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chapter six The Sources of Southern Factionalism Corporations, Free Blacks, and the Imperatives of Federal Citizenship in a critique of the passenger cases, a correspondent for the Charleston Mercury argued that the Supreme Court had stripped the South of laws that could bar free blacks recognized as citizens in northern states from coming into the region under federal protection. The Supreme Court, of course, had done no such thing. Indeed, abolitionist James G. Birney condemned the ruling in Strader v. Graham for precisely the opposite reason. Strader held that slave states need not recognize the freedom claims of enslaved African Americans who had spent time in free territory; such questions were best left to state discretion. By asserting that states held nearly complete control over matters of social status within their boundaries , Birney contended, the court violated the predisposition toward freedom of both the Constitution and the Framers. The Framers hoped to bring slavery to an end, and one way of doing so was to recognize the freedom of any enslaved person that a master voluntarily took into free territory. Such persons not only became free but became citizens entitled to all the rights held by white citizens, whether naturalized or native-born. Moreover , these free black citizens also held the right to go into the South and claim all rights held by white citizens. “Any other interpretation of the constitution . . . would annul that portion of the instrument which declares, that ‘the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.’ ” Birney was well aware that his account of the law did not explain current practice, but that was because passion, interest, and a misunderstanding of popular opinion obscured the court’s ability to see the Constitution’s correct interpretation. Both Birney and the Mercury’s correspondent discussed a turn of events that never came to pass during the antebellum period. Yet they discussed a scenario that was 116 the sources of southern factionalism 117 1 [117 certainly plausible in the context of federal citizenship law and one that the court’s southern faction, through its maneuvers in corporate law cases, prepared to counter.1 As they assailed corporations, members of the southern faction continually revisited the question of corporate jurisdiction. Dodge v. Woolsey (1856) placed the issue in sharp relief. The case, which involved an Ohio constitutional provision judged to be a violation of the Obligations of Contract Clause, entered the federal courts through diversity jurisdiction, because previous decisions allowed corporations to claim citizenship in the state in which they were chartered. Allowing corporations access to this jurisdictional avenue, Justice John A. Campbell argued, did nothing except gratify “the most morbid appetite for jurisdiction among all their various members ” and sustain corporate privilege at the expense of the states’ ability to provide for their citizens’ welfare through legislation.2 The underlying concern of members of the faction, especially Campbell and John Catron, may have had less to do with corporate access to diversity jurisdiction per se than with the fact that in the court’s understanding of citizenship law, the status of corporations and free blacks were conceptually identical. Both gained citizenship through the recognition of particular states, and if the court recognized corporations as citizens for the purposes of jurisdiction, then it might do so for free blacks as well. Corporations, as Dodge demonstrated, benefited immensely from the federal protection this recognition granted, and free blacks might likewise use their access to the federal courts to undermine the southern slave regimes. Because corporate access to diversity jurisdiction offered analogies that could be useful to free black litigants, the southern faction treated it as a potential threat, and the faction’s maneuvers would form the immediate doctrinal context for Dred Scott. For the southern faction, the central problem of American citizenship lay in its duality. “Every citizen of a State,” Justice William Johnson wrote in 1820, “owes a double allegiance; he enjoys the protection and participates in the government of both the State and United States.” At law, citizenship signified a legal relationship in which purportedly free individuals gave their allegiance to a sovereign community in exchange for the protection of their rights to life, liberty, and property. Citizens thus agreed to obey laws that in turn safeguarded for them a bundle of rights that varied significantly according to race, gender, and jurisdiction. In the United States, citizens effectively belonged to two sovereign communities, creating, in Justice Samuel [3...

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