Publications

Letter from America: No Limits?

Signet Magazine
02.01.15

One of the most discordant features of the national “conversation on race” we find bobbing in the wake of the Ferguson, Missouri incident (in which a white police officer shot and killed a young black man) is, as New York Times columnist David Brooks has noted (Class Prejudice Resurgent, New York Times, December 2014, available at www.newyorktimes.com), the attempt to tie the discussion back to the civil rights-era struggles of the 1950s and 60s. But this is almost a category error in my view because those struggles were legal struggles that took shape over the course of the hundred years following the American Civil War. What we are dealing with now is something else. To help us figure out what that “something else” might be, we need to look back at the history of slavery in the United States and how a legal narrative evolved to combat its pernicious legacy.

Slavery was legally institutionalised – albeit obliquely and euphemistically (the word “slave” and its cognates appear nowhere) – in the United States’ Constitution. In short, there was no clear consensus – an unambiguous public narrative, if you will – about the morality or practical desirability of slavery. In fact, much evidence suggests that the Constitution’s drafters were so divided on the subject that they mostly set the matter aside for later resolution.

After the other two branches of government had failed to resolve the slavery question, the United States Supreme Court entered the fray in Dred Scott v. Sanford, which has proved to be one of the most vilified decisions in Supreme Court history. Dred Scott, who had admittedly once been a slave, brought a trespass suit in federal court against John Sanford. He claimed that the federal court had “diversity of citizenship” jurisdiction over the suit because he was a citizen of Missouri and Sanford was a citizen of New York. Scott asserted that he became free by virtue of his residence in two states in which slavery was banned. Sanford countered that even if Scott were free, that did not make him a “citizen” of Missouri and, therefore, the federal court had no jurisdiction to hear Scott’s case. Chief Justice Roger Taney’s majority opinion in Dred Scott held that Scott, as a member of a subordinate and inferior class of beings”, could not, ipso facto, be a “citizen” of any state within the meaning of the Constitution.

A civil war, three Constitutional Amendments, and a host of enabling acts later, there was no longer doubt that blacks were legal persons entitled to the full range of Constitutional protections. But what that range entailed was a different matter. Plessy v. Ferguson, which was decided nearly forty years after Dred Scott, showed how the narrative of difference had not been erased and could still trump the grand public narrative of America as a bastion of freedom and equality.

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