Quotes Flashcards
“[No teacher shall] require or make part of a course the concept that . . .
(ix) the advent of slavery in the territory that is now the United States constitutes the true founding of the United States; or
(x) with respect to their relationship to American values, slavery and racism are anything other than deviations from, betrayals of, or failures to live up to, the authentic founding principles of the United States, which include liberty and equality . . . “
Tex. HB 3979 (2021-2022) (forbidding teachers from being “compelled” to teach and discuss a “Critical Race Theory,” a term frequently used in the New York Times initiative, The 1619 Project.).
- A lot of what was taught in this class couldn’t be taught in a public k-12 school. For example, the 1619 opening essay couldn’t be taught.
Also, in a lot of ways slavery and racism weren’t deviations, betrayals of, or failures to live up to, the authentic founding principles of the US. - First, racism was an authentic founding principles of the US, Thomas Jefferson blatantly racist Notes on the State of Virginia [add quotes],an act to establish a uniform rule of Naturalization limiting naturalization to white people, shows racism from the very beginning, and federalist 2’s discussion of of how a country must be “one people” from the same ancestors who speak the same language, profess the same religion, and have similar manners and customs.”
And it continued long past the civil war and even beyond the materials taught in the class, but includes, cases like Giles v. Harris where Alabama’s White Supremacist constitution was upheld by the supreme Court in 1903, and Bhagat Singh Thind in 1923, where the Court held a “high-caste hindu” was ineligible to become a citizen because the average american wouldn’t consider him to be white.
“The morality or wisdom of Slavery are [sic] considerations belonging to the States themselves.”
Oliver Ellsworth, Ct., Constitutional Convention (1787) (asserting that the North and the South both benefit from slavery in the debate over prohibiting the slave trade, stating that “[w]hat enriches a part enriches the whole and the states are the best judges of their particular interest.” Ultimately, the convention ratified the Fugitive Slave Clause (Art. IV, Sec. 2) as a compromise for the new Constitution.).
[your going to need to elaborate more on this]
At the Constitutional Convention in 1787, Oliver Ellsworth (Ct.) asserted that the North and the South both benefit from slavery in the debate over prohibiting the slave trade, stating that “[w]hat enriches a part enriches the whole and the states are the best judges of their particular interest.” Specifically, Ellsworth argued for the state right to allow slaver during the debate on Article I, Section 9, Clause 1, which proposed to prohibit the slave trade after 1808. This quote defended the Clause, saying that the states should decide the question of slavery, and that States are best to judge.
Among those who were anti-slavery there were two main views on how to treat a Constitution that included protections for slavery.
1) (abolitionist) Slavery horrible and not worth compromising. We are better without a constitution than with one that supports slavery.
2) (anti-slavery) The South will never go for a constitution that doesn’t include slavery, and a union with slavery is better than no union at all.
People in the first group included Joshua Atherton who argued that New Hampshire shouldn’t ratify because of the Constitution’s protection of slavery.
Ellsworth (along with Governour Morris) is representative of the second camp, who even though who opposed slavery believed that state’s should be able to decide the matter for themselves if that’s what was necessary to create a union. In other words, Ellsworth was willing to compromise on the matter.
All politics is compromise until it’s not and you draw the line and go to war.
First if serious of compromises going up to Missouri compromise over slavery. Not solved until Civil War.
“[We] have never dreamt of incorporating into our Union any but the Caucasian race–the free white race.”
John C. Calhoun, Speech on Mexico (1848) (arguing for limiting territorial expansion in order to restrict the number of non-white people who would become U.S. citizens during the peace treaty negotiations between the U.S. and Mexico in which diplomats were determining how much of Mexico would be incorporated into the U.S.),
In his Speech on Mexico in 1848, John C. Calhoun argued for limiting territorial expansion in order to restrict the number of non-white people who would become U.S. citizens during the peace treaty negotiations between the U.S. and Mexico in which diplomats were determining how much of Mexico would be incorporated into the U.S. At the time, more than half of Mexicans were indigenous, and Calhoun protested including non-whites, saying the “not all people” are capable of self-government (which implies that only white people are capable). Calhoun knew that the Naturalization Acts of 1795 and 1787 provided citizenship to white, naturalized men.
