Excerpted From: Gabriel J. Chin, Dred Scott and Asian Americans, 24 University of Pennsylvania Journal of Constitutional Law 633 (June, 2022) (163 Footnotes)(Full Document)


GabrielJChin“Perhaps no legal case in American history is as famous--or as infamous-- as Dred Scott v. Sandford.” Cass Sunstein called Dred Scott “probably the most important case in the history of the Supreme Court of the United States. Indeed, it was probably the most important constitutional case in the history of any nation and any court.” U.S. Supreme Court Chief Justice Roger Brooke Taney became notorious for his holdings that Congress had no power to prevent the spread of legal slavery in United States territories, and that no person of African descent could be a citizen, based on a conclusion that at the founding of the country, they were

regarded as 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; and that the negro might justly and lawfully be reduced to slavery for his benefit.

After more than 150 years, the decision still draws intense academic attention. Some historians have suggested that Dred Scott was a cause of the Civil War.

This article proposes that a landmark opinion shedding light on the meaning of Dred Scott has been overlooked and remained unanalyzed until now. Dred Scott--or at least the reasoning of Dred Scott--was not solely about the status of enslaved African Americans. United States v. Dow is an 1840 decision by Chief Justice Taney, written as he presided over a trial in the U.S. Circuit Court. Dow, touched on by courts and scholars only rarely and in passing, analyzed the same historical and legal issues that Taney would confront in Dred Scott seventeen years later: Which race was “master,” and which others were sufficiently “inferior” that they might be enslaved; which race was worthy of participation in the political community, and which people among the world's nations were “civilized.” In Dow, Taney held that the defendant was not a “Christian white person,” and thus was not entitled to the protections afforded that class under the law of evidence. Accordingly, for a crime for which a white person could not have been charged for lack of evidence, Dow was condemned to death (though ultimately pardoned). In its holding that Dow's freedom was a question of state law, the opinion accurately mapped the future: Even with respect to citizens of color, the rights of non-whites were subject to the political will of the dominant race. However, Dow was not African. He was “Malay,” from the Philippines.

In a certain sense, Dred Scott's continued prominence requires explanation. Decided in 1857, some of its holdings were not merely rendered moot but definitively rejected and reversed no later than 1868 with the ratification of the Fourteenth Amendment. Because the Thirteenth Amendment wholly abolished slavery, the Constitution also unquestionably prohibited slavery in the territories. Dred Scott was deeply racist, but there are many such texts from equally prominent leaders.

Reading Dow and Dred Scott together illuminates the meaning of the latter and helps explain its continuing relevance. Dow and Dred Scott were the first federal cases articulating a political theory of race and racial status in the United States. The Constitution, of course, functioned to protect slavery, but it did not use the words “slavery,” “African,” or “Negro,” some have argued, in an effort to minimize the appearance of constitutional approval or involvement. No federal cases had articulated a comprehensive theory of racial hierarchy. Dow and Dred Scott together outlined the rights of all races, at least as contemplated at the time. In that sense, Dred Scott was not about slavery alone, as critical as that issue was. It also addressed free people of color, including but not limited to persons of African ancestry, and recognized state authority to determine their status and rights--even if they were, in a technical legal sense, citizens. To this extent, Dred Scott remains important because it outlined a constitutional and historical theory of white supremacy that was influential for a century after Reconstruction, and the case has not yet been fully resolved. Indeed, Dred Scott continues to resonate for some; on white supremacist websites like Stormfront.org, it remains the law of the land in the hopes and imaginations of many.

In addition to political theory, Dow and Dred Scott also outlined legal doctrine which could bring into operation the racial hierarchy they envisioned. Part of that doctrine was that legal principles flowing from slave law could, in the discretion of the states, apply to free people of color just as they did to enslaved persons.

Finally, Dow makes clear that anti-Chinese movement in the Pacific Coast jurisdictions starting in the 1860s was not the beginning of inclusion of Asians in U.S. race law. Supreme Court cases like Fong Yue Ting v. United States, in 1893--upholding race-based deportation--and Lum v. Rice, in 1927--approving Mississippi's assignment of a Chinese student to a segregated school, along with all other members of the “brown, yellow, and black races” not post-Reconstruction innovations, belatedly finding a place for Asians in a nation where the law had been employed to make whites supreme over Blacks. Instead, Chief Justice Taney's ready application to Asians in 1840 of law regulating free people of color suggests that from the very beginning of this country, white supremacy was a complete, comprehensive, and operational jurisprudence--at least to those like Taney, who made and applied the law.

Dow and Dred Scott make clear that there was, and had to be, a master race. To be sure, there was controversy over the words of the Declaration of Independence that “all men are created equal, and endowed by their Creator with the inalienable right to life, liberty, and the pursuit of happiness.” Perhaps this phrase sowed the seeds of liberty for all that might develop in the fullness of time, as abolitionists including Frederick Douglass and Lysander Spooner argued; perhaps instead it enshrined white supremacy. But interpreted broadly or narrowly, if the United States was a republic that had thrown off monarchy, racial subordination of whites became a logical impossibility, because some group had to be the holder of inalienable rights.

