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The political economy of blackness: citizenship, corporations, and race in Dred Scott.

On March 6, 1857, Chief Justice Roger B. Taney lashed out against the antislavery movement and simultaneously reaffirmed his court's support for the emerging corporate order. He did both in Dred Scott v. Sandford when he declared, accurately, that the Constitution recognized no black person as a citizen of the United States. The Dred Scott case, which also found that the federal government possessed no authority to limit the expansion of slavery into the territories, has long invoked contempt. As the antislavery lawyer John Appleton wrote shortly after the decision, "that the law has been disregarded or rather trampled under foot few will doubt." (1) Appleton's perception of a "mutilation of fact [and] subversion of the law" in Dred Scott anticipated the stance that underpins recent investigations into the citizenship question, which scholars now realize raised fundamental questions concerning race relations within American society. (2) By law, citizenship signified a legal relationship in which purportedly free individuals gave their allegiance to a sovereign community in exchange for the protection of a shifting bundle of rights that varied by race, gender, and jurisdiction. (3) According to Taney, however, no such relationship existed between the federal citizenry and free blacks: "They are not included and were not intended to be included." To the contrary, they were "considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race ... and had no rights or privileges but such as those ... the Government might choose to grant them." (4) The chief justice supported his contentions with a lengthy historical argument that Appleton, among others, described as "falsified."

The most striking aspect of Taney's argument involved not so much what he said but rather the excessive manner in which he said it. The assertion that the constitutional order existed for white people only was hardly a novel stance. Taney expressed a belief--widely held at all levels of society and throughout every region of the Union--that the perceived inherent inferiority of black people rendered them unfit for citizenship. Taney himself began working out his thoughts on the subject as early as 1832, when, as Andrew Jackson's attorney general, he defended South Carolina's policy of imprisoning every free black sailor that entered the state. (5) Despite its widespread character, the ideology of white superiority became increasingly contested in the antebellum period. Even in the Jacksonian South, as Lacy K. Ford has argued, the question of citizenship for free blacks remained open and deeply contentious; the debate was even more intense in the North and West. (6) Taney's analysis in Dred Scott was sophisticated enough to handle the resulting ambiguity and in fact represented an accurate reading of American law and history. Even so, the chief justice went out of his way to stress what he saw as the inferiority of African Americans before the law and within society. He could have presented the substance of his argument in a paragraph or two--perhaps in five pages if he wanted to be thorough. Instead, he allotted more space (twenty-four pages) to the citizenship question than he did to any other, including the explosive territorial issue (twenty-one pages). In those two dozen pages A. Leon Higginbotham counted twenty-one separate references to either black inferiority or white superiority. (7)

Behind the excessive display lay a pro-Southern political agenda. Taney's opinion, according to historian Don E. Fehrenbacher, expressed "the southern mood--fearful, angry, and defiant--in the late stages of a national crisis," and it launched "a sweeping counterattack on the antislavery movement." (8) This interpretation contains merit. The Taney Court's members, with a few exceptions, revealed little patience for antislavery legal arguments, and they had no qualms about undercutting antislavery litigation strategies. Taney's opinion closed a jurisdictional pathway that the Court's previous rulings unintentionally had left open to free black people, but this interpretation does not explain fully why Taney devoted nearly half of his opinion to what scholars characterize as a "rambling and repetitious argument" or, even less charitably, a "tortuous forced march." (9) In contrast to the territorial question, the justices faced no public pressure for a ruling on black citizenship, and, even if necessary to the resolution of the case, there was little need to address it at the level of detail that Taney employed. Historians at this point generally fall back on Taney's seething sectionalism, as Paul Finkelman terms it, and treat the ruling as a vicious, unprovoked, and unnecessary attack on free blacks and their white allies. (10)

These interpretations only partially account for the politics of Taney's citizenship ruling. The failure stems from an assumption that the Court mainly reflected the larger sectional crisis raging around it. In the leading work on Dred Scott, for example, Fehrenbacher located the explanation for the decision's outcome in the Southern-dominated Supreme Court's response to the political expressions of the crisis as it intensified in the 1850s. He consequently devoted the bulk of his study to explaining the origins of the political crisis and Dred Scott's impact on its subsequent development. Fehrenbacher certainly paid a great deal of attention to legal issues. His book's main contribution, although its interpretations are debatable, was the argument that Taney's rulings in the case were partisan in intent and wrong in substance. Even as he dealt with legal issues, however, Fehrenbacher gave high politics a privileged position. The cases he discussed, with a few exceptions, concerned only slavery, which his narrative easily accommodated, and he consistently fell back on the justices' partisan affiliations to explain judicial outcomes. In the end, Fehrenbacher's analysis of the Dred Scott case amounts to an analysis of the Southern mood as reflected in legal sources. (11)

Taney was certainly a Southern partisan, but the excess in his citizenship ruling stemmed as much from his desire to address an underlying issue of political economy as it did to strike against the antislavery movement. The issue in question did not concern abstract matters like the irreconcilability of legal regimes recognizing human property with those that did not. The members of the Taney Court--with perhaps two exceptions--believed fervently, if incorrectly, that the federal system allowed a reconciliation of those regimes. (12) The point of division, rather, centered on a concrete question concerning the standing of corporations. In the mid-1850s three of the Court's Southern justices formed a faction committed to closing the federal courts to corporate litigants, contrary to the practice that had reigned without controversy for nearly a decade. The Southern faction--which consisted of Peter V. Daniel of Virginia, John Catron of Tennessee, and John A. Campbell of Alabama--called for a significant shift in court policy and demanded a complete reconceptualization of corporate law. The Court's treatment of corporations, they argued, showed insensitivity to states' rights. Welcoming corporations into its jurisdiction, moreover, provided a body of precedent that free blacks could use to plead into the federal courts and evade the discriminatory laws of the Southern states and undermine the slave regimes. Instead of risking a destruction of corporate law as he knew and built it, Taney implicitly responded to his Southern colleagues in the citizenship portion of his Dred Scott opinion. Taney argued that black people had suffered such extreme discrimination because they were perceived as threatening by the white population. Consequently, they could in no sense be citizens of the United States. The excessive character of his argument quietly, and successfully, sought to convince his Southern colleagues on the Court that this exclusion applied only to black people as a consequence of their unique legal history, which singled them out for treatment different from corporations, women, and even other nonwhite people.

The distinction between corporations and free blacks went to the core of Dred Scott's politics. The case concerned protecting the emerging corporate order from the Court's more extreme members as much as it did resistance to the antislavery movement. Taney handled both by invoking an antiblack form of federal citizenship that centered on legal and, to a lesser extent, social discrimination against people of sub-Saharan African descent as the justification for excluding them from the polity. This essay employs the term "antiblack" instead of "racist" because the term conveys Taney's deliberate choice to elaborate the nature of citizenship along a black-white axis.

As Ronald Takaki and David Roediger have argued, such conceptual opposition inaccurately described racial relations in the United States. By 1857 the Union and its territories included indigenous peoples, Mexicans, and Asians as well as men and women of African descent and those of European origin who grasped for the privileged status of whiteness. (13) With the possible exception of Asians, Taney and his colleagues were well aware of this diversity, and they considered all dark-skinned people, together with white women and "artificial persons" (such as corporations), to be inferior to white males. Taney explicitly exempted Indians and white women from his citizenship ruling, and his emphasis on black people likewise entailed an implicit exemption of corporations and probably Mexicans. There was more at work here than inconsistency. Taney's narrow focus on the legal ramifications of blackness served a specific function within the structure of the Court's own rulings. The invocation of a citizenship that excluded only African Americans allowed Taney to address Southern concerns--which he shared--about free blacks' access to the courts without conceding to their demands for a complete revision of corporate law. Taney's antiblack vision of citizenship thus protected corporations as much as it did the embattled South. (14)

Taney's citizenship ruling continued a practice to which a majority of the Court had been committed since slavery cases began making regular appearances on the docket in the early 1840s. This majority, which shifted in membership over the years, believed itself obligated to protect slavery but struggled to do so in manner that would not result in a subordination of Court doctrine to the perceived needs of the South. Although the majority of justices on the Taney Court dismissed antislavery arguments out of hand, they considered the amount of support the federal government extended to the peculiar institution to be an open question. During the 1840s a minority of justices, led by Taney, asserted that the states held unlimited authority to treat their internal populations as they saw fit. Such power, the chief justice argued, emanated from the states' inherent power of self-preservation. A majority of justices, consistently anchored by John McLean of Ohio and James M. Wayne of Georgia, repeatedly rejected the minority's arguments. They insisted that federal power, within its constitutional sphere, trumped state power, and the Court would not alter its doctrine merely because a case involved slavery. Thus, in Prigg v. Pennsylvania (1842) the Court ruled, among other things, that the government possessed full regulatory power over the matter of fugitive slaves and that the states could not pass legislation designed either to hinder or to help masters. Likewise, the Court held in the Passenger Cases (1849) that the states could not use their taxing authority to discourage immigration into their territory, which meant that they did not possess full control over their internal populations. None of these rulings revealed a hostile stance toward slavery, but the minority believed that they stripped from the states too much power and impeded state efforts to control subordinate populations. These issues produced sharp divisions on the Court. In 1850 the justices attempted a compromise, but the controversy emerged two years later in the context of corporate law. (15)

The brief compromise took place when Taney conceded that the Constitution placed limits on the states' inherent power of self-preservation. The shift occurred in Strader v. Graham (1850), where the Court dismissed for want of jurisdiction an appeal from Kentucky's highest court. The state court held that a group of slaves sent by their master into free territory to work as musicians lost their claim to freedom, if any, upon their voluntary return to Kentucky. (16) Speaking for the Court for the first time on a slavery question, Taney dismissed the case. "Every state" he wrote, "has an undoubted right to determine the status, or domestic and social condition, of the persons domiciled within its territory." The statement sounded similar to those he had made in his defense of Negro Seamen Act as well as his opinions in Prigg and Passenger Cases. Recognizing his colleagues' lack of patience for his self-preservation argument, Taney added a qualification: "except in so far as the powers of the states are restrained, or duties and obligations are imposed upon them, by the Constitution of the United States." This passage struck abolitionists and subsequent historians as invidious--a possible signal that Taney and his colleagues considered those "duties and obligations" as a mechanism to force slavery into the Northern states. (17) The argument goes too far. Taney's qualification more likely conceded the limitations on state authority that the court had outlined in Prigg and Passenger Cases and indicated the chief justice's willingness to pursue his agenda within the constraints established by his colleagues.