- Tie to Federalist 2 and how it ignored anyone who wasn’t white and Jefferson’s treatment of blacks in his letter on the state of Virginia, plus the 1790 naturalization act to show that this is factually correct.
Calhoun also said in the speech “none but people advanced to a very high state of moral and intellectual improvement are capable, in a civilized state, of maintaining free government” which is incredibly similar to what Jefferson said.
People continue to take similar stances through the insular cases, such as Downes v. Bidwell, and the treatment of Puerto Ricans, as well as the fact that Native Americans weren’t given birthright citizenship until 1924. - Also mention that Texas entered via a treaty due to their not being enough votes in congress.
- Also compare to treatment of other territories.
“[E]very exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion for the public good, and not for the annoyance or oppression of a particular class.”
J. Brown, Majority Opinion, Plessy v. Ferguson (1890) (holding that the Louisiana Separate Car Act was constitutional by reasoning that although the 14th Amendment intended to establish absolute equality for the races before the law, separate treatment did not imply the inferiority of African Americans; therefore,
racial segregation did not in itself constitute unlawful discrimination.).
- highlights how court waterdown the 14th amendment and how, as Fredrick Douglas Warned in his “Sources of Danger to the Republic” that without structural changes the reonstruction amendments are just parchment barriers.
- highlights the failings of reconstruction, especially after Republicans left the South and began focusing on westward expansion.
- Also talk about Plessy got very little attention when it was decided because very few people objected to it. SC is appointed by presidents and confirmed by senators. Nobody who isn’t part of mainstream elite is going to be placed on the court. Without structural changes of the sort Douglas suggested, this is the natural result.
- Harlan color blind dissent (except for Chinese).
“Until this blow was struck, the prospect for freedom was dim, shadowy and uncertain. The irresponsible conflict was one of words, votes, and compromises. When John Brown stretched forth his arm the sky was cleared. The time for compromise was gone . . . and the clash of arms was at hand.”
Frederick Douglass, John Brown An Address (1881) (commemorating John Brown and his raid on Harper’s Ferry)
- Raid on Harper’s Ferry a violent attempt to begin an insurrection against slavery in 1859.
Fredrick Douglas was originally a Garrisonian. He did not want to use violence to in pursuit of freedom. His main focus was on giving speeches to encourage to try and persuade people that blacks should be free.
But Douglas eventually changes his mind on this and becomes increasingly accepting of violence. For example, he goes on to say that it would be acceptable to kill a US marshall who is enforcing the fugitive slave act and therefore forcing someone back into slavery.
He also supported Harper’s Ferry, sending in materials, and had to flee to Glasgow afterwards.
Douglas loved that John Brown destroyed the ethos of compromise that had dominated the US treatment of slavery until then.
Harper’s Ferry also broughto the Haitian revolution to the forefront of the American mind and reminded people of what could happen in the US.
“Why not retain and incorporate the blacks into the state, and thus save the expence of supplying, by importation of white settlers, the vacancies they will leave? Deep rooted prejudices entertained by the whites; ten thousand recollections, by the blacks, of the injuries they have sustained; new provocations; the real distinctions which nature has which will probably never end but in the extermination of the one or the other race.–To these objections, which are political, may be added other, which are physical and moral.”
Thomas Jefferson, Notes on the State of Virginia (1782) (urging the end of slavery in Virginia but also, the removal of Black people from the state.).
- Tie to 1619 project and how racism not an anomaly.
- Highlights how Jefferson didn’t believe in equality for all. For example, while he was writing about rights and liberty in the Declaration of Independence, a male teenage slave who would enjoy no rights and no liberty waited nearby to serve his master’s (Jefferson’s) every desire.
- Initial draft of Declaration included “he has waged cruel war against human nature itself, violating it’s most sacred rights of life and liberty in the persons of a distant hemisphere, or to incur miserable death in their transportaion tither” but this was later cut.
- Can also tie to John C. Calhoun speech and Federalist 2.
- Jefferson goes on to describe what he sees as biological differences between whites and blacks as part of his argument that they can’t live together. Says blacks are inferior in both body and mind.
