Note: The following is the direct transcript of a conversation I had with a veteran of the black liberation legal struggle who has taught law school for more than three decades. I asked to permission to make their identity known and received this response:
“First - thank you for asking. I would prefer that you not share it with any identifying information. Neither my name or my page name . My Facebook discussions are often intended to be short, incomplete and I often deliberately stop to avoid "value" battles. Again, thanks for asking.”
Therefore, respecting their privacy, I will use the honorable identifier BLM Legal Scholar where BLM stands for “Black Liberation Movement”
Siphiwe Baleka: I really would like some discussion on the interpretation that the 14th Amendment was only an offer and not a grant of citizenship, and the implications of the failure to make an informed acceptance or rejection of the offer.....
BLM Legal Scholar: I know that interpretation is around. It is not the way I interpret the clause.
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."
At the time of adoption of the 14th amendment the cause applies to anyone is born in the United States or Naturalized. There is no qualification in the plain meaning of the amendment: It could have said "may" or "can" instead of "are". If the amendment said may or can it implies additional steps are required and uncertainty of outcome.
"Are" means to exist. Definitely not open to interpretation.
So adoption of the amendment - everyone who had been born in the United States or naturalized were citizens, no additional step required. A person can always reject the citizenship.
Siphiwe Baleka: At the moment of emancipation, isn’t imposing citizenship the antithesis of “freedom” and how would an emancipated slave meaningfully reject the citizenship?
BLM Legal Scholar: I am not arguing the correctness or the moral function -- I thought you were asking me a legal question. I gave you a legal interpretation.
Siphiwe Baleka: Yes, I appreciate your response, but as I originally posted, I wasn't asking so much a question rather, I wanted "discussion on the interpretation that the 14th Amendment." You gave AN interpretation and one that is consistent with the historical application. However, that is what is being challenged and I am hoping that this group can help challenge that interpretation. To clarify status and jurisdiction at the moment of Emancipation IS a legal matter. What is the meaning of emancipation? What is the meaning of freedom? Black's Law Dictionary, 11th Edition states:
"Emancipation Proclamation. (1863) An executive proclamation, issued by President Abraham Lincoln on January 1, 1863, declaring that all persons held in slavery in designated states and districts were free."
That same dictionary states,
"free, adj. 2. Not subject to the constraint or domination of another; enjoying personal freedom; emancipated <a free person>."
So it is not a moral question, it is a legal question on the applicability of the 13th Amendment (April 8, 1864) and the 14th Amendment (July 9, 1868) to "emancipated" or "free" people "not subject to the constraint or domination" of the United States Government. This is what I am hoping to discuss - were the emancipated free people "subject to the jurisdiction thereof" on July 9, 1868 and if so, how (beyond the simple assumption that the 14th Amendment has been so interpreted)?
BLM Legal Scholar interesting. . . . what do you think "subject to jurisdiction thereof" means separate from formerly enslaved?
Siphiwe Baleka: According to Imari Obadele,
"the Fourteenth Amendment, in an attempt to bestow citizenship upon the African newly freed from slavery, incorporated the rule of jus soli, 'all persons born or naturalized in the United States and of the state wherein they reside.' A sound principle of international law, the rule of jus soli was obviously intended to provide American citizenship for persons born in the United States through what might be termed 'acceptable accidents' of birth. Thus, a person born in the US as a result of his parents' having come to this country voluntarily -- through emigration and settlement or vacation travel or business -- could not be denied citizenship in the country of his birth. He might have dual citizenship, gaining also the citizenship of his parents, but he could not be left with no citizenship. His birth in the US under such conditions would meet the test of an "acceptable accident."
By contrast, however, the presence of the African in America could by no stretch of justice be deemed 'an acceptable accident' of birth. The African, whose freedom was now acknowledged by his former slave-masters through the Thirteenth Amendment, was not on this soil because he or his parents had come vacationing or seeking some business advantage. Rather the African -- standing forth now as a free man because the Thirteenth Amendment forbade whites (who had the power, not the right) to continue slavery -- was on American soil as a result of having been kidnapped and brought here AGAINST his will."
BLM Legal Scholar: That statement does not answer the question of what does "subject to the jurisdiction thereof" mean. Independent of whether it applies or should apply to African descendants - at time. Your initial argument was freed African descendants were not subject to the jurisdiction thereof.
