It is sometimes suggested that early on we had a "white Constitution," and perhaps in many ways we did in actuality. But, as noted by the dissents in the Dred Scott Case, this really was not true. And, not just in theory. First, Justice McLean:
In the argument, it was said that a colored citizen would not be an agreeable member of society. This is more a matter of taste than of law. Several of the States have admitted persons of color to the right of suffrage, and in this view have recognised them as citizens; and this has been done in the slave as well as the free States. On the question of citizenship, it must be admitted that we have not been very fastidious. Under the late treaty with Mexico, we have made citizens of all grades, combinations, and colors. The same was done in the admission of Louisiana and Florida. No one ever doubted, and no court ever held, that the people of these Territories did not become citizens under the treaty. They have exercised all the rights of citizens, without being naturalized under the acts of Congress.
And, Justice Curtis, in many ways a conservative:
It has been often asserted that the Constitution was made exclusively by and for the white race. It has already been shown that in five of the thirteen original States, colored persons then possessed the elective franchise, and were among those by whom the Constitution was ordained and established. If so, it is not true, in point of fact, that the Constitution was made exclusively by the white race. And that it was made exclusively for the white race is, in my opinion, not only an assumption not warranted by anything in the Constitution, but contradicted by its opening declaration, that it was ordained and established by the people of the United States, for themselves and their posterity. And as free colored persons were then citizens of at least five States, and so in every sense part of the people of the United States, they were among those for whom and whose posterity the Constitution was ordained and established.
And, both noted that "free inhabitants" and "citizens" were often used interchangeably, though Curtis expressly noted that it was up to states to decide who would be citizens. Blacks, even free ones, were the primary disfavored class of the day, though Catholics, foreigners, Mormons, and so forth had their opponents. But, it is useful to look past the prejudice and at what exactly the law and Constitution offered.
A lot more than some suggested. The theme continues to be important when dealing with the disfavored of this day. After all, habeas corpus was used to free slaves in England (see book on side panel), and its importance continues to show itself. As noted by Justice Stevens in his dissent in the Padilla case:
At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process.
Not a new sentiment. Nor is failure to heed it.