Dred Scott, the 14th Amendment, the Negro, and the question of citizenship
It can be argued that Scott v Sandford (1857) decision is one of the worst court decisions in the history of the United States, not so much because of the “morality deficit” on the part of the majority of the Supreme Court Justices, but because the most popular opinion, that of Roger B. Taney, causes the majority of American citizens to color Americans of African descent with a civic ambiguity, and contributes heavily to the general apathetic attitude of African Americans towards civic duty and political participation, causing said people to become increasingly disenfranchised politically.
In light of this today in many African American circles, the idea that the 14th Amendment (which functionally superseded the Scott v Sandford decision) provided a sort of “2nd Class Citizenship” for them that places them socially and politically below Americans of European descent. In considering this position an analysis of the other opinions on the Scott v Sandford decision, specifically the dissenting ones, is needed, as well as a review of the 14th Amendment and how the legal system actually uses it.
14TH AMENDMENT: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
14TH AMENDMENT: The Incorporation Doctrine, allowing for the Anglo-American scheme of justice to be applicable to the several states.
What is Incorporation Doctrine?
The incorporation doctrine is the legal principle that allows the Supreme Court to apply the Bill of Rights to the states under the Fourteenth Amendment Due Process and Equal Protection Clauses. It made most of the Bill of Rights apply to the state governments as well as to the federal government.
The original understanding was that the Bill of Rights did not restrict the power of the states; the states could restrict free speech, search private property without warrants, deny trial by jury, etc. The ratification of the 14th Amendment in 1868 did not change this legal understanding. However, starting in 1925 interestingly, the justices of the U.S. Supreme Court began to rule that some rights were so fundamental to the conception of due process of law that they must apply to the states through the Fourteenth Amendment, which prohibits any state from denying due process of law to any person.
The 14th Amendment became the means by which the Federal Government could establish an objective standard for the determining of fundamental rights; prior to this there was generally no such standard in state adjudication. This change in understanding and legal determination greatly expanded the practical rights of all Americans that answered up to the constitutional standard; it also transferred to the US Supreme Court much of the power that was reserved to state governments (lawmakers and judges) as early as the founding of the nation, and it is THIS matter of the 14th Amendment that States Rights advocates protest so vehemently. Politically-speaking, the entire “sovereign citizen” thought stream rightly belongs to States Rights ideology.
The actual origin of the above-mentioned African American misunderstanding about the 14th Amendment actually came from the Sovereign Citizen movement. The problem is while the 14th Amendment did by design provide a type of citizenship for African Americans, the misconception is that the use of the phrase “subject to the jurisdiction” somehow makes other means of acquiring citizenship “non-subject”. There is no such thing as a sovereign individual, or an individual that is not subject to anything/anyone other than him/herself; this is the actually a manifestation of Joyce’s “non serviam” attitude of Satan.
Congress’ intent in including the qualifying phrase “and subject to the jurisdiction thereof,” was apparently to exclude from the reach of the language children born of diplomatic representatives of a foreign state and children born of alien enemies in hostile occupation, both recognized exceptions to the common–law rule of acquired citizenship by birth, as well as children of members of Indian tribes subject to tribal laws. In Afroyim v. Rusk, a divided Court extended the force of this first sentence beyond prior holdings, ruling that it withdrew from the Government of the United States the power to expatriate United States citizens against their will for any reason. As it was the desire to give permanence of citizenship protection to African Americans, this court decision secured said permanence. In a subsequent decision, however, the Court held that persons who were STATUTORILY NATURALIZED (pay attention to that phrase) by being born abroad of at least one American parent could not claim the protection of the first sentence of Sec. 1 of the 14th Amendment, and that Congress could therefore impose a reasonable and non–arbitrary condition subsequent upon their continued retention of United States citizenship. Between these two decisions there is a tension which those NOT armed with a proper understanding would be restricted to calling forth further litigation efforts to explore the meaning of the citizenship sentence of the Fourteenth Amendment.
In 1862 (6 years before the 14th Amendment was written), Secretary of the Treasury Salmon P. Chase sent a question to Attorney General Edward Bates asking whether or not “colored men” can be citizens of the United States. Attorney General Bates responded on November 29, 1862, with a 27-page opinion, which stated the following (in part):
“Taking the plea, then, strictly as it is written, persons who are excluded by this judgment of being citizens of Missouri must be negroes, not mulattoes nor mestizos, nor quadroons. They must be of African descent, not Asiatic, even though they come of the blackest Malays in southeastern Asia. They must have had ancestors, (yet that may be doubtful, if born in slavery, of putative parents, who were slaves, and being slaves, incapable of contracting matrimony, and therefore every child must needs be a bastard, and so, by the common law, nullius filius, and incapable of ancestors.) His ancestors, if he had any, must have been of pure African blood, not mixed with the tawny Moor of Morocco or the dusky Arab of the desert, both of whom had their origin in Asia. They must have been brought to this country, not come voluntarily; and sold, not kept by the importer for his own use, nor given to friends.” He concluded by saying: “And now, upon the whole matter, I give it as my opinion that the free man of color, mentioned in your letter, if born in the United States, is a citizen of the United States, and, if otherwise qualified, is competent, according to the acts of Congress, to be master of a vessel engaged in the coasting trade.”
