Talk Elections

In 1870, the state of Mississippi was "readmitted" into the Union. The Mississippi legislature elected a black person, Hiram Revels, to serve as its Senator. When he attempted to take his seat in the Senate, however, members of the Democratic Party objected on constitutional grounds.

The Constitution, as the Democrats pointed out, provides that a person cannot be a Senator unless he has been a citizen of the United States for at least nine years. Hiram Revels was undoubtedly a citizen of the United States; the Fourteenth Amendment guarantees citizenship to all persons born in the U.S. and subject to its jurisdiction. However, the Fourteenth Amendment had been ratified in 1868, only two years before Revels' election. Before 1868, the Democrats argued, Revels was not a citizen, because the Supreme Court declared in Dred Scott v. Sandford that black persons were not citizens. Thus, Revels was supposedly a citizen for only two years, and not for nine years as the Constitution required. The Senate, ultimately, decided to ignore the Supreme Court's interpretation of the law, and admitted Revels.

Whether it was decided rightly or wrongly, whether it deserved to be overruled or not, Dred Scott was still the law of the land before 1868. Did the Senate, therefore, err in admitting Revels, or was it entitled to ignore the views of the Supreme Court?

With Dred being the law of the land like you state, I would say that no, Revels is not qualified to be a member of the Senate.

Yes he was.  The 14th Amemdment can be viewed as having a retroactive effect that is permissible under the definition of ex post facto made by Calder v. Bull (http://en.wikipedia.org/wiki/Calder_v._Bull).  Hence in 1868, the 14th Amendment made Hiram Revels a person who had been a citizen since his birth.

It could also be argued that Revels had been a citizen for nine years as he was also a citizen until the Dred Scott decision took his citizenship away. (Note that Revels was a freeman and had not been a slave up to 1863.)
However, I do prefer to think that the XIVth amendment merely stated the obvious regarding Black citizenship, and they had been citizens before, and that Dred was always null and void.

The fact that retroactive effect would be permissible does not mean that such a retroactive effect actually exists. The very words of the amendment suggest that there was no retroactivity: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

If it were intended to retroactively overrule Dred Scott, then words such as "are, and always were" would have been used. Alternatively, the Framers of the amendment would have used terms such as "the Constitution shall not be construed ..."

But Dred Scott did not, strictly speaking, take his citizenship away. It declared that he, like all others of African descent, had never been a citizen in the first place.

Article I, Section 5 states that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members"

Thus it would seem the Senate had the right to seat Revels.

What does that have to do with anything?

I would have thought that the Civil War effectively answered the question on the Consitutional validity of the Dred Scott decision(s): might makes right.

 

It would seem to imply that the Senate was entitled to ignore the views of the Supreme Court. They had the right to decide whether Revels met the Constitutional requirement or not.

I see. I thought you were saying that just because they had the right to make the decision, they were therefore 'correct.'

Article I, Section 5 - "Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members."

It is outside the Supreme Court's competency.

Under the US Constitutiion, they are not capable of being incorrect with regard to that decision.

I've heard of papal infallibility, but senatorial infallibility is quite new to me. Perhaps you would like to explain why the Senate is always correct when it makes a decision?

Um, they're the sole judge, but the sole judge can be wrong.

Who's to judge?

In a legally binding manner, they are. But that doesn't mean they made a legally sound judgment. We're getting into semantics. The bottom line is that the Congress's view of a person's qualifications is what goes, but a person can disagree with Congress's reasoning. It's no answer to say, "we decide," when the objection is that you decided wrong.