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The U.S. Supreme Court and Justice Clarence Thomas declared that the U.S. Constitution is color-blind in overturning affirmative action. This finding by Justice Thomas on behalf of the majority was wrong because of the Supreme Court’s 1857 ruling in the Dred Scott v. John A. Sandford case that found that the Framers of the U.S. Constitution intentionally created “a perpetual and impassable barrier” between the white race and those they enslaved. The Dred Scott Decision is the law of the land as it was never overturned by the U.S. Supreme Court and it stands inapposite to Justice Thomas finding that the U.S. Constitution is color-blind.

Further, the “smoking gun” supporting the thesis that the US Constitution is color-bias is the Three-Fifths Compromise which declared enslaved blacks were counted as three-fifths of a person for census purposes. This country violated the Treaty of Paris of 1783 and did not grant the 500,000 enslaved black colonials fundamental due process of law because they knew colonial slavery had never been lawfully codified and that the British Parliament had abolished all colonial slave statutes and “Negro laws” by way of the Declaratory Act of 1766, ten years before the Declaration of Independence. Moreover, England’s Court of the King’s Bench in the James Somerset v. Charles Stewart case in 1772 ruled that slavery was not “allowed or approved by the law of the Kingdom.” The notion that the US Constitution is a color-blind document is a myth.

The U.S. Supreme Court in the infamous Dred Scott v. Sandford case did not suddenly imagine that Blacks had no rights that white men were bound to respect in 1857. Parliament’s Declaratory Act of 1766 abolished all hereditary slave resolutions, votes, orders, and proceedings ten years before the Declaration of Independence in 1776 and six years later in 1772, England’s Court of the King’s Bench in the James Somerset v. Charles Stewart case struck down all colonial American slave laws when it ruled slavery was not “allowed and approved by the laws of this Kingdom,” yet they remained enslaved. Black colonials suffering as slaves held the same legal status as white colonials when the Declaration of Independence was announced in July 1776.

Does the Constitution care about race? or, put another way, is the Constitution color-blind?

The Supreme Court’s analysis in Dred Scott of the Framers’ original intent found a “perpetual and impassable barrier that was not intended to be erected between the white race and the one they had reduced to slavery.” The Dred Scott decision, in effect, determined the Constitution is not “color-blind” with its findings that the Declaration of Independence never intended to include or acknowledge “the class of person who had been imported as slaves nor their descendants” and “the negro might justly and lawfully [be] reduced to slavery for his benefit,” – which is still “good law.” A color-blind constitution is a myth.

The Treaty of Paris of 1783 heralded the end of the “hostilities” between the British and America’s patriots and was the end of America’s Revolutionary War. Yet the Americans intensified their assault upon colonial Black English citizens which caused British General Guy Carleton to lodge a formal protest in May 1783. General George Washington, heading an American dlegation claimed former enslaved people were excluded from the treaty – as they were chattel, legally owned property. Carleton disagreed and this international incident was to be addressed by the U.S. Congress but it never was. Yet the U.S. enslaved and exploited 500,000 presumptive English citizens without granting them the due process of law. This is their case for liberty.

George Washington was revered for his honesty for confessing to chopping down a cherry tree and never telling lies among many accolades, honors, and tributes bestowed. This is contrasted, as it was Washington who first claimed in May 1783 to British General Guy Carleton that Revolutionary War-era blacks were owned by Americans based upon “colonial statutes.” But the truth was that “colonial statutes” were legislatively rendered “utterly null and void” … “in all cases whatsoever” by Parliament’s Declaratory Act of 1766, and all black colonials suffering as slaves to white colonials were returned to status quo ante. There was no organized response from slaveholding Americans opposing because they knew colonial slavery was extralegal and that it violated the rule of law.

American slavery and the legal right to restitution. Those who argue for reparations believe in equitable relief falsely believing chattel slavery was legal. However in studying the Colonial Charter that issued from England, the Magna Carta, English law adopted by the United States and the Declaration of Independence, it becomes clear that chattel slavery was always extralegal. Criminal acts require restitution.

Blacks born in colonial America were Englishmen with an inalienable right to liberty under Britain’s rule of law and those who purported to be slavemasters were criminals. The product of graft -slavery was America’s first continuing criminal enterprise. However, with Lord Chief Justice Mansfield’s utterance in 1772, “… Let justice be done although the heavens fall…” – a freedom trial of a slave named James Somerset and then Britain highest court’s declaration that slavery was unconstitutional, America’s thirteen colonies exploded into rebellion. Myths developed to shield the founding generation and were used to further nationalist chauvinism.

Chattel slavery in colonial America was an attack upon dynastic rule. The shot heard around the world was not a musket shot fired in April 1775. Rather, it was the verdict of England’s Supreme Court that slavery is an odious scheme and not authorized under England’s rule of law in June 1772. England’s traditions and rule of law were immutable–it was truly a nation of laws and not of men.Depriving native sons of liberty at birth was unconstitutional. Colonial chattel slave practices were criminal enterprises.