----- Original Message ----- From: "Jon Roland" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Monday, October 13, 2003 5:20 PM Subject: [inbox] Re: Restrain your amazement
> The confusion over who are "the people" was that originally a distinction > was made between citizens, with political rights such as being represented > in elections or referenda, directly as electors, or virtually through > electors, and denizens with a right to remain on and return to the > territory. It has two meanings: (1) the sovereign source of all law, and (2) > those who enjoy the protections of "part of a national community". This > second group includes not only citizens, but legal foreign visitors, and > peaceful illegals, but citizens originally excluded the members of certain > "domestic nations" -- native Americans. The precedent of Dred Scott > attempted to put blacks into that category, and attach rights protections to > "citizens" rather than to "persons", which is contrary to the actual words > of the Constitution. Dred Scott, of course, isn't the first such example. I had my students read Ely v. Thompson (Ky. 1820), State v. Newsom (N.C. 1844), and Cooper and Worsham v. City of Savannah (Ga. 1848) for examples of how slave state supreme courts wrestled with the question. Ely v. Thompson especially points out that while free blacks were not citizens, this was not enough to dispose of the case, because a foreigner traveling through Kentucky would certainly have the right to jury trial--and therefore, "citizen" is not a sufficient excuse for denying free blacks the right to jury trial.
