By 1844, so many Massachusetts citizens were being imprisoned under the Police Bill that the governor appointed a prominent Boston politician named Samuel Hoar to travel south and serve as a local agent overseeing the legal defense of jailed Bay State sailors. The South Carolina legislature responded by instructing the governor to throw Hoar out of the state the moment he arrived. “Has the Constitution of the United States the least practical validity or binding force in South Carolina?” Hoar asked in a report to Massachusetts’ governor when he returned home. “She prohibits, not only by her mob, but by her Legislature, the residence of a free white citizen of Massachusetts within the limits of South Carolina, whenever she thinks his presence there is inconsistent with her policy.”81
South Carolina’s mistreatment of Hoar helped illustrate the problems created by the Constitution’s ambiguity about citizenship and federal precedence over state power. Black Massachusetts citizens should have been entitled to the rights of American citizenship—the “privileges or immunities” to which Article IV of the Constitution referred—and no state had authority to infringe those rights. Yet South Carolina was not only ignoring this protection for black sailors; it was also violating the rights of white citizens who wanted to hire or do business with them. And it purported to do so on the ground that it was the true sovereign, with supreme authority to “protect” its native population against the nefarious plots of abolitionists. In the case in which Justice Johnson ineffectually declared the Police Bill unconstitutional, the state’s lawyers had argued that “South Carolina was a sovereign state when she adopted the constitution; a sovereign state cannot surrender a right of vital importance; South Carolina, therefore, either did not surrender this right, or still possesses the power to resume it, and whether it is necessary, or when it is necessary, to resume it, she is herself the sovereign judge.”82
Six years after Hoar was thrown out of South Carolina, Wisconsin Senator Isaac Walker made the episode a central feature of a blistering denunciation of slavery’s defenders. Southern politicians had long portrayed themselves as victims of Northern anti-slavery agitators, he noted, but it was actually they who had committed aggression against the North by mistreating Yankee citizens in violation of the Constitution. “Suppose that a citizen of Wisconsin or of Massachusetts, colored though he may be, but being a citizen, is entitled to all the privileges and immunities of citizenship in the several States, should visit, in the pursuit of his business, the shores of South Carolina—what hospitality awaits him there? It is imprisonment in the dungeon. Suppose the State from which he goes . . . sends another citizen—a white citizen—equally entitled to all the immunities of citizenship, to South Carolina, to inquire why they allowed this . . . what treatment does he meet with? Why, sir, if he is not imprisoned—if he is not deprived of his liberty—it is because he can make tracks fast enough.”83
South Carolina Senator Pierce Butler replied that the law protected his constituents against the presence of free blacks who might encourage slave uprisings. But he went further. Free blacks could not be American citizens. They were “a species of persons” who enjoyed only those rights that states chose to give them. “[T]hey have no federal eligibility, or federal recognition, as citizens of the United States.” The slave states were not obliged to regard them as citizens,
and a free man of color in Massachusetts—call him a citizen of Massachusetts if you choose—can have no higher grade of political existence, under the Constitution, than a free negro in South Carolina, when he comes to South Carolina. Their condition must be assimilated under the law that operates on them. A free man of color in South Carolina is not regarded as a citizen by her laws . . . or Federal laws.84
If Walker’s argument prevailed, Butler warned, “a Wisconsin free negro, made a citizen there,” would automatically become “a citizen of the other States, so far as he may avail himself” of the Privileges and Immunities Clause. And this was unthinkable—why, it might even make a black man “eligible to the Presidency!”85
This did not scare Walker. Not only were black citizens of free states entitled to the protections of national citizenship, he argued, but slavery was confined to state law only; federal law could take no cognizance of slavery: “in the UNITED States there is no such thing as a slave. Within the geographical limits of the United States there are slaves; but there are no slaves in the UNITED States—or, to transpose it, there are no slaves in the States UNITED. It is confined . . . to the States in which it exists.”86 And this, of course, was exactly what slave owners feared. If slavery were confined within Southern boundaries, the new states that grew from the fallow western territories would be free states whose senators would eventually outnumber their own. At the same time, the free black populations of other states would have a federally protected right to travel to, and do business in, the slave states, breeding resentment among the native slaves, encouraging escapes, or even provoking revolts. Slavery must expand to the west, or it would be doomed. And such expansion seemed imminent. In 1850, the year of Walker and Butler’s debate, Congress superseded the Missouri Compromise with a new compromise, and four years later, replaced that with a third: the Kansas-Nebraska Act, which allowed the (white) people in western territories to “decide for themselves,” democratically, whether or not to incorporate slavery into their new state constitutions. Slavery was no longer confined.
Antislavery Constitutionalism
All the while, the citizenship controversy festered. In the spring of 1835, the Antislavery Society of Ohio published a report that inferred the definition of American citizenship, not from the Constitution’s Preamble, but from its “Three-Fifths Clause.” That clause apportioned representation on the basis of the “free” population, plus three-fifths of “all other persons.” The Antislavery Society argued that this language, along with the fact that other countries classified freedmen as citizens, strongly suggested that “all free persons born in and residents of the United States,” except for Indians, were American citizens “entitled in every state to all the privileges and immunities of citizens of these states.”87 State laws prohibiting the immigration of free blacks were therefore unconstitutional.
