Mar 3, 2020 3 min read

Dred Scott was a slave who traveled with his owner, an Army doctor, whose job took him to many states, including northern states in which slavery was outlawed. Therefore, when his owner died Scott sued for his freedom, claiming his time in free states made him a free person.

When the case, Dred Scott v. Sandford, reached the Supreme Court this week (March 6) in 1857, Chief Justice Roger Taney (a southerner and lifelong slave owner) ruled Scott wasn’t a U.S. citizen, and therefore had no standing to sue in a U.S. court. It didn’t matter whether Scott was a slave or free. What disqualified him from U.S. citizenship was his African heritage.

Taney based his decision on jus sanguinis – that one’s biological origins were the determining factor in judging citizenship, so even free negroes of African descent were not U.S. citizens. “A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a ‘citizen’ within the meaning of the Constitution,” Taney ruled.

Fast forward to 1868. The Civil War was over and the 13th Amendment was ratified freeing all slaves, which meant the “Three-fifths Compromise” written into the Constitution in 1787 no longer applied. It said slaves counted as three-fifths of a white person in determining a state’s population – and therefore also determining how many members states sent to the House of Representatives based on their population. But free blacks were now whole people, meaning huge increases in the populations of former slave states, meaning many more representatives from southern states in Congress, giving them far more political power, which they would undoubtedly use to pass laws aimed at restoring the South to the antebellum (before the war) status quo.

Thus, as a defense mechanism, the northern states thought it crucial that now-free blacks be able to vote, which only U.S. citizens could do.

At the time the northern-dominated Congress was considering a 14th amendment to the Constitution, one section of which outlined how southern states would be reincorporated into the Union. So language was included in this amendment stating that U.S. citizenship would be based on jus solis – on place of birth – not biological descent. “All citizens born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States …” the 14th Amendment’s language famously states, and in 1868 most blacks had been born in America.

Finally, as a second defense mechanism, the language also stated that if any citizens – including blacks – are denied the right to vote, the number of “Representatives in Congress” from that state will be reduced in proportion to the number of citizens denied that right.

Bruce G. Kauffmann’s e-mail address is bruce@historylessons.net/.