Are we alike? Jefferson also thought it was important to portray an image of the People as united, as one.
Is this a contrast between the People, who we recognize, vs people who are just here? Citizen argument being made? Lots of Fed. 2. Talk, but relevant discussion.
”. . . . Such regulations can never be permitted to interfere with, or to obstruct, the just rights of the owner to reclaim his slaves, derived from the constitution of the United States.”
J. Story, Majority Opinion, Prigg v. Pennsylvania (1842) (holding that the Fugitive Slave Clause (Art. IV, Section 2) and the Fugitive Slave Act of 1793 precluded a Pennsylvania state law that prohibited Black persons from being taken out of the free state of Pennsylvania into slavery, regardless of whether their status as “freed” persons or previously “enslaved” persons.).
In Prigg v. Pennsylvania (1842), the Supreme Court held that the Fugitive Slave Clause (Art. IV, Section 2) and the Fugitive Slave Act of 1793 precluded a Pennsylvania state law that prohibited Black persons from being taken out of the free state of Pennsylvania into slavery, regardless of whether their status as “freed” persons or previously “enslaved” persons. This is the quintessential anticanonical case for many legal scholars and forces many lawyers to confront the choice between the law’s mandate and our own morality. Justice Story, who wrote the majority opinion, was anti-slavery but ruled as a judge upholding the Constitution. Some believe that Story’s ruling was prudential in that he anticipated southern secession and sought to preserve the union. In a sense, this reflects one of the many “rotten compromises” that resulted from attempts to preserve the Union prior to the Civil War, even if it meant reinforcing the slavocracy.
- Story is anti-slavery, not an abolitionist. Continuation of the same debate from the founding. Story doesn’t like slavery but isn’t willing to risk the union to get rid of it.
- ““You know full well that I have ever been opposed to slavery. But I take my standard of duty as
> a judge from the Constitution.”
- Stor
- This is a precursor to Dred Scott
“[T]he question of suffrage in all the loyal states properly belongs to the people of the states.”
Republican Party Platform (1868) (infuriating radical republicans by allowing individual Republican candidates to express support for the idea of taking federal action to enfranchise African-Americans in the South, while, at the same time, attempting to dispel the notion that the party as an institution was committed to the idea that such action was necessary.).
Eric Foner explains how this emerged as the Republican Party’s platform during former general Ulysses S. Grant’s campaign in 1868. The campaign infuriated radical republicans because it essentially advocated for taking federal action to enfranchise African Americans in the South butnot in the north. Radical Republicans, like Charles Sumner, believed the Congress could enact laws that would require states to allow for Black suffrage under the Thirteenth and Fourteenth Amendments. However, the ratification of the Fifteenth Amendment dispels this notion by explicitly allowing suffrage as a political right. Regardless, suffrage is not a constitutional right because there are reasonable restrictions (e.g., age).
- Ties to different treatment of loyalist states that were pro slavery (Delaware, Kentucky, Maryland, and Missouri) and slave states that seceded.
- For example, the emancipation proclemation only freed slaves in the states that seceded.
- Meanwhile post war, military reconstruction only applied in the states that seceded.
Mark Twain “Kentucky was the only state that seceded after the civil war was over by not ratifying any of the three amendments. Saw no reason to endorse the new program. - Reconstruction Act of 1867 gave large majority of black men the right to vote, but not those living in the loyalist border states, as well as in Tennessee and a few in the north.
- Some argued that northerners were fine with black sufferage in the south to keep out rebels and traitors, but not in their own states.
- Grant agreed and believed northern states should be able to decide the question of black suffrage for themselves.
- This angered radicals like Thadeus Stevens, who thought the 13th and 14th amendment gave congress the power to pass a law ensuring all blacks could vote.
- 15th amendment eventually passed.
“It must be admitted, truth compels me to admit . . .[that] Abraham Lincoln was not, in the fullest sense of the word, either our man or our model. In his interests, in his associations, in his habits of thought, and in his prejudices, he was a white man. He was preeminently the white man’s president, entirely devoted to the welfare of white men.”
