[[link removed]]

THE ROBERTS COURT AND THE DRED SCOTT TRADITION  
[[link removed]]


 

Van Gosse
May 29, 2026
History News Network
[[link removed]]


*
[[link removed]]
*
*
[[link removed]]

_ The Dred Scott decision had little grounding in American legal
doctrine and the English common law upon which American jurists and
lawyers relied. Neither does the Trump administration challenge to
birthright citizenship. _

,

 

Within the next few weeks, the Supreme Court will rule on the Trump
administration’s argument that the Fourteenth Amendment’s opening
sentence — “All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside” — only applied to
formerly enslaved persons and their children.

This is self-evidently a spurious claim, but the arguments that
countered it, defending the Fourteenth Amendment as
a _new_ universal right in 1868, miss some crucial history: free
Black people had enjoyed birthright citizenship in much of the United
States since its founding. The Fourteenth Amendment’s explicit
purpose was to extend the birthright principle into a
uniform _national_ citizenship, and the men arguing for it built
upon a long tradition in doing so.

Most articles examining today’s challenges to birthright citizenship
frame the Fourteenth Amendment as a response to the 1857 _Dred Scott
v. Sandford_ decision, in which Chief Justice Roger B. Taney declared
that Black persons “are not included, and were not intended to be
included, under the word ‘citizens’ in the Constitution, and can
therefore claim none of the rights and privileges which that
instrument provides for and secures to citizens of the United
States”; further, they “had no rights which the white man was
bound to respect.” Only two justices dissented from the opinion. 

Minus the history leading up to _Dred Scott_, readers may presume
that Taney’s opinion reaffirmed existing precedents, reflecting a
popular consensus. Not so! His decision sparked outrage precisely
because it was radically new, whereas the Fourteenth Amendment’s
affirmation that everyone born on the soil was a citizen had
precedents stretching back to the Founding. 

The chief justice’s claims had little grounding in American legal
doctrine and the English common law upon which American jurists and
lawyers relied. All definitions of American citizenship rested
on _jus soli_, the right of the soil (what we call “birthright”),
as explained in William Blackstone’s _Commentaries on the Laws of
England_ in 1765, the principal text for generations of American
lawyers. Blackstone specified that there were only two categories of
inhabitants: “The first and most obvious division of the people is
into aliens and natural-born subjects. Natural-born subjects are such
as are born within the dominions of the crown of England, that is,
within the ligeance, or as it is generally called, the allegiance of
the king; and aliens, such as are born out of it.” During the
Revolution, Congress and the individual states declared that all free
British subjects who did not exile themselves were now Americans with
little discussion of its implications. That was the original basis of
birthright citizenship, but it was left to the states to apply it. 

The devolved federalism of American jurisprudence thus kept open the
space to interpret birthright nonracially. From the Revolution to the
Civil War, citizenship derived primarily from one’s status in an
individual state. Massachusetts, New Hampshire, Vermont, and later
Maine always recognized free Black people as citizens and accorded
them full political rights, while others like New York and
Pennsylvania began on the same plane but later took away voting
rights, and some new states like Ohio formally consigned their Black
inhabitants to a lower and liminal status. Birthright citizenship was
therefore a “states’ rights” issue. Taney’s _a
priori_ declaration that there never had been any Black citizens
abrogated existing state laws, which those states rejected outright.
Vermont and Wisconsin had already “nullified” the Fugitive Slave
Act of 1850, which legalized kidnapping Black people in the North, and
Maine’s legislature declared
[[link removed]] _Dred
Scott_ “not binding in law or conscience.”

The argument for nonracial citizenship was longstanding and linked the
emerging Black political class of the antebellum decades with white
leaders in the Federalist, then Whig, and finally Republican parties.
Examples abound. In the 1840s and ’50s, it was common knowledge that
Thaddeus Stevens refused to sign Pennsylvania’s 1838 constitution
because it took the vote from the state’s Black men, against which
he had argued with his characteristic vehemence. Another notable
instance came in 1837, when former President John Quincy Adams, the
South’s nemesis as a congressman from 1831 to 1848, presented his
fellow members of the House of Representatives with a petition
purporting to come from enslaved Virginians. In response he was
“gagged,” the beginning of a long fight over the reception of
antislavery petitions. To vindicate himself, Adams published
[[link removed]] a
letter “To the Inhabitants of the Twelfth Congressional District of
Massachusetts,” his constituents, in which he unequivocally hailed
African Americans, enslaved as well as free, as “countrymen” and
fellow citizens. It is worth quoting: 

The sentiment in the bosom of any free American, that one sixth part
of its countrymen, are by accident of their birth deprived even of the
natural right of prayer [e.g., to petition] is degrading enough to
human nature; but that because, in one portion of this Union, the
native American becomes, by descent from African ancestry, an outcast
of human nature, classed with the brute creation, within the
boundaries of the state in which he was born, therefore, it is beneath
the _dignity_ of the General Legislative Assembly of a nation,
founding its existence upon the natural and inalienable rights of man,
to listen to his prayer, or even to receive his petition, is an
opinion to which I trust your judgments will never assent, and a
sentiment which your hearts will reject with disgust.

Adams was influenced by the arguments of William Jay, a distinguished
judge and son of the founder John Jay, himself a noted abolitionist.
In 1835, the younger Jay published
[[link removed]] his _Inquiry
into the Character and Tendency of the American Colonization and
American Anti-Slavery Societies_, the first examination by a legal
expert of evidence for or against Black citizenship. Jay’s
conclusion was unequivocal. If white Americans “admit free negroes
to be _men_, and to be _born_ free in the United States … it is
impossible to frame even a plausible argument against their
citizenship,” quoting
[[link removed]] his
father in 1785: “I wish to see all unjust and unnecessary
discriminations every where abolished, and that the time may soon
come, when all our inhabitants, of every color and denomination,
shall be free and equal partakers of our political liberty.”

