PUBUC AFFAIRS QUARfERLY

Volume 3, Number 4, July, 1989

LOCKE AND THE LEGAL OBLIGATIONSOF BLACK AMERICANS

BILL E. LAWSON

In the 1960's, the Civil Rights Struggle in America highlighted a numberof challenging and philosophically interesting political and social questions.

One hotly debated issue was the use of civil disobedience by members of racialminorities acting out of the claim that they were citizens, but unjustly treated.The conventional political wisdom was that these activists, as citizens, wereobligated to work through the political system to bring about political andsocial change. Thus much of the debate by philosophers over civil rights forblack Americans, centered on the issue of civil disobedience and its role in the

civil rights struggle. l

Putting the civil disobedience question aside, there is an interesting andquite complex question that I wish to examine: Are there, in fact, some blacksliving in the U.S., who, because of their political and social status, can claimexemption from any legal obligation to obey the law, even just laws? That is,are there some blacks that can justifiably claim that they are in the state ofnature and not genuine citizens of the United States?

As strange as this question may seem, on a recent television talkshow,2Robert Brock, president of the Self Determination Committee of LosAngeles, made the claim that blackes are not legally obligated to obey the lawsof the United States. He argued that (1) blacks had never consented to theUnited States Constitution: (2) blacks were made citizens without theirconsent: (3) blacks were still slaves, just called citizens; and (4) blacks had nolegal status as citizens and thus were not legally obligated to obey the laws.Xinthe surface, this argument may appear foolish, if it did not have consequencesfor our understanding of the legal obligations of politically unprotectedcitizens. Harvey Natanson realizes the importance of the claim about the legalstatus of some black Americans and argues that, indeed, some blacks areexempt from all legal obligations.4 Natanson contends that some blacks havenever been in a position to consent to the state.' These blacks, he claims, arestill in a state of nature and thus are not legally obligated to the state.

Natansons position draws on what he takes to be a Lockean model of

49

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the democratic state, and relies heavily on Locke's notion of government byconsent. Natanson thinks that because of Locke's influence on Americanpolitical thought. it is only natural to use Locke's position to assess the politicalsituation of blacks in America." He labels this Lockean position the"American-rraditional" view of legal obligation (135).

Natanson '5 conclusion is significant for a number of reasons. First, therehave been a number of times in American history that the question of thepolitical status of blacks formed the basis of a national debate. The 1786Constitutional Convention and the Dred Scott Supreme Court decision (1857)come immediately to mind. But Natansori's position focuses our attention onthe period immediately following the end of the Civil War- Reconstruction.Iltwas at this point in American history that the political and philosophicalproblems regarding the inclusion of persons who had been in slavery intoAmerican political life came to the fore. Second, it is important for evaluatingthe legal status of black Americans and for assessing the role of civildisobedience in the civil rights struggle by blacks in the 60's. Third, it is alsoimportant for our understanding of Locke's political theory.

While the Natanson article was written at the apex of the Civil RightsStruggle, the argument that blacks are not citizens, as noted above, is stillarticulated in the black community. The position persists primarily becausesocial and economic status of many blacks has not changed since the 60's. Itis Natansons argument for the conclusion that some blacks are in a state ofnature that I will analyze.

In what follows, I will argue against Natansori's reading of Locke andshow that properly understood Locke's position, at least in The SecondTreatise, supports the claim that all black Americans are citizens and, as such,have legal obligations as citizens. There are no blacks in the United States whoare in a state of nature. It will be shown that Natanson (a) focuses on the wrongpassages in Locke, (b) shows very little insight about the political history ofblack Americans, and (c) neglects the fact that citizenship through birthrightis an important aspect of American law. It will also be suggested that Locke'swork supports the position that the acts of civil disobedience in the 60's were,in fact, a justifiable and permissible response to the social and politicalinjustices suffered by those blacks.

For his position to stand, Natanson has to give two arguments. First, hemust show that at the end of slavery some blacks remained in a state of nature,even after the passage of the 13th and 14th Amendments to the United StatesConstitution. And second, he must show that there are some present day blackswho are still in a stale of nature. Let us look at his argument for some blacksremaining in the state of nature after emancipation.

LOCKE AND THE LEGAL OBLIGATIONS OF BLACK AMERICANS 5r

Naianson draws on two interrelated arguments from Locke to assess theMl;';e'" status of freedom at the end of the Civil War. He starts with theLockean proviso: that human beings have inalieable right to life, liberty and

This inalienable right existed in the state of nature and should beretained in civil society. Because civil society provides more security, men aretherefore quite willing to leave the state of nature and "join in society with

who are already united, or have a mind to unite for the mutualnereervation of their lives, liberties and estates .. , " (p. 36).