Taney conceded that federal power sometimes trumped the states' control over their internal populations, but his new position still supported slavery interests. The chief justice expected Strader to define the Court's response to all cases involving slaves spending time in free territory. The Court's refusal of jurisdiction in effect forced all such questions down to the states and permitted their courts to address the matters with little fear of federal intervention. Taney went even further. He expressed satisfaction with the substance of Kentucky's ruling--although the merits of the case were technically not before the Court--and attempted to lay a doctrinal foundation that could handle all similar cases. The situation in Strader raised only the question concerning the status of an enslaved black "voluntarily" returning to a slave state after a stay in a free one. Taney's opinion, however, encompassed returns from territories covered by federal antislavery provisions, like the legislation involving the Missouri Compromise or the Northwest Ordinance. Those laws, despite their national origin, possessed only local applicability, according to him, and states therefore could treat territorial laws just as they would the laws of another state. Taney's decision to work within the constraints established by the Court's majorities in the 1840s allowed him to pursue his agenda for the security of slavery far more effectively. By 1852, in fact, a majority of justices were poised to reconsider the limitations that Prigg had placed upon the states' ability to aid masters in the recapture of fugitive slaves. (10)

Taney's attempted compromise brought him into the majority, but some of his Southern colleagues remained dissatisfied, and they repeatedly pointed to a weakness they saw in Strader. Because the Court decided no major slavery cases between 1852 and 1855, the debate took place in cases involving corporate law. The Southern faction called for a total rejection of the Court's doctrine because of its insensitivity to states' rights. Their concerns centered primarily on corporations' access to diversity jurisdiction, which allowed citizens of different states to sue one another in the federal courts. The Supreme Court had allowed corporations to sue as state citizens at least since 1809, although the Marshall Court insisted that every member of a corporation hold citizenship in a state different from the party they litigated against. The Taney Court unanimously rejected that cumbersome formulation in Louisville, Cincinnati, and Charleston Railroad Company v. Letson (1844). The court now assumed that corporations, for the purposes of jurisdiction, held citizenship in the state that chartered them. "A corporation created by and doing business in a particular state," Wayne wrote, "is to be deemed ... a person, although an artificial person, an inhabitant of the same state, for the purposes of its incorporation, capable of being treated as a citizen of that state, as much as a natural person." (19) In 1852. Peter V. Daniel broke with his colleagues and renounced the Court's entire approach to corporate diversity jurisdiction. The Marshall Court erred when it opened diversity jurisdiction to corporations, which he contended were artificial beings and therefore without the right to sue as citizens. Letson represented an even more egregious violation because it confounded residency with citizenship. The next year Catron and the newly appointed Campbell joined their colleague from Virginia, and in a succession of cases between 1853 and 1856 they attacked corporate access to diversity jurisdiction. (20)

This critique appeared unexpectedly; both Catron and Daniel held their seats during Letson and had never hinted that they found the ruling unsatisfactory. The sudden emergence of the antijurisdictional argument represented in part a response to a series of rulings in which the Court invoked the Constitution against state attempts, by either routine legislation or constitutional revision, to alter tax rates contrary to their express agreements with corporations. The Southern faction on the Court found these decisions disturbing. Catron and Campbell argued that the rulings effectively locked up millions of dollars and provided a foundation for a corporate aristocracy that would stifle the ability of the states to serve their populations.(21) All three insisted that the power of states to alter tax rates remained dependent on an inherent power of self-preservation. The justices advocated a complete rejection of the Supreme Court's corporate doctrine, but they continually revisited the question of diversity jurisdiction. Their concern focused on the implications of Letson's holding that a state's chartering of a corporation essentially created a federal citizen who could use that status to subvert state law. (22)

The Southern faction's concern extended beyond corporations. The subtext of the arguments centered on the ramifications of this doctrine for the security of slavery. Specifically, the Southerners' interest revolved around the ability of free black litigants to use corporate jurisdiction as analogies for their own situation. No one ever expressed the matter in those terms, perhaps because meeting the issue squarely would appear as an unwarranted departure from the cases at hand, but the dissenters structured their arguments so that they could speak to the question. The Southern faction advocated a denial of jurisdiction for corporations not only because those entities were artificial persons but also because they were at best merely "quasi-citizens." (23) Corporations, Daniel wrote, possessed only those rights and privileges enumerated in their charters, and that limitation placed them on level below that of the citizen. "Each citizen" he continued, "certainly does, under our system of polity, possess the same rights and facilities, and sustain the same obligations, political, social, and moral, which appertain to each of his fellow-citizens" (24) If the term encompassed corporations, then those organizations could hold office just like any true citizen. In the case of corporations, the contention was absurd. Yet their inclusion as citizens within the meaning of the Constitution, despite their limited rights, possibly could serve as precedent for free blacks who, like corporations, received recognition as citizens in some states, despite their limited rights.

Allowing so-called quasi citizens access to the federal courts immediately raised the issue of what rights they could claim under the Constitution. The problem with Letson, Campbell wrote, was that the decision begged the question of whether corporations could claim rights under the privileges and immunities clause. That provision secured to "the citizens of each State... all privileges and immunities of citizens in the several States." (25) The full scope of that clause remained highly contested in antebellum discourse, but federal rulings considered that it protected the rights of a citizen in one state to a wide range of basic liberties in all the others. This bundle of rights included, according to an 1823 circuit court ruling, the ability to pass through or reside in another state, to acquire property, to conduct business or pursue a profession, and to claim habeas corpus or sue in the courts. In cases involving white people, this access was unobjectionable, but quasi citizens could use their access to subvert state laws designed to regulate them. Corporate lawyers, for example, asserted that the provision required states to recognize in their clients, when doing business in their jurisdiction, the same rights as they would in a "true" citizen, understood to mean a white male. Such protection, Campbell and his two colleagues feared, would undermine state efforts to control the activities of out-of-state corporations, especially if the Court decided to enforce that clause as tenaciously as it did the states' contractual obligations to corporations. (26)

The anxiety appeared to be misplaced. The Taney Court consistently rejected arguments that the privileges and immunities clause extended to corporations, and its members gave no indication in the 1850s that they planned to adopt a new stance. The court insisted throughout this period that corporations, despite legitimate claims to diversity jurisdiction, were not citizens in any true sense. Unlike physical citizens, who inherently possessed certain rights, all corporate privileges came from the charters that created them. Rulings adamantly rejected attempts to claim rights beyond the charter. (27) Daniel, Catron, and Campbell, however, did not limit their arguments to corporations: they spoke of quasi-citizens in general. Again, these justices, without saying so explicitly, worried that free blacks could use the corporate jurisdiction cases as analogies for their own situation. The Southern faction accurately sensed that antislavery litigation strategy after Strader would emphasize diversity jurisdiction.

Dred Scott, in fact, initiated a suit diversity jurisdiction sometime after the Southern justices embarked on their crusade. Like their adversaries on the bench, Scott's counsel understood the implications of this strategy. According to one of Scott's lawyers, a suit in diversity not only exploited the jurisdictional path that Strader left open, but it also carried the potential for circumventing racially discriminatory legislation. "If in fact ... a black man may sue his master in the Federal courts" he wrote to another of Scott's lawyers, "the right of a trial by jury is still left to a slave in an action of common law, which if brought into the Federal courts may be enforced in the judgement throughout the Union)." Field believed this strategy could even defeat the Fugitive Slave Law of 1850, because the Constitution's explicit recognition of diversity jurisdiction would trump any contrary law passed by Congress. "This may be" he added, "a strong argument against allowing black men to sue as citizens." (20) Perhaps it was, but the Southern faction believed that the Court was vulnerable to such an argument, especially because the barring of corporate quasi citizens from the privileges and immunities clause rested on their chartered character. Free blacks, if embraced as citizens, had no charters; they were natural persons, and the charter argument would certainly fall apart if extended to them. The Court's rulings on corporate citizenship opened the racist policies of states, especially the Southern ones, to possible challenge in the federal courts.

The Court's majority--this time with Taney sitting silently within its ranks--again rejected calls to shape Court doctrine to the perceived needs of the South. Grier, speaking for the Court, defended Letson by emphasizing the inconvenience that a rejection of that decision would cause. The case had settled the jurisdictional question; no justice dissented, and the federal courts had since integrated it into practice. "If we should now declare these judgements to have been entered without jurisdiction or authority" he wrote, "we should inflict a great and irreparable evil on the community." The Court's recognition of corporate citizenship for the purposes of jurisdiction, Grier continued, secured an important right because it allowed litigants access to a neutral federal court. Asserting jurisdiction over corporations allowed litigants to move their case into a forum allegedly less susceptible to the influence of corporate wealth and power; it also gave corporations a like privilege in states "where local prejudices or jealousy might injuriously affect them." (29) This neutrality happened to be precisely what troubled the Southern faction, but the Court rejected their arguments. The majority of the Supreme Court's members, although hardly unsympathetic to slaveholders, repeatedly demonstrated that they would not prostate federal power to Southern interests. They resisted Taney's efforts to do so in Prigg and in Passenger Cases. After Taney joined them in 1850, they continued to do so as they rebuffed Daniel, Catron, and Campbell's efforts to reconceptualize corporate doctrine in a manner that would supposedly render it less threatening to the Southern states.

