Image from Flickr user John Dyer.

By Ciara Torres-Spelliscy

Chief Justice Charles Evans Hughes once characterized Dred Scott as the Supreme Court’s great “self-inflicted wound.” In 1857 when the Supreme Court decided the infamous case against freeing the slave Dred Scott, Justices Campbell, Catron, McKinley, Taney, and Wayne were from Southern slave owning families. They all sided against Dred Scott’s freedom concluding with a doozy of a line that blacks “had no rights which the white man was bound to respect.”

It’s easy to think of historical racism as just a Southern problem. But this would be a grave mistake. As we continue our long overdue discussion of how America should deal with symbols of our racist past like the Confederate flag, we should remember that the South doesn’t have a monopoly on our racist history. Even in the North, racist beliefs, practices and laws were in place.

I submit for your consideration a decision from the Supreme Court of Connecticut called Crandall v. State from 1834 that Chief Justice Taney cited in the Dred Scott opinion. The matter at issue was the constitutionality of a Connecticut law, known as the “Black Law” that made it a crime to educate black students from out of state. Language in the law included: “…establishment of literary institutions in this State for the instruction of colored persons belonging to other states and countries would tend to the great increase of the colored population of the state, and thereby to the injury of the people…”

Lawyers for Connecticut argued that blacks were not citizens under the US Constitution.

Prudence Crandall, a white educator in Canterbury, was charged under the law for educating black and white girls in her home.

The constitutional question in the case was whether the law violated Article IV’s privileges and immunities clause. This clause of the Constitution reads: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The point is to stop states like Connecticut from treating out-of-staters worse than it treats Connecticut citizens.

The casual observer might think “Ah ha! A clear loss for Connecticut and its facially unconstitutional law.” But think again.

Lawyers for Connecticut argued that blacks were not citizens under the US Constitution. Their arguments were nakedly racist: “The white men and the coloured men composed the grand divisions of the human family. The white men then were entitled to particular privileges, above the coloured men: civil and political rights belonged, by the laws of all the states, to the former, but not to the latter.”

The lawyers for Connecticut’s reading of the nation’s founding was: “Go back to the time when the constitution was made, … [t]he best men bought and sold negroes, without a scruple. …The immortal Washington… held more than one hundred slaves, as his property, on that day; and he was not thus inconsistent. He never intended to have you say, that the portion of the human race which were held in bondage were slaves, and the residue of that same colour were citizens.” Thus if the first president George Washington owned slaves, the lawyers illogically concluded even free blacks could not be citizens.

Racism is an American problem that we can only solve if we realize it wasn’t localized, isolated, or unique.

The argument did not stop there. The State’s lawyers cited to Chancellor Kent’s legal commentaries about the negative aspects of interracial marriage: “‘The African race are essentially a degraded caste, of inferior rank and condition in society. Marriages are forbidden between them and whites, in some of the states, and when not absolutely contrary to law, they are revolting, and regarded as an offence against public decorum.’”

By contrast, lawyers for the school argued that free blacks could vote in several states and thus must be citizens under the US Constitution: “in Pennsylvania and New-York, (as well as in Maine, New-Hampshire, Massachusetts, Vermont, New-Jersey, Delaware, Maryland, North-Carolina and Tennessee,) they can vote; and if voting is the criterion of citizenship, they are citizens here.” And furthermore that the pupils in question were not slaves at all. The status of slaves was irrelevant to the issue before the court. The issue before the court was how Connecticut was discriminating against free black girls from the surrounding states who wanted an education.

In the end, the Supreme Court of Connecticut ducked the constitutional question by finding a technical error in the criminal charge. But they left for posterity to see the ugly racists arguments that the state used to justify its racial discrimination in education.

In case you were wondering about the epilog of the case, after being freed from jail, Ms. Crandall had to leave town after the school in her home was repeatedly attacked, including an attempted arson while she was inside. As a white friend of hers recounted of her treatment, “I felt ashamed of Canterbury, ashamed of Connecticut, ashamed of my country, ashamed of my color.”

In our contemporary times, the North doesn’t have a clean record on institutionalized racism either.

If we think of racism as just a Southern problem, we misunderstand history. Racism is an American problem that we can only solve if we realize it wasn’t localized, isolated, or unique. It seeped into our laws, practices and norms, even in the North.

In our contemporary times, the North doesn’t have a clean record on institutionalized racism either. In Connecticut, a recent study found that blacks are pulled over more often than whites. In New York City, the impact of selectively enforced stop and frisk policies, had led to dangerous racial profiling, as even minority police officers have experienced when they are out of uniform. Just today, the White House rolled out an initiative to battle segregation in housing in cities like Chicago.

Taking down certain flags in the South is a good place to start. But it is just a first step among many.

Ciara Torres-Spelliscy

Ciara Torres-Spelliscy is an Assistant Professor of Law at Stetson University College of Law. She is the author of a forthcoming law review article entitled “How Much Does an Ambassadorship Cost?”, as well as co-author with Dr. Kathy Fogel of “Shareholder-Authorized Corporate Political Spending in the United Kingdom” in the Spring 2012 issue of the University of San Francisco Law Review.

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