At about the same time, the prosecution of abolitionist schoolteacher Prudence Crandall became a cause célèbre in Connecticut, where her all-star legal team argued that free blacks were citizens of the United States and that state laws restricting their access to education were unconstitutional. That court managed to dodge the question,88 but in a book published shortly thereafter, New York judge William Jay—son of America’s first Chief Justice—reiterated the arguments of Crandall’s attorneys to make the case that free blacks were entitled to federal citizenship and thus to the protection of the Privileges and Immunities Clause.89
Of course, slavery’s opponents had to explain away many legal ambiguities that seemed to contradict their arguments. It would be anomalous for the nation’s fundamental law fully to protect the rights of free black Massachusetts citizens, while simultaneously allowing South Carolina to brutalize and rob the same people of all their liberty. If a slave escaped into a Northern state where slavery was prohibited, would he or his children suddenly become citizens of the United States—even though the Constitution explicitly promised that escaped slaves would be returned to their owners? Could a slave owner, by emancipating a slave, thereby make him a citizen of the United States, with no intervening act by government, and contrary to state law? It seemed far-fetched to argue that the Constitution’s authors meant to make slaves into citizens, let alone that a person could be both a slave and a member of the body politic at the same time.
Yet some of the nation’s brightest legal minds made just this argument.90 They developed a broader theory of citizenship according to which Americans were primarily citizens of the nation and only secondarily of states. All Americans, regardless of race, could be equal members of the people of the United States. Indeed, some argued that ratification of the Constitution in 1789 made s
laves citizens by operation of law, and that it was therefore already illegal to hold them as slaves. Among these thinkers was Frederick Douglass, who argued that “the Constitution knows all the human inhabitants of this country as ‘the people,’”91 and that black slaves were therefore federal citizens just like free whites, regardless of what state law might provide.92 Because the Fifth Amendment promises that no person shall be deprived of life, liberty, or property without due process of law, laws supporting slavery—which accorded people no process of law whatever—must be unconstitutional.93 The notion that the Founding Fathers meant constitutional protections to apply only to whites, Douglass said, “is Judge Taney’s argument” in Dred Scott, but “it is not the argument of the Constitution. The Constitution imposes no such mean and satanic limitations upon its own beneficent operation.”94 Federal citizenship entitled slaves, along with everyone else, to protection for their natural and common-law rights.
Among the most penetrating of the anti-slavery constitutionalists was New York lawyer Joel Tiffany, who believed that “[s]overeignty, as an attribute of the people of the United States as a nation, excludes the like sovereignty of the people of a single State, as State citizens merely. Hence, the authority of a citizen as a constituent of the nation, is superior to his authority as a constituent of a mere State.”95 Neither state nor national sovereignty could include the power to override fundamental natural rights: society “must establish its foundations in natural justice” and “permit no necessary liberty or right of the individual to be abridged.”96 The American nation, “in virtue of its inherent sovereignty, has ordained and established a constitutional government, which in its authority, as the representative of the nation, is supreme over all.” Thus, every citizen of a state is “also a citizen of the nation” and “has national rights” that states must respect.97
As to whether slaves could be citizens, Tiffany explained in his 1849 treatise, The Unconstitutionality of American Slavery, that there were three ways to become a citizen. First, people residing in the United States when the Constitution was ratified were citizens; second, people born in the United States after ratification were citizens, and third, people naturalized pursuant to laws enacted by Congress were citizens. All residents at the time of ratification had become citizens because the Constitution was “‘ordained and established’ by the people, not by the States, not by the white people, or black people, not by the rich people, or poor people . . . not by one class, as opposed to any other class in the United States; but expressly, and emphatically by all. . . . There were no citizens, or aliens, to it, before its adoption, but all became citizens by its adoption.”98 The Constitution protected all Americans in their rights to life, liberty, and property. The adoption of the Constitution must therefore have automatically prohibited slavery, since slavery countermanded all these rights.
Massachusetts attorney Lysander Spooner agreed. The Constitution’s Preamble, he wrote, “has told us in the plainest possible terms” that “‘We, the people of the United States,’ ‘do ordain and establish this constitution,’” but it did not say who this “people” was. “It does not declare that ‘we, the white people,’ or ‘we, the free people,’ or ‘we, a part of the people’—but that ‘we, the people’—that is, we the whole people—of the United States, ‘do ordain and establish this constitution.’” If this did not mean to make citizens of all Americans, but to leave the determination of citizenship exclusively to states, then “the consequence would [be] that the constitution established a government that could not know its own citizens.”99
The fact that the Constitution made no distinctions among “the people of the United States” could have one of three consequences, argued Spooner. Either every person enjoyed federal citizenship, including slaves; or there simply were no such things as federal citizens; or states enjoy absolute authority “to determine who may, and who may not be citizens of the United States government.”100
The first option would necessarily bar slavery, since states could have no authority to reduce free citizens to slavery without due process of law. The second would mean there is no such thing as the United States, which was absurd. The third option was inconsistent with federal sovereignty, and with the Constitution’s Supremacy Clause. The only possible conclusion, therefore, was that slaves were citizens—made such by the adoption of the Constitution—and that slavery was an illegal violation of their rights. Spooner admitted that the Framers may not have personally intended this result, but the law did not consist of their subjective intentions—it consisted of the actual words on paper. To say that the Framers meant to authorize slavery was “palpably a mere begging of the whole question,” because if that had been their intent, they would have written that into the document.101 On the contrary, they took pains to avoid even using the word “slave.”
