Excerpted From: Kevin R. Johnson, Dred Scott and Asian Americans: Was Chief Justice Taney the First Critical Race Theorist?, 24 University of Pennsylvania Journal of Constitutional Law 751 (June, 2022) (62 Footnotes) (Full Document)

KevinJohnsonCritical Race Theory (CRT) posits that the law serves to operationalize, maintain, and replicate white supremacy in the United States. White supremacy, in turn, stands as the unifying principle underlying the webs of subordination of many different racial groups.

CRT's focus on dismantling white supremacy over all people of color, however, did not emerge overnight. Rather, it took root with maturation of the movement. The Black/white paradigm of civil rights, and the near-exclusive focus on the subordination of African Americans, initially dominated CRT scholarship, just as it dominates many Americans' general perception of the fundamental nature of civil rights struggles in the United States. For much of U.S. history, virtually any discussion of civil rights focused on the relationship between whites and African Americans. With the emergence of critical Latinx (LatCrit) theory, Asian American legal scholarship, and parallel movements, CRT evolved to also insightfully examine white subordination of Asian, Latinx, Indigenous peoples, and groups other than African Americans.

At various times, the nation has experienced activism squarely confronting white supremacy and demanding the dismantling of systemic racism in the United States. One long-forgotten example is the lengthy, and unsuccessful for a century, political effort beginning at the turn of the twentieth century to push Congress to enact anti-lynching legislation at a time when whites frequently employed the horrific practice of lynching to terrorize African Americans and the states proved themselves incapable of punishing white perpetrators of the crime. The historic Civil Rights Movement of the 1950s and 1960s, is a more successful--if not complete--example of a sustained challenge to white supremacy.

In response to a series of senseless police killings of African Americans in 2020, including but not limited to those of George Floyd and Breonna Taylor, mass protests spread like wildfire across the United States. Police brutality contributed to monumentally high racial tensions, which were exacerbated by the words and deeds of a president who, at best, was insensitive to the civil rights concerns of people of color. Not coincidentally, non-whites other than African Americans simultaneously suffered attacks, including hate violence directed at Asian Americans. Tensions hit a fever pitch in January 2021 when armed white supremacists stormed the U.S. Capitol in a brazen and lawless attempt to violently overturn the 2020 election loss of President Donald J. Trump. With the nation reeling from racial turmoil, President Trump added fuel to the fire by attacking Critical Race Theory, and its challenge to systemic racial injustice and white supremacy, as little more than unpatriotic propaganda that must be eliminated in its entirety from the public schools and all of government.

At the outset, a word about Professor Jack Chin's impactful scholarship is warranted. An influential race and civil rights scholar, he has made significant contributions to immigration law, criminal law, Asian American legal scholarship, and other substantive areas. Through the lens of the history of race and racial discrimination in the United States, Professor Chin insightfully analyzes the law and its impacts. Exhibiting his academic breadth, he recently brought to light state and local efforts to regulate out of existence Chinese restaurants--ironically enough, a mainstay of popular cuisine in the country today--as a racial, moral, and economic danger to white society. The deep and important analysis in his article Dred Scott and Asian Americans will no doubt add luster to Professor Chin's scholarly legacy.

In his article, Professor Chin analyzes the decisions of Chief Justice of the U.S. Supreme Court Roger Taney, a historical figure who helped to rationalize and normalize the legal subordination of African Americans in pre-Civil War America. As it turns out, Taney understood racial matters in a way that in rather remarkable fashion serve as textbook examples of fundamental tenets of contemporary Critical Race Theory. As he often has done in an illustrious career, Professor Chin adds measurably to our understanding of the racial jurisprudence of a Supreme Court justice who is central to the history of the law of racial subordination in the United States. As we shall see, Chief Justice Taney's endorsement of white supremacy unfortunately lives in perpetuity and remains part and parcel of contemporary U.S. law.

