Taney and Marshall as constitutional interpreters

[Mark Graber]

But, of course, the problem is what the framers intended generally.  Let us suppose that people in South Carolina are unaware that free blacks in Boston are considered citizens (there is some evidence for this).  Then even if they are wrong, their intent is still not to grant American citizenship to persons of color--consider again the absolute dominance of the view that persons of different races could not live in the same civic space.  In short, what is important is not simply whether persons of color were considered citizens in some states, but whether there was sufficient agreement in all states that should a state grant citizenship to persons of color, that person would become an American citizen.

Mark A. Graber
mgraber at gvpt.umd.edu

>>> mcconnellm at LAW.UTAH.EDU 10/12/00 05:10PM >>>
The reason Taney's argument is "off the wall" is that the relevant
constitutional provision did not refer to "citizens of the United States"
but to citizens of *States.* As Taney himself wrote: "It becomes necessary,
therefore, to determine who were citizens of the several States when the
Constitution was adopted." Sandy does not appear to disagree with me that
there was no basis for holding that states had, in fact, made free persons
of African descent citizens, and that there is no reason in the text or
history of the Constitution to doubt that they could continue to do so.

Michael McConnell
University of Utah College of Law
332 South 1400 East Rm. 101
Salt Lake City, UT 84112


> -----Original Message-----
> From: Sanford Levinson [mailto:SLevinson at MAIL.LAW.UTEXAS.EDU]
> Sent: Wednesday, October 11, 2000 5:05 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Taney and Marshall as constitutional interpreters
>
>
> Taney in fact recognized that some states made blacks citizens, and he
> professed no overt doubts that states could continue to do
> so.  What he
> denied is that states could make blacks "citizens of the
> United States."
> The Constitution, of course, gives no hint at all as to how
> we figure out
> who a "citizen of the United States" is.  One might well argue that
> national citizenship is entirely derivative from state
> citizenship, but
> then one has to ask why naturalization is firmly placed as an
> exclusive
> national power.  And, for that matter, Taney recognizes that
> blacks could
> vote in some states; he then points out, altogether
> correctly, that being
> able to vote was not limited to citizens, so that one could
> not logically
> infer from the right to vote that one is a citizen.  I don't
> think these
> are particularly strong arguments.  I hope that I would have joined
> Curtis's dissent.  But my point is that Taney's arguments in
> Dred Scott are
> thoroughly "on the wall," as it were, not remotely close to
> Rule 11, and
> certainly no worse than Story's arguments in Prigg.  One
> might even ask if
> they're any worse than Marshall's arguments in Marbury with
> regard to his
> interpretation of Section 13 of the Judiciary Act of 1789 of his
> interpretation of Article III and original jurisdiction.  I personally
> believe the answer is no.  Marshall's arguments in Marbury
> are terrible,
> driven by his desire a) to denounce Thomas Jefferson and
> James Madison, but
> 2) at the same time to avoid a full-blown constitutional
> crisis and 3) to
> keep his job.
>
> sandy
>