Fehrenbacher, pg 329, FN 20.
Perhaps this is why Taney rewrote it after the fact.
"Catron to Samuel Treat, May 31, 1857, Treat Papers, MHS. Concerning Taney's argument [regarding Negro citizenship], which he label (sic - labeled) a "dictum," Catron declared, "It cannot stand a moment in face of the dissenting opinions on this point."Fehrenbacher, pg 329, FN 20.
Perhaps this is why Taney rewrote it after the fact.
The incomplete, misleading quote is, of course, from the footnote on pages 672-3, and not the text on page 329.
The text on page 329-30 reads:
The Chief Justice devoted some twenty-four pages of his opinion to the question of Negro citizenship, all of which was extrajudicial if he had not carried a majority with him on the plea in abatement. And yet the cry of has seldom been raised against those twenty-four pages. Among the justices, only Catron did so, and in a private letter 5rather than in his official opinion. [Note 20]But for the confusion caused by the plea in abatement, Taney probably would have had little trouble getting the support of a clear-cut majority for his ruling against Negro citizenship. As it was, only two justices (Wayne and Daniel) expressly endorsed the ruling, and two others (McLean and Curtis) expressly dissented from it. The four remaining justices offered no opinions on the issue of Negro citizenship itself.
* * *
In summary, the opinion of the Court declared that Negroes were not citizens; this ruling was neither expressly endorsed nor expressly challenged by a majority of justices; but a majority did apparently regard the ruling as authoritative. Thus, on balance, the evidence seems to support the unorthodox view that Taney's ruling was indeed the Court's decision on the subject of Negro citizenship.
The concurring justices concur with the holdings of the court except where they express differently within their concurring opinions.
And now for the complete footnote as it appears on pages 672-3. What capitan_refugio chose to include in his version is in blue.
Catron to Samuel Treat, May 31, 1857, Treat Papers, MHS. Concerning Taney's argument [regarding Negro citizenship], which he labeled a "dictum," Catron declared, "It cannot stand a moment in face of the dissenting opinions on this point." Catron insisted that five other justices agreed with him on the plea in abatement. However, he was counting not only Nelson, Grier, and Campbell, but also Curtis, which was certainly a mistake and shows how much confusion there was among the justices themselves. Catron, it should be noted, was alone in insisting that Taney's argument on Negro citizenship, rather than his argument on the Missouri Compromise, was obiter dictum.