Natanson does not tell us what he means by protection. And because theto be protected is remarkably difficult to construe, we know that if a

is to be protected, presumably she is to be protected from something.what? We can, at least, agree to this: a liberal democratic state must

provide protection from such abuses as lynchings, assaults, and so forth. Inaddition, a liberal democratic state must ensure that a citizen be protected frompolitical, legal and public interference in the exercise of his Or her rights as acitizen, when such interference is not grounded on the rights of others."

Drawing on Locke, Natanson thinks that the state must provide theindividual with more security than she would have had in the state of nature(p. 36). Otherwise, there is no need to enter into the contract with otherindividuals.

In the case of many blacks, it is clear that they were not accordedgovernmental protection, as citizens, while they were slaves. However.Blacks, at the end of slavery, believed that they would be accorded the sameprotection that other genuine citizens received. It was their hope that their life,liberty and property would be protected in a manner that was not done sobefore, Unfortunately, their high hopes and government actions were not onthe same level."

If, at emancipation, a contract was supposed to exist between blacks andthe government, the government did not live up to its part of the contract. Itis clear, according to Natanson, that some blacks never received the protectionof their life, liberty and property as mandated by contract membership.Because governmental protection was never given, there was no contract toaccept. He thinks from this it follows that the Negroes in question are notparties to the contract, for it is the acceptance of the governmental protectiveservices which defines contract membership (p. 37). The government failed toprotect some blacks not, as Natanson notes, because these blacks did not wantprotection, but because the protection was never offered. As a consequence,these blacks remained in the state of nature (p. 39),

II

If the lack protection were not enough, Natanson thinks that Locke'sposition on consents, which forms the bases for his second argument, also

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supports the position that some blacks were still in a state of nature at the endof slavery.

However, Natanson realizes that the political situation in America is verydifferent than that which Locke envisions in The Second Treatise, Henevertheless thinks (despite its weakness) that historically the concept ofconsent has become important in the American political tradition as providinga justification for obedience to the law: the citizen ought to obey the lawbecause he freely chose, by actual acceptance of government protection, toenter into a contract, one which provides him with a superior service that hecannot himself duplicate in a state of nature (p. 38).

Natanson also thinks, that when a native-born American joins those whoaccept the authority of the government, he does not indicate his consent eitherverbally or in writing, for there are not rites of entry into the social order (p.37). Is there some evidence that indicates that a native-born American actedhy free choice and not coercion to become a willing party to the agreement?Natanson thinks it is by actual acceptance of the most essential service thegovernment can offer him, superior protection of his natural right to life,liberty. and estate (if we reason in line with the basic tenets of the natural rightstheory'), that the individual expresses his free consent to an agreement orcontract between himself and the government. Accepting governmentprotection constitutes consent in its deepest meaning and at the same time isan establishment of contract (p. 37). In other words, to choose to receive thegovernment's protection is to agree to government itself-in essence, it is anacceptance of genuine citizenship with all its benefits and responsibilities (p..'1)

While noting that Locke thinks that it is only through explicit and expressconsent that a person can become a true citizen, Natanson thinks that this isno! applicable to the American scene. In America agreement to the contractis made tacitly, by the act of accepting of governmental protection of one'snatural rights. Natanson admits that his version of tacit consent is not at all theIype described by Locke. Yet, Natanson thinks that his tacit consent is asbinding as Locke's expressed consent (p. 38).

It is from this understanding of consent that Natanson wants to assess thepolitical status of freedmen. Locke's position on consent gives rise to thefollowing question: when American citizenship was granted to blacks, werethese blacks in a position to give their consent? Natanson believes politicallyunprotected blacks had not been in a position to dispose of their possessionsand persons as they saw fit. Slavery was a condition that severely restrictedtheir personal anatomy. Natanson also seems to think that the historic lack ofgovernmental protection led some people to believe that blacks were unable10 be real participants in the social contract. This position draws on the ideathat slavery had lowered the intellectual capacity of these blacks and they werenot capable of making a choice.

