New Evidence That Dred Scott Was Wrong About Whether Free Blacks Could Count for the Purposes of Federal Diversity Jurisdiction

Article Three, Section Two of the Constitution grants federal courts jurisdiction over Controversies . . . between Citizens of different States. In Dred Scott v. Sandford, the Supreme Court declared that free blacks could never be Citizens within the meaning of this provision. Chief Justice Taney, speaking for the Court, purported to base this decision on the original understanding of the Constitution, which (he said) eternally fixed that document's true meaning. Yet his opinion cited nothing that any member of the Founding generation ever did or said with respect to Article Three, Section Two. Indeed, the only historical data mentioned by the Chief Justice that spoke directly to the status of free blacks under its diversity provision was the fact that no one questioned the existence of federal jurisdiction when the Supreme Court decided an appeal in an interracial diversity case in 1829. However, even dissenting Justice Curtis agreed with Chief Justice Taney that, given the peculiar posture of the 1829 case, no jurisdictional question was presented by its appeal. Rather than plumb the original meaning of the diversity provision by examining the Founders' words or deeds concerning it, Taney proceeded by asking a far more general (and far more abstract) question: whether the Founders intended to allow free blacks to become . . . member[s] of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all rights, and privileges, and immunities, guarantied by that instrument to the citizen, including the privilege of suing in a court of the United States in the cases specified in the Constitution. To answer that question, he canvassed the racial views of white Americans from early colonial times until his day, and concluded that this history demonstrated beyond cavil that the politically omnipotent white race had always deemed blacks to be inferiora unique race which, unlike all others, could never be integrated into the American people. Hence, the Founders meant to exclude all blacks from national citizenship, which meant they could never be Citizens within the meaning of Article Three, Section Two. Otherwise, Taney reasoned, the Privileges and Immunities Clause would require that slave states extend rights to free blacks visiting from free states, a result up with which neither the Southern Founders nor their mid-nineteenth century heirs would ever have put. Although Taney's conclusion was vigorously denounced by Justices Curtis and McLean, neither challenged his failure to adduce any evidence of what the Founders actually thought about the status of free blacks with respect to the diversity provision of Article Three, Section Two. And neither the dissenting Justices nor the lawyers for the parties cited any such evidence, on either side of the issue. It's only fair to assume that no one knew of anything to cite. However, I recently discovered something of which they all seem to have been unaware. While looking through some eighteenth-century American newspapers, I chanced upon a story about the 1793 federal court proceedings in a pair of interracial diversity cases captioned Elkay v. Moss & Ives. In fact, I came upon reports of this litigation in journals published throughout the country. Upon further investigation, I realized that the Elkay litigation provides our first solid evidence of the views of at least several prominent members of the Founding generation about the diversity question considered in Dred Scott. Moreover, the public's reaction to the widespread news reports of these trials sheds light on the broader, public, understanding of that issue. In sum, this episode strongly suggests that the Founders believed free blacks could count for the purposes of federal diversity jurisdiction. In other words, it indicates that Chief Justice Taney got his historyand therefore his interpretation of Article Threewrong in Dred Scott. In Part I of this paper, I will relate the story of the Elkay affair. In the following section, I will explain why I believe it suggests that Dred Scott's Article Three ruling was, on its own terms, wrong. Finally, I will comment on the larger implications for originalist jurisprudence of my discovery of this litigation.