Rights: Natural vs Legal

I’m wondering how easy it was for a Grand Jury to decide that Breonna Taylor’s life and murder did not warrant equal justice. I’m wondering what they heard. What they saw. What they felt. What they smelled in that court room that allowed them to decide that Breonna Taylor’s life and murder was of no consequence. What were they wearing?

They all must have been wearing blue because apparently when the blue kills, the killers’ lives matter much, much more than the deceased. This is certainly true in the murder of Breonna Taylor. Her life didn’t matter to the cops who unleashed a barrage of bullets into her sleeping body. Her life didn’t matter to the prosecutor who didn’t even seek to press charges against the officers in the first place.

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Way back during slavery, Celia was just a teen when she was purchased by a man who would rape her for the next 5 years. Celia killed him. Because she was a slave, she had no legal rights. She was bound by slavery and the laws thereof and she was tried, convicted, sentenced to death, escaped, recaptured and hung to death for the murder of her master. She had no legal rights, but the law took her life. (Celia A Slave, Melton A. McLaurin, book)

Then there was Margaret Morgan who lived life as free woman because her parents were relatively free, though they were owned by the Ashmores. Margaret married a free Black man and moved to Pennsylvania in 1832 to get away from the degradation of slavery. Her master had died in 1824 and Margaret was not listed as property of his estate. In 1837 Margaret Ashmore, either John Ashmore’s widow or his daughter of the same name, decided that Margaret Morgan was her slave and sent men to Pennsylvania to retrieve her. During this time PA passed an anti-kidnapping law that required a legal process and judicial certification for any Black person to be seized and taken out of the state for the purpose of enslaving them. The men sent after Margaret broke this law and the state of PA charged the men with kidnapping. The kidnappers’ home state of Maryland objected to the charges but agreed to hand the men over to face the charges. The men were convicted by a PA court, but the convictions were appealed to the Supreme Court. The 1842 Prigg v. PA decision overturned the convictions of the kidnappers, declared the PA law unconstitutional and allowed the state of Maryland to declare Margaret Morgan a slave. Margaret Morgan had no legal rights, but the law took her life.

In 1856, the Supreme Court handed down a decision that has had the most insidious of ripple effects. The Court rendered a decision that made all persons of African descent ineligible for citizenship in the United States (Dred Scott v Sanford). This would be overturned by the 14th Amendment.

Or was it?

Follow me if you will.

We’re all familiar with the Civil War and the 13th, 14th, and 15th Amendments. These amendments abolished slavery, granted the newly freed slaves citizenship and conferred upon them the right to vote.

Each of these amendments give Congress the power to enforce them “by appropriate legislation.” And Congress used that power by passing numerous laws to this end.

Among those laws were the Enforcement Acts of 1870 & 1871. These were laws designed to protect the lives and rights of the Freedmen that had been granted by the passage of the aforementioned amendments.

1870 marked 5 years since the end of the Civil War and there had been one Federal election in 1868. If you’re familiar with Reconstruction, then you would know that Black men had the right to vote and did so in droves. By 1872, the Republican vote nearly doubled. It had become common knowledge by that time that organized crime in the form of the Ku Klux Klan was terrorizing the newly Freedmen who voted predominantly Republican. In a proclamation issued in 1871, President Grant stated that

Whereas unlawful combinations and conspiracies have long existed…for the purpose of depriving certain portions and classes of the people…of the rights, privileges, immunities, and protection[s]… and do oppose and obstruct the laws of the United States and their due execution…of justice… and…the constituted authorities…are unable to protect the people aforesaid…

Because these “conspiracies [had] long existed,” Congress passed the Enforcement Acts. The first of these is the Act of 1870 entitled “An Act to enforce the Right of Citizens of the United States to vote in the several States of this Union, and for other Purposes.” This Act was amended in 1871. The second of these Acts has become known as the Ku Klux Klan Act of 1871. The official title is “An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes.”

Protect the right to vote and enforce the 14th Amendment. Which by statute, Congress has the authority to legislate.

And in 1871, the Attorneys General began charging members of the Klan with conspiracy under the Acts. One of the first trials was held in South Carolina in 1871. Klan members were represented by well-known and prominent lawyers including one Reverdy Johnson, who also argued for Sanford in the Dred Scott case. Reverdy Johnson and his partner objected to the 11 counts in the indictments. The objections were rather lengthy.