LOCKE AND THE LEGAL OBLIGATIONS OF BLACK AMERICANS 53

It appears that when it came to the question of citizenship, blacks wereseen as essentially children when it came to knowing the responsibilities ofcitizenship, and the government of the United States took a paternalisticposition regarding citizenship and blacks. Natanson seems to support thisposition when he states that:

It seems clear, then that these Negroes have been denied not the freedom torefuse,but rather the freedom to makeany choice atall. Sucha denialis actuallya cancellation of the implicit right of the native-born to be offered contractmembership, and in so cancelling this right, the government classifies thisparticular group as basically unable or unworthy to choose. Thus, in theirinvoluntary alienation from the American contract, these Negroes have beenconsidered lacking in the potential for self- determination. (p. 39)

He thinks governmental action supports the position that blacks were unfit tochoose whether or not to become citizens.

But, if these blacks were capable and yet never offered a choice aboutcitizenship, then it can not be said they freely consented (p. 39). Either waythese blacks were made citizens without their consent or input. What then isthe political status of these blacks who were made citizens? Natanson wantsto claim that these blacks were nonparticipants in the contract, and, as such,were not genuine citizens (p. 39). Why are they nonparticipants? Unprotectedblacks were never in a position to acquire the intellectual skills needed to bein a position to know what it meant to consent to the state. The period priorto any talk of contract membership left some blacks unprepared to give realconsent. Natanson thinks that the lack of governmental protection in slaveryundermined their status as free and independent beings. These blacks could notbe real participants and as such they had a unique status.

In not being able to freely choose whether or not to enter into the contract, sincethey were never afforded the opportunity of doing so in the first place, they arein a position of never having left their original condition: that is to say, withregard to having a basic relationship with government, they are still in a stateof nature. (p. 39.)

This idea, according to Natanson, leads to two conclusions. First, they arenot genuine citizens and are still in the state of nature. He thinks that it followsfrom this that they must look to themselves for protection of their inalienablerights because the government cannot be counted upon to honor its part of thecontract (p. 39). Second, within the framework of the quid pro quo justiceinherent in the American-traditional view of legal obligations, it cannot be heldthat these excluded Negroes ought to obey the law (p. 39).

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III

Let us assume, for the moment, that Natanson is correct and some blackswere not protected and at the emancipation proclamation were not fullycognizant of the responsibilities of citizenship and, further, let us assume thatthere is no problem with his version of tacit consent. It will also be assumedtha: his version of consent does bind an individual to the state. First, does itfollow that those blacks were left in a state of nature? And second, does it alsofollow that some present day blacks are still in a state of nature and notobligated legally to the government of America? The answer to both questionsJS no,

At the outset, we need to assess Natansori's argument about the legalstatus of blacks at the end of the Civil War. If his position is that some blackswere no! in a position to give their consent, then we need to know: Were theresome blacks at the time of emancipation proclamation slavery whoseautonomy had been so undermined that they were not in a position to trulyconsent to the state? Was slavery the ultimate destroyer of autonomy? Didslavery render, as Stanley Elkins claims, the slave incapable of making aninformed decision''!" Did the United States' government fail to provide anyassistance for newly freed slaves?

To properly evaluate the political status and their legal obligations of theseblacks, it is important to remember that blacks gained American citizenshipfirst under the Civil Rights Act of 1866 and then under the 14th amendmentto the United Slates Constitution.!' This legislation was very important in thepolitical history of the United States.

Just how important was seen by Senator Lot M. Morrill of Maine. Said Morrill,during debate in the Senate on the legislation: "If there is anything with whichthe American people are troubled, and if there is anything with which theAmerican statesman is perplexed and vexed, it is what to do with the negro, howto define him, what he is in American Law, and what rights he is entitled to.What shall we do with the everlasting, inevitable negro? is the question whichpuzzles all brains and vexes all statesmen. Now, as a definition, this amendment[10 Section I, to establish the citizenship of the native of African descent] settlesit. Hitherto we have said that he was nondescript in our statues; he had no status;he was ubiquitous; he was both man and thing; he was three fifths of a personfor representation and he was a thing for commerce and for use. In the highestsense. then .. this bill is important as a definition ... 12

While passage of the civil rights acts and the adoption of the 14th amendmentmay have settled the question of citizenship for blacks in the minds of somelegal theorists, were blacks in a position to understand what the passage ofthese acts and amendments meant? What actions would show that formerslaves had freely consented to the state.

