논문 / ' 시민권 ' 의 의미와 친노예제적 법문화 - Dred Scott 사건을 중심으로 - = Citizenship , Dred Scott and Proslavery Legal Culture

다국어 초록 (Multilingual Abstract)

A landmark in the history of judicial review, Dred Scott v. Sandford (1857) was not only a statement of proslavery assumptions and arguments but also an expression of the southern legal culture. Dred Scott, a Missouri slave, was taken by his master to free Illinois and subsequently to a fort in the northern part of the Louisiana purchase, where slavery had been excluded by the Missouri Compromise. On the ground that he had resided on free soil, he sued for his freedom upon his return to Missouri. Chief justice Roger B. Taney, speaking for the Court, denied Dred Scott`s citizenship, state and federal, and upheld the unconstitutionality of the Compromise. The citizenship of free blacks was on the center of the discoursive conflicts between the South and the North. The northern legal culture was based on ascriptivism, which was first articulated in a legal form by Sir Edward Coke in Calvin`s Case (1608) and supported in the American colonies. Born under the power and protection of the English King, all persons were ascribed the status of native-born subjects. Following the ascriptive reasoning with opposition to nonconsensual feudal doctrines, the North maintained that native-born free blacks should be considered citizens. For the opponents of citizenship of free blacks, it meant that the free blacks should possess the civil rights equally with the whites. Rejecting or modifying the common-law theory of birthright citizenship, the opponents supported liberalist consensualism, which was considered as the American political philosophy during the American Revolution. For them, the free blacks were not parties to the social contracts with the whites, which created the states and the Union. In addition, republicanism, as well as liberalism, was contributed to the exclusion of the free blacks from the category of citizens. The southern courts became to regard the free blacks as a $quot;middle$quot; class between slave and citizen and countenanced that rights created citizens. The Antebellum courts divided sharply on the question of citizenship of free blacks. The Taney court wished to resolve it once and for all. Acknowledging the exclusive consensual citizenship, the Court rejected the idea of consensual hierarchy of citizenship. Instead, Taney argued for the theory of dual sovereignty, by which the free blacks were denied federal citizenship. Although upholding localism as well as jus soli, Justice Benjamin Curtis sharply differed from Taney on relations between state citizenship and federal citizenship but logically came to agree with him on the dualistic nature of national citizenship. Curtis viewed the question of citizenship from the perspective of freeman vs. slave, not from the perspective of citizen vs. slave, and did not succeeded to reflect the northern mood-modern consensual ascriptivism, which realized in the Fourteenth Amendment.