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In the pre-Antebellum particularly during the 1850's did slaves and free blacks have rights? Or even citizenship perhaps?

14

Its very good question, since Americans in the 1850's were asking the exact some question as well! As it turns out, there was a Supreme Court ruling on the issue in 1857: The Dred Scott case. The answer was "No". Not even free blacks were allowed protection under the Constitution.

The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen?

...

It is very clear, therefore, that no State can, by any act or law of its own, passed since the adoption of the constitution, introduce a new member into the political community created by the constitution of the United States. It cannot make him a member of this community by making him a member of its own. And for the same reason it cannot introduce any person, or description of persons, who were not intended to be embraced in this new political family, which the constitution brought into existence, but were intended to be excluded from it.

  • Allow me to call your attention to that last phrase. This court was not that far removed from the drafters of the Constitution. If the highest court in the land within a century is asserting the Constitution was intended specifically to exclude black people, perhaps it is reasonable for us at this remove to take this as at least a very strong likelihood.. – T.E.D. Dec 4 '17 at 15:49
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    I would add a very salient phrase from the Dred Scott decision: "that they had no rights which the white man was bound to respect" -- quite a statement. What then did it mean for a Black to be "free" in Taney's opinion? – Jeff Dec 4 '17 at 17:20
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    @Jeff - I'm (or at least should be) too busy today to research that in detail. You'd think it should be roughly equivalent status to being a resident alien. Except that I'm pretty sure resident aliens are allowed to sue in US courts, and in fact most of the Bill of Rights apply to them, and he was saying "negroes" couldn't. Its quite possible this set up a situation that further litigation would have had to clear up, if the Civil War and subsequent Amendments not settled the issue. – T.E.D. Dec 4 '17 at 17:25
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    The difference between resident alien and Black person would clearly be that the alien has a state that the USA was bound to respect and would advocate for its citizen; the Black, according to Taney, would seem to have no such state. – Jeff Dec 4 '17 at 17:53
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The U.S. Constitution makes reference to the fact that it represented only "free persons." (See for instance Article 1, Section 2.) This meant that the Bill of Rights did not fully apply to slaves. This idea is further elaborated on in Federalist Paper No. 54, in which slaves were considered a hybrid of persons and property. This was the idea of the Three-Fifths Compromise, under which a slave was considered "three-fifths" of a person.

In theory, it meant that free Blacks did have these rights. In actual practice, free blacks were often conflated with slaves because of their skin color, "accidentally on purpose." Further court cases in the 19th century "clarified" matters by limiting the rights of even free blacks, particularly in the 1850s. It took the 13th, 14th, 15th Amendments, plus the civil rights legislation of the 1960s to finally put an end to this.

  • references or specific citations to the Bill of Rights supporting your answer would be helpful – user69715 Dec 4 '17 at 4:55
  • @user69715: OK, fixed. – Tom Au Dec 4 '17 at 4:58
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    that's the entire constitution, not a specific citation. Furthermore, the reference to "free persons" in your link is only about the apportionment of taxes and representatives, not about the Bill of Rights – user69715 Dec 4 '17 at 5:57
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    @JMS: I changed it to "didn't fully apply," based on the Federalist paper and the 3/5th Compromise. I also added in the second paragraph that free blacks' rights were curtailed in the 19th century. Thanks for you help. – Tom Au Dec 14 '17 at 22:45
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    @JMS: I made another addition, "particularly in the 1850s." I am using an "up to then" argument to show a contrast "before" and "after" 1850. – Tom Au Dec 15 '17 at 1:33
5

No.
The Bill of rights did not apply to free African American men in 1850, much less slaves. The rights of free blacks were not guaranteed by the constitution after the Compromise of 1850 which allowed Freemen to be sent south into slavery simply by swearing out an affidavit they were ones property. This effectively meant that any free black man could become a slave at any point with minimal effort from a single white person.

Slaves absolutely had no access to the protections of the laws as white people did. They could not go to court, make contracts, or own property. They could be whipped, imprisoned without trial, branded, and hanged legally.

Don't take my words for it. Hear Roger B. Taney the 5th chief justice of the supreme courts words:

"Blacks had no rights which the white man was bound to respect."

Taney isn't saying slaves have no rights, he's discussing all black men.

The compromise of 1850 along with the Dread Scott Supreme Court decision meant draconian change and helped radicalize the north in opposition mostly to the South; but also to what the South depended on which was slavery.

The bill of rights(1791) didn't apply to slaves. But parts of the United States Constitution(1787) did. Specifically the Slave Clause, Article IV, Section 2, Clause 3.

US Constitution: Slave Clause, Article IV, Section 2, Clause 3

No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.

The Fugitive Slave Act of 1793 was an Act of the United States Congress to give effect to the Fugitive Slave Clause of the U.S. Constitution.

4

The are at least two different questions.

  1. Did the Bill of Rights apply to slaves? - No, and never did. "nor be deprived of life, liberty, or property, without due process of law" definitely does not apply to slave, who by definition does not have liberty.

  2. did slaves and free blacks have rights? According to Supreme Court Dred Scott decision of 1857, blacks (slave and free) did not have any rights, so Bill of Rights did not apply to them.

Prior to this decision, free blacks practically could have some rights on some states. However, no matter how extensive these rights where, even in the free states, Bill of Rights did not apply to free blacks - exactly because federal protection was not extended to free blacks, and they were on the mercy of states.

This situation actually was the result of irreconcilable contradiction between two fundamental documents of the country:

Declaration of Independence lists liberty as one of the unalienable rights of all men;

Constitution allows states to deny the right of liberty to some people, designating them as property (slavery).

Declaration of Independence was indispensable as justification of creating the country, and could not be changed retroactively. This left only two possibilities to resolve contradiction:

To amend the Constitution in order to eliminate slavery.

To amend definition of the man in order to exclude those type of persons who could be enslaved.

Supreme court (justice Taney) tried to use the later solution, but it did not work. As LIncoln pointed out, it opened the door for further exclusions, like catholics, or any ethnic minorities. Instead of crushing republicans, it helped them despite the party platform openly ignored Dred Scott decision.

Eventually, it led to Civil war and to resolving contradiction by 13th amendment to Constitution.

UPDATE: What is interesting, 13th amendment did not make Bill of rights applicable to blacks, because Dred Scott decision was in effect. Only 14th amendment overruled Dred Scott decision

  • Whether the 14th Amendment overruled Dred Scott is a matter of point of view. From one perspective, the Supreme Court merely tells people what documents mean. In Dred Scott, they declared that the Constitution as it existed in 1850 did not afford rights to black people. The 14th Amendment left that declaration intact, but made it moot. A higher court overruling a lower court, (or overruling previous ruling) as to what the Constitution means is distinct from the Constitution being modified. – Acccumulation Dec 14 '17 at 17:44

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