The Court could not merely ignore the Southern faction's critique. Their arguments exposed a weakness within Strader's effort to force questions of social status back to the states. The opinion handled only suits appealed directly from state courts but made no provision for cases, like those in diversity, that originated in federal courts. How the Court would handle questions of black citizenship through that avenue was not dear, although Wayne and Field predicted the outcome. (30) Daniel, Catron, and Campbell's approach, moreover, elevated the stakes of the debate. Between 1853 and 1856 they dissented as a bloc and called for not only a closing of diversity jurisdiction to so-called quasi citizens but also a complete rejection of the Court's corporate doctrine. This line of cases, resting on the landmark Dartmouth College (1819) and Charles River Bridge (1837) decisions, barred the states from rescinding any power or privilege they had explicitly granted to a corporation. (31) These rulings on the relationship between state and corporate power constituted one of the Court's most influential bodies of doctrine, and many investors entered corporate agreements with expectations that explicit grants would receive constitutional protection. (32) A sudden rejection of the Court's previous decisions carried unsettling consequences. Consistent signs of dissatisfaction coming from one-third of the Court's members rendered those decisions vulnerable, especially if the court's composition changed or if lawyers decided to exploit those divisions. Taney perhaps believed that the Southern faction's criticism required a response that would appease its members' fears without disturbing the Court's corporate rulings. In Dred Scott an opportunity emerged to overcome the limitations of Strader.

The failure of Strader owed much to the legal strategy developed by the Scotts' counsel. Dred and Harriet Scott and their two children had engaged in a legal struggle for their freedom since 1846. According to the statement of facts submitted by counsel, the slave Dred Scott once belonged to one Dr. John Emerson of Missouri. In 1834 Emerson, a surgeon in the army, took Scott to Fort Armstrong, Illinois, where he held him as a slave for around two years. In 1836 Emerson transferred to Fort Snelling, a post located in the area closed to slavery by the Missouri Compromise. He took Scott with him. The same year Emerson purchased Harriet, a slave taken to Fort Snelling in 1835. Emerson allowed Dred and Harriet to marry, and they had two children--one of them born in the territory covered by the Missouri Compromise legislation. In 1838 Emerson took the Scott family back to Missouri where he continued to hold them as slaves until he sold them to John F. A. Sanford (spelled "Sandford" in the court documents), a citizen of New York. The statement of facts contained several inaccuracies. John Emerson, for example, died a few years before the suit began, so he could not have sold the Scott family, although his wife, Irene, could have done so. There is also some question as to whether Sanford actually owned the Scotts, although the details of this issue are technical and largely irrelevant to the outcome of the case. No one challenged Sanford's ownership of the Scotts, and Sanford, who could have quickly ended the case with such an admission, never denied his claim. (33)

By claiming Sanford as their owner, the Scotts overcame the obstacles of the state courts. In 1846 the Scotts initiated their suits for freedom against Irene Emerson, citing the time spent in Illinois and at Fort Snelling. Since the 1820s the Missouri state courts had looked favorably on slaves with cases similar to the Scotts. The existing case law strongly supported their claims, but the state supreme court repeatedly signaled that its policy was contingent on the free state's laws concerning slavery, especially questions of transit. Emerson, hoping to wear the Scotts down before they inevitably defeated her, delayed at every opportunity.

As the case worked its way through the courts, however, Missouri politicians became embroiled the sectional crisis that emerged in the wake of the Mexican War. Those events exerted a decisive impact on the Missouri Supreme Court, and in Scott v. Emerson (1852) the judges overturned the state's previous case law. (34) The Scotts remained slaves, despite their stay in free territory. Rather than appeal the case directly from the state court, which would have brought the case squarely within the confines of Strader, the Scotts and their lawyers initiated a completely new suit in federal diversity jurisdiction. Claiming citizenship in Missouri, Dred Scott filed against Sanford, the family's new owner and a citizen of New York, for false imprisonment. Sanford challenged the jurisdiction of the court, claiming Scott was of sub-Saharan African descent and therefore not a citizen, but the circuit court rejected the argument. The court, following Strader, eventually ruled against the Scotts. (35)

When the case came before the Supreme Court, the justices likewise contemplated an invocation of the Strader doctrine against the Scotts. In the early discussions of the case, a majority of the court--McLean, Catron, Grier, Campbell, and Nelson--agreed that a discussion of the jurisdictional question was improper. The majority also believed that the Missouri Compromise restriction had no bearing on the case. Charged with writing an opinion of the court, Nelson of New York composed a brief opinion, arguing that the Missouri Supreme Court had already ruled in Scott v. Emerson that slaves returning from free territory remained enslaved. Adhering to the policy outlined in Strader, the court was bound to follow those rulings. When Nelson lost his opportunity to speak for the Court because his colleagues decided to address all the issues in the case, he eventually filed his argument as a separate opinion. The reasons for this shift remain cloudy. Justice Wayne, who made the motion to consider the full case, cited public expectations that the Court would address the territorial question, and the justices certainly must have felt a great deal of pressure, in both public and private, to confront it. Catron and Grief, in separate communications to president-elect James Buchanan, argued that the two dissenters, McLean and Benjamin R. Curtis of Massachusetts, "forced" the Court to expand its scope. "Forced," as Fehrenbacher implies, may have been too strong a word, but the Northerner's critique of Nelson's position may have given their colleagues pause. (36)

McLean, in fact, convincingly exposed Nelson's use of Strader as an evasive and arbitrary strategy that remained, on a doctrinal level, out of step with the Court's most recent rulings. Despite his reliance on the 1850 decision, Nelson did not rest his argument entirely on Strader, which allegedly bound the Court to follow the state ruling. The justice devoted a great deal of energy to defending Scott v. Emerson, and he pointed out, correctly, that other states had issued similar decisions. He even demonstrated, to his own satisfaction, that Scott v. Emerson was consistent with Missouri's seemingly more liberal previous rulings. (37) Nelson fell onto the merits because, despite his assertions to the contrary, the Court was not bound to follow Missouri's decisions on slave status when cases originated in diversity jurisdiction. As McLean argued in his dissent, the Supreme Court did not consider itself bound to follow state decisions unless they involved the construction of the relevant state's constitution or statute law. Scott v. Emerson, McLean correctly asserted, met neither of those conditions. It overturned thirty years of settled case law because a majority of the state court's members resented "the excitement against slavery in the free States." (30)

The Court had no obligation to follow Scott v. Emerson. In the immediately preceeding term, the justices refused to follow a Michigan decision because its court had broken suddenly with its previous rulings. "When the decisions of the State court are not consistent," said McLean quoting the ruling, "we do not feel bound to follow the last, if it is contrary to our own convictions." That sentiment became stronger in cases "where, after a long course of consistent decisions, some new light suddenly springs up, or an excited public opinion has elicited new doctrines subversive of former safe precedent." (39) McLean quoted Grier, now siding with the majority along with several others who had acquiesced in that ruling; only Campbell and Daniel dissented. McLean, together with Curtis's relatively weaker contribution on this point, revealed the Court's use of Strader to be an unabashedly policy-oriented strategy that in no way closed the discussion of Dred Scott's larger issues. The two dissenters therefore felt justified in addressing all the questions, and their decision to do so probably encouraged their Southern colleagues to do likewise (and some of them would have done so anyway). The fragmented majority selected Taney to speak for the Court, although most of the justices still wrote their own opinions. With the chief justice in the lead, the Court squarely confronted Dred Scott v. Sandford. (40)

Without the need to follow Strader, Taney had an opportunity to discuss the vexing issues that Dred Scott raised. His intervention into the territorial question, the central political debate of the decade, did little except to cause more problems for federal policymakers. (41) His ruling on the less controversial topic of African American citizenship, however, effectively addressed divisions on the Court that had developed since 1852. Even so, Taney's arguments on black citizenship, along with his analysis relevant to the territories, remained in a state of development when he delivered them from the bench on March 6, 1857. The chief justice spent several months revising his opinion after the decision was rendered--an unusual practice that angered some of his colleagues. He later wrote a supplement for the opinion in case the issue emerged again. (42)

Because Taney revised his opinion extensively, the reported decision provided an inaccurate portrayal of what he said from the bench, and, as Fehrenbacher notes, newspaper accounts are too sketchy to allow systematic comparison. The most reliable pieces of evidence concerning the substance of Taney's arguments in March 1857 are the two sets of Taney's heavily revised page proofs housed in the National Archives. (43) Those documents, the earlier one especially, revealed that the chief justice delivered an opinion of considerable legal and historical sophistication in which he channeled racist elements inherent within constitutional law toward the fulfillment of his immediate policy goals. Emphasizing the racist character of the federal regime as it affected blacks specifically, Taney used the denial of black citizenship to close the jurisdictional avenue that Strader had left open and thus to eliminate the perceived need to bar all quasi citizens from diversity suits.

Dred Scott marked a departure from the Court's previous rulings on slavery because the decision rested explicitly on considerations of black inferiority. The discussions in Prigg, Passenger Cases, and Strader all centered on whether the states possessed an inherent power of self-preservation that superceded federal authority. A working assumption of white superiority, of course, implicitly ran through the Court's discourse and influenced its members' thinking. In Prigg, Justice Joseph Story of Massachusetts coldly ignored the plight of kidnapped free black people, and in Passenger Cases, Grier praised the Union's immigration policy for its attraction of white Christians. Indeed, a lawyer once lectured the Court on the enormity of incest by comparing it to miscegenation. (44) Despite its presence in the background, this assumption exerted little overt influence over the Court's rulings. Even Taney, who argued in his opinion on the Negro Seamen Act that the Constitution existed for the benefit of white people only, refrained from deploying such arguments on the bench and relied instead on discussions of inherent state authority. The only exception to this pattern occurred in 1846, when Taney, speaking for a unanimous Court, upheld a murder indictment against John Rogers, a white man protesting the Court's jurisdiction because of his membership in the Cherokee Nation. Taney rejected the argument, saying that federal law made no provision for white people to "throw off all responsibility to the laws of the United States." This racist conception of the polity usually remained understood. As late as 1854 a unanimous Court ruled that the treaty of Guadeloupe-Hidalgo incorporated nonwhite Mexicans as citizens of the United States. (45)

In Dred Scott Taney reasserted his racist conception of the polity in the form of a federal citizenship that was specifically antiblack. The chief justice, as numerous scholars correctly argue, planned to shut African Americans out of the federal court system, but the Maryland justice's motivation stemmed from more than his opposition to the antislavery movement. Taney constructed his ruling so that it realized the barring of black people without requiring major revisions of the Court's rulings on corporate standing. The chief justice's strategy depended on a rhetorical isolation of African Americans from not only white males (normative citizens) but also other subaltern segments of the population, such as white women and minors and other nonwhites in general. Taney explicitly exempted both Native Americans and women from his citizenship ruling. Different rules applied to Indians, he argued, because they generally lived under the jurisdiction of separate tribal groups. Their subordination to the government, Taney emphasized in his later revision, mattered little for the purposes of his analysis. White women and minors also suffered under various disabilities, but Dred Scott did not apply to them; their status derived from their husbands and fathers. Taney did not provide wholly satisfactory explanations on these points. Still, the construction of citizenship along a black-white male polarity allowed a focus on what Taney considered to be the primary factor barring people of African descent from the polity: their history of enslavement and subsequent degradation within American legal culture. This background implicitly explained why some quasi citizens had access to the federal courts while others did not. (46)

