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Dred Scott with no secession

Discussion in 'Civil War History - Secession and Politics' started by RobertP, Nov 5, 2017.

  1. RobertP

    RobertP Major

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    The Supreme Court decisively ruled in 1857 that African Americans were not and never could be U.S. citizens. Had Civil War been averted how long would it have taken to overturn the ruling or legislate it out of existence?
     

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  3. matthew mckeon

    matthew mckeon Brigadier General Moderator

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    Short answer: too long.

    With a constitutional amendment specifically guaranteeing voting rights, black civil rights were denied in large parts of the country until the Voting Rights Act in the 1960s.

    Without secession and war, how long would have slavery lasted? Decades at least. Then we would have slavery by another name for decades more. The Civil Rights Act, the 14th and 15th Amendments at least meant de facto black citizenship in some parts of the country. They established the constitutional foundation throughout the entire country.
     
  4. mofederal

    mofederal 2nd Lieutenant Member of the Month

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    In this country and as slow as some events happen at least 10 years or longer, either way it would not have stopped the war. Little could stop it at that point. We move too slow on some ideas, and slow as molasses on others which are just as important as the more popular. Look at the fire eaters, infamous voices that shouted out their demands. The shouters draw the most attention whether they deserve it or not. They deem themselves all too important. It was an idea that caught fire in the South. It's fire also touched the North. In the government, the entity that had a greater voice, said or did little, with Buchanan in the White House. We just moved too slow, allowing events to unfold.
     
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  5. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    Without a Civil War, then there is Lemmon v. New York, coming up the pike. If ruled in favor of slaveholders then IMHO there is a Civil War, just with a different US president.
     
  6. rpkennedy

    rpkennedy Major

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    And it may have been a Northern secession from a slave republic.

    Ryan
     
  7. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    That too.
     
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  8. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    There is nothing in Dred Scott keeping a State from granting citizenship to a black. The only federal issue that I know of is standing before a federal court. Assuming no Civil War, DSS is going to kick up a lot of litigation hashing out what a black is and States Rights.
     
  9. Carpetbagger

    Carpetbagger Sergeant

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    I. .....

    7. Since the adoption of the Constitution of the United States, no State can by any subsequent law make a foreigner or any other description of persons citizens of the United States, nor entitle them to the rights and privileges secured to citizens by that instrument.

    8. A State, by its laws passed since the adoption of the Constitution, may put a foreigner or any other description of persons upon a footing with its own citizens as to all the rights and privileges enjoyed by them within its dominion and by its laws. But that will not make him a citizen of the United States, nor entitle him to sue in its courts, nor to any of the privileges and immunities of a citizen in another State.

    Dred Scott decision at Justia: https://supreme.justia.com/cases/federal/us/60/393/
     
  10. MattL

    MattL First Sergeant

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    Such an excellent question. Really blows my mind trying to think about it. I suspect quite a long time. If I had to guess I would think the free-States would try and defy this ruling at every turn, this would create the potential for a Federal vs. Free-State divide similar to the Federal vs. Slave-State. Though I highly suspect that would depend on President and controlling interests in Congress. Assuming the current trend and everything went forward with as it was minus secession + war after Lincoln's election, but with Lincoln's election... I suspect Lincoln or any other President not interested in preserving the expansion of slave concepts would probably be light on the enforcing of the Supreme Court, much like Andrew Jackson and the ruling in favor of the Cherokee Nation vs. Georgia. If a slave interest President were elected again, maybe another doughface, then that might lead to heavy conflict, possibly even to secession.

    Basically things would get more complicated and even more friction fast....

    1) Expanding world interests against slavery and expanding interests against slavery in the US as a whole... increasing disregard for the Supreme Court ruling, constant battlegrounds on it
    2) The expanding economic power of slavery...

    Here I look into how fast slavery was expanding in the South all the way up to the Civil War and if it kept it's pace

    The Antebellum in Census Numbers

    Average growth of slaves in the South (by total number) comparing decade to previous decade from 1790-1860 was 30%. With 1840 being 26%, 1850 at 30% and 1860 at 25%. Basically it grew at a surprisingly large rate every decade in the South in a pretty consistent range. There were definitely no signs of slowing at all.