LOCKE AND THE LEGAL OBLIGATIONS OF BLACK AMERICANS 55

It is possible to draw out one scenario to illustrate what needed to be doneto insure that blacks were informed about what it meant to be a citizen of theUnited States. It has been argued that blacks at the end of the Civil War shouldhave been offered three options: (a) become citizens of the United States; (h)be allowed to leave the country; (c) start their own country, either in the UnitedStates or some other country. It would have been the responsibility of thegovernment to ensure that blacks were informed of their choices and then toprovide the funding necessary for them to carry out their choices. L\ It must heassumed that, when it is claimed that some blacks did not freely consent. whatis meant is that at the enactment of the 14th amendment some blacks were notin a position to understand what it meant to be citizens or these blacks werenot allowed to choose. Natanson, at times, seems to be claiming both of thesepositions. Either way, their acceptance of the 14th amendment would not reallybe consent based.':'

This position, however, is not supported by a careful reading ofAfrican-American history, in at least three important ways. First, the debateover the future of blacks in America was not limited to whites. Blacks haddiscussed the options open to them well before the emancipation proclamation.There was much debate over different emigration plans. IS In the end, thegeneral concerns of blacks were stated in an open letter which Robert Purvissent to the government emigration agent on August 28, 1862:

The children of the black man have enriched the soil by their tears, and sweat,and blood. Sir we have born here, and here we choose to remain. IS

Most blacks were committed to becoming United States' citizens with all ofthe rights and responsibilities that come with citizenship.

Second, the view of blacks as hopeless victims has been challenged andshown to be false by Dubois, Blassingame, Foner and others. Their researchalso shows that slavery was not as morally and intellectually damaging forblacks as suggested by Elkins.

While it was true that, for many blacks, emancipation was a period ofgreat sociological and psychological adjustment, it was also a period in whichblacks showed that they were capable of citizenship and political responsi­bility.!? In South Carolina, for example there was a generous appraisal of thepersonnel of a Negro delegation in that they handle the responsibilities ofgovernment for the most part with remarkable moderation and dignity. It turnsout that many of the state constitutions drawn up in 1867 and 1868 were themost progressive the South had ever known:

In every state the ballot was extended to all male residents, except for certainclasses of Confederates; and it is significant that some Negroes, like Nash andSouth Carolina and Pinchbach of Louisiana, were vigorously opposed to anydisqualification of Confederates.!"

PUBLlC AFFAIRS QUARTERLY

Bldeb displayed a political kindness that would not be accorded to them ina few short years.

Third, the Federal governmenl did try to help with the adjustment fromslavery to freedom, The United Slates' government established the Freedman'sBureau as a government agency to oversee the social and political incorpora­lion of blacks into the system. The Bureau was established by an act of theUnited Slates Congress on March 3, 1865, The Bureau was to distributeclothing, food, and fuel to the destitute freedmen and oversee "all subjects"relating to their condition in the South. Despite its unprecedented responsi­bilities and powers, the Bureau was clearly envisioned as a temporaryexpedient, for only only was its life span limited to one year, but, incredibly,no budget was appropriated-it would have to draw funds and staff from theWar Department. The Bureau was only in existence for a little more than ayear."

Still the Freedman's Bureau did have some impact on the political andeducational status of blacks after the Civil War. 20 However, the governmentfailed to protect the legal rights of some blacks by withdrawing Federal troopsfrom southern states anddoing nothingto preventthe rise of the Ku Klux Klanand the enforcement of Jim Crow laws, Does this failure mean that blacks wereno longer citizens? Before we address this question, we can say that what wefind is that blacks were cognizant of their choices, chose to accept citizenship,and attempted 10 make their citizensbip real. It turns out that many of theproblems that developed around citizenship for blacks followed fromgovernmental inaction.

The governmental inaction was its failure to continue to ensure that thepolitical power of blacks was not usurped by the former slave owners, Thegovernmenl pulled the Federal troops out of the South which allowed theformer slave owners to regain political power. This action had the effect ofdenying 10 blacks Ihe legal protections they were entitled to, under theprovisions of the fourteenth amendment, as citizens. As citizens they shouldhave had governmental protection of their inalienable right to life, liberty, andestate. It is clear that, at least in some southern states, their political power hadbeen usurped and, as a result, blacks were often tyrarmized." It is also clearthat in many southern slates the governmental officials used race and racismas a basis for laws that restricted the political power of blacks, who werecitizens, II is at Ibis point that Locke's position on usurpation and dissolutionof government becomes crucial to this discussion.