Before he took up that issue, however, Taney elaborated a sophisticated theoretical framework that sustained his antiblack vision of citizenship. This aspect of the opinion has eluded scholars, who focus on its partisan and racist character. Such emphasis is neither surprising nor unwarranted. Indeed, the chief justice made the work of subsequent readers more difficult because he silently relied on Daniel's concurring opinion for an important part of his ruling's conceptual framework. Without Daniel's concurrence, Taney's argument is not readily understandable. Indeed, the chief justice insisted that his ruling first appear alongside the other opinions given in the case, and he prohibited anyone, his colleagues included, from gaining access to the document until it had been published in the United States Reports. (47)

Taney issued this order around the time Justice Curtis initiated inquiries about the revisions, and the rule was certainly self-serving. Still, the chief justice's insistence may have stemmed in part from his dependence on the concurring opinions. Most analyses of Dred Scott slight these documents and generally cite them to show that Taney's ruling had very little support even among the majority. Separate opinions need not always imply disagreement; sometimes they elaborated on issues that the majority neglected to discuss in detail. Such tactics allowed the majority to retain focus on the most important, or the least controversial, issues in a case. Taney, for example, said very little about the impact of Illinois law on Scott's status; he relied on Nelson for that. Likewise, he wrote little about the nature of state citizenship; he simply began his analysis where Daniel left off. No discussion of Taney's opinion should begin without consideration of the argument presented by the chief justice's Virginia colleague. (40)

Daniel contributed to the conceptual underpinnings of Taney's vision of citizenship by examining the ways in which the master-slave relationship limited the prospects of free black people for state citizenship. The justice pursued this subject with alacrity. Daniel came closer to being a "pro-slavery fanatic" than any other member of the Court. Although he rose to political prominence through his contributions to the alliance between the Richmond junta and the Albany regency, the elite foundations of the Democratic party, Daniel adopted an increasingly sectional orientation after he came to the Supreme Court in 1841. His opinions, often written in dissent, displayed a consistent opposition to the increase of federal authority and a growing concern for the safety of slavery. By the mid-1850s Daniel, along with Catron and Campbell, mounted a sustained attack against the Court's corporate doctrine because it supposedly represented a threat to state sovereignty and, by default, slavery. (49)

Daniel's critique of the Court's corporate rulings rested heavily on his contention that corporations were quasi citizens and hence not entitled to diversity jurisdiction. A similar analysis underlay his objection to Dred Scott's attempt to use that same avenue. Daniel's arguments concerning citizenship drew on what lames Kettner has termed the doctrine of election. This doctrine became a basic premise of American citizenship law, as jurists, roughly between 1776 and 1830, conceptualized the polity as sovereign community of equal, white, male citizens who voluntarily subordinated themselves to the law in exchange for the protection of their liberties. Citizens, in other words, chose their sovereigns. (50)

Although Daniel grounded his argument on this premise of consensual allegiance, he emphasized the sovereign community's power to choose the citizens it incorporated. Dred Scott's assumption that free black people held citizenship in their states of residence, the justice argued, required a consideration of how the possession of slave status allowed African Americans to consent to the governments that ruled them. Citizenship, Daniel contended in language similar to that he used against corporations, conveyed "ideas of connection or identification with the State or Government, and a participation of its function" (51) The term implied the possession and enjoyment of a body of rights on an equal basis with the other members of society, and it further presupposed that this equality promoted the population's general welfare. The doctrine of election, moreover, asserted that citizens consented to the social and political arrangements under which they lived. It rested on two further assumptions. First, all members who formed the society possessed the ability to give and withhold their consent. Second, the people whom the citizenry embraced as equals posed no threat to the social order. (52)

Slavery raised problems for both assumptions. The master-slave relationship eclipsed any possibility that someone held in bondage could give or withhold consent within the terms recognized by antebellum legal theory. The premise underpinning the law of slavery held that bondspeople possessed no will of their own. Slaves, as Judge Thomas Ruffin of the North Carolina Supreme Court noted in State 11. Mann (1829), surrendered their wills "in implicit obedience to that of another." That submission rested on force, not consent, and was, Ruffin admitted, "the consequence only of uncontrolled authority over the body." Taking this premise for granted, Daniel contended that slaves had no legitimate social or political relationship with anyone except their masters. Enslaved persons stood at law as "strictly property, to be used in subserviency to the interest, the convenience, or the will, of his owner." Slaves had no duty toward, no obligation to, and received no privileges from any person other than their masters. (53)

No one argued that the Court should recognize slaves as citizens, but Daniel maintained that the master-slave relationship exerted a perpetual influence over free black people. According to Scott's counsel, emancipation brought on by the master's voluntary act or not instantly produced a citizen. The lawyers suggested that manumission transformed the slave, in Daniel's words, "from a mere subject of property, into a being possessing a social, civil, and political equality with a citizen" Manumission, therefore, "will make him a citizen of the State within which ... he was a slave." To Daniel the argument carried dangerous implications, especially for a state's ability to regulate the social standing of its inhabitants. Scott's counsel advocated in effect that an individual held the power to incorporate a new citizen into a state's body politic--"without co-operation or warrant of the government" and "perhaps in opposition to its policy" The power to create new citizens, they implied, lay beyond of the control of the government. (54)

State policy, however, revealed that governments in the United States maintained a tight control over whom they admitted as citizens. Many states refused to incorporate free black people at all. Illinois, Indiana, and Iowa, for example, barred free African Americans from entering their borders--although masters retained the right to bring their slaves into those states. (55) Other states allowed free blacks to live within their borders but not as citizens. The Supreme Court of Georgia asserted that any rights that free persons of color enjoyed within the boundaries of the state stemmed from the whim of the legislature and not their free status. (56) However, North Carolina, Massachusetts, Pennsylvania, and Louisiana had no difficulty in declaring free people of African descent to be citizens, but each placed restrictions on that portion of its population. Massachusetts forced the children of its free black citizens to attend different schools from white people, and the supreme court of North Carolina held that white citizens possessed the right to beat citizens of color for insolence. Emancipation by itself guaranteed little beyond freedom, and any rights that free blacks enjoyed rested on the whim of the white-dominated governments under which they lived. (57)

Taney's discussion of federal citizenship drew heavily on the doctrine of election as outlined by Daniel. The Virginian's argument that the creation of black state citizens required a two-step process--emancipation and a subsequent incorporation into the polity--infused Taney's opinion. The influence emerged clearly in the chief justice's discussion of the relationship between citizenship and discriminatory legislation targeting black people. Those laws, he argued, marked white citizens' association of free blacks with the so-called slave race and underscored that they considered this segment of the population not as fellow citizens but rather as a threatening presence. Indeed, Taney's revisions showed the chief justice incorporating Daniel's stance, for he modified all of his references to black citizens in a manner emphasizing that they held their rights at the whim of the white population. Daniel, in turn, revised his manuscript to emphasize that his opinion applied to people of sub-Saharan African descent. (50) Taney may have found this aspect of Daniel's argument useful because it allowed him to achieve his two policy goals simultaneously. On one level the doctrine of election's accommodation of racial distinctions provided Taney with a conceptual foundation justifying the exclusion of free African Americas from the federal courts. On another it allowed him to argue, in terms acceptable to his Southern colleagues, that the Court could do so without shutting itself to all quasi citizens. Taney implicitly met the latter goal by emphasizing (accurately) that policies of black exclusion reflected a widespread assumption, held since the founding, that free black people constituted a threat to the Union's white-dominated social order. That assumption, Taney argued, required that the Court treat free black people differently from other quasi citizens.

Before making that argument, Taney built on the conceptual structure that Daniel provided and put forth his main legal point: federal law excluded African Americans from citizenship, even while some state laws did not, because state and federal citizenship constituted starkly different forms of political association. States possessed governments of inherent authority and bore the responsibility for regulating the health, safety, and morality of the American people. They held the power to incorporate anyone they wished into their own body politic. They were free to extend rights associated with citizenship to recent immigrants or newly emancipated slaves. If state leaders saw these groups as a threat, they could deny such persons citizenship. Nothing could stop them. (59) A state's power to create new citizens stopped at its borders and conferred no legal standing within any other state. Federal citizenship provided those who possessed it with rights outside of their home state and with privileges such as the ability to sue in federal court. Only the federal government possessed the authority to create these new citizens, just as only the states, within certain limits, could decide who were citizens within their borders. There were only two ways that people could attain federal citizenship: by tracing their descent to people who became federal citizens at the ratification of the Constitution or to people of foreign birth who became naturalized. The states held no power, he wrote, to "introduce a new member into the political community created by the Constitution of the United States." States could not make people federal citizens by recognizing them as state citizens. By no means could a state "introduce any person, or description of persons, who were not intended to be embraced in this new political family, which the Constitution brought into existence, but were intended to be excluded from it" (60)

The United States thus recognized two distinct forms of citizenship: state and federal. Access to each rested under the control of their respective governments. This position formed the crux of Taney's argument, and it sat squarely within the general drift of Supreme Court doctrine since the mid-1820s, which emphasized the division of governing authority among nearly independent policy centers. (61) The chief justice's argument also remained in line with the actual practice of citizenship policy. Since 1795 Congress had preserved the naturalization of aliens as an exclusively federal domain, leaving the states with no power to create United States citizens. Indian policy, moreover, demonstrated that birth on American soil did not automatically confer federal citizenship. The decision to recognize Native Americans as members of their tribal governments rather than as individuals meant that they lived under the dominion of the United States without being citizens. "The simple truth is plain," wrote United States Attorney General Caleb Cushing in 1856, "that the Indians are the subjects of the United States, and therefore are not, in mere right of home-birth, citizens of the United States." Native Americans in their tribal groupings stood as "domestic subjects" of the government and not as its "sovereign constituent ingredients." (62) The Supreme Court found the same for free black people. From a doctrinal standpoint, Taney's ruling has proven difficult to refute, which explains why Dred Scott required a constitutional amendment to overturn and why few of Taney's critics bother to address the argument at this level. (63)

The next part of Taney's argument attracts a large amount of criticism. Through historical analysis Taney demonstrated that the framers, by intention, excluded black people from the federal polity and that the government had maintained a strict line of racial division since that time. No government in the United States, state or federal, embraced African Americans on a level of racial equality, either before the founding or afterward, and none of them extended the same rights to black people as to white people. Governments refused to do so, Taney argued, largely because they considered a free black population a threat to social stability. The policy decision to regard people of African descent as inferior and to keep them in a perpetual state of submission, Taney asserted, relegated them to a second-class or quasi citizenship that locked them out of the polity. In this portion of his opinion, the chief justice employed a level of detail that many scholars find excessive and offensive. There were, however, strategic reasons for this approach. Taney wanted to compromise the dissenters' critique of his position. He admitted to Curtis that, after hearing their arguments, he added references "regarding the historical facts and principles of law which were stated in the opinion as too well established to dispute." (64) Yet his use of detail worked on another level as well. Through his laborious account of discriminatory legislation targeting free blacks, Taney implicitly explained why federal policy excluded free black people but not other types of quasi citizens.