Bates’ opinion and view was heavily influenced by Supreme Court Justice J. Curtis’ dissenting opinion, who stated: “To determine whether any free persons, descended from Africans held in slavery, were citizens of the United States under the Confederation, and consequently at the time of the adoption of the Constitution of the United States, it is only necessary to know whether any such persons were citizens of either of the States under the Confederation at the time of the adoption of the Constitution.
Of this there can be no doubt. At the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens.
The Supreme Court of North Carolina, in the case of the State v. Manuel, 4 Dev. and Bat. 20, has declared the law of that State on this subject in terms which I believe to be as sound law in the other States I have enumerated, as it was in North Carolina.
‘According to the laws of this State,’ says Judge Gaston, in delivering the opinion of the court,
‘all human beings within it, who are not slaves, fall within one of two classes. Whatever distinctions may have existed in the Roman laws between citizens and free inhabitants, they are unknown to our institutions. Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects — those born out of his allegiance were aliens. Slavery did not exist in England, but it did in the British colonies. Slaves were not, in legal parlance persons, but property. The moment the incapacity, the disqualification of slavery, was removed, they became persons, and were then either British subjects or not British subjects, according as they were or were not born within the allegiance of the British King. Upon the Revolution, no other change took place in the laws of North Carolina than was consequent on the transition from a colony dependent on a European King to a free and sovereign State. Slaves remained slaves. British subjects in North Carolina became North Carolina freemen. Foreigners, until made members of the State, remained aliens. Slaves, manumitted here, became freemen, and therefore, if born within North Carolina, are citizens of North Carolina, and all free persons born within the State are born citizens of the State. The Constitution extended the elective franchise to every freeman who had arrived at the age of twenty-one and paid a public tax, and it is a matter of universal notoriety that, under it, free persons, without regard to color, claimed and exercised the franchise until it was taken from free men of color a few years since by our amended Constitution.’”
He further states:
“An argument from speculative premises, however well chosen, that the then state of opinion in the Commonwealth of Massachusetts was not consistent with the natural rights of people of color who were born on that soil, and that they were not, by the Constitution of 1780 of that State, admitted to the condition of citizens, would be received with surprise by the people of that State who know their own political history. It is true, beyond all controversy that persons of color, descended from African slaves, were by that Constitution made citizens of the State, and such of them as have had the necessary qualifications have held and exercised the elective franchise, as citizens, from that time to the present. See Com. v. Aves, 18 Pick. R. 210.
The Constitution of New Hampshire conferred the elective franchise upon “every inhabitant of the State having the necessary qualifications,” of which color or descent was not one.
The Constitution of New York gave the right to vote to “every male inhabitant, who shall have resided,” &c., making no discrimination between free colored persons and others. See Con. of N.Y., Art. 2, Rev.Stats. of NY., vol. 1, p. 126.”
As per Edward Bates’ response to Chase, we can see here is a set of qualifying circumstances. The free national constitution declared all MEN free and equal. Can a MAN be a negro, black, colored or Ethiopian? The above labels are constructs of an artificial history, and the maxim of law-the doctrine of nullius filius, renders such people incapable of citizenship acquisition outside of the 14th Amendment, as said constructs are not considered MEN in the eyes of the law.
Noble Drew Ali, founder of the Moorish American Movement (1913), in expounding on the 14th Amendment, omitted the citizenship clause, and spoke only on the incorporation function of the amendment, in that it allowed for the southern states to be reabsorbed back into the Union. This makes perfect sense, as the foundation of his movement was to teach the African Americans they are not negroes, and in returning to us the knowledge of their national origin, culture, divine creed, etc., freed them from the perils of nullius filius, and therefore rendered the citizenship clause for us non-applicable. Unlike the States Rights/Sovereign Citizen advocates, who are PROTESTING the incorporation doctrine function of the 14th Amendment; for the African American, socio-politically in “proper person,” it simply does not apply.
“The 14th and 15th Amendments brought the North and South in unit, placing the Southerners who were at that time without power, with the constitutional body of power. And at that time, 1865, the free national constitutional law that was enforced since 1774 declared all men equal and free, and if all men are declared by the free national constitution to be free and equal since that constitution has never been changed, there is no need for the application of the 14th and 15th Amendments for the salvation of our people as citizens.”
-Prophet Noble Drew Ali, Founder of the Moorish Science Temple of America
REFERENCES: “The Prophet’s Historic Message to America” Noble Drew Ali, Moorish Guide, National Edition, 1928
Scott v Sandford (60 U.S. 393, 1857), Judge Curtis, Dissenting Opinion
Letter from Attorney General E. Bates to Secretary of the Treasury S. P. Chase, 11/29/1862