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We Need a New Declaration of Rights for Black Americans

The lived reality of Black Americans belies the privileges and immunities granted by the U.S. Constitution.

Black Lives Matter protesters march through the streets as they demonstrate the decision by Sacramento District Attorney to not charge the Sacramento police officers who shot and killed Stephon Clark last year, on March 4, 2019, in Sacramento, California.

Once upon a time, there was the lower-case “negro.” But in 1914, Marcus Garvey founded the Universal Negro Improvement Association and African Communities League, and called its first convention in New York City in August 1920 to mobilize its membership. The International Convention of Negroes of the World adopted the “Declaration of Rights of the Negro Peoples of the World,” demanding that “the word ‘Negro’ be written with a capital ‘N.'”

But the Declaration didn’t stop at semantics. Its 12 complaints and 54 declarations comprehend Black philosophy of right. They spell out the “Black Magna Carta.” The Declaration frames a new world order in terms of “Africa for the Africans” at “home and abroad.” Declaration 41, for instance, describes the true condition of Africans then and now: “We believe that any limited liberty which deprives one of the complete rights and prerogatives of full citizenship is but a modified form of slavery.”

As we approach the Declaration’s centennial in 2020, we must rediscover it as frame of reference for the lived realities of Black people in the U.S.

Privileges and Immunities

The U.S. Constitution denotes three essential privileges and immunities, or, in the words of Declaration 41, three “rights and prerogatives of full citizenship”: personal security, personal liberty and private property. William Blackstone was the leading authority on common law in the British colonies in the lead-up to the American Revolution. The “privileges and immunities” of colonial charters, of state constitutions after 1776, of the Articles of Confederation and of the U.S. Constitution were declaratory of Blackstone’s definition of privileges and immunities, which were natural rights.

So, his definition of “privileges and immunities” in his 1765 Commentaries on the Law of England remains authoritative. Here’s how Blackstone defined liberty: “Personal liberty consists in the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” Conversely, we Black Americans suffer limited liberty.

The slave codes had kept Black people imprisoned on plantations. Thus, the concept of “privileges and immunities” did not apply to Black people until 1868. It did not apply to antebellum “free” Blacks who were not really free because they were presumptive slaves under police-state surveillance. Privileges and immunities had applied to Black people their first 40 years in the colonies, from 1619. But not after the 1660s.

The 1857 case, Dred Scott v. Sandford, expressed the Black American condition once and for all. The Supreme Court held that the Negro has no rights which white men are bound to respect. The framers of the 14th Amendment tried to overturn Dred Scott. But the 1873 Slaughter-House Cases nullified the natural rights content of 14th Amendment privileges and immunities. The Supreme Court thus thwarted the Negro’s national citizenship.

Black people were left unprotected from white terrorism in the name of “states’ rights.” For example, Tuskegee Institute has recorded 4,743 people lynched between 1882 and 1968, including 3,446 Blacks and 1,297 whites. Some were white people who were lynched for helping Negroes. Furthermore, not all lynchings were actually recorded.

Lynchings were facilitated by Black Codes that criminalized Black people and denied their freedom of contract. Former Confederate states enacted these sweeping vagrancy and labor contract laws in the immediate aftermath of the 13th Amendment’s ratification. Today’s Black Codes mass incarcerate. The presumption of innocence underpins due process. But the Negro today is a presumptive criminal much as the Negro yesterday was a presumptive slave. Among the relevant Black Codes are two recent Supreme Court cases: 1968’s Terry v. Ohio and 1996’s Whren v. United States.

Toward a New Declaration

A strict construction of the Fourth Amendment mandates that police officers search or seize (arrest) a person only if they have probable cause to reasonably believe that the person committed a crime or is in the process of committing a crime. But Terry introduced the Orwellian concept of “reasonable suspicion,” which gave police officers despotic discretion to search or seize on mere suspicion. I describe this absurdity as “Orwellian” because police suspicion is often inherently unreasonable.

Terry allows police officers to vent their bias against Black people. Whren, meanwhile, allows police officers to pull over any automobile for any minor traffic offense. Police can then search records for outstanding arrest warrants. Taken together, Terry and Whren mean limited liberty for Black people on foot or in a car.

Declaration 41’s concept of limited liberty exposes “liberty” and “freedom” as glittering generalities in the U.S. vocabulary; that is, as meaningless abstractions in light of the reality on the ground for Black people in the U.S. these last 350 years. White people do enjoy personal liberty within the context of Article IV “privileges and immunities.” The United States thus constitutionally guarantees them an Article IV “republican form of government.” But Black people continue to suffer “limited liberty,” and so we endure the “modified form of slavery” described by Declaration 41.

This reality check speaks to the larger purpose of the “Declaration of Rights of the Negro Peoples of the World”: to frame political reality in terms of facts on the ground, from an Afrocentric standpoint. Before we can solve the problem of limited liberty, we must first acknowledge it. We can only fight for freedom if we understand that our liberty is limited. Token achievements will not do.

Declaration 41 is still cutting edge, given the fact that Terry and Whren criminalized walking while Black and driving while Black (and pretty much doing anything while Black). Black people in the U.S. simply do not enjoy personal liberty as defined by Blackstone, and as originally intended by the Privileges and Immunities Clause of the Constitution.

Consider that Black people — especially Black men — walk the streets ever ready to be stopped because the mainstream public stereotypes us as “criminals” and thus we “fit the description.” We drive our cars knowing that at any moment, we may be pulled over by a cop. This is the everyday hazard of driving while Black. This is not freedom. This is Declaration 41’s “modified form of slavery.”

Terry and Whren make the presumption of innocence into a joke; due process, into a farce. The Supreme Court sanctioned lawless law enforcement. Declaration 41 should frame our efforts to overturn Terry and Whren and thus break these modern Black Codes. We should mandate strict construction of due process, and of reasonable search and seizure with reference to probable cause. While we’re at it, let’s insist on “Black” with a capital B.

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