After a litany of references to black inferiority--including the opinion's most infamous phrase that African Americans "had no rights which the white man was bound to respect"--Taney came to the point behind the manufacturing of all this detail. (65) The states impressed these "enduring marks of degradation" on black people because they considered racial equality dangerous to social stability. Free blacks' claims to federal citizenship threatened to undermine those discriminatory policies. Federal citizenship recognized a political equality among those who possessed it, and for that reason only members of the highest class of citizens in each state received its blessings. "It cannot be supposed," Taney wrote, that the states "intended to secure to [free blacks] the rights, and privileges, and rank, in the new political body throughout the Union, which every one of them denied within the limits of its own dominion." (66) The framers understood, contended the chief justice, that citizenship enabled black people to escape the laws that held them in submission and thus endanger the white population. Under the privileges and immunities clause, free black people could enter any state in the Union and demand the same treatment that white citizens received. These visitors could come to a state "whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation" The state could do nothing to stop this influx unless African Americans committed a crime that would make a white liable for punishment. Finally, citizenship would allow black people the rights to "the full liberty of speech in public and in private upon all subjects ... to hold public meetings upon political affairs, and to keep and carry arms wherever they went" (67)

In this passage Taney constructed the privileges and immunities clause broadly and treated it as if it were a color-blind provision that secured African American citizens the same rights as white people. He probably had strategic reasons for doing so. The Southern faction's criticism of the extension of citizenship to corporations, for the purposes of diversity, rested on an equally broad construction of the clause. Campbell warned in 1853 that the policy would "undermine every limitation in the Constitution, if universally adopted." (60) Taney met the Southerners' critique by applying their broad interpretation of the clause to free black people. He then asserted that the consequences of their inclusion into the polity were potentially so devastating to the Southern states that they never would have joined a Union in which African Americans could become citizens. Taney, of course, read contemporary Southern concerns back into the past and most likely projected into the minds of the framers his own fears about a black-led abolition movement in the South. (69) Even so, the chief justice's argument possessed a solid doctrinal foundation, for the framers may well have intended the provision to be color blind. During the drafting of a nearly identical clause for the Articles of Confederation, as Curtis pointed out in his dissent, the delegates explicitly rejected an attempt to limit it to "free white inhabitants" only. Taney accepted that argument, but he did not agree that this color blindness implied possession of federal citizenship. (70)

The chief justice rather maintained that the discriminatory legislation enacted around the ratification of the Constitution pointed toward an assumption that the newly created polity did not embrace free black people. There is no evidence that the framers had much concern for this segment of the population, which was quite small in 1789. If their treatment of enslaved black people provides any indication, the framers considered them wholly expendable to the needs of the federal system. The Constitution thus left them at the mercy of the states in which they lived, and it made no provision, barring amendment, to incorporate them later. (71)

Again, Taney confined his opinion solely to black people. Although there were other segments of the population that held a sort of quasi citizenship-women, children, and corporations--only African Americans were completely excluded from the federal polity. This exclusion, Taney argued, originated in a historical experience that had placed them at the bottom of the social order. Only black people belonged to a racial group that had been forcibly removed from another continent and transported to the United States to work as slaves. Only the members of that race suffered under the total deprivation of legal rights that sustained the peculiar institution. The perceived needs of that institution, which certainly shaped the minds of the framers, demanded that free black people likewise be kept in a state of subordination. The resulting exclusion of free blacks from citizenship, however, did not aid the South only. It also allowed the free states in the North and West to pursue unhindered their policies of racial subordination.

Taney's combination of the doctrine of election, a federal citizenship dependent on state citizenship, and an emphasis on the racism inherent within constitutional law allowed him to meet his two immediate policy goals. He cosed the jurisdictional gap that Strader had left open. That decision, Taney stated in closing, should have controlled Dred Scott in the federal courts, but the" indirect and circuitous way" of avoiding that ruling required a different strategy. (72) The denial of black citizenship thus represented a continuation of Strader's effort to force all questions of social status, with the exception of the handful of instances covered by Prigg and the Passenger Cases, back to the states. At the same time, Taney implicitly responded to the Southern faction's critique of corporate diversity jurisdiction. His stress on discriminatory legislation as a restraint on the threat of free black people to the social order, especially in the South, allowed him to distinguish free African Americans from other quasi citizens. Taney's invocation of a specifically antiblack form of federal citizenship embodied the stance toward slavery to which a majority of the justices had clung since the 1840s, and which Taney himself adopted around 1850. The justices would protect slavery--they perceived a constitutional duty to do so--but they would not do so in a manner that subordinated court doctrine to Southern interests. Taney's detailed account of what he called these "deep and enduring marks of inferiority and degradation" thus sought a justification for a seemingly inconsistent approach to quasi citizens. (73) The Court accepted corporate claims to diversity jurisdiction while rejecting those of black people because the latter group, unlike the elite white men who benefited from corporate organization, possessed a legal history rooted in slavery and continuing racial subordination. That history, Taney argued, demanded that the Court treat free blacks differently from all other litigants, but there was no need to close the Courts to all quasi citizens. Taney's strategy worked, but its success was not immediately evident. The issues in Dred Scott deeply divided the justices. On the citizenship question they split both over whether the matter was properly before the Court and whether the rejection of black federal citizenship was legally correct. Catron maintained privately that this portion of Taney's ruling did not enjoy the support of a majority. He and the dissenting John McLean adhered to the Court's earlier position that the question was not before the Court. Campbell, who like Catron agreed in Dred Scott's outcome, held this position for a time, as did a number of other justices. In his proof sheets, however, the Alabama justice crossed out his explicit agreement with Catron and indicated--somewhat ambiguously--his acquiescence in the majority's later decision to consider all the issues in the case. (74) McLean and Curtis also disagreed strongly with Taney's ruling on free black people and federal citizenship. Many historians, in fact, argue that Curtis's dissent bested Taney's contentions on both legal and historical grounds, although a growing number of scholars question that interpretation. (75) At any rate, Curtis was perhaps the least satisfied with the Dred Scott ruling, especially because he believed that Taney's revisions targeted him. "No one can read them" he wrote, "without perceiving that they are in reply to my opinion." Curtis resigned from the bench at the end of the term. Only Daniel and Wayne registered explicit agreement with Taney. The other justices, as Fehrenbacher has persuasively argued, silently acquiesced in the ruling. (76) Yet despite the internal disagreements and the wider political fallout engendered by the Court's ruling on the territorial question, Dred Scott effectively broke the Southern faction.

Taney's strategy showed signs of success by the next term. In Covington Drawbridge Company v. Shepherd (1857) the chief justice, who before Dred Scott remained silent on these issues, reasserted the Court's position in Letson. For the purposes of diversity jurisdiction, the Court considered corporations to be citizens of the state that chartered them. As he reviewed the case law, however, Taney subtly shifted the doctrinal emphasis away from the corporation itself and placed it on the members who composed those entities. "Now, no one," he stated, "ever supposed that the artificial being created by an act of incorporation could be a citizen of a State in the sense in which that word is used in the Constitution of the United States." (77) Taney did not mention that Wayne's Letson opinion was quite susceptible to such a reading. Rather, the Court merely presumed that the members of a corporation all held citizenship in the charting state. In practical terms, this shift changed nothing; but ideologically, Taney redirected the focus from corporate quasi citizens to the elite white men who more than likely composed them. This emphasis combined with the previous term's invocation of an antiblack federal citizenship destroyed the need for further conflict over corporate diversity jurisdiction. In contrast to their behavior before Dred Scott, both Catron and Campbell joined the majority; the latter even explicitly concurred in the result. Only Daniel, an ideological purist, dissented. The Court, he argued, "wholly failed to bring conviction to my mind, that a corporation can be a citizen." (78)

The Virginia justice, who died in 1860, spent his remaining time on the bench as a lone dissenter against corporate diversity jurisdiction. His former partners, whose subsequent behavior revealed them more concerned with questions of black citizenship than with corporations, became staunch members of the majority. By the 1858 term, Catron and Campbell were both speaking for the Court in diversity cases involving corporations. (79) In contrast to their posturing before Dred Scott, the two former members of the Southern faction dropped their analyses of the corporate threat to states' rights. They now followed the example of the rest of their colleagues and treated corporations no differently than they did other litigants. Taney's handling of the citizenship question in Dred Scott thus allowed the federal courts to close themselves to free blacks without making major alterations to the treatment of corporations. This strategy continued the Court's policy of protecting slavery without subordinating its doctrines to Southern concerns, but it also provided a boon to emerging corporate interests. Lawyers became increasingly aware that their corporate clients could use federal diversity jurisdiction to avoid state laws that did not work to their favor. That was exactly what happening in the cases around which the Southern faction formed; that was exactly what the Scott family attempted. The practice, as Tony Freyer and Edward Purcell have demonstrated, became more widespread after the Civil War, but it relied on several doctrinal developments spearheaded by the Taney Court. One of the critical innovations in this process--indeed, the one on which the others hinged--involved the right of corporate litigants to access diversity jurisdiction in the first place. With his citizenship ruling in Dred Scott, Taney implicitly transformed that issue from a sharply contested matter to a largely unquestioned right. The rule announced in Letson, protected in Dred Scott, and reaffirmed in Covington Drawbridge has in fact stood to this day. The denial of black citizenship, in other words, contributed to the development of a legal regime in which corporations could flourish. (80)

Taney's rejection of black federal citizenship thus carried implications beyond its attack on antislavery movement. What Fehrenbacher described as a "rambling and repetitious argument" had a definite objective, and it was not merely a "tortuous forced march"--to use Rogers M. Smith's phrase--against free black litigants. (81) The understandable focus on Dred Scott's relationship to the sectional crisis, as manifested in formal partisan conflict, has allowed the decision's full political dimensions to remain hidden. The chief justice's vicious and longwinded assault on free black people came about in part because Taney hoped to defuse the threat that his more extreme Southern colleagues posed to the emerging corporate order. Taney's development of an antiblack conception of federal citizenship achieved both of his goals by excluding African Americans while leaving corporate standing unscathed.

