Legal Commentary

As I mentioned in an earlier post, last week I attended a talk about John Brown, and found myself thinking about Dred Scott, Obama, and citizenship.  This post elaborates. 

The Supreme Court?s decision in Dred Scott incensed John Brown.  Not only was there Chief Justice Taney?s statement that blacks were ?beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.?  There was also Chief Justice Taney?s conclusion: blacks, whether slave or free, were not included and were not intended to be included under the word ?citizens? in the Constitution.  In short, blacks were not citizens, and would likely never be citizens.

John Brown rejected the Court?s conclusion, and responded by drafting both a Provisional Constitution and Declaration of Liberty that took as irrefutable the citizenship rights of blacks.  His Provisional Constitution described slavery as ?none other than the most barbarous, unprovoked, and unjustifiable war of one portion of its citizens upon another portion? and asserted the Provisional Constitution as a necessary response to Dred Scott.  His Declaration of Liberty, which largely tracked the Declaration of Independence, was similarly inclusive, stating:  ?When in the course of human events, it becomes necessary for an oppressed People to Rise, and assert their Natural Rights, as Human Beings, as Native and Mutual Citizens of a free Republic, and break the odious yoke of oppression?? 

Of course, John Brown was executed on December 2, 1859, years before the Thirteenth Amendment would abolish slavery and the Fourteenth Amendment would extend citizenship rights, on paper at least, to African Americans.  But what interests me is the extent that equal citizenship remains a contested issue.  Clearly, when Plessy gave its imprimatur to ?separate but equal? in 1896, finding nothing unconstitutional in the segregation of black and white passengers on public train cars, the Court was permitting something akin to a hierarchy of citizens.  Brown in 1954, and Loving in 1967 can also be read as citizenship cases, efforts to make real the promise of equal citizenship contained in the Fourteenth.  (A side note: This is more than a passing interest.  My research right now is about racial profiling and citizenship.)

But are we there yet?  Have we achieved equal citizenship?  When Barack Obama was sworn in as President, it was widely noted that the Bible used was the same Bible the author of  Dred Scott, Chief Justice Taney, used to swear in Lincoln.  As Dahlia Lithwick put it in Slate, the swearing in of Obama was ?in some ways the symbolic closing of a constitutional circle.? 

Now, with a good chunk of Republicans believing Obama is not a citizen, with the ?birther? movement still latching on to a fake Kenyan birth certificate (willing to accept that, but not the certificate from Hawaii? Go figure!), with scary videos on YouTube of angry birthers disrupting town hall meetings, I can?t help but wonder if some of Chief Justice Taney?s sentiment remains.  I can?t help but wonder:  Would the birther movement be as dubious of Obama?s citizenship if he were white?  If his father had been, say, Scottish as opposed to Kenyan?  Is there any overlap between these birthers and the people who seemed eager, a few years back, to amend the Constitution so that Arnold Schwarzenegger could run for president?  At bottom, is this really about race?  At least partially about race?

This is how Chief Justice Taney framed the question in Dred Scott:  "Can a negro whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen?"  Chief Justice Taney likely could not imagine that a negro (slave ancestry or no) would one day become not only a member of the political community, but its leader.  The problem is, more than 150 years later, a lot of birthers still cannot imagine this.