Professor Chin specifically turns his scholarly attention to Chief Justice Taney's decision for the Supreme Court in the infamous antebellum case of Dred Scott v. Sandford, which held that a freed slave was not a U.S. citizen afforded access to the federal courts. Naturally enough given the time in U.S. history when the case was decided, Chief Justice Taney's racism has been assumed by some, perhaps most, knowledgeable observers to be confined to African Americans--the specific racial minority that the Supreme Court denied full rights of U.S. citizenship. Adding to our collective understanding of the Dred Scott decision as well as race and racism in U.S. history, Professor Chin uncovers and analyzes another one of Taney's opinions, United States v. Dow. In denying full rights of U.S. citizenship to an Asian American, the Dow decision demonstrates that Taney's paradigm of white dominance extended beyond African Americans, and represents a broader overarching principle--that the law can and should enforce and maintain white supremacy over all other races in the United States.

Read together, Chief Justice Taney's decisions in Dow and Dred Scott demonstrate how he understood the law as dutifully protecting, enforcing, and maintaining white supremacy over all non-whites. Reflecting a de facto presumption that whites possess ultimate and unfettered power over all nonwhites, his opinions offer powerful support for CRT's fundamental tenet that white supremacy is the invisible hand that guides the law's efforts to subordinate all non-white groups, including African Americans, Asian Americans, and others. The races may be malleable, but white supremacy is not. To Taney, the law permits the unquestionably dominant white race to impose the scourge of white supremacy on all non-whites. White supremacy is one of Roger Taney's enduring legacies to American jurisprudence.

Characteristic of his writings, although not of legal scholarship in general, Professor Chin takes the reader on an unusually enjoyable intellectual journey as well as one chock full of insights. For example, in the article, a reader encounters flavorful references to non-law popular icons, such as the legendary American author Mark Twain. We also can only chuckle at Professor Chin's wonderfully illustrative quip that, with the Reconstruction Amendments to the U.S. Constitution, “after 1868 Dred Scott seemed as dead as the Whig Party,” a long-defunct political party unknown to most Americans today. Professor Chin's wit and wisdom unquestionably come through in Dred Scott and Asian Americans.

Part I considers Professor Chin's analysis of the white supremacist underpinnings and legacy of United States v. Dow, a little-known decision denying full rights to Asian Americans, and the iconic Dred Scott v. Sandford, a decision that became a national symbol of African American subordination. The commentary then explores how Chief Justice Taney's analysis of race and racial subordination in the nineteenth century exemplifies fundamental tenets of Critical Race Theory, which emerged in legal scholarship at the tail end of the twentieth century.

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In a thoughtful excavation of an important decision discriminating against Asian Americans by a famous jurist, Professor Jack Chin provides much food for thought about racial subordination throughout U.S. history. Not only enforcing African American inferiority and subordination, Dred Scott is a ringing endorsement of white supremacy over all non-whites. The unquestioned villain of Dred Scott, Chief Justice Roger Taney fully understood the core unifying principle of white supremacy in U.S. law and social life in the subordination of all non-whites. His opinions in United States v. Dow and Dred Scott v. Sandford together reveal his enduring commitment to the unquestioned domination of non-whites by whites in the nation's racial hierarchy, enforced by law and, at that time, truly legal in every sense of the word. The tandem of Taney opinions reveals volumes about how white supremacy informed and justified the various forms of discrimination in U.S. society against a variety of non-white racial groups throughout U.S. history.

Today, from a vastly different vantage point--condemning, not enforcing, racial subordination, the central tenets of Critical Race Theory are entirely consistent with Chief Justice Taney's views about the relationship between the legal subordination of different racial groups and the political and social construction of race. With white supremacy the core organizing principle of his racial paradigm, Chief Justice Taney's understanding of racial power dynamics squares with CRT's modern explanation of racial subordination in the United States. In essence, Chief Justice Taney's analysis of issues of race, as exemplified by Dow and Dred Scott, lends powerful support to the fundamental CRT insights that white supremacy ties together the subordination of many diverse communities of color and allows whites under color of law to define non-whites and their legal rights. Unfortunately, even though Dred Scott officially is not the law of the land, its modern legacy of white supremacy lives on.

Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies, University of California, Davis School of Law.