But the Supreme Court did none of these things. Instead, it held that no person of African descent, whether born free or slave, whether manumitted or held in chains, or whether a citizen of a state or not, was a federal citizen nor could they ever become one. In so doing, Taney not only inverted the states’ rights paradigm and nationalized the denial of citizenship to African descendants, stripping northern Black citizens of their federal citizenship rights, but he also denied states the ability to do anything about it.
In Taney’s view, the framers of the Constitution did not intend to include members of the “enslaved African race” because they did not consider them to be members of their political community that framed that instrument. Chief Justice Taney explained his reasoning in the harshest terms: “They had for more than a century before been 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.” Thus, persons of African descent were not members of the political community; nor could they benefit from the instruments that were formed for the benefit and protection of the (white) people of the United States; nor were they “members of the political communities in the several states.”
The Dred Scott decision not only extended the protections of slavery nationally, but it stripped free Black citizens of free states of their federal citizenship status and rights. And it made whiteness, and white identity, the sine qua non of American national citizenship. This legacy lives with us still. Whenever restrictive immigration laws and travel bans are erected primarily against nonwhite peoples, Dred Scott casts its long shadow in the continuing predicate of whiteness as a condition of fitness for American citizenship.
Since citizenship is the primary distributive decision we make, and the political community defines the polity, Dred Scott posed a simple question: who belongs? And Chief Justice Taney’s answer to that question was unequivocal. In that sense, Dred Scott is the fulcrum of American identity. It defines, through who is included and who is excluded, the very nature of our national and civic identity.
Since Dred Scott has never been formally overturned by the Supreme Court, it was left up to the political branches to do so. Virtually every instrument expanding equality has taken aim at Dred Scott. The Thirteenth Amendment was the first volley, limiting slavery. The next step was the Civil Rights Act of 1866, and, more directly, the Fourteenth Amendment, which defined that federal and state citizenship are acquired by birthright citizenship, by being born or naturalized in the United States. It extended critical protections to those citizens (and all persons) with the equal protection clause, the due process clause, and the privileges and immunities clause, among others.
But in truth, the overturning of Dred Scott is an ongoing and incomplete project. The Immigration and Naturalization Act of 1965, which ended national quotas on immigration, and the Twenty-fourth Amendment, which banned poll taxes as a condition of voting, are also part of that project. Every effort to extend equality into the heart of American citizenship, to erase the race line drawn by Chief Justice Taney, and to enlarge the “we” who belong to the American project continues the work of overturning Dred Scott.
Also implicated is the extent to which these questions can be left to democratic majorities or even empowered pluralities. Indeed, the doctrine of popular sovereignty would have left these questions to a vote. But true equality cannot be left to the whims of an electorate—it is the predicate for democracy and the vote, not their product. This, too, is a lesson from the period of the late 1850s: that a constitution or declaration constitutes the “we,” and that this act of constituting structures all other distributive decisions and identity itself. Thus, who we are, and who belongs, is the most fundamental question that we have ever asked or can ever ask. We are still struggling to get the answer to this question right. We are still coming up short.
COMPROMISE
Donika Kelly
I.
They tied it to the land like a dog,
the idea: compromise—which
the land alone is incapable of exacting
absent, on the one white hand, the North,
on the other white hand, the South;
incapable, absent the parchment
declarations and debate, all of which,
alongside the hoe the shovel the plow
the whip, broke the land open like skin.
A latitude welled with blood.
II.
To tell right it, refuse the theory
offered: the promise of property futures
masquerading as balance, the premise
of nearly, but not quite, a person. Refuse.
Hear instead Maria Stewart: And such is the powerful
force of prejudice. Let our girls possess
what amiable qualities of soul they may…
it is impossible for scarce an individual of them
to rise above the condition of servants.
Hear Bethany Veney: I have imagined myself
with a young girl’s ambition, working hard…
getting a little home with a garden…bringing
my sisters and brothers to share with me
these blessings of freedom.
Hear Mattie J. Jackson: The days of sadness
for mistress were days of joy for us.
We shouted and laughed
to the top of our voices.
Hear Lucy Anne Delaney: “You have no business
to whip me. I don’t belong to you”…
I rebelled against such government.
III.
Say the compromise is between a woman
who feels pain and another woman who feels
pain. Say both women are torn after giving birth
and from both arise a smell like rot, a pain
from being rotted inside. Say fistula.
Say only one woman is whole. Say the other
is ⅗ths. Which one do you sew with silver,
with pig gut, with lead? Whoever says, sews.
Whoever’s sewn gets no laudanum. Say cure.
Call it technique. Call it science. Whoever
calls it, keeps it, no matter Anarcha,