The double strategy embodied in Taney's citizenship ruling carries implications for further research. Students of antebellum American law have produced important work on the legal system's relationship to both slavery and capitalist economic development, but they have allowed an analytical partition to develop between the two areas of inquiry. Historians interested in what Morton Horwitz has termed the "transformation of American law" pay scant, if any, attention the interrelationships between slavery and the legal aspects of economic development. (82) Scholars investigating the law of slavery have been more sensitive to these relationships, but investigations thus far have centered on cases in which both slaves and the market were directly involved. (83)

They must go further. Taney's strategy in Dred Scott underscores a need for an analysis of cases in which these relationships were not immediately apparent. Historians should explore the often silent dialogue among seemingly disconnected bodies of law in which legal actors sought to diffuse potential conflicts between the need to protect slavery and the desire to encourage commercial activity. Research along these lines may contribute to the debate, currently raging among historians of the U.S. South, over how masters participated in an increasingly modern, capitalist world while retaining their commitment to a fundamentally premodern form of social organization. (84) Finally, such studies would provide deeper insight into the process by which white skin became something akin to property--a bundle, as Cheryl I. Harris puts it, of privileges, expectations, and assumptions that make white identity an asset that the legal system has recognized, legitimated, and perpetuated. (85) The argument presented in this essay makes no claims for the legal system as a whole; but after 1857, corporations' right to protect their interests in the federal courts owed a great deal to Chief Justice Taney's assertion that blacks "had no rights which the white man was bound to respect." (86)

Versions of this article appeared in my master's thesis and dissertation, University of Houston (1996, 2001). I would like to thank John Boles, Bob Buzzanco, Joe Glatthaar, Ken Lipartito, James Kirby Martin, Steve Mintz, Bob Palmer, Linda Reed, and Eric Walther for their suggestions and assistance during the long period in which this argument materialized. I am also grateful for the comments made by the members of the Houston Area Southern Historians meeting and this article's anonymous reviewers.

(1.) John Appleton to Benjamin Robbins Curtis, Washington, D.C., Mar. 15, 1857, Benjamin Robbins Curtis Papers (container 1), Manuscript Division, Library of Congress, Washington, D.C.

(2.) The literature on Dred Scott is abundant, and I will list only the studies most relevant to the argument presented here. All investigations of the case must begin with the work of David Potter and, especially, Don E. Fehrenbacher, who developed the reigning interpretation. David M. Potter, The Impending Crisis, 1848-1861 (New York: Harper Torchbooks, 1976), 267-96; Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (New York: Oxford Univ. Press, 1978); Fehrenbacher, "Roger B. Taney and the Sectional Crisis," Journal of Southern History 43 (Nov. 1977): 555-66. See also Guadalupe T. Luna, "On the Complexities of Race: The Treaty of Guadalupe Hidalgo and Dred Scott v. Sandford," University of Miami Law Review 53 (July 1999): 691-716; Mark A. Graber, "Desperately Ducking Slavery: Dred Scott and Contemporary Constitutional Theory" Constitutional Commentary 14 (Summer 1997): 271-318; Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven: Yale Univ. Press, 1997), 243-385; Stuart A. Streichler, "Justice Curtis's Dissent in the Dred Scott Case: An Interpretive Study," Hastings Constitutional Law Quarterly 24 (Winter 1997): 509-44; Robert Meister, "The Logic and Legacy of Dred Scott: Marshall, Taney, and the Sublimation of Republican Thought," Studies in American Political Development 3 (1989): 199-260; James H. Kettner, The Development of American Citizenship, 1608-1870 (Chapel Hill: Univ. of North Carolina Press, 1978), 324-32; and Bernard Schwartz, From Confederation to Nation: The American Constitution, 1835-1877 (Baltimore: Johns Hopkins Univ. Press, 1973), 127-29.

(3.) Alternative definitions focus on citizenship as evidence of social standing or as an element of identity formation. See Kettner, Development of American Citizenship, 3-10; Nancy Isenberg, Sex and Citizenship in Antebellum America (Chapel Hill: Univ. of North Carolina Press, 1998), xi-xii; Linda K. Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (New York: Hill and Wang, 1998), xx-xxiv; David Montgomery, Citizen Worker: The Experience of Workers in the United States with Democracy and the Free Market during the Nineteenth Century (New York: Cambridge Univ. Press, 1993), 2-9); Smith, Civic Meals, 3-12; Fehrenbacher, Dred Scott Case, 64-73.

(4.) Dred Scott v. Sanford, 60 U. S. 393 (1856), 404-5. The official date for Dred Scott is 1856, although the Court did not hand down the ruling until 1857.

(5.) Taney's opinion consists of two documents: Roger B. Taney to State Department, Attorney General's Office, May 28,1832, in Opinions on Legal Questions (container 1), General Records of the Attorney Generals, Records of the Department of Justice, RG 60; and Taney to State Department, June 9, 1832, in Miscellaneous Letters (container M 179, roll 73 [Apr. 2-June 30, 1832]), Records of the State Department, RG 59), both in National Archives, College Park, Md.

(6.) Lacy K. Ford, "Making the 'White Man's' Country White: Race, Slavery, and State-Building in the Jacksonian South," Journal of the Early Republic 19 (Winter 1999): 713-37. Also see Robert K. Dykstra, Bright Radical Star: Black Freedom and White Supremacy on the Hawkeye Frontier (Cambridge, Mass.: Harvard Univ. Press, 1993); James Oliver Horton and Lois E. Horton, In Hope of Liberty: Culture, Community, and Protest among Northern Free Blacks, 1700-1860 (New York: Oxford Univ. Press, 1997).

(7.) A. Leon Higginbotham, Shades of Freedom: Racial Politics and Presumptions of the American Legal Process (New York: Oxford Univ. Press, 1996), 65. Scholars are divided over whether Taney ruled correctly on the law. Potter and Fehrenbacher argue that Taney disregarded alternative doctrines--such as those concerning the Court's treatment of corporations--that could have softened his ruling's impact on black people. Potter, Impending Crisis, 275-79; and Fehrenbacher, Dred Scott Case, 276-77, 341-46. Other scholars contend that the Constitution's support for slavery and racism ran so deep that Taney's ruling should not be surprising. See Thurgood Marshall, "Reflections on the Bicentennial of the United States; Harvard Law Review 101 (Nov. 1987): 1-5; Raymond T. Diamond, "No Call to Glory: Thurgood Marshall's Thesis on the Intent of a Proslavery Constitution,' Vanderbilt Law Review 42 (Jan. 1989): 93-131. Whatever their stance on the character of constitutional law, scholars overwhelmingly agree that Taney's historical analysis was incorrect. Fehrenbacher, Dred Scott Case, 346-54; Paul Finkelman, "'Hooted Down the Page of History': Reconsidering the Greatness of Chief Justice Taney," Journal of Supreme Court History (1994): 95-47. See also Potter, Impending Crisis, 275-79; Smith, Civic Ideals, 267; and Meister, "Logic and Legacy of Dred Scott," 238. I have found two exceptions; both grant the plausibility of Taney's account for the purposes of arguing about legal theory. Sanford Levinson, "Slavery in the Canon of Constitutional Law," Chicago-Kent Law Review 68.3 (1993): 1087-111; and Graber, "Desperately Ducking Slavery," 271-318.

(8.) Fehrenbacher, Dred Scott Case, 337, 341. See also Finkelman, "Hooted Down the Page of History," 95; and Smith, Civic Ideals, 265. One scholar has recently described Dred Scott as a "preemptive strike" against the Republican party. See Gerard N. Magliocca, "Preemptive Opinions: The Secret History of Worcester v. Georgia and Dred Scott," University of Pittsburgh Law Review 63 (Spring 2002): 487-587.

(9.) Fehrenbacher, Dred Scott Case, 347; Smith, Civic Ideals, 268.

(10.) Harold M. Hyman and William M. Wiecek, Equal Justice under Law: Constitutional Development, 1835-1875 (New York: Harper and Row, 1982), 180-83. I adapted the term "seething sectionalism" from Finkelman, "Hooted Down the Page of History," 95.

(11.) Raymond Williams, Marxism and Literature (New York: Oxford Univ. Press, 1977), 97.

(12.) See James L. Huston, "Property Rights in Slavery and the Coming of the Civil War," Journal of Southern History 65 (May 1999): 249-86, for one of the most recent uses of such abstractions. The exceptions were John McLean of Ohio and Peter V. Daniel of Virginia, the Court's most extreme members.

(13.) Ronald Takaki, A Different Mirror: A History of Multicultural America (Boston: Back Bay, 1993); and David R. Roediger, "The Pursuit of Whiteness: Property, Terror and Expansion, 1790-1860," Journal of the Early Republic 19 (Winter 1999): 579-600.

(14.) For arguments dismissing Taney's move here as inconsistent, see Fehrenbacher, "Taney and the Sectional Crisis" 562; Fehrenbacher, Dred Scott Case, 72-73, 277, 342-43; Smith, Civic Ideals, 266, 268.

