It is nice to see Mr. Southmayd rely on Dred Scott for his arguments. Nothing like using good law to make your point. But he gets the case wrong.. Taney said that no one of African ancestry could be a citizen of the United States. This led to the oddity that persons elected to public office in Mass., Vt., NH. RI, and Ohio (and perhaps other places) were not citizens of the United States because they were of African ancestry. It meant that thousands of non-citizens voted in elections; and oddly that some of the people who vote to ratify the Constitution -- in the 6 states where free blacks could vote -- were not actually citizens of the nation. This is just one reason why no serious scholars or legal historians can put much stock in Taney's opinions on citizenship.
But, the argument Mr. Southmayd makes also falls down on another point. He wants to compare slaves born in the US to illegal aliens. Tthe difference is this. Almost all Virginia slaves in the antebellum period were born in the United States; they were not born in Africa. Surely they are not "African slaves" having never been in Africa. Being an "American" is not merely about citizenship. Illegal aliens are not "Americans" because they are not legally here -- but of course slaves where legally here, and legally in Va. under Va. law. And most were born here.
----
Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208
518-445-3386 (p)
518-445-3363 (f)
[log in to unmask]
www.paulfinkelman.com
--- On Mon, 4/20/09, Tarter, Brent (LVA) <[log in to unmask]> wrote:
From: Tarter, Brent (LVA) <[log in to unmask]>
Subject: [VA-HIST] Historians and Attorneys
To: [log in to unmask]
Date: Monday, April 20, 2009, 3:21 PM
These two messages posted to Va-Hist today have had the long messages to
which they replied removed.
From Jeff Southmayd:
Once again, are Mexican citizens who are in this country illegally and
working for Americans Mexican-Americans since they "toiled and suffered
and created and procreated and built the wealth of Virginia and the
South and the nation over generations....? Of course not. The law does
not recognize any right of citizenship. Dred Scott v Sanders held that
African slaves were not citizens and had no rights of citizenship that
American citizens were required to respect.
So, what is the problem referring to African slaves correctly as
"African slaves"?
It reminds me of the way recent histories on Jefferson, or which discuss
Jefferson and his politics, often refuse to refer to him and his party
as "Republicans" because, I think, they hate the thought of someone
thinking TJ was in the same party of GWB. I have to laugh when PC
hsitorians try to dance around the party affiliation of TJ without
having to use the term "Republican."
FEDERALIST 54 isn't the law of the land or embodied in the Constitution.
It is an opionion piece.
From Kevin Hardwick:
Lawyers are, broadly speaking, advocates. They use language, reasoning,
and rhetoric to promote particular agendas--their own, or those of their
clients. When properly disciplined, the legal frame of mind is
extremely useful. But it is, in the end, a largely teleological form of
reasoning. In constitutional law, lawyers begin with where they and/or
their clients wish to wind up, and then work to frame the most
convincing and persuasive argument they can in order to get there.
Mr. Southmayd is an excellent sophist and rhetorician. I suspect he is
a very good advocate. In a court room, he's the kind of guy I want on
my side.
Historians work from the past forward. They do their best to avoid
teleological reasoning. They try to understand causality. They are
open to readings of the past that do not derive from their immediate
present day commitments. Mr. Southmayd seems hostile to this form of
reasoning. He seems more interested in mining the past, the way that
constitutional advocates do, for factoids that support a predetermined
position, rather than attempting to understand the past on its own
terms.
The admonition to "grow up" is intriguing. Of the two broad
professional dispositions I describe, it does not strike me as
self-evident which is the more mature. But that said, I usually take it
as a good sign, in an argument, when my opponent is reduced to ad
hominems.
<blocked::http://www.lva.virginia.gov/>
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