    Here's my chart of that and if it kept growing at the average rate

    csa-and-usa-total-slaves-1870-predicted-png.151334.png

    That's 3.5 million slaves in the South in 1860 and 10.2 million in 1900.

    That's taking an already serious economic powerhouse of the South and making it even more massive... So though the rest of the US clearly had growing numbers becoming less and less supportive of protecting slave interests or things aligned with it, we would likely see slavery expanding at it's same rate since the birth of our Nation into numbers that are beyond fathom. With a massive concentration of wealth and influence in slave interests.

    Which powerhouse would win and how it would play out... who knows! Probably not very nicely. I mean maybe legislation could be passed with enough anti-Slavery power to fight it... I doubt an amendment would've been possible with the South still in Congress. They lost big in 1860 but they certainly weren't out of the Congressional game until they chose to leave.

    Thinking of the Dred Scott ruling gives me chills. I never fully understood it's implications until studying the Civil War. Ruling that any descendant of an African slave could never be a full citizen, free or not, is chilling. After learning I descend from African slaves (even as a White person) and realizing that would mean if that ruling were intact today I wouldn't be a full citizen. Thinking about that really opened my eyes, we are often very selfish beings and it's easy to dismiss the prejudices levied against another until it hits home.
     
  11. RobertP

    RobertP Major

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    Since a Constitutional amendment requires the approval of 3/4 of the States I don’t believe that route would have worked for a very long time. A future SCOTUS overruling Scott is the most likely but when would the country had have the stomach for that after avoiding a Civil War over similar issues.

    What Ryan said earlier, at some point a secession of free states from slave, seems possible. Now that assumes slavery had not already died a natural death before black citizenship was considered. Even if a lack of economic incentive ended slavery de facto by say the turn of the century the refusal of US citizenship to African Americans may have still continued years beyond.

    When you remember Birth of a Nation premiered in the White House in 1915, the proliferation of Minstrel shows outside the South into the 20’s, the segregated military and sports leagues etc, until after WW2, you just wonder how long it would have taken to get the critical mass rolling.
     
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  12. RobertP

    RobertP Major

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    Then we’re flipping States Rights v. Unionism on its head.
     
  13. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    No. Not in any way. Prior to the 14th amendment the standard of citizenship rested with the States. If we have a federal case where a New York plaintiff is 1/16 black ancestry and New York says they are white against a white defendant in Alabama where 1/16 is black then what is black is going to get litigated. That is assuming that some other SCOTUS does not rule that Taney's comments on black citizenship is Obiter dictum and not precedent.

    The only question of States Rights v. Unionism at the time of the Civil War was the so called States Rights to unilaterally secede which even the Dred Scot court would have ruled unconstitutional.
     
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  14. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    Yes. however if the definition of black determines citizenship then by law a State can define what it is to be white and therefore a citizen. One of the unanswered questions if Taney was giving his opinion or the opinion of the court because this is going to be a real mess.

    Prior to the 14th amendment the standard of citizenship rested with the States. If we have a federal case where a New York plaintiff is 1/16 black ancestry and New York says they are white against a white defendant in Alabama where 1/16 is black then what is black is going to get litigated.
     
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  15. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    That assume nothing happens like a cotton prices stagnating or dropping against ever more production and leading to an economic collapse or the Boll Weevil shows up a few decades early or an infinity of historical contingencies changes things. Even the outlawing of slavery in the territories is going to depress the speculative part of slave prices as future demand is in question leading to all sorts of contingencies as slave owners suffer losses. If the prior trend continues, some borderline border States will flip to Free and States like VA, TN, MO and KY start to be border States.

    A simpler possible course is assume a future SCOTUS overturns DSS or declares the citizenship issue Ober Dictium. Taney will be dead in 1864. Future SCOTUS courts will be trending Republican so the simplest thing is the issue dies out. States get to decide who is white and has citizenship rights.
     
  16. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    Naturalization Act of 1790
    Allowed States to give citizenship to blacks at the State level.

    The original United States Naturalization Law of March 26, 1790 (1 Stat. 103) provided the first rules to be followed by the United States in the granting of national citizenship. This law limited naturalization to immigrants who were free white persons of good character. It thus excluded American Indians, indentured servants, slaves, free blacks and later Asians although free blacks were allowed citizenship at the state level in certain states. It also provided for citizenship for the children of U.S. citizens born abroad, stating that such children "shall be considered as natural born citizens," the only US statute ever to use the term. It specified that the right of citizenship did "not descend to persons whose fathers have never been resident in the United States."[1][2][3]

    Of interest is that States controlled the naturalization process.