Frederick Douglass, Speech at the Unveiling of the Freedman’s Monument in Lincoln Park, Washington D.C. (1876) (stating that Lincoln was not a president for black people and that Lincoln’s motivation above all was to save the union, even if it meant keeping black people in bondage.).
In his speech at the unveiling of the Freedman’s Monument in Lincoln Park, Frederick Douglass asserts that Abraham Lincoln was not a president for black people because his primary motivation was to save the union, even if it meant keeping black people in bondage.
Ties to Lincoln willing to do whatever is necessary to preserve the union, regardless of the implication for slavery (Horace Greeley letter). Shown further in that he didn’t free slaves in loyal states with the emancipation proclamation.
Thought Kansas-Nebraska act was bad not because it let in a slave state, but because the north didn’t get anything in exchange.
Lincoln was originally against only the expansion of slavery.
Also unclear what Lincoln meant when he talked about a “new birth of freedom” at Gettysburg.
“For if they were . . . entitled to the privileges and immunities of citizens, it would . . . give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, single or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for while a white man would be punished and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meeting upon political affairs, and to keep and carry arms wherever they went.”
In Dred Scott v. Sanford (1857) the Supreme Court held that: (1) a Black person, “whose ancestors were imported into [the U.S.], and sold as slaves,” whether enslaved or free, could not be an American citizen and, therefore, did not have standing to sue in federal court; and (2) that the Missouri Compromise of 1820 was unconstitutional and foreclose Congress from freeing slaves within Federal territories.
Writing for the majority Taney lists a bundle of rights that a citizen has and then, as part of his argument for why blacks are not citizens, says that blacks having these rights would be unimaginable and therefore they can’t be citizens.
- For him this even includes free blacks like Fredrick Douglas who are citizens of the state they live in.
- Taney also looks to the history of America, and how blacks had always been inferior to argue that the founders couldn’t possibly have intended to give blacks to rights of citizenship.
- Also argues that privileges and immunites clause does not apply to blacks. Says it wouldn’t make sense for states to have control over national citizenship given that the national government control’s naturalization.
- Even more so given the Constitutions treatment (ex. 3/5th clause and the phrase “free inhabitants presumably not applying to blacks), and the 1790 naturalization act only allowing for the naturalization of whites.
-compare to earlier conception of citizenship.
“But restore the compromise, and what then? We thereby restore the national faith, the national confidence, the national feeling of brotherhood. We thereby reinstate the spirit of concession and compromise–that spirit which has never failed us in past and perils, and which may be safely trusted for all the future.”
Abraham Lincoln, Speech at Peoria (1856) on the Missouri Compromise and Kansas Nebraska act.
- Missouri, Kansas, and Nebraska all part of Louisiana Territory.
- Louisiana entered as slave state with zero controversy.
- Missouri wanted to enter as a slave state. many against this. Compromise made in 1820 that Missouri could enter with slavery, but the remainder of the Louisiana Purchase north of 36 30 would be free of slavery (this includes Kansas and Nebraska).
- Lincoln upset over Kansas-Nebraska Act (repealing the Missouri Compromise) because north doesn’t get anything out of it.
“It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws . . . “
C.J. Taney, Majority Opinion, Dred Scott v. Sanford (1857) (Hope’s eyes rolling added)
Chief Justice Taney provides a discussion of whether “citizens” and “people of the U.S.” are synonymous in his majority opinion for Dred Scott v. Sanford (1857). In establishing that Black people do not possess rights other than those the government grants them, Taney asserts the courts cannot decide these matters. Any decision regarding rights must be made by the other political branches, i.e., those persons responsible for framing the Constitution. Taney also distinguishes between state and federal citizenship—just because someone is a resident of a particular state does not mean they possess U.S. citizenship or the attenuated rights.
- Quote immediately follows Taney stating that blacks have historically been subordinated by the US government and seen as an inferior class.
- Says that it isn’t up to the court to determine whether or not blacks are citizens. Says it is up congress and that the courts job is simply to interpet what congress has done and what the founders intended.
- Can talk about Jefferson’s statement on Virginia and Federalist #2 and how a government that view blacks as inferiors would never let them become citizens.
