The Constitution, Race, and Renewed Relevance of Original Intent: ...

Even if the danger of enslavement in the North was limited to possibilities created by fugitive-slave legislation, legal burdens and social exclusion there were nonetheless profound. Most free African Americans were not allowed to vote, and at least two states, Indiana and Illinois, enacted laws prohibiting their immigration. Congress excluded African Americans from military service and certain federal jobs. In Washington, D.C., where slavery flourished until the middle of the nineteenth century, African Americans were denied voting rights and prohibited from engaging in various types of businesses.

Particularly indicative of northern racial attitudes were official policies of segregation. The Massachusetts Supreme Court, for instance, articulated the principle of separate but equal nearly half a century before the U.S. Supreme Court subscribed to it in Plessy v. Ferguson. In Roberts v. City of Boston, the state supreme court upheld a racial-segregation requirement, which generally provided for student placement at the nearest school. Assignment of a black student to a school across town was upheld on grounds that she was afforded an equal education.¹⁸ Not until 1954, when the Court, in Brown v. Board of Education, declared that separate was “inherently unequal,”¹⁹ was the segregation principle introduced in Roberts and reiterated in Plessy defeated. Even then, transportation burdens, which did not impress the Roberts court when carriage was less efficient, were reintroduced and eventually embraced as a basis for limiting the scope of desegregation.

Prior to the Civil War and Reconstruction Amendments, some proponents of citizenship and rights for free African Americans turned to the original Constitution for support. One theory in this regard was that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”²⁰ The privileges and immunities clause essentially provided that a state could not differentiate between its citizens and those of other states with respect to the rights and protections it afforded. Although not prompted by any preconception or contemplation of black citizenship, article 4, section 2, would have had profound implications if glossed in such terms. Southern states in particular would have been required to afford black citizens of other states equality of legal status.