This section is from the book "The Constitutional Law Of The United States", by Westel Woodbury Willoughby. Also available from Amazon: Constitutional Law.
In a number of cases the courts held a middle position according to which free negroes were described as citizens of an order lower than that of whites. For these, and other references, see Report on Citizenship of the United States (1906), H. R. Doc. No. 326, 59th Congress, 2nd Session, pp. 63-66.
States. Third: "What native-born persons should be citizens of the United States. The first-named power, that of establishing a uniform rule of naturalization, was granted; and here the grant, according to its terms, stopped."
Referring to that clause of the Constitution which provides that "The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States," Justice Curtis says: "Nowhere else in the Constitution is there anything concerning a general citizenship; but here privileges and immunities to be enjoyed throughout the United States, under and by force of the national compact, are granted and secured. In selecting those who are to enjoy these national rights of citizenship - how are they described? As citizens of each State. It is to them these national rights are secured. The qualification for them is not to be looked for in any provision of the Constitution or laws of the United States. They are to be citizens of several States, and, as such, the privileges and immunities of general citizenship, derived from and guaranteed by the Constitution, are to be enjoyed by them. It would seem that if it had been intended to constitute a class of native-born persons within the States, who should derive their citizenship of the United States from the action of the Federal Government, this was an occasion for referring to them. It cannot be supposed that it was the purpose of this article to confer the privileges and immunities of citizens in all the States upon persons not citizens of the United States. . . . Laying aside, then, the case of aliens, concerning which the Constitution has recognized the general principle of public law, that allegiance and citizenship depend on the place of birth, that it has not attempted practically to apply this principle by designating the particular classes of persons who should or should not come under it; that when we turn to the Constitution for an answer to the question what free persons, born within the several States, are citizens of the United States, the only answer we can receive from any of its express provisions is, the citizens of the several States are to enjoy the privileges and immunities of citizens in every State, and their franchise as electors under the Constitution depends on their citizenship in the several States. Add to this, that the Constitution was ordained by the citizens of the several States; that they were 'the people of the United States,' for whom and whose posterity the government was declared in the preamble of the Constitution to be made; that each of them was 'a citizen of the Tinted States at the time of the adoption of the Constitution/ within the meaning of those words in that instrument; that by them the government was to be and was in fact organized; and that no power is conferred on the Government of the Union to discriminate between them, or to disfranchise any of them - the necessary conclusion is, that those persons born within the several States, who by force of their respective constitutions and laws, are citizens of the State, are there by citizens of the United States. ... It has been objected, that if the Constitution has left to the several States the rightful power to determine who of their inhabitants shall be citizens of the United States, the States may make aliens citizens. The answer is obvious. The Constitution has left to the States the determination what persons born within their respective limits, shall acquire by birth citizenship of the United States, and it has not left to them any power to prescribe any rule for the removal of the disabilities of alienage. This power is exclusively in Congress."9
In effect, the Dred Scott decision held that native-born negroes, whether free or slave, living in the United States, though subjects of, that is, owing allegiance to the United States, were not, and could not either by state or federal action, be made citizens " of the United States within the meaning of the Constitution.
9 At the first hearing of this case before the Supreme Court, four justices, McLean, Catron, Grier, and Campbell, held that the plea in abatement, setting up the question of citizenship, was not properly before tbe court because the defendant had submitted and pled over to the merits. Justice Nelson was in doubt as to this. Upon the second hearing, Nelson agreed with these four, and, consequently, no one of the five - a majority of the court - discussed the question in the opinions which they individually rendered. Justices Wayne and Daniel agreed with Taney and Curtis that the plea was properly before the court.