- The current government, as highlighted by John C. Calhoun Speech in 1848 hasn’t changed this.
- Can talk about how judges are appointed by presidents and confirmed by senate. They are going to be part of the political elite and are unlikely to go against mainstream elite thought. The SC tends to follow not lead. Even when they appear to lead, ex. Brown v. Board of Education, it’s only with the support of President Eisenhower in the face of America being attacked by the Soviet Union over its treatment of blacks, and wider support in public following stuff like Jackie Robinson.
“You and we are different races. We have between us broader difference than exits between almost any other two races. Whether it is right or wrong I need not discuss, but this physical difference is a great disadvantage to us both, as I think your race suffer very greatly, many of them by living among us, while ours suffer from your presence. In a word we suffer on each side. If this is admitted, it affords a reason at least why we should be separated.”
Abraham Lincoln, Discussing Colonization with African American men at the White House (1862) (pointing to Liberia as an example of a successful colony where several thousand freed Black, American persons settled.).
In 1862, Abraham Lincoln invited Black political leaders to the White House to discuss Black colonization. Lincoln used Liberia as an example of a successful colony where several thousand freed Black, American persons settled. This revealed that while Lincoln clearly hated slavery, he also empathized with slaveowners—he was clearly not John Brown and explored the notion that Black colonization could resolve the race issues caused by slavery.
- Part of the reason Douglas saw him as being the “white man’s president.”
- Further shows that he is more interested in preserving the union, than protecting black people (see Horace Greeley letter)
- Reminicsent of Jefferson in his letter to the STate of Virginia.
- Also similar to letter from colored female who proposed that blacks leave for Mexico or Canada.
But Austin Steward says blacks should stay in America because it is there country, even though they are treated badly. Similar sentiment in 1619 opening letter.
- Douglas “your” America
“The question, then, is whether an Indian born a member of one of the Indian tribes within the United States, is, merely by reason of his birth within the United States and of his afterwards voluntarily separating himself from his tribe and taking up his residence among white citizens, a citizen of the United States within the meaning of the first section of the Fourteenth Amendment of the Constitution.”
J. Gray, Majority Opinion, Elk v. Wilkins (1884) (holding that, despite being born within the territorial jurisdiction of the United States, Elk was born as a subject of an American Indian nation, and, therefore, was not “subject to the jurisdiction” of the United States at birth. Accordingly, the Court reasoned that “[t]he evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”).
- Court says Native Americans can only become citizens via naturalization.
- Treats Native American tribe in same manner as foreign country, even though earlier cases like Cherokee Nation and Rogers treated them differently than foreign nations (domestic dependent nations). Case highlights tension involved in having two different sovereigns (the US government and the tribe) over one area (tribal land).
- Elk holds until 1924 when Birthright Citizenship given to Native Americans (but even this not as much protection as 14th amendment gives because it could theoretically be changed via new legislation).
- Shows how limited of an interpretation the SC is giving the 14th amendment.
“If this is the spirit and meaning of the amendment, whether it means more or not, it is to be construed liberally, to carry out the purposes of its framers. It ordains . . . that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the states, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color . . . . [The amendment guarantees] the right to exemption from unfriendly legislation against them distinctively as colored–exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discrimination which are steps towards reducing them to the condition of a subject race.”
J. Strong, Majority Opinion, Strauder v. West Virginia (1880) (holding that a West Virginia law barring Black persons from jury service violates the Equal Protection Clause of the Fourteenth Amendment by reasoning that denying citizen participation in the administration of justice solely on racial grounds “is practically a brand upon them, affixed by law; an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others.”) (emphasis added).
- Strauder seems to be the exception to the rule of cases narrowly interpreting the 14th amendment, like the civil rights cases, Plessy, and Giles that limited the application of the 14th amendment.
- SC could have viewed unfriendly legislation differently.
- Also relates to the debate on whether the 14th amendment protects civil rights (own property, marry, etc.) and political rights (voting, serving on a jury). The dissent, written by Justice Fields, argues that it only applies to civil rights. Strong goes further in Strauder and applies the 14th to political rights as well.