Siphiwe Baleka: Yes, my argument was freed African descendants were not subject to the jurisdiction thereof. And Imari Obadle just explained why they weren't subject to the jurisdiction because "all persons born or naturalized in the United States and of the state wherein they reside" is based on the international legal principle of jus soli - which is intended for legitimate accidents of birth as Imari Obadele described. Again, the legal principle of jus soli was not applicable to the emancipated slave because 1) his birth was not a legitimate accident; and 2) as previously mentioned, his status at the moment of emancipation was “free”, or "Not subject to the constraint or domination of another". As Imari Obadele further explained,
"The rule of jus soli, in protecting the kidnapped African from being left without any citizenship, could operate so far as to impose upon America the obligation to offer the African (born on American soil) American citizenship; it could not impose upon the African -- a victim of kidnapping and wrongful transportation -- an obligation to accept such citizenship. Such an imposition would affront justice, by conspiring with the kidnappers and illegal transporters, and wipe out the free man's newly acquired freedom."
In other words, "subject to the jurisdiction thereof" only applies to people covered by the principle of jus soli . . . .
BLM Legal Scholar: Okay. if they were not subject to the jurisdiction - that is a statement of interpretation and value. Interesting view.
Siphiwe Baleka: again, this is why we need discussion. According to the principle of jus soli, the United States had no jurisdiction at the time of emancipation. Could we get, for example, a coalition of black lawyers to make a determination on this?
Here's another perspective. The same Black's Law Dictionary, 11th Edition says:
"citizen, n. (14c) 1. Someone who, by either birth or naturalization, is a member of a political community, owing allegiance to the community and being entitled to enjoy all its civil rights and political protections; a member of the civil state, entitled to all its privileges."
Now then, the slave was emancipated January 1, 1863. The 14th amendment offered/imposed citizenship on July 9,1868. So during the interim, the emancipated slave could not have been a "citizen" else there would be no need for the 14th Amendment. Therefore, what was his status? Refugee? Stateless?.... Since the emancipated slave was not a "citizen", he owed no allegiance to the United States. Such allegiance was imposed by the 14th amendment without consent, thus re-enslaving him under a new status at law called "citizen".
Now concerning our current status vis-a-vis citizenship in the United States today, it can be argued that we are not citizens using a combined "threshold" and "seed of bad fruit" defense. Consider, for example, a case of an illegal search and seizure which discovered illegal drugs and resulted in seized property. The whole case, and therefore the return of the seized property, hinges on the probable cause issue. If it is demonstrated that police officers erred in searching the car and seizing property because there was no probable cause, then the possession of illegal drug charges disappears. In this instance we can combine what is call the “threshold “ defense and the “seed of bad fruit” defense.
Probable cause functions as a key which allows police to enter into one’s property. The moment a police enters your house or begins searching your vehicle, that officer crosses a threshold. Without probable cause, the officer can only cross that threshold illegally. Crossing the threshold illegally provides defendant the “seed of bad fruit” defense which states that because the officer’s action is illegal (foul or bad fruit) then everything that follows from that illegal action is also illegal (foul or the seeds from bad fruit) and therefore inadmissible. Thus, although police did seize illegal drugs, It is argued that it can not be used as evidence for a possession charge because it was obtained without probable cause, illegally and therefore not by the due process of law.
Now, with respect to the issue of citizenship, the moment of emancipation made the slaves free, i.e., "Not subject to the constraint or domination of another", without citizenship from January 1, 1863 until July 9, 1868 and owing no allegiance to the United States of America. Citizenship could only be offered by the 14th Amendment and accepted or rejected because the emancipated slave did not embody the principle of jus soli.
CONSEQUENTLY, CITIZENSHIP REQUIRED THE FREE AND INFORMED CONSENT OF THE EMANCIPATED SLAVE.
As a free person, the emancipated slave was not subject to the jurisdiction of the United States.Thus, the United States ILLEGALLY CROSSED THE CITIZENSHIP THRESHOLD BY INTERPRETING THE 14TH AMENDMENT AS A GRANT IMPOSING CITIZENSHIP IN VIOLATION OF THE FREEDOM OF THE EMANCIPATED SLAVE. Having thus illegally crossed the threshold, all following citizenship claims are now considered "bad fruit" unless the emancipated slave (and his or her descendants) expressly waive their right to make a free and informed acceptance or rejection of the 14th Amendment offer of citizenship. Technically (legally) speaking, then the status of African American people is undetermined and they are properly "stateless".