The First Civil Rights Movement: Black Rights in the Age of the Revolution and Chief Taney’s Originalism in Dred Scott
Paul Finkelman * | 24.3 | Article | Citation: Paul Finkelman, The First Civil Rights Movement: Black Rights in the Age of the Revolution and Chief Taney’s Originalism in Dred Scott, 24 U. Pa. J. Const. L. 676 (2022).
In Dred Scott v. Sandford, Chief Justice Roger B. Taney justified denying free Blacks the right to sue in diversity in federal courts on the ground that no Black, whether slave or free, could ever be a citizen of the United States. He asserted that at the Founding, free Blacks were not citizens of the nation and that they could never be incorporated into the American polity. He infamously asserted that at the Founding, Blacks were “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.”
Taney was fundamentally wrong in these claims, and he should have known as much. In the last three decades of the eighteenth century, Americans actually witnessed a dramatic revolution in race relations, leading to the first civil rights laws in U.S. history. While some states retreated from this period of expanded civil rights in the nineteenth century, others did not. In this Article, Professor Paul Finkelman not only analyzes Taney’s racist and historically inaccurate characterization of Blacks and the status of Black citizenship at the Founding, but also provides a comprehensive overview of slavery from antiquity to the modern era. In doing so, Finkelman offers profound insights as to how America’s Revolutionary period gave rise to civil rights for Black Americans and other people of color in the United States.
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* Chancellor and Distinguished Professor of History, Gratz College. I presented an early version of this article in 2021 at the Aoki Center for Critical Race and Nation Studies, at the University of California, Davis, School of Law, for the symposium “Dred Scott—Beyond Black and White”; this event was part of the Center’s series on Law and Free People of Color. I also presented some of this at a symposium at Boston University Law School. I thank the historians, law professors, graduate students, and law students who attended the presentation and commented and the students and faculty at Providence College, where I also presented this work. I thank Gabriel Jack Chin, Greg Downs, Andrew Fede, Owen M. Fiss, Mary Louise Frampton, Eric M. Freedman, Allen C. Guelzo, Candace Jackson Gray, Gary Lawson, Kate Masur, Sharon Murphy, James Oakes, David Thomas Orique, O.P., David Richardson, Peter Wallenstein, and Owen Williams for their comments on this article and I thank Katherine E. McKeen at this Journal for her excellent editing.