IV

While I do not think Locke's work is totally applicable to the situationof blacks, particularly because Locke is concerned with individual and notgroup consent and the quasi-historical nature of consent, I do think that his

LOCKE AND THE LEGAL OBLIGATIONS OF BLACK AMERICANS 57

work has historical significance because of the role Locke's view played inthe debate about what it meant to be a citizen of the United States. Theanti-slavery advocates in Congress appealed to Locke's concept of naturalrights and the role of the government to protect these rights as fundamental.The element that received unvarying emphasisby thesewriters was once morethe protection of the laws and the duty of the government to supply it. Theylinked this idea to the Lockean premise as to the origin and purpose ofgovemment.P In this vein, Locke's position can give some insight into theproblems of political obligation, civil disobedience, and the status of someblack Americans-particularly, since blacks were claiming that they were beingtreated unjustly and saw civil disobedience as a way to address social andpolitical concerns.

Locke, it turns out, does have something to say about the misuse andabuse of political power by the government over citizens and their responseto it. In chapters XVII-XIX of The Second Treatise, Locke discussesusurpation of political power, tyranny and the dissolution of the government.He discusses at length the relationship between usurpation and tyranny andconcludes that:

As usurpation is the exercise of power which anotherhas a right do, so tyrannyis the exercise of power beyond right, which nobody can have a right to. Andthis is making use of the power anyone has in his hands, not for the good ofthose who are under it, but for his own private separate advantage-when thegovernment, however entitled, makes not the law, but his will, the rule and hiscommands and actions are not directed to the preservation of the properties ofhis people, but the satisfaction of his own ambition, revenge, covetousness, orany other irregular passion.P

Laws enacted under the guise of racism would be an example of irregularpassion." For some blacks usurpation came in the form of the denyingprotection of their legal and political rights, which caused these blacks, whowere legally citizens and entitled to protection and the exercise of their rights,to have no say in the political arena. The political power of blacks had beenusurped.

Because it would be futile to attempt to cite all of the ways in which raceand racism were used to deny blacks access to the political arena, for thepurpose of this paper we can restrict our attention to the plight of blacks withrespect to their participation in the political process.

With emancipation, two amendments, the Fourteenth and Fifteenth, werewritten into the Constitution especially to protect the voting rights of the newlyfreed slaves. These amendments specifically directed states to guaranteevoting rights to black citizens.

Three civil rights acts were enacted between 1866 and 1875 as a way ofassuring equality of treatment (including the right to vote) to America's blacks.

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These acts-the Civil Rights Act of 1866, the Civil Rights Act of 1870, andthe Civil Rights Act of 1875~with the constitutional guarantee, served topermit black people in the South to exercise the right to vote with relative easeduring the Reconstruction. After the Reconstruction, however, several statesadopted so-called grandfather clauses, which restricted registration and votingto persons who had voted prior to emancipation. This practice was finallydeclared unconstitutional by the Supreme Court in 1915. With this defeatSoutherners adopted the "white primary," in which the Democratic partyprohibited blacks from participating in primary elections in nine states. Whenthe white primary was outlawed, many southern state resorted to gerrymander­ing as a way of disfranchising blacks. In a long series of cases the SupremeCourt eventually curbed this practice also.

Besides the above techniques, the poll tax, property, educational, and"character" requirements were used to keep black citizens from voting.Perhaps the most effective means of disenfranchizing blacks, however, werethose of intimidation and violence. All of these practices invoked against someblacks served not merely to deny them the exercise of a right, but to deny thevery right itself: the right to participate in the political process.>

The usurpation of political power was tyrannical in the sense that blackswere subject to Jaws to which they could not participate in making and, as freecitizens, would not have given their consent to." These blacks were deniedboth access to political information and the right to exercise their politicalrights. Many of the laws enacted without the input of these blacks served tolower substantially the overall quality of their social and economiclives."What did this tyrannical use of power do to the political status ofblacks? Did this usurpation of political power force blacks back into a stateof nature'?

Locke makes the distinction between the dissolution of government andthe dissolution of society." The usurpation of political power by southerngovernments did not dissolve society. The southern governments were actuallybreaking the political trust by their actions. Blacks could have accepted thedictates of these governments and thus legitimated the usurped political power.But they did not, and as Locke notes: "Unless the citizens freely consent tothe governmental actions by accepting the new rules, this government is thenJ! Waf with these citizens."> Blacks were still citizens and as such had the rightto resist the dictates of the usurpers.'? Those governmental officials who usedthe power they usurped in a tyrannical manner acted contrary to a trust." Thesociety, however, had not dissolved and, thus, Blacks were still full membersof the slate. Certain governmental officials had put themselves at war withtho-,c blacks. Politically unprotected blacks were in a position to morally resistthe dictates (if that government. They were not, as Natanson claims, in a stateof nature. These blacks were citizens under the provisions of the Constitution.

