America’s Race-Biased Constitution
It is widely believed that white Americans legally owned Black Englishmen based upon colonial slave statutes and hereditary slave laws when America declared independence on July 4, 1776. However, this is a myth since these colonial slave statutes and hereditary slave laws were never lawfully codified under English law—they were also enacted in violation of the colonial charter and were all legislatively abolished “in all cases whatsoever,” along with other repugnant colonial laws throughout colonial America, by Parliament’s American Colonies Act of 1766, commonly referred to as the Declaratory Act—ten years before the Declaration of Independence.
The prohibition of slavery within the Kingdom of Great Britain and its American colonies was rooted in well-established Anglo-Saxon jurisprudence principles and English law. These laws prohibited slavery within the Kingdom of Great Britain, and colonial charters fastened colonial assemblies to adhere strictly to the English rule of law. The colonial assemblies were subject to constitutional oversight by England’s monarch and the upper House of the colonial legislature since colonial legislatures were bicameral within the American colonies.
Further, according to Anglo-Saxon jurisprudence principles and English law, a British government official’s actions only have the force of law when that person acts within the bounds of the English rule of law. When a government official acts without the imprimatur of any law, he or she does so by the sheer force of personal will and power. This reflects the legal principle that government officials must operate within their legal authority. If they act outside this scope, their actions are considered personal exercises of power rather than legitimate acts of government.
During colonial times in America, the Kingdom of Great Britain was touted as being a government of laws, not of men. Moreover, while slavery predates written human records and almost every ancient civilization used slaves, including Egypt, China, Greece, and the Roman Empire, slavery in colonial America was atypical as it started as a criminal enterprise orchestrated by colonial white men, not the British imperial government and flourished due to the corruption of colonial government, criminality, and racial repression.
Britain’s commitment to Anglo-Saxon jurisprudence and English law, which prohibited slavery and protected all persons in British territories under the common law, dates back to the Magna Carta of 1215, clause 40, which declared:
“To no one will sell; to no one will we refuse or delay, right or justice.”
The prohibition of slavery and the guarantee of justice throughout the British Empire became firmly established when Archbishop Stephen Langton gathered English barons and compelled King John and future English monarchs to adhere to the principle that everyone is subject to the law, including the King. This principle was intended to safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule. Thus, Britain’s rule of law principle was hostile to dictatorships and anarchists.
Under the English common law principle that “no man is above the law, nor below the law,” affirmed in the Bonham’s Case (1610) and as Virginia’s lawgivers were adhering to the English rule of Law—the first 19 Africans who found themselves here in America became indentured servants, not slaves and ultimately gained their freedom after the period of servitude lapsed.
The criminal origins of colonial slavery within the American colonies, as it was started by men rather than through lawful government legislation, were conflated with the Atlantic Slave Trade narrative to protect the historical reputations of America’s slaveholding Founding Fathers. Further, the myth evolved that America’s slaveholding Founding Generation were enlightened, benevolent, and righteous souls who suffered British imperial government tyranny, and black colonials were lawful slaves under colonial traditions and slavery laws inherited during British rule.
This distortion of America’s history and its unchallenged acceptance as being historical fact is aptly captured by George Orwell’s quote from his novel 1984: “Who controls the past controls the future: who controls the present controls the past.” Orwell’s insight reveals a fundamental truth: those in power manipulate history to serve their ends, shaping both the future and the past to maintain societal control. America’s historiography is inextricably intertwined with this false narrative about black slavery.
Lysander Spooner, a 19th-century American political philosopher, abolitionist, and legal theorist, fiercely criticized the role the Framers of the U.S. Constitution played in legitimizing slavery in the early United States. In his work, “No Treason: The Constitution of No Authority,” Spooner argued that by calling themselves a government, a group of people cannot create legal rights and powers that those individuals did not previously have. Here’s a key passage from his writing:
“A man is none the less a slave because he is allowed to choose a new master once in a term of years. What makes him a slave is being forced to obey the will of another because he is irresistibly controlled by a government that he did not voluntarily create.”
Spooner’s argument against the U.S. Constitution was that the U.S. government, even if formed by a group of people, did not and could not gain legal authority or rights over black colonials that those white colonials did not possess on their own during colonial times.
Fortunately, “a void act does not become good with the passage of time.” Thus, disenthralling the ratification process of the U.S. Constitution will unshackle this nation, and once unshackled, perchance—the U.S. can take an assertive stride towards extricating itself from the bonds of this race-biased Constitution.
Just two generations ago, President John F. Kennedy observed:
“The great enemy of truth is very often not the lie, deliberate, contrived and dishonest, but the myth; persistent, persuasive, and unrealistic; too often we hold to the clichés of our forebears… we enjoy the comfort of opinion without the discomfort of thought.”
Slavery in colonial America was established through colonial slave statutes and hereditary slave laws enacted by colonial assemblies. However, these assemblies within the American colonies lacked the legislative authority to enact “positive law” necessary to authorize colonial slavery. Colonial slavery was, therefore, a criminal practice because colonial legislatures were bicameral—with an upper House controlled by the King of England and a lower House primarily controlled by the American colonists. All colonial legislators were aware of the limits of their assemblies’ authority to pass a slave law and understood that such laws were null and void without the approval of the King of England.
