It has been a while concerning this topic, I was still reading the dissenting opinions concerning the Dredd Scott case. The two dissenting opinions & votes were cast by Justices McLean & Curtis. The last opinion was published by Justice Curtis, which I found to be the opposite view of the majority that gave me pause to rethink the issue as a whole.
One of the first points he brought to bear was the fact that the US Supreme Court was known for taking up causes on its own accord, which most people believe to be wrong – as they are suppose to take up legal causes that are in dispute; although, if a cause is seen to be a travesty to the tenets and the written words of the US Constitution the Court can take up the cause on its own in the interest of justice.
If Dredd Scott were a slave, or made a freeman, the citizenship issue is of paramount importance, because only citizens could file in the courts. How could a slave made free become a citizen? (This was the premise of the Civil Rights Act of 1866 and the purpose of the 14th Amendment to the USC.) The other thing is that if you were a slave and made a freeman, you must be given citizenship which is done by the State; the federal government is given the power to naturalize an alien who chooses to become a citizen of the US. [USC Article 1, section 8, paragraph 5] Also, what was the basis of what was meant by the Founding Fathers over the term “Citizen of the United States” as written in the body of the USC?
Justice Curtis said that as a matter of principle of public law the Constitution itself recognized that birth on the soil of a country both creates duties and confers rights of citizenship. But it was a strongly held belief that the Constitution was to form a Government of the United States of America and under it were the several states (which were several individual sovereign states or nations) you were a citizen of the several states in which your reside and were born. Justice Curtis raised a couple of good points where the ‘citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.’ [USC Article IV, section 2] But he failed to recognize the USC [Article 1, section 2, paragraph 3] where “persons of service” were acknowledged as 3/5 of a free person, and yet still seen as chattel and property. He also raised an interesting point that birthright citizenship is based upon native-birth within a state and not upon qualifications.
Justice Curtis walked through many of the laws in other states, as well as, laws from Europe. We inherited much of our law from England and the Justice quoted that a slave brought into England was then freed, because England did not recognize slavery; similarly, in France. This is important to the extent that Dredd Scott was transported from Missouri to an area north (now a region of Wisconsin), which by Constitutional Law outlawed slavery. And then later moved again to an area in Mississippi, which did recognize slavery.
Until the next installment where I finish Justice Curtis’ opinion.