Matter of Color, Race and the American Legal Process, The
Colonial Period, and also Thomas Morris, Southern Slavery and the Law.Indeed,!
at the time of the founding, I think it can be said that most of the Southern
states, except South Carolina and Georgia, were ambivalent at best to the institution
of slavery, and wanted to phase it out.
The liberalization of manumission policies changed in the early 19th century, after
several events, including the revolution in Haiti and the Denmark Vesey rebellion
among others, which increased white fear of free blacks in their midst. So you get the
imposition of restrictions like those requiring freed blacks to leave the state, or
reimposing conditions on manumission. Also, slavery became more profitable. But that
was post- founding. ( i don't know the jefferson reference you are referring to - but
I wouldn't be surprised if it was 19th century Jefferson, not 18th century Jefferson.
Don't know though.)
As to whether Southerners themselves thought of blacks as citizens - I don't think I'm
going that far - but they wouldn't have to think of blacks as citizens themselves in
order to have allowed blacks who were citizens of other states to be citizens of the
United States. For example, they could easily have pressed for race based restrictions
on citizenship in the text of the Constitution, like those which were in
naturalization laws of the period. But they did not. Instead, "citizen" was undefined,
and matters indicative of citizenship such as voting rights were left to the states
(See for example Ilya Somin's post on this.) In any event, if the founders are the
"people of the United States" and not just the members of the convention, their views,
nost just Pinckney's should control)
I've been thinking about these issues, because I have been doing a lot of research
(including your articles which are great!). over several years (too many) on how the
Supreme Court has addressed cases involving race over time, (From Marshall through the
Warren court) and so I've spent a lot of time (too much time researching, not enough
time writing!)) trying to uncover the background historical context in which these
decisions were made. {My task was to figure out why they almost always seem to get it
wrong - I'll let you know when i decide.) Anyway, the more I have looked into it, the
more clear it is the simple stories we have learned about the history of race in
america are mostly untrue.
And thanks for the reference to your new book. I'm putting it next on my to read list
for this project. (neverending project - but its been fun!)
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: Wednesday, August 06, 2003 1:57 AM
> To: [EMAIL PROTECTED]
> Subject: Re: Dred Scott (was Scalia's Originalism)
>
> No slave states "enouraged" voluntary manumssion; Va. and Md. allowed it; there was
> some in SC as well and there was a small free black population especially in
> Charleston. No one in SC or GA thought of free blacks as citizens; In Va.
> Jefferson at least want to expell free blacks from the state. I have read an awful
> lot of the writings, speeches, letters, etc. of these folks and while there is no
> smoking gun (and this may be the difference between historians rachign conclusions
> based on massive amounts of primary sources and lawyers looking for a cold hard
> piece of evidence that a jury would buy) , it seems to me that the southern framers,
> from Md. to Ga. could not have imagine blacks as "citizens" in any meaningful way.
> The only exception might be NC where the very small number of free blacks had the
> same voting rights as whites.
>
> 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]
>
>
