A. The Founding Fathers, Congress, And This Court Sanctioned Slavery.
The Founding Fathers established a government that sanctioned the wholesale denial of elemental human rights to blacks. As Frederick Douglass stated, the United States Constitution “was made in view of the existence of slavery, and in a manner well calculated to aid and strengthen that heaven-daring crime.”
During the Constitutional Convention of 1787, the Founding Fathers legitimized and secured the institution of slavery by including several clauses that sanctioned the practice. The Constitution treated a slave as three-fifths of a person for purposes of apportioning Congressional representatives and taxes among the States. The Constitution also contained a clause ensuring that the “Migration or Importation” of slaves would not end before 1808, and a provision prohibiting the amendment of that clause.
The Founding Fathers included a number of clauses that *5 were instrumental in maintaining the institution of slavery. The Fugitive Slave Clause, for example, provided for the capture and return of slaves to their masters. Other provisions called on the federal government to protect the states from domestic violence, such as slave rebellions, and required Congress to call forth the militia to suppress such insurrections. Further, the Constitution prohibited taxes on the exports produced by slaves. In addition, the electoral college provision on its face gave whites in slave states a disproportionate influence in presidential elections, because it counted nonvoting slaves in apportioning representatives to the electoral college. Moreover, none of these provisions could be amended without the agreement of three-quarters of the states. Such provisions clearly show that the Founding Fathers family intended to leave intact a system in which blacks were the chattel of whites.
Congress passed laws that further strengthened the institution of slavery. In 1793 and 1850, Congress enacted fugitive slave laws that empowered the federal government to apprehend fugitives and offered no protection against enslavement to northern blacks who had been born free. Nearly “every free *6 person of color was in imminent danger of being taken up and placed in slavery with no opportunity whatever to establish a valid claim to freedom.”
*7 In addition to the scourge inflicted on free blacks by the Fugitive Slave Acts, federal and state governments enacted laws to prevent free blacks from enjoying any of the rights and privileges of citizens. The Naturalization Act of 1790, for example, barred free blacks from becoming naturalized citizens. Four states-Indiana, Illinois, Iowa, and Oregon- closed their borders to blacks altogether. In the Washington and Indiana territories, Congress denied free blacks the right to vote. Franklin, supra n.13, at 24. The individual states followed suit: every state that entered the Union after 1800, with the exception of Maine, restricted the right to vote to white males. Id. at 26-27. Likewise, the Second Congress passed a law establishing a uniform militia throughout the United States, but limited enrollment to white male citizens. Id. at 23.
This Court facilitated the institutionalization of slavery through a succession of cases in the early nineteenth century that confirmed the status of blacks as mere property, see, e.g., Groves v. Slaughter, 40 U.S. (15 Pet.) 449 (1841); The Antelope, 23 U.S. (10 Wheat.) 66 (1825), and solidified Congress's authority “to secure to the citizens of the slaveholding States the complete right … of ownership in their slaves.” Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 540 (1842). The power over fugitive slaves, this Court concluded, “was so vital to the preservation of … domestic … institutions, that it … constituted a fundamental article without … which *8 the Union could not have been formed.” Id. Other cases held that a person could be liable for damages to a slave owner if caught harboring fugitive slaves, even if the person had no actual notice that the harbored persons were slaves. See Moore v. Illinois, 55 U.S. (14 How.) 13 (1852); Jones v. Van Zandt, 46 U.S. (5 How.) 215 (1847).
Perhaps the most notorious and insidious of these cases was Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). Dred Scott solidified the wretched standing of African descendants and obliterated any meaningful distinction between the “rights” of free blacks and slaves. The Court concluded that blacks were not intended to be included as citizens but were “regarded as beings of an inferior order … altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect ….” Id. at 407. In its ruling, seven members of the Court recognized and upheld the racial caste system in the United States, where no person of African descent, free or slave, would be afforded the most basic rights. Until the ratification of the Fourteenth Amendment in 1868, blacks could claim no rights of citizenship long afforded whites as a matter of course.