Now forgive me if I stray here, but I found a source that will take years to study and analyze. In 1871, Congress held ‘Ku Klux’ hearings. They took testimony from and questioned hundreds of Blacks and whites in 6 states. There are 11 volumes of transcripts. In the third installment for South Carolina are the transcripts of this 1871 trial. I remember reading this transcript and thinking I’d heard these word before. It only took a little while to make the connection though. These same objections to indictments can be found in the Supreme Court case US v Cruikshank which was decided in 1876. Cruikshank is not a very well-known case even though it set a, shall we say, a mighty precedent. (Snubbed Landmark, James Gray Pope, .pdf)

It was 1873 when Republicans had gained control of the local government in Grant Parish, Louisiana. Whites didn’t want no parts of that and the Ku Kluxxers decided they needed to go. The newly elected Black and white Republicans had recruited and formed Black men into a militia. They were provided arms and given training. This scared the bejesus out of the whites. The Black militia was enlisted to protect the courthouse. The courthouse occupation numbered in the low hundreds. But the courthouse was no fortress. When the white posse, numbering 5- or 600 showed up mounted and fully armed, the Black militia defended their position. But the whites were firing a cannon and then they set the wooden building ablaze. As the Black men ran out of the burning building they were shot. Those who escaped the fire and the bullets were taken hostage by the whites. Historical accounts differ dramatically in number but all told, some 150 Blacks died that day along with 3 whites. There’s a memorial for the 3 white men near the site of this massacre (The Colfax Massacre, LeeAnna Keith, book). The white men who led and participated were charged under the Enforcement Acts. These men violated the rights of Black men who had exercised their right to vote, their right to assembly and their right to bear arms. There were 11 counts all having to do with conspiracy. Conspiracy to deny rights, conspiracy to commit murder. The 1871 objections of Reverdy Johnson and his partner were echoed, damn near word for word, in this case; but there was one significant difference this time. On this Federal Circuit Court in 1873 sat one Justice Bradley who also happened to be a Supreme Court Justice appointed by Grant. He ruled on the objections in this case and his decision became the decision of the full Court with few exceptions.

In this decision, the Court declared that the right to assembly, the right to bear arms, even the right to vote were neither granted nor secured by the Constitution. To wit:

“The right of the people peaceably to assemble for lawful purposes… existed long before the adoption of the Constitution.” 

“The right to bear arms is not granted by the Constitution.”

“[T]e Constitution of the United States has not conferred the right of suffrage upon anyone.”

These were natural rights. According to this interpretation, these rights are not granted by the Constitution. Natural rights are those spoken of in the Declaration of Independence. And even though there is no mention of arms, assembly or suffrage, they are “among” the “endowed…[and] certain unalienable rights.” According to this ruling, the right to assembly, the right to bear arms and the franchise are “among” the “unalienable rights to life, liberty and the pursuit of” property…I mean “happiness.”

Now if you follow my reasoning here, you will see that life, in this interpretation, is a natural right and would fall under the same legal interpretation. Therefore it is the State’s right and obligation to legislate the protection of life and rights. The Cruikshank ruling is one of those “never mind that life is lost” kind of cases and is severely deficient in identifying the fact that the State was not protecting an entire class of citizens. The issue was Federal authority over lawless citizens of a sovereign State and by extension, Federal authority over a State.  

State sovereignty came out on top and charges of conspiracy were dismissed which had the chilling effect of allowing the Ku Klux Klan to terrorize, brutalize and kill Blacks with impunity. The States where the Klan operated offered up no new legislation to combat this organized crime syndicate, nor did they enforce any criminal laws against the Klan. More often than not, the State participated in Klan activities.

What would Celia or Margaret Morgan have to say about this? What would Breonna Taylor say? Is State sovereignty worth their lives?

But that’s what this is all about though. Life. And death. Of Black people. Celia was killed legally. Margaret Morgan was legally declared a slave. Breonna Taylor’s death was legally declared a non-issue. None of these women had a natural right to life nor did they have any legal right to life.

Celia was convicted by a jury of her “peers” in the State of Missouri. Margaret Morgan was declared a slave by a judge in the State of Maryland. Breonna Taylor did not get justice from a Grand jury in the State of Kentucky.

Celia was judged guilty by a jury of citizens from her State. Margaret Morgan was declared a slave by a citizen her home State. Breonna was judged by citizen jurists to be collateral damage in the State’s effort to protect its citizens.

No legal or natural right to life in slavery. No legal or natural right to life in 2020 unless you’re a citizen. And the citizenship of Black folk was granted by the 14th Amendment but the 1876 Supreme Court, while never mentioning it, decided, defined and separated life into a natural right and legal right.  Natural rights are not granted by the Constitution, but they are, supposedly, ‘protected.’

Like Celia and Margaret Morgan, Breonna Taylor and all who identify as Black have no natural right to life, nor is that life guaranteed to be legally protected. Neither at the State nor the Federal level. Blacks are citizens on paper ONLY.

And, in this country where legal and natural are distinguishable, we have the Supreme Court decisions in Dred Scott and Cruikshank to thank for that.