subject nations? (No and maybe.) The biggest questionnturned, of course, on the status of blacks—both free andnslave.nIn a country where slavery was legal and embedded in thenConstitution and where only white immigrants could bennaturalized as citizens, the status of free blacks was a puzzle.nThe pieces were not really sorted out until fairly late, whennthe issue became a matter of sectional loyalty. Inevitablynmost Southerners (with the support of a good manynNorthern men) came to insist that slave or free, blacks werennot and could not be citizens. The Yankee political leadership,njust as inevitably, took the opposite view.nThe controversy came to a head in the famous case ofnDred Scott. In the 1830’s Scott’s owner, an army doctor,nhad taken his slave to the free soil of Illinois and thenWisconsin territory. The doctor returned to Missouri withnhis servant, and after his death, the widow married annabolitionist who wished to use the matter as a test case in thencourts. In 1852 the Missouri Supreme Court ruled thatnwhile Scott could have been freed in the four years he spentnin the North, his servile status was reconfirmed uponnreturning to Missouri.nThe issue, however, was potentially larger than the simplenquestion of Dred Scott’s legal status, and when in 1856 thenSupreme Court ruled against Scott, Chief Justice RogernTaney decided to take up the whole question of citizenship.nWriting for the majority, Taney argued that blacks did notnhave the right even to bring suit in federal courts, since theyncould not be citizens. Citizenship, he argued, was restrictednto the people of the United States at the time thenConstitution was ratified, to their descendants, and to thosenwhite foreigners who had been adopted into the commonwealth.nNo free state could make blacks citizens, becausenthat right belonged to Congress achng for the nation as anwhole. By denying them such basic rights as voting, jurynservice, and office holding. Northern states made it plainnthat they did not actually include free blacks in their citizennbodies.nIn his dissent Justice Benjamin Curtis pointed out thatnthe constitutions of several states had given citizenship to allnfree-born natives, regardless of color. It was up to the states,nhe argued, to determine who their citizens were, and statencitizens were automatically national citizens. What a strangensituation, in which Taney, the Jacksonian Democrat, supportsnthe national government against the states rights claimsnof abolitionists. The technical and legal questions inspirednby the decision will never be solved, but the judgmentnagainst Scott was the only possible decision for the court tonhand down: it has only been in this century that courts havenregularly usurped the power to make laws. The ChiefnJustice himself upheld the right of Congress to change thenlaw — and nothing so marks the dishonesty of Americannhistoriography as the vilification that Taney has endurednposthumously.nIn the great national debate, the strict-constructionistnargument was simple: Citizens were citizens; there could benno degrees. While women and children exercised theirnrights primarily through the male head of the family, thisnwas an arrangement universal in the human species. Evennproperty qualifications were not a genuine civil disability,nsince anyone could, at least theoretically, work to acquirenthe necessary wealth. The case of free blacks in the Northnwas, however, entirely different. No matter what the meritsnof the individual might be, no matter what his service to hisncountry (Lincoln was dubious about the political rights evennof black Union veterans), he could never take his place as anpolitical equal.nSome politicians fell back on the convenient notion thatnthe word citizen in America meant no more than subject innthe common law tradition. A subject is simply someonenborn in allegiance to the crown or, in our case, to thengovernment of the United States. In return for his allegiancenthe subject was protected in his property and guaranteed thenrights of due process. Some citizen-subjects could vote, holdnofBce, serve on juries. Others could not. Progressive thinkersnthen and now saw nothing wrong in having a servile,ndependent class of second-class “citizens.”nThe merits of such an argument and of such politicalndistinctions are strictly historical. The American notion ofncitizenship did in part grow out of English law on subjectship,nand recent scholars have quite correctiy related ournown debates to the differing traditions of English law andnpolitical philosophy. In the older common law tradition,nbirthright conferred perpetual subjectship. In the simplestncase, anyone born on English soil was an English subject,nand the English periodically reassured themselves that thenKing’s heirs were really subjects, even if they were born in anforeign country. The newer doctrine of consent was arguednby John Locke and even more radically by William Godwin.nThe accident of birth could not, it was argued,ncondemn a man to perpetual allegiance. Upon reachingnmaturity a subject was free to choose his nationality. (By thensame token, Locke interpreted the family as a sort ofncontract for mutual benefit; grown children owed nothing tontheir parents.) Under the old doctrine, free black nativesnwere obviously subjects, but by the terms of the new liberalnargument, citizenship was based on tacit agreements betweennthe state and its citizens, and the grounds for such ancontract between the United States and free blacks provednhard to establish. Ironically, it proved easier to deny blackncitizenship on Locke’s liberal grounds than under the olderncommon law.nBut in addition to the twin English traditions of subjectship,nthere is the ancient notion of citizenship that wasnpartially revived by the English republicans. Citizens werennot, in a Creek polis, passive recipients of equal rights tonlegal due process; they were active participants in the life ofnthe commonwealth. They served on juries, met periodicallynin the assembly, and — in the fullest understanding of thenterm — they could and did hold public offices. Citizenshipnwas almost entirely based on the ius sanguinis, the right ofndescent, since the polis was essentially an extended familynand not, as in the case of a modern nation, a marketplace ofnrights and obligations. At Sparta even birth was not enough:nboys had to go through the rigors of Spartan education ifnthey wished to join the homoioi (equals).nPerhaps because of their affection for the classics. Southernersnwere prominent among the many Americans whonembraced this active conception of citizenship. If they werenwrong about a great many other things, they were at leastnpassionate in their devotion to country. It is no accident thatnrural people in general, and Southerners in particular, havennnMAY 1988 I 11n