The Dred Scott Court accepted and perpetuated the notion that our Constitution afforded multiple tiers of citizenship and multiple tiers of personhood through which different groups of citizens and different groups of persons would receive varying sets of rights. Through their language and interpretation, the Reconstruction Amendments largely resolved this issue by providing a formal equality that created a single tier of citizenship and a single tier of personhood. Though, as a formal matter, tiered citizenship and tiered personhood are unacceptable, the issue is not fully resolved as a practical matter. Tiered citizenship and tiered personhood may exist when the exercise of certain citizenship or personhood rights is limited. If the limitation on rights is justified, multiple tiers of citizenship or personhood have not been created; if the limitation is not justified, multiple tiers have been created. After a brief discussion of Dred Scott and the Reconstruction Amendments, this essay urges that any restrictions on the exercise of citizenship rights or rights traditionally considered rights of personhood be clearly justified, rather than merely explained. Without the full justification of such restrictions, various laws may appear to reflect a Dred Scott mindset that accepts the unjustified provision of differential rights to groups of citizens and persons on the basis of governmental fiat and societal bias, rather than a post-Reconstruction Amendment mindset that guarantees equality.
Henry L. Chambers Jr.,
Dred Scott: Tiered Citizenship and Tiered Personhood,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol82/iss1/7