Claiming History

Professor Michele Goodwin’s presidential address powerfully combines the themes of citizenship and history. She underscores the importance to the nation of remembering the long fight to include all Americans as citizens and the tragic consequences of denying the dignity of all within our borders.

I cannot hope to compete with Professor Goodwin’s eloquence, and I will not attempt to replicate the emotional intensity of her address. Instead, I plan to focus on one small part of that history: the role of the Supreme Court in acknowledging a racist past and the relationship between that history and efforts to restrict citizenship. To that end, I will revisit the Supreme Court’s decisions in Johnson v. M’Intosh (1823) and Dred Scott v. Sandford (1857), the case that held that blacks, whether enslaved or free, were not citizens of the United States, a case many believe was “a contributing factor in bringing about the bloodiest of America’s wars and the destruction of slavery” (Farber 2011, 14).

Over the last several decades, I have struggled with which cases to include in basic courses such as Property. I settled on Johnson v. M’Intosh, John Marshall’s 1823 opinion that declared that indigenous tribes had a right of possession of the land they held, but no ability to convey title to private citizens that would be recognized in the courts of the United States. I persuaded myself that I could teach Johnson because it is possible to read into the case whatever lessons the professor – or the class – choose to take from it. John Marshall, a slave owner, authored the majority opinion in a way that captured the moral ambiguities of the founding fathers. The opinion mocks the nations of Europe, referring to the “extravagant … pretension of converting the discovery of an inhabited country into conquest” (Johnson 1823, 591), but still concludes that “[c]onquest gives a title which the Courts of the conqueror cannot deny” (Johnson 1823, 588). He does not embrace indigenous tribes as sovereigns of their own country nor as citizens of the United States, but still insists that it “has never been contended that the Indian title amounted to nothing” and that the indigenous “right of possession has never been questioned” (Johnson 1823, 603) The opinion, in its reference to “fierce savages whose occupation was war,” uses racist language (Johnson 1823, 603), but Marshall also writes as a chief justice aware that the verdict of history may not be kind, as he acknowledges “the private and speculative opinions of individuals … [with respect to] the original justice of the claim” of Europeans to native land (Johnson 1823, 588). Marshall carefully frames the opinion, however much it embeds European colonial doctrine into American law, as one that addresses only a narrow issue – the right to convey land titles that can be enforced in the courts of the United States. He thus leaves the future open to different judgments, making it possible to imagine a day in which the treatment of indigenous people may shift toward a different conception of citizenship. The ambiguity in the opinion may be condemned as hypocrisy, or accepted as realpolitik, but it is hard to conclude that Marshall is blind to the injustices of settler colonialism.

The same is not true of Dred Scott. For years, I chose not to teach the case precisely because it cannot be read as anything other than an unapologetic declaration of white supremacy. Decades ago, that declaration seemed to be an embarrassing relic of an earlier era, and the only purpose of teaching it was to condemn the racist past. Today, I teach it precisely because Chief Justice Roger Taney’s opinion models what it means for the highest court of the land to embed the restriction of citizenship into the Constitutional order. And its lessons are every bit as much about the future as the past.

Teaching Dred Scott today echoes themes in Professor Goodwin’s presidential address about the narrowing of citizenship and the importance of history. The opinion resonates both with contemporary nationalist claims that the United States is a country defined by place and lineage and with the insights of critical theory that the country’s racist history informs the present (Stockman 2024). Dissecting the opinion is an exercise in claiming the meaning of history. It is perhaps unsurprising that Justice Thurgood Marshall, a champion of civil rights, “basically agreed with the Dred Scott Court” about the Constitution’s support for slavery while Justice Antonin Scalia argued that “Dred Scott was wrong because the Court abandoned the ‘intentions of the framers’ in favor of its own conception of social policy” (Sunstein 1997, 40). The meaning attributed to history frames today’s agendas. And central to that history – and its meaning for today’s disputes – is the notion of citizenship. Then and now, the insistence on the superiority of one group over another involves an assertion of power, power that is often authoritarian and partisan. The assertion of power may purport to resolve a divisive issue, but as often as not it inflames tensions, making future conflicts more likely. Claims of inevitable group-based superiority, while deeply immoral, invoke morality, uniting the exercise of unjustified power with claims that brook no defiance. And these claims, for those who reject them, call into question the legitimacy of the institutions of governance.

The declaration at the core of Dred Scott, more than a century and a half after its issuance, still has the capacity to shock. The opinion concluded that “negroes,” that is, those of the African race, could never be citizens of the United States. It extended that holding not just to those presently enslaved, but to their descendants, even if the descendants were born free and lived in states in which slavery had been abolished or never taken hold (Dred Scott 1857, 407). The opinion further limited the power of the states to reach different decisions about citizenship – and about the freedom of the formerly enslaved in their midst. At the same time, Taney celebrated the rights of the owners to treat the enslaved as property (Dred Scott 1857, 527), and to maintain enslavement throughout the United States. In the process, the majority opinion eliminated the possibility of compromise, going so far as to declare unconstitutional the Missouri Compromise of 1820, which had prohibited enslavement in newly acquired American territories. The opinion is an unqualified endorsement of white supremacy as part of the foundation of the country, forever limiting the citizenship of those subject to enslavement and their descendants.

