The Amendment’s second sentence,
“No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States”
furthered the change.
Dred Scott held blacks could not enjoy the “privileges and immuni-
ties” of citizenship15:
“The question is simply this: Can a Negro, whose ancestors were
imported into this country, and sold as slaves, become a mem-
ber of the political community formed and brought into exist-
ence by the Constitution of the United States, and as such
become entitled to all the rights,
and the privileges, and immunities,
guaranteed by that instrument to
Taney answered “no”; the 14th
Amendment changed the answer to
The 14th Amendment’s first two
sentences state the framers’ intent to
place the liberty of freedmen on equal
footing with white citizens regardless of
“States’ Rights.” And they meant to en-
force it with full federal power, includ-
The Electoral College, the Supreme Court, and Slavery
Virginian James Madison knew the Constitution was a great deal for the slaveholding South. In a system directly electing the
President the North would outnumber the South whose many slaves could not vote. “The right of suffrage was much more
diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of
Negroes.” Madison Debates, Thursday July 19, 1787. http://avalon.law.yale.edu/18th_century/debates_719.asp (last visited
June 7, 2017).
Sure, the Constitution only counted a slave as 3/5ths a man, but this gave Southern white men a disproportionate increase of power in the House of Representatives. A state’s number of Representatives and Senators also defines the number
of Presidential Electors from that state. This gave the margin of victory to Southern slaveholding Presidents. For 32 of the
Constitution’s first 36 years, a white slaveholding Virginian occupied the Presidency.
This, in turn, gave the South a great advantage on the Supreme Court. The slaveholding Presidents nominated slaveholding justices, and the Constitution’s guarantee that every state gets two Senators regardless of the number of free voters
assured their appointment.
The election of 1828 is but one example. The slaveholding Andrew Jackson beat President John Quincy Adams by
shoring up the Electoral College, which he failed to do four years earlier. Roger Taney became his Attorney General and wrote,
“The African race in the United States even when free are everywhere a degraded class, and exercise no political influence.
The privileges they are allowed to enjoy, are accorded to them as a matter of kindness and benevolence rather than of right.”
Quoted in Alexander Tsesis, Undermining Inalienable Rights: From Dred Scott to the Rehnquist Court, 39 ARIZ. ST. L.J. 1179,
1202 (2007) (noting the pro-slavery composition of the Dred Scott Supreme Court including three slaveholding justices).
Jackson and the Senate later made him Chief Justice of the Supreme Court in 1836. In retrospect, was there any doubt as
to the proslavery outcome of Dred Scott v. Sandford, 60 U.S. ( 19 How.) 393 (1856)?
This reality of Supreme Court Justice selection influenced cases well after the Civil War.
See generally Akhil Reed Amar & Vikram David Amar, History, Slavery, Sexism, the South, and the Electoral College, Nov. 30,
2001 at http://supreme.findlaw.com/legal-commentary/history-slavery-sexism-the-south-and-the-electoral-college.html
(last visited June 7, 2017).
Andrew Jackson’s Inauguration
Work titled: President’s Levee, or all Creation going to the White House. From Library of Congress: View of crowd in front of the White
House during President Jackson’s first inaugural reception in 1829. The furnishings of the White House were destroyed by the rowdy
crowd during the inaugural festivities. Date, 1841
ing the federal Department of
Justice, the federal courts, and
the military. 16
Of this, the 14th Amend-
ment’s last section left no
Section 5. The Congress
shall have power to en-
force, by appropriate leg-
islation, the provisions of
Chief Justice Roger Taney