These were not new opinions. They had long been associated with
Federalists like the Jays. Another son, Peter Jay, spoke out at the
pivotal 1821 New York State Constitutional Convention against Martin
Van Buren’s Bucktail Republicans’ push to disfranchise the
state’s large Black electorate. He insisted that

these blacks are your constituents as well as men of fairer
complexions. They have many of them voted to give you seats here; and
yet the unalienable rights of men and the eternal principles of
justice are alike to be violated for the sake of disfranchising this
class of men, and that without fault, without crime, without
imputation against them. It has been always taught here that we should
abhor privileged classes as they exist in Europe; but we are about to
create, not a privileged class, not an order of nobility, but an order
of degradation.

Just a year earlier, a second stage of the “Missouri Crisis” again
paralyzed Congress when the new state’s constitution barred all free
people of color — a direct attack on the citizenship granted persons
of African descent in New England. Representatives like the Rhode
Island Federalist, Sen. James Burrill Jr., objected vociferously,
pointing out “that we have colored soldiers and sailors, and good
ones, too, but under no pretext, whether of duty or any other motive,
can they enter Missouri.” He anticipated the Fourteenth Amendment,
insisting it was not “difficult to define what constituted a
citizen. If a person was not a slave or a foreigner — but born in
the United States, and a freeman — going into Missouri, he has the
same rights as if born in Missouri.” Then came the constitutional
objection, that “Missouri might, with the same right, go still
further, and pass laws to exclude citizens born in certain portions or
districts of the United States.”

Over time, this forthright commitment to republican equality became a
badge of honor, part of some politicians’ reputations. As a leader
of the Northern antislavery Whigs and New York’s governor in
1839-1842, William H. Seward was famous for enforcing the rights of
his state’s Black citizens, entering into a prolonged confrontation
with successive Virginia governors over their attempts to force the
extradition of several Black New Yorkers who, as sailors in Virginia
ports, had assisted fugitives
[[link removed]]. Out of office, Seward
kept up his correspondence with African American leaders like Dr.
James McCune Smith, publicly supporting their efforts to regain full
voting rights, and as a senator in 1849-1861, he was their tribune.

Abraham Lincoln himself pointed to the history of Early Republic Black
citizenship in a speech soon after the Supreme Court’s ruling,
citing Justice Benjamin R. Curtis’ dissenting opinion “that in
five of the then thirteen states, to wit, New Hampshire,
Massachusetts, New York, New Jersey, and North Carolina, free negroes
were voters, and, in proportion to their numbers, had the same part in
making the Constitution that the white people had.” (In fact, free
Black men voted in ten of the original thirteen states, only
reinforcing Lincoln’s point.) 

The most forthright insistence on nonracial citizenship came from
Black men themselves. Often they invoked _jus soli_, as did
the delegates
[[link removed]] to
the “Convention of the Colored Inhabitants of the State of New
York,” “for the Purpose of Considering Their Political Condition
[[link removed]]”
in 1840: 

We are Americans._ _We were born in no foreign clime … We have not
been brought up under the influence of other, strange, aristocratic,
and uncongenial political relations. In this respect, we profess to be
American and republican … We merely put forth our appeal for a
republican birthright.

In states where they could vote, including North Carolina and
Tennessee into the 1830s, Black Americans used their ballots as
leverage and protection. In states where they had been excluded,
notably New York and Ohio (by the 1850s, two of the three most
populous), they engaged in decades-long, ultimately successful,
campaigns to claim or reclaim the franchise. In Ohio, African
Americans and their allies took full advantage of the equation of
whiteness with citizenship, aided by the Ohio’s Supreme Court’s
rulings that any man claiming majority “white” blood _was_ white
and could therefore vote. Whig and later Republican officials
exploited this ambiguity. As one of Ohio’s best-known Black leaders,
John Mercer Langston (elected clerk of a town near Oberlin in 1855)
declared, “anybody that will take the responsibility of swearing
that he is more than half-white, shall vote. We do not care how black
he is.”

It should not surprise us that today’s MAGA Republicans are again
challenging the birthright principle. That is their natural
inheritance, as demagogic racial populists in the mode of Andrew
Jackson. With this strand in U.S. politics surfacing yet again, we
should remember that notions of racial or ethnic caste have repulsed
genuine democrats since the Founding, whatever their party label. 

_Van Gosse is Professor of History Emeritus at Franklin & Marshall
College, co-chair for Historians and Peace and Democracy, and author
of The First Reconstruction: Black Politics in America, From the
Revolution to the Civil War._

_History News Network (HNN)_
[[link removed]]_ was
founded in 2001 to help put current events into historical
perspective. Its original mandate, as articulated by founder Rick
Shenkman, was to create a space for historians to offer deeper context
for the stories flitting across American newspapers and TV screens.
Among HNN’s many duties, Shenkman explained, were: "To expose
politicians who misrepresent history. To point out bogus analogies. To
deflate beguiling myths. To remind Americans of the irony of history.
To put events in context. To remind us all of the complexity of
history."_ 

 

*
[[link removed]]
*
*
[[link removed]]

 

 

 

INTERPRET THE WORLD AND CHANGE IT

 

 

Submit via web
[[link removed]]

Submit via email
Frequently asked questions
[[link removed]]
Manage subscription
[[link removed]]
Visit xxxxxx.org
[[link removed]]

Bluesky [[link removed]]

Facebook [[link removed]]

 




[link removed]

To unsubscribe, click the following link:
[link removed]