Search Results

Eric Foner, DeWitt Clinton Professor Emeritus of History at Columbia University, explores how the original Constitution failed to stop the spread of slavery and the debasement of the enslaved. He then describes what he refers to as the nation’s “second founding”—the addition to the Constitution after the Civil War of the Thirteenth, Fourteenth, and Fifteenth Amendments, which promised the possibility of a new definition of American citizenship and individual rights. Foner’s essay is accompanied by primary source selections that focus on pre-Civil War controversies involving the Fugitive Slave Act and the Dred Scott decision; the constitutional justifications offered by the South for secession and by the North for the abolition of slavery; and the pivotal series of Supreme Court decisions at the close of the nineteenth century that dramatically narrowed the reach and purpose of the postwar amendments.

The immediate origins of the 1866 Act lie in the Thirteenth Amendment, but its content goes back to the Privileges and Immunities Clause in the original Constitution. The interpretation of that clause in the antebellum decision of Corfield v. Coryell offered a list of rights broadly similar to those protected by the act but was necessarily limited to rights already conferred by state law on state citizens. Under Dred Scott v. Sandford, African Americans were excluded from the coverage of the clause and all other federal protections of citizenship. Although the Thirteenth Amendment negated the practical effect of Dred Scott, it left to Congress the task of officially overruling the decision and bridging the gap between freedom and citizenship. As the 1866 Act bears witness, Congress took an active role from the very beginning in exercising its enforcement powers to determine the meaning and effect of the Thirteenth Amendment.

A theme of this book is the centrality of considerations of utility to southern judges, particularly in slavery cases. This chapter turns to two areas of law—emancipation of slaves at death and the transportation of slaves to free states and territories as a basis for claims to freedom—to see how judges blended precedent and considerations of utility. The famous 1857 Supreme Court case of Dred Scott was one of those cases dealing with transportation to a free territory; there were many others. The law correlated with the increasingly proslavery attitudes of southern politicians and voters. Even the extrajudicial writing of judges, such as Justice John A. Campbell, of the U.S. Supreme Court, reflected the increasing support for slavery. By the election of Lincoln, Southerners were primed for a robust defense of property rights in humans based on history and on economic considerations. Their defense was legitimized by southern judges and academics.

Why should constitutional protections be extended to any noncitizen in the first place? Some argue that any alien (legal or illegal) residing in the United States is entitled to full constitutional guarantees and protections. The Supreme court addressed this in the Dred Scott case, holding that the Fifth Amendment was not limited to the geographic boundaries of the states, but rather such protections were extended to all incorporated territories of the United States. In the 150 years since Dred Scott, the Court has discussed two distinct lines of demarcation relevant for determining detainee rights. These two jurisprudential lines are: distinguishing between individuals and inside and outside of the United States, and distinguishing between citizens and noncitizens.

By the mid-1850s, black activists had achieved a striking level of political power in New England. In Massachusetts, led by leaders like the lawyer Robert Morris and the physician John S. Rock, they supported the firmly anti-slavery American Party (or Know-Nothings), which sent the radical Henry Wilson to the U.S. Senate. The militant fugitive Lewis Hayden became famous for his defiance of slave-catchers, and was appointed to a State House position by Governor John Andrew. The Dred Scott v. Sandford decision led to the convening of a Massachusetts state convention and then a regional meeting to consider how to pressure Republicans.