(15.) Prigg v. Pennsylvania, 41 U.S. 539 (1842); Passenger Cases, 48 U.S. 283 (1849); Austin Allen, "Containing Slavery, Imposing Sovereignty: Federalism, Corporate Law, and the Origins of the Dred Scott Case" (Ph.D. diss., Univ. of Houston, 2001), 161-65. For a statement of the contrary position, see Wiecek, "Slavery and Abolition before the Supreme Court" 43-53

(16.) Graham v. Strader, 5 B. Monroe 173 (Ky., 1844).

(17.) Strader v. Graham, 51 U.S. (1850), 82, 93; Wiecek, "Slavery and Abolition before the Supreme Court," 53-54; Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill: Univ. of North Carolina Press, 1981), 273-74; Fehrenbacher, Dred Scott Case, 234.

(18.) Strader v. Graham, 94-97. Justices McLean (p. 97) and Catron (pp. 98 99) disagreed with this aspect of Taney's argument. For the Court's move against Prigg, see Moore v. Illinois, 55 U.S. 13 (1852).

(19.) Louisville, Cincinnati, and Charleston Railroad Company v. Letson, 43 U.S. 497 (1844), 558. For the Marshall Court's treatment of corporate diversity jurisdiction, see Bank of United States v. Deveaux, 9 U.S. 61 (1809).

(20.) Rundle et al v. Delaware and Raritan Canal Company, 55 U.S. 80 (1852), 95-102. See also Dodge v. Woolsey, 59 U.S. 331, 362-80 (1855) (Campbell, Daniel, and Catron, JJ., dissenting); Ohio Life Insurance and Trust Company v. Debolt, 57 U.S. 416 (1853), 441-444 (Campbell, Daniel, and Catron, JJ., concurring); and Piqua Branch of the State Bank of Ohio v. Knoop, 57 U.S. 369 (1853), 393-415 (Campbell, Daniel, and Catron, JJ., dissenting).

(21.) Knoop, 414-15 (Campbell, J.); and Debolt, 442-43 (Catron, J.).

(22.) Dodge, 370-78 (Campbell, J.) 380 (Daniel, Catron, JJ.); Debolt, 442 (Catron, J.) Knoop, 398 (Catron, J.). For the reigning interpretation of these cases, see Stanley I. Kutler, Privilege and Creative Destruction (1971; rpt., Baltimore: Johns Hopkins Univ. Press, 1990), 143-44; Smith, Civic Ideals, 220-25.

(23.) Marshall v. Baltimore and Ohio Railroad Company, 57 U.S. 314 (1853), 345 (Daniel, J.); Northern Indiana Railroad Company et al. v. Michigan Central Railroad Company, 56 U.S. 233 (1853), 251 (Catron, J.); and Rundle, 101 (Daniel, J.).

(24.) Rundle, 101.

(25.) Marshall, 352-54; U.S. Constitution, Art. IV, 2, cl. 1.

(26.) On the privilege and immunities clause, see Corfield v. Coryell, 6 Federal Cases 546 (1823), 551-52 (U.S. Circuit Court, Pa. Dist.); Bank of Augusta v. Earle, 38 U.S. 519, 541-42, 547, 552 (1839). For alternative readings of the clause, see Michael Kent Curtis, "Historical Linguistics, Inkblots, and Life after Death: The Privileges or Immunities of Citizens of the United States" North Carolina Law Review 78 (Apr. 2000): 1098-132.

(27.) Bank of Augusta, 586-88 (Taney, CJ.); Perrine v. Chesapeake and Delaware Canal Company, 50 U.S. 172 (1850) (Taney, CJ.); Lafayette Insurance Company v. French, 59 U.S. 404 (1855) (Curtis, J.; Campbell, J., dissenting); Covington Drawbridge Company v. Shepherd et al., 61 U.S. 227 (1857), 233-34 (hereafter Covington Drawbridge I) (Taney, CJ.).

(28.) R[oswell] M. Field to M[ontgomery] Blair, St. Louis, Jan. 7, 1855, typescript, Dred Scon Collection, Missouri Historical Society, St. Louis.

(29.) Marshall, 325, 329.

(30.) Passenger Cases, 428 (Wayne expressing confidence that the Court could apply different standards to immigrants and free black people); Field to Blair, Jan. 7, 1855.

(31.) Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 36 U.S. 420 (1837); and Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819). For the underlying doctrine, see Robert C. Palmer, "Obligations of Contracts: Intent and Distortion," Case Western Reserve Law Review 37.4 (1987): 631-73.

(32.) On this point, see Kutler, Privilege and Creative Destruction, 133-54.

(33.) For the statement of facts, see Dred Scott, 397-98. For accurate accounts, see Fehrenbacher, Dred Scott Case, 239-49; Walter Ehrlich, They Have No Rights: Dred Scott's Struggle for Freedom (Westport, Conn.: Greenwood Press, 1979), 9-29. For speculation on the reasons for the inaccuracies, see Lea Vander Velde and Sandhya Subramanian, "Mrs. Dred Scott," Yale Law Journal 106 (Jan. 1997): 1059-17; and Allen, "Containing Slavery, Imposing Sovereignty," 281-91. On Sanford's ownership of Scott, see Walter Ehrlich, "The Origins of the Dred Scott Case," Journal of Negro History 59 (Apr. 1974): 132,-42; Fehrenbacher, Dred Scott Case, 276-80. The importance of the Scotts's federal litigation strategy has eluded most students of Dred Scott until recently. For discussions, see Eric T. Dean Jr., "Reassessing Dred Scott: The Possibilities of Federal Power in the Antebellum Context," University of Cincinnati Law Review 60 (Winter 1992): 713-55; Streichler, "Justice Curtis's Dissent in the Dred Scott Case," 509-44.

(34.) Dred Scott v. Emerson, 15 Mo. 576 (1852). For a discussion of the Missouri phase of the case, see Allen, "Containing Slavery, Imposing Sovereignty" 281-325.

(35.) Dred Scott v. San ford, 13 American State Trials 242 (U.S. Circuit Court, Mo. Dist., 1854); Dean, "Reassessing Dred Scott," 734-36; Allen, "Containing Slavery, Imposing Sovereignty," 329-30.

(36.) Fehrenbacher, Dred Scott Case, 308-14. On the justices' early configuration, see John A. Campbell to Samuel Tyler, New Orleans, Nov. 24, 1870, in Samuel Tyler, Memoir of Roger Brooke Taney, LL.D., Chief Justice of the Supreme Court of the United States (Baltimore: J. Murphy & Co., 1872), 382-84; and John Catron to Samuel Treat, Nashville, May 31, 1857, Samuel Treat Papers, Missouri Historical Society. On the change in strategy, John Catron to James Buchanan, Washington, Feb. 19, 1857, in The Works of James Buchanan, Comprising his Speeches, State Papers, and Private Correspondence, ed. John Bassett Moore, 12 vols. (1908-11; rpt., New York: Antiquarian Press, 1960), 10:106; Robert C. Grier to James Buchanan, Washington, Feb. 23, 1857, in Works of Buchanan 10:106-8. For Nelson's opinion, see Dred Scott, 457-69.

(37.) Dred Scott, 46546. For cases similar to Scott v. Emerson and cited by Nelson, see Mahoney v. Ashton, 4 Harris and McHenry 295 (Md., 1802), 322, 325; Collins v. America (a woman of color), 9 B. Monroe 565 (Ky., 1849); Graham v. Strader, 173; Rankin v. Lydia (a pauper), 2 A. K. Marsh 467 (Ky., 1820); Foster v. Fosters, 10 Grattan 485 (Va., 1853); Hunter v. Fulcher, 1 Leigh 172 (Va., 1829); Lewis v. Fullerton, 1 Randolph 15 (Va., 1821).

(38.) Dred Scott, 556; Scott v. Emerson, 586. See also Dred Scott v. Sandford, Argument of Montgomery Blair, of Counsel for the Plaintiff in Error (U.S. Supreme Court, Dec. Term, 1856), 1718, Blair Family Papers (container 48), Manuscript Division, Library of Congress (hereafter Blair Brief).

(39.) Dred Scott, 563 (quoting Pease v. Peck, 59 U.S. 595 [1855], 599). See also Blair Brief, 18; Rowan et al. v. Runnels, 46 U.S. 134 (1847); Swift v. Tyson, 41 U.S. 1 (1842); Dean, "Reassessing Dred Scott," 734-36; Streichler, "Justice Curtis's Dissent in the Dred Scott Case," 512-28.

(40.) Dred Scott, 469 (Grier, J. concurring); and Pease, 599-601 (Campbell, with Daniel, JJ., dissenting). On the probability that the Southern judges would have written opinions anyway, see Campbell to Tyler, Nov. 24,1870; Dred Scott, 454.

(41). See Fehrenbacher, Dred Scott Case, 449-50; Potter, Impending Crisis, 291-93.

(42.) Roger B. Taney, "Supplement to the Dred Scott Decision [1858]," in Tyler, Taney Memoirs, 578-608; Allen, "Containing Slavery, Imposing Sovereignty" 466-69.

(43.) Fehrenbacher, Dred Scott Case, 320. But see Ehrlich, They Have No Rights, 142. The following discussion will rely heavily on the earlier version of these two documents, but I will also draw from the later document, which incorporated all the revisions of the earlier proof sheets and added several more. See Dred Scott v. Sandford, Taney page proofs, version I (U.S. Supreme Court, 1857); and Dred Scott v. Sandford, Taney page proofs, version II (U.S. Supreme Court, 1857), both in Opinions in Appellate Cases (container 52, file 3230), RG 267, National Archives.

(44.) Prigg, 608-26; Passenger Cases, 461 (Grier, J.); Brewer's Lessee v. Blougher, 39 U.S. 178 (1839), 183-84.

(45.) United States v. Rogers, 45 U.S. 567 (1846), 573; United States v. Richie, 58 U.S. 525 (1854) (Nelson, J.--Campbell, J., concurring; Daniel, J., absent).

(46.) Taney page proofs I, 4-5, 18-19; Dred Scott, 403-4, 422-23.

