Allegiance, Birthright and Race in America

by William Darity, Jr. and Charles Ali Bey

William A. (“Sandy”) Darity Jr. is the Samuel DuBois Cook Professor of Public Policy, African and African American Studies, and Economics and the director of the Samuel DuBois Cook Center on Social Equity at Duke University. He has served as chair of the Department of African and African American Studies and was the founding director of the Research Network on Racial and Ethnic Inequality at Duke. Charles is a co-founder of the United Sons and Daughters of Freedmen. He also has a background in music production and studio engineering and has worked with such notables as the great Patti Labelle, Nile Rodgers & Chic, producer Teddy Riley, Tyrese, Latocha Scott of the r&b group Xscape, UK artists Stefflon Don and Craig David. Charles' family was part of the "great migration" and hails from the southern states of Georgia and South Carolina. He considers himself a concerned citizen and as an avid researcher, Charles contributes much to the historical research presented by Be The Power.

This post is part of Black Perspectives' roundtable on “Contested Citizenship,” organized in collaboration with the Gilder Lehrman Center for the Study of Slavery, Resistance, and Abolition at the MacMillan Center at Yale University.”

n 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] owe allegiance 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?

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