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.

This Essay primarily addresses two points, raised by Professor Gabriel J. Chin in his Article, Dred Scott and Asian Americans: first, Chief Justice Roger Taney as a proponent and defender of interconnected, even intersectional, racial ideologies; and second, Taney’s representativeness as an historian and as a legal realist describing law and politics as they were. In Professor Chin’s first claim, about the interconnected nature of Taney’s racial thought, we find a fascinating insight into the construction of a predominantly Democratic vision of the white race that helped shape not only Taney’s jurisprudence, but also his party’s efforts to develop a constructed identity politics. Professor Chin’s focus on the Naturalization Act of 1790 is a powerful rejoinder to many early U.S. historical narratives that examine race making solely with regard to people already in what became the United States. Taney’s arguments about a white Christian master race in turn help center nonwhiteness, not just Blackness or indigeneity, in early U.S. history with profound consequences. These are major claims and major contributions.

This commentary considers Professor Jack Chin’s analysis in his Article, Dred Scott and Asian Americans, of the white supremacist underpinnings and modern legacy of U.S. Supreme Court Chief Justice Roger Taney’s decisions in United States v. Dow, a little-known decision denying full citizenship rights to Asian Americans, and Dred Scott v. Sandford, an iconic Supreme Court decision that rejected full citizenship to a freed Black man and precipitated the Civil War. It further explores how Chief Justice Taney’s analysis of race and racial subordination in the nineteenth century exemplifies the fundamental tenet of modern Critical Race Theory that the law operates to enforce and maintain white supremacy.