LOCKE AND THE LEGAL OBLIGATIONS OF BLACK AMERICANS ,q

ltwe take the 14th amendment to be the beginning of a contract betweenblacks and the government, then at that moment blacks were citizens and theirchildren's children would be citizens, For some southern blacks, both theFederal and state governments failed to uphold their part of the Contract. Lockethinks that when this happens the goal of citizens is to get the legislature toact according to the trust." These blacks are to be the judge of what actionsto take against the government. Civil disobedience then can be seen as ~j

legitimate method to both make one's plight a matter of public concern, andto force the government to uphold its part of the contract." An essential P~lrt

of that contract is that the government is to provide protection so that thesecitizens can enjoy their political rights.

At this point the following claims can be made: first, most blacks wan:e.!to be citizens, and when they gained American citizenship showed that the .were capable of the responsibilities of citizenship; second, the Federalgovernment did make an attempt to help in the adjustment from slavery tofreedom; and third, Locke's position on usurpation and dissolution ofgovernment does not support the position that blacks were in a state of nature.

v

How do these points affect the claim that present day blacks are still ina state of nature? Obviously, they cannot still be in a state of nature if, as ourreacling of Locke and an examination of black political history show, they werenot in a state of nature to begin with.

Does it matter, as Natanson claims, that some blacks had never been ina position to exercise their political rights and have never enjoyed theprotection of the government? There is to be no logical inconsistency' in onebeing not protected by the government in the American-traditional model andbeing a citizen. It is possible for citizens to have rights on the books, but notbe protected against the violation or infringement of these rights by' other".even in a liberal democratic state. A political life in a liberal democratic stateis compatible with there being Jaws which are not enforced. It does not Iollo«that these "politically unprotected" individuals are not citizens. It does follow.however, that those citizens who are "politically unprotected" are justified inprotesting the lack of protection of their rights, in the American-traditionalmodel."

VI

In the end, if we accept Natansori's position that some blacks are still ina state of nature, we encounter two more difficulties: first, if these individualsare not citizens of the state, their behavior can not be seen as civildisobediences, but as a act of war against the state. It is a war they will lose.They can only claim rights as aliens, not as citizens, They must depend on thegoodwill of those individuals who are citizens to try to convince the state to

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protect them and do whatever is necessary to make their becoming citizensreal. However, it is unclear what legal claims they have against the state, ascitizens.

Second, to claim that some blacks are not genuine citizens is to deny thetwo conventional ways of assigning citizenship at birth. Legal scholars,

... arc generally content to distinguish between right of birth place Gus soli)and right of descent (jus sanguinis) as the two major alternative principles thatstates use in assigning citizenship at birth. They describe how different statesuse one or the other of these principles (or a combination of both) and discussthe problems posed for international order when the laws of different statesconflict. They simply assume that people will normally acquire citizenshipthrough birth and that there is nothing problematic about this. (States maypermit citizenship to be acquired at a later stage but the very term used for this,'naturalization,' suggests that birthright citizenship is the norm.)"

In the United States, being born in the country or to parents who arecitizens makes one a citizen with all of the rights and responsibilities thereof.To claim that some blacks are still in a state of nature, is to claim that eventhough blacks are born in the USA, they are still not citizens.F The positionthat some blacks, who have never given up their birthright citizenship, are notcitizens seems to run counter to our understanding of how we think anindividual becomes a citizen of the United States.v

VII

Naranson is COrrect that consent to political protection and the govern­ment's protection of members are important aspects of Locke's politicaltheory. But his claim that some blacks are still in a state of nature is notsupported by a careful reading of Locke. If what Natanson means by genuinecitizen is that a person is a member of the state only if one is protected by thegovernment and accepts that protection, then he seems to have drawn hisversion of Lockean citizenship much more narrowly than Locke. Locke'sposition is more complicated than Natanson has allowed. Natanson placedemphasis on the wrong passages in The Second Treatise. If Natanson hadfocused on Chapters XVII·XIX of The Second Treatise, he-would see Lockeas giving possible support of the use of civil disobedience, as employed byhlack Americans, in the Civil Rights Struggle. But, more importantly, thesechapters, and an insightful reading of black history, support, as do our lawson citizenship, the conclusion that politically unprotected blacks in the UnitedStates are citizens, and as such have valid claims to the protection of thestate-and also legal obligations to it3,}

University of DelawareReceived December 22, 1988

LOCKE AND THE LEGAL OBLIGATIONS OF BLACK AMERICA.>'lS

NOTES

L See, for example, Harry Prosch, "Limits to Moral Claim in CivilDisobedience," Ethics, vol. 75 (January, 1965), pp. 103-11; Darnell Rucker, "TheMoral Grounds of Civil Disobedience," Ethics, vol. 76 (January, 1966), pp. 142-145;Michael Walzer, "The Obligation To Disobey," Ethics, vol. 77 (April, 1967), pp.163-57; and Hugo Adam Bedau, Civil Disobedience: Theory and Practice (New York:Pegasus, 1969).