(47.) Roger B. Taney to William Carroll, Washington, D.C., Apr. 6, 1857, Official Correspondence: Letters to and from the Justices (container 2, Taney File), Clerk's Files, RG 267 (order signed by Wayne and Daniel); Roger B. Taney to Benjamin Robbins Curtis, Baltimore, Apr. 25, 1857, (container 1), Curtis Papers.

(48.) For examples of concurring opinions that agreed with the court, see Dartmouth College, 666-7a4 (Story, J.); Groves et al. v. Slaughter, 40 U.S. (15 Peters) 449, 508-510 (1841) (Taney, C. J.).

(49.) Fehrenbacher wrote Daniel off as a "brooding pro-slavery fanatic." See Fehrenbacher, Dred Scott Case, 234. For more on Daniel, see Carl Brent Swisher, The Oliver Wendell Holmes Devise History of the Supreme Court of the United States Vol. 5: The Taney Period, 1836-64 (New York: Macmillan, 1974), 67-70; John E Frank, Justice Daniel Dissenting: A Biography of Peter V. Daniel, 1784-1860 (Cambridge, Mass.: Harvard Univ. Press, 1964). For examples of Daniel's partisan opinions, see Prigg, 650-58; Marshall, 338-47; Debolt, 443.

(50.) Kettner, Development of American Citizenship, 173-209.

(51.) Dred Scott, 476. Compare with his statement on corporate citizenship in Rundle, 101.

(52.) Dred Scott, 476 (Daniel, J., quoting Emmerich de Vattel, The Law of Nations; or, the Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns, trans. Joseph Chitty [Philadelphia: T. & J. W. Johnson, 1856], 1).

(53.) State v. Mann, 13 N.C. 263, 266 (1829); Dred Scott, 475-76.

(54.) Dred Scott, 477.

(55.) Moore, 13; Illinois General Assembly, An Act to Prevent the Immigration of Free Negroes into This State, General Laws of the State of Illinois (Springfield, 1853); Indiana Constitution (1851), art. 13, in The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies, Now or Heretofore Forming the United States of America, ed. Francis Newton Thorpe, 7 vols. (Grosse Pointe, Mich.: Scholarly Press, 1968), 2:1073-95; Hatwood v. State, 18 Ind. 49z (1862); Barkshire v. State, 7 Ind. 309 (1856); Dykstra, Bright Radical Star, 3-192.

(56.) See Bryan v. Walton, 14 Ga. 185 (1853); Cooper v. Savannah, 4 Ga. 68 (1848).

(57.) Roberts v. Boston, 59 Mass. 198 (1849); State v. Jowers, 33 N. C. 555 (1850). See also State v. Harrison, 11 Louisianna Annual 772 (1856); Hughes v. Jackson, 12 Md. 450 (1858); State v. Manuel, (20) N.C. 144 (1838); State v. Edmund, 15 N.C. 340 (1838); and Hobbs v. Fogg, 6 Watts 553 (Pa. Dist., 1837).

(58.) Thus, one sentence in Taney's proof sheets initially read: "It does not follow, because he is a citizen of a State, that he must also be a citizen of the United States." Taney edited the passage so it then read: "It does not follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States" (emphasis added). Taney page proofs I, 5; Opinion of Peter V. Daniel of the United States Supreme Court in the Famous Dred Scott Case: Original Manuscript, pp. 2, 4, Gilder Lehrman Collection, Morgan Library, New York, N.Y.

(59.) The Constitution placed limitations on this power in the case of immigrants. States could neither repel healthy immigrants from entering their borders nor deny them state citizenship once they had become federal citizens. See Passenger Cases, 283; and Gassies v. Ballon, 31 U.S. 761 (1832). States did retain the power to expel populations likely to become paupers and vagabonds. By antebellum conventions, these populations included elderly or sickly immigrants and all free blacks. See Moore, 13; Mayor, Aldermen, and Commonalty of New York v. Miln, 36 U.S. 102 (1837).

(60.) Taney page proofs I, 5-6; Dred Scott, 405-7. On citizenship and bloodlines, see Kerber, No Constitutional Right to Be Ladies, 36; Isenberg, Sex and Citizenship in Antebellum America, 21-28.

(61.) See, for example, Dodge, 331; Cooley v. Board of Wardens of the Port of Philadelphia, 53 U.S. 299 (1851); Passenger Cases, 283; License Cases, 46 U.S. 504 (1847); Permoli v. Municipality No. 1 of New Orleans, 44 U.S. 589 (1845); Prigg, 539; Barton v. Baltimore, 32 U.S. 243 (1833); Gibbons v. Ogden, 22 U.S. 1 (1824).

(62.) Caleb Cushing, "Relation of Indians to Citizenship," Opinions oft he Attorney Generals of the United States 7:746-56. On federalism and citizenship, see Houston v. Moore, 18 U.S. 1 0820). On naturalization, see Collet v. Collet, 2 U.S. 294 (1792); United States Statutes at Large 1:414-15; Kettner, Development of American Citizenship, 214-47.

(63.) U.S. Constitution, amend. 19, 1. Only Curtis and Fehrenbacher addressed Taney's ruling on the law. See Dred Scott, 568-86; Fehrenbacher, Dred Scott Case, 343-46.

(64.) Taney to Curtis, June 11, 1857, (container 1), Curtis Papers.

(65.) Taney page proofs I, 7; Dred Scott, 407.

(66.) Dred Scott, 417; Taney page proofs I, 14 (slight revisions) (emphasis added).

(67.) Dred Scott, 17; Taney page proofs I, 14.

(68.) Marshall, 353

(69.) For the dangers white Southerners perceived in this scenario, see William J. Cooper, Liberty and Slavery: Southern Politics to 1860 (New York: A. A. Knopf, 1983), 219-21.

(70.) Dred Scott, 419 (Taney), 575-76 (Curtis); Taney page proofs I, 15.

(71.) See Dred Scott, 417; Taney page proofs I, 15.

(72.) Dred Scott, 453-54. The quotation comes from one of several handwritten pages that Taney attached to his first set of proofs, Taney later crossed it out. Taney page proofs I, first handwritten page following printed page 38; Taney page proofs II, 43.

(73.) Dred Scott, 416; Taney page proofs I, 14.

(74.) Dred Scott, 518-19 (Catron, J.), 530--33 (McLean, J.); Catron to Treat, May 31, 1857; Campbell to Tyler, Nov. 24, 1870; Dred Scott v. Sandford, Campbell page proofs (U.S. Supreme Court, 1857), p. 1, in Opinions in Appellate Cases (container 52, file 3230), RG 267.

(75.) For the former group see Fehrenbacher, Dred Scott Case, 403-14; Potter, Impending Crisis, 275-76. For the latter, see Smith, Civic Ideals, 269-71; Meister, "Logic and Legacy of Dred Scott," 238; Earl M. Maltz, "The Unlikely Hero of Dred Scott: Benjamin R. Curtis and the Constitutional Law of Slavery," Cardozo Law Review 17 (May 1996): 1995-2016.

(76.) Undated, handwritten document in Curtis Papers (container 1, folio no. 4209-4212); Fehrenbacher, Dred Scott Case, 314-21, 327-30.

(77.) Covington Drawbridge I, 233-34.

(78.) Covington Drawbridge I, 234. The statements of both Campbell and Daniel appear on this page.

(79.) Zabriskie v. Cleveland, Columbus, and Cincinnati Railroad Company et al., 64 U.S. 381 (1859) (Campbell, J., for court;, Daniel J., not sitting); Philadelphia, Wilmington and Baltimore Railroad Company v. Quigley, 62 U.S. 202 (1858) (Campbell,).,for court;, Daniel, J., dissenting); and Covington Drawbridge, 62 U.S. 112 (1858) (hereinafter Covington Drawbridge II) (Catron, J., for court;, Daniel, J., dissenting).

(80.) Tony Allan Freyer, Forums of Order: The Federal Courts and Business in American History (Greenwich, Conn.: JAI Press, 1979), 110-12, n9n60; Edward A. Purcell, Litigation and Inequality: Federal Diversity Jurisdiction in Industrial America, 1870-1958 (New York: Oxford Univ. Press, 1992), 59-86. On Letson's persistence, see Hyman and Wiecek, Equal Justice under Law, 74.

(81.) Fehrenbacher, Dred Scott Case, 347; Smith, Civic Ideals, 268.

(82.) Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Cambridge, Mass.: Harvard Univ. Press, 1977); James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison: Univ. of Wisconsin Press, 1956); Peter Karsten, Heart versus Head: Judge-Made Law in Nineteenth-Century America (Chapel Hill: Univ. of North Carolina Press, 1997). Karsten does give a small amount of attention to questions involving slavery (pp. 15-20).

(83.) Judith Kelleher Schafer, Slavery, the Civil Law, and the Supreme Court of Louisiana (Baton Rouge: Louisiana State Univ. Press, 1994); Thomas D. Morris, Southern Slavery and the Law, 1619-1860 (Chapel Hill: Univ. of North Carolina Press, 1996), 61-158; Thomas D. Russell, "A New Image of the Slave Auction: An Empirical Look at the Role of Law in Slave Sales and a Conceptual Reevaluation of Slave Property," Cardozo Law Review 18 (Nov. 1996): 473-523; Jenny Bourne Wahl, The Bondsman's Burden: An Economic Analysis of the Common Law of Southern Slavery (New York: Cambridge Univ. Press, 1998). See also the essays by Paul Finkelman, Schaffer, Andrew Fede, and Robert Cottroll in the special issue on slavery and the economy in the American Journal of Legal History 31 (Oct. 1987); Ariela Julie Gross, Double Character: Slavery and Mastery in the Antebellum Southern Courtroom (Princeton, N.J.: Princeton Univ. Press, 2000), 2.2--71.

(84.) See Eugene D. Genovese, The Slaveholders' Dilemma: Freedom and Progress in Southern Conservative Thought, 1820-1860 (Columbia: Univ. of South Carolina Press, 1992); and James Oakes, Slavery and Freedom: An Interpretation of the Old South (New York: A. A. Knopf, 1990).

(85.) Cheryl I. Harris, "Whiteness as Property," Harvard Law Review, 106 (June 1993): 579-600.

(86.) Dred Scott, 408.
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