Excerpted From: Michael Haggerty and Gregory P. Downs, Roger Taney: Intersectional Racist in an Age of Racist Differentiation, 24 7 University of Pennsylvania Journal of Constitutional Law 29 (June, 2022) (35 Footnotes) (Full Document)


HaggertyDownsIn his article Dred Scott and Asian Americans, Gabriel J. Chin creatively and persuasively reads the well-known, much-reviled opinion by Chief Justice Roger Taney in Dred Scott v. Sandford through Taney's little-known opinion in United States v. Dow to argue that Dred Scott “should be regarded as pertinent to all people of color, not only African Americans.” Through Professor Chin's incisive reading of Dow, Taney emerges as deeply engaged not just in the specific question of African Americans' rights but in a broader project of defining a “Christian white person” as part of a “master” race. Taney established historical and legal justifications for excluding non-white Christians from membership in the United States political community, those people with rights that others are required to respect. Chin's argument raises broad questions about the history and historiography of Asian exclusion, the impact of the Civil War and Reconstruction on constitutional and political history, and Taney's reputation in the early twentieth century, among many other issues.

What most interests us are two other, related points: first, Taney's vision of an interconnected history of the rights of “Christian white” people; second, Chin's argument that Taney “is entitled to attention” as

an historian, and as a legal realist describing the law as it actually was .... not only before, but for at least a century after the Civil War. Taney's work makes clear that like African Americans, Asians, Native Americans and other non-whites had no rights the law was bound to respect.

In this Essay we primarily address those two points: first, Taney as a proponent and defender of interconnected, even intersectional, racial ideologies; and second, Taney's representativeness as an historian and as a legal realist describing law and politics as they were. In Professor Chin's first claim, about the interconnected nature of Taney's racial thought, we find a fascinating insight into the construction of a predominantly Democratic vision of the white race that helped shape not only Taney's jurisprudence, but also his party's efforts to develop a constructed identity politics. Professor Chin's focus on the Naturalization Act of 1790 is a powerful rejoinder to many early U.S. historical narratives that examine race making solely with regard to people already in what became the United States. Taney's arguments about a white Christian master race in turn help center non-whiteness, not just Blackness or indigeneity, in early U.S. history with profound consequences. These are major claims and major contributions.

But we are not completely convinced by Professor Chin's claims about Taney as a reliable historian or as a legal realist. In the second half of the essay, we suggest that Taney's position should be read as one among a series of contextual, contested positions that emerged in the second quarter of the nineteenth century. Politicians and activists deployed this intersectional racism against political opponents who used other forms of exclusionist but particularist racial categorizations, what we call racist differentiation, as well as against a growing, even threatening, effort to construct potentially, if imperfectly, anti-racist arguments about citizenship and belonging by Black activists and some white allies. Setting Taney's opinions briefly within historical practices of context, sequence, conflict, and contingency, we hope to capture the power and also relative distinctiveness of Taney's efforts to develop an interconnected, perhaps intersectional, racism. We don't argue that Taney was wrong and that another single position on race and early U.S. history was right. Taney's intersectional racism constitutes one crucial, and under-appreciated strand of early American history with important ramifications for national narratives. But a history of the period must also be attentive to ideas and people Taney pretended to ignore but actually argued against: the more recently documented efforts of Black activists in the early national period, including in his own Maryland, as well as Taney's political opponents who defended other forms of exclusionist legal and political thinking.

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Chin's paper successfully breaks the Black-white binary in U.S. history, and it is reasonable to suggest that we have defensively argued in favor of both our discipline and our own areas of study, which emphasize the denials of rights and power to Black people. Our very defensiveness may be sincere evidence of the power of Chin's work to draw nineteenth century scholars focused on Black-white or white-indigenous relations to a consideration of early Asian history in the US and to early racial formations that did not solely turn on a Black-white-Native trinity. If Professor Chin's conclusions are not by themselves sufficient as a history of the period, they are a necessary directive to conduct the kind of research that would allow for a fuller multiracial history of law and practice, a history we urgently need, a history that his scholarship makes possible.

Michael Haggerty is a PhD candidate in the Department of History at the University of California, Davis.

Gregory P. Downs is Professor of History at the University of California, Davis.