2. Robert Brock, Morton Downey Jr. Show August 19883. Brock also argues for reparations for blacks. The question of reparations has

been discussed in the philosophical literature. See, for example, Bernard Boxill. "TheMorality of Reparations", Social Theory and Practice, vol. 2 (1972); HowardMcGary, "Justice and Reparations" The Philosophical Forum, vol. 9 (Winter-Spring1977-78); J.W Nickle, "Should Reparations be to Groups or Individuals", Analy­sis,vol. 32 (1972).

4. Harvey Natanson "Locke and Hume: Bearing On the Legal Obligation ofThe Negro" Journal of Value Inquiry, vol. 1 (Winter, 1970), pp. 35-43. Parentheticnumerical references are to the pages of this work and will be used throughout.

5. While blacks in the Northern part of the United States might have beendenied SOme political protection, for many Southern blacks governmental protectionwas almost nil. It is these blacks that Natanson must believe are not members of thecontract.

6. See, for example, Harry J. Carman and Harold C. Syrett, A History of theAmerican People (New York: Alfred A Knopf, 1957), pp. 114 ff.; J. W. Gough, JohnLocke's Political Philosophy (London: Oxford, 1950), p. 103; and Alfred H. Kelly andWinfred A. Harbison, The American Constitution (New York: W.W Norton and Co.,1963), p. 90 f.

7. See, for example, Eric Foner, Reconstruction: America's UnfinishedRevolution 1863-1877 (New York: Harper and Row, 1988).

8. For a discussion of the issue of protection, see Bill Lawson "Crime,Minorities and the Social Contract" in ed. Diane Shank Victims ofCrime forthcoming.

9. "Reconstruction was a time of hope, the period when the 13th, 14th, and 15thAmendments were adopted, giving Negroes the vote and the promise of equality.

But campaigns of violence and intimidation accompanied these optimisticexpression of a new age, as the Ku Klux Klan and other secret organizations soughtto suppress the emergence into SOCiety of the new Negro citizens. Major riots occurredin Memphis, Tennessee, where 46 Negroes were reported killed and 75 wounded, andin the Louisiana centers of Colfax and Coushatta, where more than 100 Negro andwhite republicans were massacred." United States Riot Commission Report, "Chapter5/Rejection and Protest: An Historical Sketch" (New York: Bantam Books, 1968), p.7.

10. Stanley M. Elkins, Slavery: A Problem in American Institutional andlntellectual lile (Chicago: The University of Chicago Press, 1959).

11. See, for example, David Donald, The Politics of Reconstruction (BalonRouge: Louisiana State University Press, 1965) and Horace E. Flack, The Adoptionof the Fourteenth Amendment (Baltimore: John Hopkins University Press, 1908).

12. Charles Fairman, Reconstruction and Reunion 1864-1888: Part One. (NewYork: MacMillan Publishing Co. 1971), p. lI81.

13. I. A. Obadele, "The Struggle is For Land," Pan-Africanism, ed. by Robert

62 PUBLIC AFFAIRS QUARTERLY

Chrisman and Nathan Hare (New York: Boobs-Merrill Company, Inc., 1974), pp.J 75,)91.

I':L "Concerning the recognition of the Negro as full citizen, Lincoln was of(ht' opinion that with education the Negro would qualify for it, at least on a restrictedbasis," John Hope Franklin, FromSlavery to Freedom, 3rd Edition (New York: AlfredA Knof, 1967), p. 302.

