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

Many northern African Americans existed in a twilight zone between slavery and full citizenship. Their functional status in this regard, to some extent, was not unique. Corporations were entities whose identity also did not fit into any preexisting legal categories. In 1809 the Supreme Court determined that a corporation was an “artificial, invisible body, existing only in contemplation of law” and thus was without the standing of citizenship.²⁵ By 1844 the Court had determined that a corporation qualified as a citizen for purposes of suing and being sued.²⁶ Although corporations eventually were regarded as citizens for general purposes, their split or uncertain legal personality was akin to the contemporary status of free black persons in the North. Just as corporations had fewer rights and privileges than did actual persons, the list of guarantees and liberties for African Americans was shorter than that for whites. The similarities eventually became academic, however, when the Court in 1857 denied any notion of black citizenship and reduced African Americans to a status beneath even fictional persons.

Although it never directly or meaningfully addressed the possibility of black citizenship during the first half of the nineteenth century, the Supreme Court rendered several racially significant decisions. In The Josefa Segunda, for instance, the Court upheld a federal law that prohibited the importation of slaves and took effect when the constitutional moratorium on such enactments expired.²⁷ The opinion of the Court referred to the slave trade as an “inhuman traffic, for the abolition of which the United States have rendered an early and honorable anxiety.”²⁸ Such a characterization may have reflected a jurisprudential sense of the slave trade as “contrary to the laws of nature.”²⁹ The Court, however, declined opportunities to explore the possibilities of personal liberty under law and limited its focus to relatively narrow or technical considerations.³⁰ Despite invitations to restrict slavery further, the Court’s decisions prior to the 1840s evinced no interest in broadly reviewing the institution or its incidents.