Virginia’s colonial assembly started the criminal scheme of hereditary slavery by recruiting its colonial Governor, William Berkeley, to be a co-conspirator. Those Planters and legislators in Virginia during the 1660s, who benefited from the exploitation of black colonials, paid Berkeley to look the other way when the lower House passed slave statutes and various “most valuable laws” and required him to act as if they were legally codified colonial statutes without the approval of the King of England and he complied.
In his capacity as colonial governor, Berkeley should have vetoed these repugnant colonial slave laws or facilitated legislative review by England’s Privy Council or a judicial review by England’s Court of the King’s Bench. Instead, this colonial governor engaged in corruption and graft, ignored his oath of office, and pretended that the practice of colonial slavery was legally authorized and approved by codified law—then he foreclosed any review by England’s Privy Council or a higher court’s judicial review of Virginia’s slave statutes and hereditary slave laws.
Virginia’s hereditary slave law of partus sequitur ventrem was a criminal scheme that was imitated and perpetrated by other colonial assemblies within the American colonies, and it flourished due to graft, racial repression, and corrupt colonial government. However, the legal consequence of passing slave laws that exceeded the colonial assemblies’ grant of legislative authority meant that such colonial slave legislation were legal nullities.
Slavery in colonial Virginia was a system of racial tyranny imposed on imported Africans and colonial-born black individuals who were, under English law, Englishmen by birth. It is significant and defining that the colonial slave laws were never lawfully codified or valid under English law and were void ab initio. The passage of time did not legitimize these colonial slave statutes and laws. Therefore, the fundamental question of whether slavery in colonial America was ever lawful must be analyzed in the context of English law and each colonial charter during the early 1600s.
Virginia’s governor, William Berkeley, and his inner circle were perceived as corrupt and accused of exploiting their positions to enrich themselves at the expense of the broader population. This discontent culminated in Bacon’s Rebellion in 1676, an armed uprising in the colony of Virginia that united gentry-class whites, free whites, white indentured servants, Africans, and enslaved black colonials against Governor Berkeley’s rule.
The rebellion exposed deep social and economic divisions in the Virginia colony, highlighting the widespread dissatisfaction across races and social classes. Moreover, this rebellion caused a hardening of racial divisions and a shift away from reliance on indentured servants toward increased use of African slaves and colonial-born Blacks.
Such being the case, Virginia’s colonial elite created the white race by conferring race-based privileges unto white colonials and the racial narrative, “being black in colonial America—equal slave and the rule of law did not protect them”.
The laboring class European Americans living in colonial America showed little interest in “white identity” before the institution of the system of race-based privileges at the end of the 17Th-century, as observed by Theodore W. Allen, in his seminal two-volume study—The Invention of the White Race. He explained that his research of Virginia’s colonial records did not reveal an official use of the word “white” as a token of social status before 1691. This was not a matter of semantics; he also found that the “white race” as we know it—was not, and could not, have been functioning in early Virginia.
The acceptance of racial slavery was significantly influenced by the European values, caste system mores, and traditions upon which colonial society was based. Within this European tradition, darker-skinned people were universally stigmatized as laborers and servants, a perception rooted in the fact that those who worked outside in the sun and elements often had darker skin. As the population of black and mixed heritage individuals grew in colonial America, these biases and beliefs were seamlessly integrated to support an extralegal race-based slavery hierarchy. This hierarchy grew to influence social, political, legal, and labor systems throughout Atlantic World Societies.
Further, after Parliament passed the English Bill of Rights of 1689 that established liberty rights of British subjects, the thought in colonial America became that the three distinct classes of blacks: (1) a free black (one that was recognized as being free); (2) natural-born slaves (criminally enslaved at birth) and (3) African natives had to be conflated, as the notion of the existence of a distinct class of black individual in colonial America called a “free black” recognized by English law as being a free Englishman was too great of a risk to their criminal enterprise.
When King George II died in 1760, the criminal practice of colonial hereditary slavery had been entrenched in the American colonies for nearly a century. One of his final official acts was to shift England’s unofficial policy of salutary neglect toward the American colonies to a policy of imperial administration. This new approach aimed to ensure political stability, address security concerns and economic interests, and promote administrative efficiency. As the British Empire expanded, there was a growing need for a more centralized and efficient administrative structure, which was firmly in place when King George III began his reign in 1761.
On March 18, 1766, England’s Parliament enacted the American Colonies Act of 1766, commonly called the Declaratory Act of 1766. This act of Parliament globally abolished and repealed all pretended colonial statutes and laws enacted by colonial assemblies within the American colonies if they infringed upon Parliament’s exclusive legislative authority to enact “positive law.”
Further, as colonial slave statutes and hereditary slave laws denied and questioned parliamentary sovereignty and infringed upon Parliament’s exclusive legislative authority to enact positive law, they were legislatively abolished by this Act. Moreover, in the landmark 1772 James Somerset v. Charles Stewart case, Lord Chief Justice Mansfield of the Court of the King’s Bench declared—slavery in the Kingdom was not “allowed or approved by the law of this Kingdom.” Mansfield emphasized that slavery could only be a lawful practice by “positive law,” a legislative power that only the Parliament of Great Britain possessed. This Somerset Decision came three years before the Revolutionary War began.
The Founding Fathers were keenly aware of the fact that the state of slavery was an unlawful condition on the Fourth of July 1776, as they lamented in the Declaration of Independence that King George III was a tyrant for “taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments.” And most certainly, the American Patriots’ “most valuable laws” were their colonial slave statutes and hereditary slave laws.