15. See, for example, Benjamin Quarles, The Negro in the Civil War (Boston:Liulc. Brown and Company, 1953).

16. Quarles, op. cit., p. 15717. The freed people's behavior from 1861 onward indicates that damaging as

slavery was to the condition and self-esteem of many, the freed man and womangenerally maintained a strong self-concept ... Moreover, freedmen proceeded toreconstruct their communities along lines not entirely preconditioned or dictated byformer masters or new allies and guardian from the North. Their design drew uponexperiences both in slavery and the old slave quarters and as amended by experiencesin the contraband camps, freedmen's villages, and other settlements. They choseinstitutions that had served antebellum free black communities-the church, theschool, and the mutual-benefit society. They also adopted the political party and themass meeting and the convention. This particularly emphasizes their adaptability,considering that the masters had denied them access to, and attempted to keep themignorant of, such democratic American institutions. Magdol, op. clt., p. 8

18. Franklin, op. cit., p. 31719. Charles Sumner had proposed establishing the Bureau as a permanent

agency with a secretary of Cabinet rank-an institutionalization of the nation'sresponsibility to the freedmen-but such an idea ran counter to the strong inhibitionsagainst long-term guardianship. Indeed, at the last moment, congress redefined theBureau's responsibilities so as to include Southern white refugees as well as freedmen,a vast expansion of its authority that aimed to counteract the impression of preferentialtreatment for blacks. Foner, op. cit., p. 69.

20. See, for example, Horace Mann Bond The Education of the Negro in theAmerican Social Order (New York: Octagon Book, Inc., 1966); George R. BentleyA History of The Freedmen's Bureau (Philadelphia: University of Pennsylvania,1955); Henderson H. Donald The Negro Freedman (New York: Henry Schuman,1951); \V.E.B. Dubois, "The Freedmen's Bureau," Atlantic Monthly, 1,'01.88 (March1901); Walter L Fleming Civil War and Reconstruction in Alabama (New York:Columbia University Press, 1905); Paul S. Pierce The Freedmen's Bureau, A Chapterin the History of Reconstruction (Iowa City: Haskell House Publishers, 1904)

21. William A. Mabry, Studies in the Disfranchisement of the Negro in theSOIl/h (Durham: Duke University Press, 1933); William A. Russ, "The Negro andWhite Disfranchisement during Radical Reconstruction." Journal of NegFO His­tory,vol. 19 (April, 1934); C. Van Woodward, Reunion and Reaction: TheCompromise of 1877 and the End of Reconstruction (Boston, 1951).

22. Jacobus Ten Broek, The Anti-Slavery Origins of the Fourteenth Amend­mCI1f(Berkeley: University of California Press, 1951), p. 66.

23. John Locke, The Second Treatise ofGovernment, ed. by Thomas P. Peardon(New York: The Bohbs-Merrill Company, Inc., 1952), p. 112, sec. 199.

24. Locke, sec. 222.25. See, for example, Milton D. Morris The Politics ofBlack America (New

York: Harper and Row, 1975).

• <

LOCKE AND THE LEGAL OBLIGATIONS OF BLACK AMERICANS ',3

26. Locke., sec. 198.27. Sig Synnesrvcot The ~Vhi[e Response to Black Emancipation (New York:

The Macmillan Company, 1972).28. Locke, sec. 221.29. Ibid., sec. 232.30. Ibid., sec. 233.31. lbid., sec. 222.32. For a discussion of the development of national citizenship see Ten Brock.

op. cit.33. Locke, sec. 242.34. Ibid., sec 233.35. See John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard

University Press, 1971); and Larry Thomas "To a Theory of Justice: An Epilogue,"The Philosophical Forum, vol. 6 (1975), pp. 46-70.

36. Joseph H. Carens, "Who Belongs? Theoretical and Legal Question aboutBirthright Citizenship in the United States," University of Toronto Law Journal, vnl.37 (1987), pp. 413-435.

37. The question of citizenship for blacks was resolved with the passage of [hefourteenth amendment. The statement of citizenship for blacks was first issued in [hecivil rights act of 1866. It's most important part began by declaring "that all pers0n~

born in the United States are hereby declared to be citizens of the United States." SeeTerry Eastland and William J. Bennett, Counting by Race: Equality from the FoundingFathers to Bakke and Weber (New York: Basic Books, 1979), p. 61.

38. Carens notes that, for example, Britain and the United States took differentviews on the question of whether citizenship acquired at birth entailed perpetualallegiance or could be terminated by voluntary expatriation and subsequentnaturalization in a new country. This was an important source of conflict between thetwo countries for much of the nineteenth century. The most common problems arisefrom the fact that differences in nationality laws leave some people stateless and otherswith dual citizenship (which sometimes entail conflicting sets of obligations). p. -1-15

39. Michael Walzer argues that because blacks in America are oppressedcitizens their legal and political obligations to the state are not the same as fully freeand equal members of the state. Michael Walzer, "The Obligations of OppressedMinorities" in Obligations (New York: Clarion Books, 1972).