As will be shown, under United States law, non-whites could be, for example, denied the right to vote, own property, or testify against whites. But only in a dictatorship or monarchy could people of color and whites--that is, everyone--be denied the right to vote, own property, and testify. People of color might be deported from the United States on the basis of race, but only if the nation were to be emptied out entirely could the law seek to deport or expatriate everyone on the basis of race. Unless everyone was to be potentially a slave and no one secure in the inalienable rights of citizenship, choices had to be made: (1) race-based classifications had to be prohibited, (2) slavery had to be prohibited and citizenship made universal, or (3) there had to be a race exempt from enslavement and denial of some basic rights of citizenship. Dred Scott and Dow explained that U.S. law elected the third possibility.

Dred Scott remained vital after Reconstruction because its main point was not the denial of citizenship, as cruel and wrong as that decision was. Being native-born, rather than an “alien,” Dred Scott probably was a national of the United States in the international law sense of the term. Even had he been deemed a citizen, that classification would have availed him nothing except the opportunity to sue for freedom in a federal court and lose. Citizenship hardly impeded many forms of segregation. Even the right of U.S. citizens not to be deported was valuable only to a point, given the power of Congress to expatriate and the practice of extralegal deportation. As Dred Scott and Dow held, the states were allowed to arrange their internal affairs, including the status of residents, largely as they pleased. Neither the states nor the federal government was burdened by a meaningful prohibition on racial discrimination until the Civil Rights Revolution of the 1960s.

Part I discusses United States v. Dow in relation to Dred Scott. Together, they identified civilized Christian nations populated by members of the white race who sent their people to what became the United States and formed the political community there. As a white Christian nation, people of other races or religions were not encouraged to immigrate to the United States, and if they did were not allowed to participate in government. Africans, Indians, and Malays, and other races which could be enslaved by law, were not part of the People of the United States.

Part II discusses application of the theory of Dred Scott to free people of color. Courts, scholars, and the press, including the African American press, did not consider Dred Scott to have been effectively repudiated by the Thirteenth and Fourteenth Amendments. At least after the end of Reconstruction, these observers frequently claimed that free people of color had no rights that the white man was bound to respect. They had a point. Even when possessed of legal citizenship, people of color could be disenfranchised, denied the right to own property, denied the right to testify, segregated in various contexts, and arbitrarily deprived of their liberty. On the other hand, given the self-conception of the United States as a free republic, it is not conceivable that whites could have been deprived of liberty or property because of their race, as people of color were--so that, in effect, no one could, vote, testify, or own property. The legal regime Dow and Dred Scott had mapped was in place until the Second Reconstruction of the 1960s.

[. . .]

By 1964, Chief Justice Taney's vision of the political structure of the United States and the places of the races in it was in the process of destruction. Nevertheless, he had proved to be prescient; the states did have the right to determine the status of their residents, and people of color could be put at the bottom. Taney's vision was reflected in 1964 by a Mississippi Supreme Court decision unanimously upholding the convictions of a group of Freedom Riders who attacked by mob. The court at least implicitly recognized the right of the police to order people of color out of public accommodations, rather ordering out white mobs or stopping them from rioting. In their decision, the court offered a revealing description of the history of the relationships between the races:

This Court, like everyone else, is somewhat conversant with historical facts. Hence it knows that slavery, as a legal institution, existed in this country from the earliest Colonial days. That status continued unabated even after the Declaration of Independence was proclaimed to the world in 1776 and thereafter beyond the adoption of the Constitution itself.

The court explained that the Civil War and Reconstruction had no effect:

Even after the newly freed slaves were enfranchised, there was little difference thereafter in the racial attitudes insofar as social intercourse and acceptance were concerned .... Even the Great Crusader for Freedom and the Emancipator of the Slaves recognized that these differences placed a severe limitation on the full measure of freedom for them.

But for some reason, northern courts and civil rights protesters complained: “The cry by certain groups for conformity to their beliefs rings out endlessly over the land through the various media of communications.” However, agitators would have to face reality:

Large numbers of people, in this broad land, are steeped in their customs, practices, mores and traditions. In many instances, their beliefs go as deep or deeper than religion itself .... From the lessons of history, it has been learned that “though the mills of the gods grind slowly, yet they grind exceeding small” and that human nature makes little change from day to day, month to month, year to year, and century to century.

The faith of Dred Scott and Lorenzo Dow had proved to be irrelevant, and a century later, an elected court--presumably familiar with the political views of the voters of Mississippi--candidly admitted that racial considerations were more important than religion, and to challenge that was to war with human nature itself.

Chief Justice Taney's jurisprudence, and his vision for America, left much to be desired from a modern perspective. Yet, as an historian, and as legal realist describing the law as it actually was, his work is entitled to attention. As a descriptive matter, Dow, Strader, and Dred Scott articulated the law of the United States not only before, but for at least a century after the Civil War. Taney's work makes clear that like African Americans, Asian, Native Americans and other non-whites had no rights the law was bound to respect.

Edward L. Barrett Jr. Chair and Martin Luther King Jr. Professor, University of California, Davis School of Law.