Allegiance, Birthright, and Race in America
In the 1857 Dred Scott v. Sandford case, the nation’s Supreme Court declared that “the negro,” could not be a member of the political community brought into existence by the Declaration of Independence and the Constitution of the United States.
Writing for the majority, Chief Justice Roger Taney distinguished between “people of the United States” and “citizens of the United States.” For Taney, persons of African descent, whether slave or free, were assigned peoplehood status, but excluded, altogether, from citizenship. Taney wrote, “… they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.” Although, he argued for the denial and rejection of Black citizenship, Taney asserted that the, “African race, however, born in the country, [does] oweallegiance to the Government, whether … slave or free…”
Those who rejected his opinion, insisted that this stance was a refusal by the Court to include free Black people in the national polity. In his dissent, Justice Benjamin Curtis emphasized that “free native-born” persons, even “descendants of African slaves,” directly participated, as voters, in the process of the adoption of the Articles of Confederation within five of the states that formed the Republic. Abraham Lincoln, during his series of debates with Stephen A. Douglas echoed Curtis’ position:
“…free negroes were voters, and, in proportion to their numbers, had the same part in making the Constitution that the white people had.”
Indeed, as early as 1796, historian Craig Robertson explains that “Black sailors received a seaman’s protection certificate that stated the bearer was a “Citizen of the United States of America.” Robertson estimates, “[M]any thousands of them were issued to free black sailors from 1796 to 1868.”
But what about the citizenship status of the enslaved? The exception clause in the 13th Amendment clearly provides for citizenship with slavery: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” The Amendment abolished slavery, but still allows the State to subject convicted felons to slavery. Indeed, slave status of convicted persons was attested explicitly in Virginia’s Supreme Court case of Ruffin v. Commonwealth (1871). The ruling in this case is as follows, a prisoner “has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being the slave of the state.” Once a citizen, always a citizen, unless by de jure or de facto personal renunciation. These include personal declaration, conviction of treason, running for public office, or voting in a foreign country without dual citizenship.
The 13th Amendment demonstrates that a person can simultaneously be a citizen and a slave—forced into involuntary servitude via conviction and incarceration. So, what was the status of those held in chattel slavery in the United States, particularly those who were native-born on this soil? Were they technically citizens, meaning members of the body politic, as described in the Constitution? Did they have or owe allegiance, whether by force or by choice, to the United States of America? Does citizenship necessarily depend upon the possession of an array of rights, privileges and immunities?
An intriguing answer can be found in the observations of Representative John A. Bingham (R-Ohio) who served in Congress from 1855 to 1863 and 1865 to 1873. Recall when Justice Taney suggested that members of the “African race, whether slave or free, owed allegiance to the Government,” he touched on a crucial dimension of citizenship, loyalty and fidelity.
Taney’s majority opinion, contradictorily, converged the denial of black citizenship with the insistence of black allegiance—even for enslaved people. Presumably, for Taney, this form of loyalty meant the enslaved would not engage in armed resistance against the slaveholders. However, the contradiction was rendered moot by the Confederate secession, which enabled enslaved people to display their allegiance by pursuing their own emancipation by joining the Union’s armed forces.
In 1862, during the debate over the compensated emancipation plan that paid slave owners in the District of Columbia to free their human property, Bingham argued:
“Who are natural-born citizens but those born within the Republic? Those born within the Republic, whether black or white, are citizens by birth – natural-born citizens. There is no such word as white in your Constitution. Citizenship, therefore, does not depend upon complexion any more than it depends upon the rights of election or of office. All from other lands, who, by the terms of your laws and a compliance with their provisions become naturalized, are adopted citizens of the United States; all other persons born within the Republic, of parents owing allegiance to no other sovereignty, are natural-born citizens…”
“… every person of African descent, born in this land, is a citizen of the United States, and although born in a condition of slavery under the laws of any state in which he might be held to service or labor, still he was a citizen of the United States under disabilities.”
Under Bingham’s reasoning, “natural born” white women, children, incarcerated white men, and enslaved people all were citizens “under disabilities.” Black people who were enslaved, in particular, did not possess the elective franchise, were not eligible to run for public office. They were also not able to maintain their families, own property or undertake contracts, except at the whim or discretion of their owners. For Bingham, black people, whether slave or free, always were citizens of the United States, albeit citizens with severely restricted rights.
Does this mean that the 14th Amendment’s birth right citizenship clause was superfluous?
The 14th Amendment was functional, not merely redundant. Despite Bingham’s case for the legality of black citizenship since the formation of the Republic, the Dred Scott decision, which declared otherwise, still stood as precedent in the aftermath of the Civil War. The 14th Amendment was essential to overturn Dred Scott, by detailing and inscribing the revised criteria for citizenship directly into the Constitution.
Moreover, creation of classes of individuals who possess citizenship under disabilities can serve, under particular circumstances—the cause of justice. Sections 2, 3 and 4 of the 14th Amendment would have “disabled” the citizenship of those who rebelled against the Union, the Confederates who renounced allegiance to the United States.
Unfortunately, those provisions were applied in tepid fashion. The white traitors to the Republic were readmitted to the polity with a far more comprehensive set of rights than the newly emancipated black people, who had given their lives and poured energy towards the preservation of the Union. Still, does it make a difference, ultimately, whether Black Americans were U.S. citizens at the nation’s founding—if they have been burdened by disabled citizenship both before and after the Civil War?
If Black people always were citizens of the United States, then a reparations claim can be augmented by the claim of two unconstitutional practices. The first of these is slavery itself; Black citizenship was unjustly disabled, by a system of bondage that denied the foundational principles basic to citizenship listed in the Declaration of Independence: “the unalienable rights to Life, Liberty, and the Pursuit of Happiness.” The United States Constitution did not prohibit slavery, but it certainly did not authorize it.
Second, the U.S. Supreme Court’s Dred Scott decision—and its ramifications—can be viewed as an unconstitutional action, in and of itself. The Supreme Court’s decision effectively stripped black people of citizenship without justification other than blatant raw white supremacy.
The case for Black reparations is powerful without charging that Black Americans, whether slave or free, always were citizens. With it, the case becomes undeniable.