I just read this interesting piece by Richard Primus in the Harvard Law Review, The Riddle of Hiram Revels.

Revels was elected to be a Senator from Mississippi in 1870. When he arrived in Washington, there was a constitutional debate in the Senate about whether or not he was constitutionally eligible to the Senate. The problem is that Senators have to be nine years a citizen, and Revels was black. The 14th Amendment said that all persons born in the U.S. (and subject to the jurisdiction thereof) were citizens of the U.S. and their resident state. But the 14th Amendment was made law in 1868, and there was an 1857 Supreme Court decision called Dred Scott v. Sanford that claimed that blacks were constitutionally ineligible for citizenship.

So that part is interesting, and so is Primus's basic account of the constitutional arguments. The rest of the article, however, is rather maddening.

Primus insists that constitutional interpretation can take place outside of courts (of course it can). He also insists that constitutional arguments are not simply those that pertain to the meaning of the constitutional text but rather those "fundamental set of ideas, practices, and values that shape the workings of legitimate American government." Apparently, "(n)obody can accurately describe the full content of that set." I find this claim rather implausible, and also rather beside-the-point. The Revels debate was about whether or not Revels had been a "citizen" for nine years within the meaning of Article 1, so it was "constitutional" even if not all arguments about fundamental American governmental values are.

Primus then goes on to claim that everybody he has asked believes that Hiram Revels should have been seated, and that almost everybody who so believes does so because of "normative constitutional principles" rather than "technical legalisms". Then there is a lot of interesting talk about the nature of secession and whether or not the 14th Amendment wreaked a fundamental shift on the nature of the union, and whether or not it is legitimate to let pre-14th-Amendment law keep post-14th-Amendment blacks out of office.

All of this seems rather unnecessary, or at the very least blown out of proportion. The easy and in no way revolutionary view to justify the admission of Hiram Revels is a combination of what I take to be Charles Sumner's and Abe Lincoln's positions. Dred Scott is simply not an accurate description of the contents of the Constitution. It is conceivable that an incorrect but fully-litigated judgment on a constitutional question binds the parties, but there is no reason that it should bind two entirely unrelated parties engaged in a non-judicial proceeding. So if Dred Scott is wrong about whether blacks could be citizens (and it almost certainly was) then Revels was a citizen before the 14th Amendment as well as after. Some members of Congress failed to recognize this because they failed to recognize the wrongness of Dred Scott (or failed to recognize that an incorrect decision from the Supreme Court does not alter the contents of the Constitution), but that's no reason for Primus to make such a fuss.

Now, I do think there is an interesting legal question surrounding the admission of Hiram Revels, but it is one of the "technical legalisms" that Primus so disdains. Before the 14th Amendment, citizenship was generally a question of state law, so to figure out whether or not Revels was eligible to be a citizen would presumably require an investigation into the law of the potentially relevant states. (Revels was born free in North Carolina, and I am not sure what he did in the interim before being elected from Mississippi). And this is complicated by the fact that the alleged governments of Mississippi and other southern states may have been insufficiently republican for all of their laws to be entitled to binding effect for federal constitutional purposes. If Primus wanted to work high politics into this interesting little debate, that would have been the place to do it.

Primus also discusses a lot whether or not Dred Scott "changed" the law of American citizenship, or whether it was a correct description of the constitutional rule. This is a very false binary. Dred Scott was incorrect and did not change the law, because the U.S. Supreme Court lacks the power to amend the constitution, and also lacks the power to bind parties to its judgments unless they are properly before the court. Primus finds this claim implausible because it implies that Revels was constitutionally eligible to the Senate in 1860 just as much as in 1870, and he thinks this is "odd". I confess I don't see what's odd about it at all. But maybe Lincoln and I are the real oddballs here.

[UPDATE: I suppose I forgot to mention, and somebody asked-- Revels was in the end seated, on a party-line vote.]