    In order to address one's good character, the law required two years of residence in the United States and one year in the state of residence, prior to applying for citizenship. When those requirements were met, an immigrant could file a Petition for Naturalization with "any common law court of record" having jurisdiction over his residence. Once convinced of the applicant’s good moral character, the court would administer an oath of allegiance to support the Constitution of the United States. The clerk of the court was to make a record of these proceedings, and "thereupon such person shall be considered as a citizen of the United States."
    Naturalization Law of 1802.
    Continued the practice of State control of the naturalization process.

    Certain doubts had arisen under the previous Act as to whether State and local courts were included within the description of U.S. district or circuit courts. The act of 1802 reaffirmed that every State and Territorial court was considered a district court within the meaning of the laws pertaining to naturalization, and that any persons naturalized in such courts were accorded the same rights and privileges as if they had been naturalized in a district or circuit court of the United States.
    In short in theory look a look at the skin tone determined citizenship, but with increasing mixed race people that is going to be problematical.

    In any case, Taney IMHO opened a real can of worms.
     
  17. Carpetbagger

    Carpetbagger Sergeant

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    When the court votes on a decision it is not just Taney's decision, it the decision of the court. That make it federal law.

    A s far as I can see, the discussion was not about people whose racial status could be blurry. It is about the vast majority of blacks and it wasn't debatable whether or not they had some significant amount of African blood in them. But that was a lovely fishing expedition.
     
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  18. wausaubob

    wausaubob 2nd Lieutenant

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    Take the secessionists at face value. They believed that the Republican Party would continue to spread into the 4 border states and into Virginia. As slavery weakened, and without new territory for expansion of the coerced labor economy, there would be a sell off southward of enslaved people. With Nebraska nearing the threshold of admission, the necessary ratio of 30/10, paid labor states/coerced labor states, seemed imminent.
    I think once the President of the United States consistently states that slavery is wrong and must be ended, it ends fairly quickly.
    Once the position of the George Washington and the founders takes hold, slavery and democracy are inconsistent, the end is near for the coerced labor system.
    As a legal matter, the national business lawyers come to conclude that coerced labor is holding back the railroads and international lending to the United States, and they strike down Dred Scott quickly and easily. As soon as the main financial interest backs paid labor, paid labor and full citizenship become the law of the land.
    Without the Civil War the effort towards Civil Rights creates national citizenship, but not universal male suffrage.
     
  19. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    Depends. Not everything is a SCOTUS ruling is law. Ober dictum for example. As DSvS was never used as a precedent in citizenship cases, we remain clueless on its effect as law. As far as I know, it was never used as law outside of the Samford case. The Civil War ended citizenship cases dependent on it so one speculation is as good as another.
    My line of inquiry is from questions raised in The Dred Scott Case: Its Significance in American Law and Politics First Paperback Edition by Don E. Fehrenbacher (Author) which must be a 741 page fishing expedition then.
     
  20. Carpetbagger

    Carpetbagger Sergeant

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    I have Fehrenbacher's book. Please quote where he says a state could grant U.S. citizenship to someone who was of predominately African heritage after Dred Scott. Then we'll discuss.
     
  21. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    1. I never posted "a state could grant U.S. citizenship to someone who was of predominately African heritage after Dred Scott. ". I have consistency posted that the State gets to determine which of its citizens are black(negro) or white, which are citizens of the State and by implication creating a legal minefield of who is a US citizen between Slave and Free States.
    2. The terms in DSvS are "Negro" and "Negro African race" If States define what a Negro is, then the States control who is a citizen under DSvS as DSvS offers no definition. More litigation would be needed.
    3. Congratulations on owning the book in which case you know the issue of defining black is mentioned with different States having different definitions and the issue of standing between citizens of States having different definitions of 'white'.
    4. Note that prior law quoted in #15 gives the States the authority to define what a naturalized citizen is, implying they can determine the difference between negro and white.
    5. Finally because the citizenship part of DSvS was never used as precedent before SCOTUS, we are clueless on its enforcement and implementation.
     

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