Wednesday, January 19, 2022

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V. AFRICAN-AMERICAN CITIZENSHIP

Chief Justice Taney's opinion in Dred Scott v. divided people born in the United States and subject solely to its jurisdiction into three classes: citizens, slaves, and free negroes. Although the 13th Amendment abolished slavery, it did not on its face affect the status of free negroes. Nevertheless, the Civil Rights Act of 1866 stated that all persons born in the United States were citizens. Republicans supporting the statute believed that the amendment had effectively overruled Dred But how did it do so? A close look at the mechanism for this transformation reveals how the amendment could affect change in an area beyond its direct scope--not only black citizenship, but also racial discrimination by common carriers.

The 13th Amendment did not expressly make citizens of all African-Americans born in the United States. An opponent of black citizenship could argue, as Taney did in Dred Scott, that free blacks were not considered citizens under the original Constitution and that Congress could only confer citizenship on persons born abroad. Republicans argued that the 13th Amendment transformed the position of African-Americans and made it appropriate for Congress to state that change, as it did in the first section of the Civil Rights Act of 1865. The amendment destroyed the rationale for denial of citizenship.

Taney's controversial views rested on three premises: First, that negroes could be reduced to slavery. The 13th Amendment rendered the first premise irrelevant--no one could be reduced to slavery any more.

Taney's second premise contended that African-Americans were stigmatized by anti-miscegenation laws, but this was a weak premise from the start. The anti-miscegenation laws may have been stigmatic, but they restricted both races. Finally, Taney's third premise for denying citizenship to African-Americans was that American society viewed discrimination against African-Americans as necessary. He illustrated the third premise by showing that nowhere in the nation except Maine did they have civil and political rights equal to whites. He argued that the consequences of citizenship would endow blacks with privileges and immunities that were unacceptable to whites, such as the right to travel, freedom of speech, and the right to bear arms. Finally he said that this class of persons were governed by special legislation directed expressly to them, and always connected with provisions for the government of slaves, and not with those for the government of free white

Taney's home state of Maryland provided strong evidence for his final premise. Many laws discriminating against free African-Americans arose from concern to maintain the institution of slavery. Fearing slaves might revolt against their masters, legislatures prohibited unlicensed meetings of free blacks, possession of dogs and guns, and immigration into the state. Attempting to prevent slaves from escaping, states imposed licensing requirements for travel out of state and excluded free black testimony that might help free slaves or limit a master's power over them. Concerned that rebellious slaves might steal from their masters, states required licenses for African-Americans who sold farm goods.

In Dred Scott, Taney argued that free African-Americans were not citizens because they could have their rights stripped from them, but most laws stripped them of rights in order to maintain slavery. Because Taney's third premise flowed from slavery, abolition undermined his argument. When there are no slaves, there is no sense in having laws connected with provisions for the government of slaves Thus, the destruction of the institution meant that many racially-discriminatory laws lost their rationale.

The 14th Amendment resolved the question of African-American citizenship without the need for a court decision on the citizenship effect of the 13th Amendment. Nevertheless, the reasoning for the citizenship consequences of the 13th Amendment played a critical role in some judicial decisions in other areas.

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