Lorianne Updike Toler (Northern Illinois University College of Law; Information Society Project, Yale Law School) has posted (UN)FREE CITIZENS on SSRN. Here is the abstract:
The Constitution’s drafts are a closed cannon. How that cannon is understood might change, but no new drafts have been added in over a century—until now. As detailed in this essay, another draft was in fact created but then lost to history. Though lost, it is possible to recreate it by comparing the edits made to previous and subsequent drafts. Of the lost draft’s 730 changes—almost all of them technical or minor—the most important substantive edit is changing “free citizen” to “citizen” in Article Four’s Privileges and Immunity Clause, or the comity clause. This change raises the question of whether free Blacks were citizens under the Constitution. More, how, if at all, does this change impact the historical grounding for Dred Scott? Does it support Chief Justice Taney’s infamous conclusions that free Blacks were not citizens?
While the textual edits to the clause do not vie against free Black citizenship, its spirit as well as its British and Framing context squarely support it. Textually speaking, “free” was removed from the clause because it was surplusage: “freeman” was synonymous with the emerging national concept of citizen. The text’s linguistic evolution coincides with the intent of the missing draft’s author, James Wilson, an outspoken critic of slavery who freed his solitary slave to vote in Pennsylvania. Too, British legal heritage meant that native-born inhabitants were “subjects” of the Crown—a concept that translated eventually into “naturally born citizens.” However, the British legal distinction of “denizens,” or non-citizen free inhabitants, fell away in its American colonial context. Thus, according to emerging American law in most states, those “freemen” born on American soil were citizens. Additionally, free Blacks who met other qualifications in all but the Deep South states of South Carolina and Georgia voted, a clear indicia of citizenship. Thus at the Framing, free Blacks born in America were citizens—at least for a time—and were citizens and part of the “We the People” that formed the Constitution. These findings provide additional historical grounds for condemning Dred Scott.