Provisions like the Three-Fifths Clause or the Fugitive Slave Clause were a bit harder for Tiffany and Spooner to account for, but they formed plausible interpretations even of these. The Fugitive Slave Clause, said Spooner, applied only to persons held to labor “under the laws” of a state, such as criminals convicted after being given due process of law. But states could not reduce to slavery people whose freedom was federally guaranteed. After all, nobody claimed that the Constitution’s guarantees for property rights extended to property acquired by theft, robbery, murder, or other crimes. Similarly, if slaves were part of “the people of the United States,” then states could claim no lawful authority to subject them to slavery.
Today, the proposition that slavery was already unconstitutional strikes many as outlandish. Yet some of slavery’s defenders took a position no less extreme. Spooner had thought it absurd to deny that there were such things as American citizens, yet John C. Calhoun and other Southerners did just that. “There is,” Calhoun wrote, “no such community, politically speaking, as the people of the United States.” Nor was there any such thing as “one people or nation.” The “people” referred to in the Constitution’s Preamble “neither could, nor ever can exercise any agency,—or have any participation, in the formation of our system of government.”102 In an 1833 speech, Calhoun insisted that “every citizen is a citizen of some State or territory” primarily, and only derivatively of the United States. “If by citizen of the United States [one] means a citizen at large, one whose citizenship extends to the entire geographical limits of the country . . . all I have to say is, that such a citizen would be a perfect nondescript; that not a single Individual of this description can be found in the entire mass of our population.”103 After the war, former Confederate Vice President Alexander Stephens published a lengthy constitutional defense of secession and states’ rights in which he still maintained that there was “no such thing as a general citizenship of the United States.”104 And in his own memoir, Jefferson Davis argued that “no such political community as the people of the United States in the aggregate exists at this day or ever did exist.”105
What Tiffany and Spooner recognized—and what Calhoun and his allies emphatically denied—was that the Constitution did implicitly assume two different categories of citizenship: state and federal. And if federal citizenship existed, they believed, then federal protection for the rights attendant upon that citizenship must preempt state laws, including those that policed the institution of slavery. The American nation, argued Tiffany, “in virtue of its inherent sovereignty, has ordained and established a constitutional government, which in its authority, as the representative of the nation, is supreme over all.”106
While radicals scoped out clear positions at either pole, practical political leaders groped for some compromise, only to see their efforts worsen the crisis. As late as 1862, President Lincoln’s attorney general, Edwin Bates, confessed that he had “often been pained by the fruitless search in our law books and the records of our courts for a clear and satisfactory definition of the phrase citizens of the United States. . . . Eighty years of practical enjoyment of [the rights of federal] citizenshi
p, under the Constitution, have not sufficed to teach us . . . the exact meaning of the word.”107 In fact, the dual citizenship model that anti-slavery thinkers were developing fit snugly with the dual sovereignty contemplated by the Constitution’s Framers. During the ratification debates, Madison, Hamilton, and other advocates of the proposed Constitution had explained that it would establish a new union, with its own separate system of laws, elections, and courts—a system that did not depend on state sovereignty and would secure federal rights as the supreme law of the land. This implied that Americans would be citizens of two distinct, but overlapping, polities: the state and the federal union. Calhoun, in effect, conceded this point when he denied the existence of both the American nation and federal citizenship. If, as he professed, the Constitution was a mere treaty among sovereign states, then the term “citizens of the United States” could only be a meaningless figure of speech, and the union was not really a government at all. But if there was an American nation, there could be no denying the primacy of national citizenship, and with it, federal power to block states from depriving Americans of their rights.
Dred Scott
If black Americans qualified as citizens—as members of “the People of the United States” who ordained the Constitution—then holding them in bondage was legally absurd and morally outrageous. And if a slave who entered free territory suddenly became a citizen of the United States by operation of state law, slave property could never be secure. Thus it was that the most important court decision on the question of slavery centered primarily on the question of whether descendants of “the African race” could become citizens of the United States.
Dred Scott was a slave who sued his owner, Sanford (the Supreme Court reporter misspelled his name Sandford) for his freedom. Scott argued that he was freed by operation of state law when he was taken for a time into a free state. The Supreme Court rejected this argument in a long, rambling decision, announced on March 6, 1857. Chief Justice Taney refused to allow the dissenting justices to read his draft opinion beforehand, one reason Justice Benjamin Curtis resigned from the Court in protest—the only Supreme Court justice ever to do so.108 Taney’s opinion ranged far beyond what was necessary to resolve the legal dispute. He seemed to hope that the decision would silence what he considered the frivolous arguments of anti-slavery constitutionalists. That hope was disappointed.
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