Huckabee: Dred Scott Decision “Remains To This Day The Law Of The Land”

[jberryhill]

10. Certain aspects of it remain

A Supreme Court decision is a bundle of things. Obviously, the part of the Dred Scott decision dealing with the direct question of the Fugitive Slave Act was rendered inoperative by the Reconstruction Amendments to the Constitution.

The birthright citizenship clause of the 14th Amendment overturned the Dred Scott decision insofar as a person born in the United States could be denied the privileges and immunities of any state, upon taking up residence in another state. However, the Dred Scott decision did establish that persons (otherwise recognized as citizens) are citizens of the their state of residence, and that no state can grant "state citizenship" to a person who is not otherwise a US citizen.

That "Dred Scott is still good law" is one of those inane "fun facts to impress your friends" which is pointed out to law students when the case comes up in con law class.

If, for example, you live in New York and you drive to Connecticut, the state of Connecticut can't take your car away from you, on the ground that your car is not registered to you in Connecticut. Your car is titled to you in New York, and Connecticut is bound by the Constitution to recognize your New York registration, provided you have not left New York permanently and taken up residence in Connecticut (most states provide a grace period for re-registration of your car when you move).

What the Reconstruction Amendments did to Dred Scott was to prevent its application to the ownership of PEOPLE, and ended the non-recognition of rights of citizenship, by any state, to people who were born into a condition of servitude in the US.

One of the other points at issue was whether a person who was not recognized as a citizen either by their former state or by the United States, could become a US citizen by moving to a state which would recognize that person as a citizen. The answer at that time was "no", and it remains "no". Of course, in the context of that case, the reason why the person was not recognized as a citizen by their state of origin or the US, was because he was born a slave in a slave state. Hence, not having been a citizen of the US, he did not become one by moving to another state. That, of course, no longer applies to persons born in the US. But the general principle, of course, still applies that only US law can determine whether someone is a citizen of the US or a citizen of the state in which they reside. For example, a state cannot recognize an undocumented immigrant as a citizen of that state, if the US does not recognize that person as a citizen.

That said, the statement by Huckabee is breathtakingly stupid in its context here. The general principle of Dred Scott - that US law determines citizenship and that state citizenship is determined by residence - is thoroughly mundane, and thoroughly irrelevant to anything going on in the Kentucky marriage license follies.