Teaching the opinion underscores the nature of what it means to limit citizenship. Taney’s opinion is an unbridled assertion of power – or, one might argue, authoritarian power, partisan power. Dred Scott, decided in 1857, was the first case since Marbury v. Madison (1803), decided over a half century earlier, to declare an act of Congress unconstitutional (Sunstein 1997, 39). In Johnson v. M’Intosh, Marshall carefully limited the holding in Johnson to the conveyance of title in real property to be enforced in the courts of the United States. He specifically left open the ability of tribes to convey title that could be enforced in tribal courts. Taney, in contrast, unnecessarily expanded the reach of Dred Scott. Scott, who had been enslaved in the South, claimed that when his owner took him to a free state, he had been emancipated, and thus could sue in a Missouri court. The case could have been resolved on the basis of jurisdictional issues, existing precedent, or Missouri law, all of which arguably supported a conclusion that Scott did not have standing and the Court did not have jurisdiction over his lawsuit (Sunstein 1996, 49). Instead, Taney framed the issue question before the Court as:

Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen? (Dred Scott 1857, 403)

The Court thus asserted the power to decide, once and for all, whether the descendants of African slaves, whether still enslaved or free, could be citizens of the United States.

In reaching the decision, the Court expressed none of Marshall’s ambivalence about European “pretensions.” Taney, in the manner of Justice McLean’s dissent in the case, could have noted the conflicts over enslavement that shaped the Constitution, the deep divisions over slavery’s acceptability papered over by compromise, and the shifting opinions in the country and the world as abolitionism gained strength over the course of the nineteenth century (Dred Scott 1857, 536–38). Instead, Taney chose to freeze the meaning of the Constitution in terms of the practices of the slave-owning founders¹ and rejected any pretense that the Declaration of Independence meant what it said when it declared that “all men are born equal.”² He declared that:

It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.

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… . This opinion was at that time fixed and universal in the civilized portion of the white race.³

Rather than distance the country from European racism, Taney embraced that racism as central to the interpretation of the Constitution.

Dred Scott also underscores Professor Goodwin’s insight that with the constriction of citizenship comes the authorization of cruelty. In insisting that the Constitution upheld slaveowner’s property rights, the Court went so far as to compare the enslaved to “cattle or horses,” or “tools of the trade, or machines.”⁴ The opinion contains no recognition of the humanity of the enslaved, and no limit to the power of slaveholders over their “property.”

Historians treat the decision as a partisan one. Seven of the Court’s nine justices had been appointed to the bench by Southern presidents who favored enslavement. Five of the seven were from slave states and slaveholding families (Blight 2022). President James Buchanan corresponded directly with one of the justices, suggesting that it was important “to destroy the dangerous slavery agitation and thus restore peace to our distracted country” (Sunstein 1997, 45). Justice James Wayne of the Georgia Supreme Court, who knew about Buchanan’s letter, also encouraged the justices to issue a broad opinion. He later told a Southern Senator that he had “gained a triumph for the Southern section of the country, by persuading the chief justice that the court could put an end to all further agitation on the subject of slavery in the territories” (Sunstein 1997, 45). Cass Sunstein concludes that the Court’s “obvious goal was to solve, once and for all time, the great moral and political crisis that slavery had created for the United States of America” (Sunstein 1997, 45)

The Court failed. The dissent underscored that Taney’s decision was based on “bad history and false law” (Blight 2022). Free states saw the opinion’s sweeping language as a raw assertion of Southern power, undermining the ability of the Northern states to reach their own conclusions about the acceptability of enslavement, and eliminating the bases for further compromises. Abraham Lincoln insisted that the opinion could not settle the matter for the country, given the decision’s lack of unanimity, apparent partisan bias, disputed historical facts, and conflict with public expectations (Sunstein 1997, 47). The Civil War and the Fourteenth Amendment, not the Court, resolved the issue of citizenship.

Professor Goodwin does not elaborate the parallels between the history she recounts and our own time. The parallels are both obvious and contested. Those who prevail in our current struggles will choose the historical interpretations that support the foundation for the new order that will be created. But many of the implications of Dred Scott speak for themselves.

One is that the Supreme Court, particularly a stacked, divided Supreme Court, cannot save us.

A second is that while the expansion of citizenship does not always deliver equality or compassion, the restriction of citizenship is an invitation to cruelty. Citizenship defines those who have a claim to be seen and heard within a polity. Taney, in contrast, states unambiguously that the descendants of African slaves are “so far inferior, that they had no rights which the white man was bound to respect.” Today’s efforts to narrow citizenship also narrow the numbers of those who are to be treated with fairness and empathy.

The third is that the exertion of power needed to subordinate one group to another is necessarily ugly. The Court in Dred Scott exercised judicial power not just on behalf of whites to the detriment of blacks, but to impose a slave holding vision of the Constitution on those who rejected it. The ugliness of the treatment of the enslaved, once made visible, hardened abolitionist resolve. The Court’s determination to empower the “slave catchers,” who defied the law of the free states, undid the compromises that had made it possible for Northerners to ignore the injustices of enslavement. And opposition to enslavement, after Dred Scott, required rejecting the legitimacy of the Taney Court.

I would like to conclude that the final lesson is that such ugliness – the ugliness of the abusive treatment of human beings in our midst, of the naked assertion of power against those who would dissent, of the pretense of imposing a final resolution of a deep moral issue in ways that perpetuate injustice – always brings about the destruction of those who champion the ugliness. But, like Professor Goodwin, I cannot predict the future and, even if I were confident about the ultimate outcome, the timeline is sometimes one of centuries. Instead, I will rest, as Professor Goodwin, does on the recounting of history. Making history visible, with its ugliness and its moments of resistance, is powerful on its own terms.