Race and the Constitution

• Ambiguous meaning of “discrimination”

• Recall from discussion of Exxon Corp. v. Governor of Maryland and Hunt v. Washington State Apple Advertising Comm’n that there is ambiguity in the SCt’s understanding of discrimination. Both cases agree that proof of discriminatory impact can be a basis for a claim of discrimination, but differ on whether discrimination has been proven.

• These cases leave doubt as to what “discrimination” means. If it doesn’t mean discriminatory purpose, and it’s not demonstrable simply by discriminatory impact, then what else could it mean?

• There is a similar problem in the race cases.

Slavery and the Constitution

• Slavery poses ultimate questions about constitutional interpretation.

• Should we regard USC as a good document, one that deserves our allegiance?

• William Lloyd Garrison famously wrote that, because the USC specifically protected slavery, it was “a covenant with Death and an agreement with Hell.” Was Garrison right?

• John Hart Ely. Slavery was a substantive value protected from ordinary legislative process by the original USC.

State V. Post

• NJ, Nevius 1845. NJ SCt held that the state’s 1844 constitution, which includes a clause making all persons “free and equal,” does not make slavery unconstitutional, and thus an 1804 statute providing for the gradual emancipation of slaves remains in effect.

• Rationale. Court reasoned that no one is absolutely free. In a civilized state, all residents give up a portion of their freedoms in exchange for the benefits of civilization. Freedom, then, must be looked at in the context of its society. At the time the NJ constitution was adopted, slavery was an accepted party of society, and was not considered incompatible with a free society. This court was not inclined to change that view.

• Koppelman.

• Which approach ought to be determinative here: text or original intent?

• Would the court have exceeded its power had it read the “free and equal” clause more broadly?

• If not, is the decision defensible?

• Do the practical consequences of the decision matter in assessing its correctness?

• The court here criticized some of the parties’ arguments as “rather addressed to the feelings than to the legal intelligence of the court.” Do feelings have no appropriate place in legal reasoning?

Dred Scott V. Sanford

• Taney 1857. Facts. Scott was born a slave. He had been taken from Missouri to Illinois, a free state, by his master. Scott was taken to several other free states or territories. Scott was then taken back to Missouri (slave state), and sold to Sanford. Scott then sued for his freedom, contending that his having been taken into free states made him free. Jurisdiction was predicated on diversity of citizenship.

• Two holdings.

• Dred Scott was not a citizen of a state. “Citizens,” for constitutional purposes, refers to the sovereign people of the U.S. as they were understood to be at the time of the USC’s adoption. At that time, the Negro was considered to be an inferior class, one having no inherent liberty or property rights. A state may confer rights upon individuals living in it as it sees fit. It cannot, however, confer rights as a U.S. citizen by virtue of state law. The fact that in Illinois Scott could not be a slave does not alter the fact that Illinois’ ability to make Scott a free man extends no further than its borders and does not confer upon Scott rights and privileges of U.S. citizenship. Therefore, Scott was not a citizen of a state in U.S. constitutional sense, and therefore the SCt had no jurisdiction over the case.

• SCt went on (in dicta?) to hold that the Missouri Compromise of 1820, which barred slavery from any territory north of the 36:30 latitude, violated the due process clause of the 5^th Amendment.

1. Note that if Bill of Rights were applicable to all states at the time, then Dred Scott would apply everywhere. However, since Bill of Rights did not apply to the states, Dred Scott did not apply in free states like Massachusetts.

• Dissent - Curtis. Disputed Taney’s account of the framers’ intent. Curtis argued that at the time the USC was ratified, a number of Northern states had black citizens, who voted on ratification. “It would be strange, if we were to find in that instrument anything which deprived of their citizenship any part of the people of the United States who were among those by whom it was established.”

• Historical Context by Koppelman. SCt here was attempting to solve the most divisive political issue of the day: whether individual territories should be permitted to abolish slavery.

• SCt’s intervention here was not necessarily countermajoritarian. President James Buchanan’s 1857 inaugural address described slavery in the territories as a “judicial question, which legitimately belongs to the SCt of the United States.” Nothing would have made Buchanan unhappier than a SCt holding that slavery was a question for the political branches.

• Is it ever/never appropriate for the SCt to attempt to resolve such divisive issues?

• Dred Scott is of continuing doctrinal relevance. One could argue that it is the negative twin of modern equal protection doctrine, defining the normative propositions that are now to be expelled from political decisionmaking: specifically, that blacks, and perhaps other classes as well, are “beings of an inferior order,” who have “no rights which [other citizens are] bound to respect.”