MEMORANDUM IN SUPPORT OF REHEARING UNDER MORATORIUM
The Civil Rights Act of 1866, the Ten False Premises, and the Original Subject Beneficiaries of Trump v. Barbara, No. 25-365
Submitted by: Ted Hayes
American African Federal Citizen
Founder, Justiceville
Mr. Citizen Patriot
To: President Donald J. Trump
Cc: U.S. Department of Justice; Solicitor General of the United States; Professor John Eastman; Speaker of the House; House Minority Leader; Senate Majority Leader; Senate Minority Leader; Clerk of the Supreme Court of the United States; ACLU; Teresa Wang, Esq.; NAACP
I. Purpose of This Memorandum
This memorandum is submitted in support of any lawful petition for rehearing, reconsideration, or renewed federal examination concerning Trump v. Barbara, No. 25-365.
Its purpose is to identify the false premises upon which this matter has been argued, to restore the Civil Rights Act of 1866 to its rightful position as the original foundation of federal birthright citizenship, and to urge that any rehearing proceed under MORATORIUM, meaning under a peaceful national frame of Education Before Adjudication.
The central warning is simple: a rehearing that merely repeats the prior jurisdiction-only argument will not correct the constitutional error. It will rehear the same false premise.
The question before the Nation is not merely whether certain persons are “subject to the jurisdiction” of the United States under the Fourteenth Amendment. The deeper question is whether the original remedial federal citizenship created by the Civil Rights Act of 1866 for the formerly enslaved, chattel-descended American African people and their posterity was ever lawfully transformed into a universal global birthright citizenship rule for persons connected to foreign powers.
This memorandum does not seek reparations, revenge, punishment, racial condemnation, or belittlement of any immigrant people. It seeks constitutional identification. It asks the United States to return to the foundation of its own Reconstruction law and answer the question that should have preceded judgment: Who were the original Subject Beneficiaries of the Civil Rights Act of 1866?
II. Prior MORATORIUM Notice Has Already Been Given
This memorandum follows prior respective letters and MORATORIUM-related communications directed to the Presidency, Congress, the Supreme Court of the United States, the Department of Justice, the ACLU, Teresa Wang, Esq., the NAACP, and related public authorities.
Those letters and communications placed before the parties the urgent need for Education Before Adjudication, the recovery of the Civil Rights Act of 1866 foundation, and the identification of the original chattel-descended Subject Beneficiaries before this matter hardened further under a false constitutional premise.
The MORATORIUM was not proposed as delay for delay’s sake. It was proposed as a lawful, peaceful, national constitutional pause so the Nation could examine the 1866 Act, the Johnson veto controversy, the original Subject Beneficiaries, and the Reconstruction drift before further adjudication proceeds on an incomplete foundation.
Now that rehearing is the urgent procedural question, the MORATORIUM becomes even more necessary. The rehearing should not stand apart from the MORATORIUM. It should proceed under and within the MORATORIUM.
III. Rehearing Under MORATORIUM
The MORATORIUM is the national constitutional frame. The rehearing is the legal instrument. Together, they form one peaceful remedy: Education Before Adjudication.
Rehearing alone may be mischaracterized as a political attempt to relitigate immigration policy. But Rehearing Under MORATORIUM cannot honestly be reduced to anti-immigrant hostility. It is a peaceful national pause to identify the overlooked foundation: the Civil Rights Act of 1866, its phrase “born in the United States and not subject to any foreign power,” the Johnson veto controversy, and the chattel-descended American African people and their posterity as the original remedial Subject Beneficiaries.
The petition asks the Court to reconsider the premise. The MORATORIUM asks the Nation to understand why the premise must be reconsidered.
Rehearing addresses the Court.
MORATORIUM addresses the Nation.
Together, they provide the lawful, moral, and constitutional bridge required at this moment.
IV. The House and the Lock
The Civil Rights Act of 1866 is the house. The Fourteenth Amendment is the lock.
The Act came first. It declared that all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, were citizens of the United States. It then secured to such persons equal civil rights. This language was not abstract. It was remedial. It was enacted after slavery, after emancipation, after the Black Codes, and in direct response to the national crisis concerning the civil status of the formerly enslaved.
The Fourteenth Amendment did not appear from nowhere. It came after the 1866 Act and gave constitutional security to the citizenship principle Congress had already declared. Therefore, the Amendment should not be treated as a freestanding citizenship engine detached from the Act that preceded it. The Amendment should be interpreted in light of the Act it was designed to secure.
To argue only the Fourteenth Amendment phrase “subject to the jurisdiction thereof” is to argue the lock while ignoring the house. The lock matters, but only because there is a house to protect. If the house is misidentified, the lock will be misused.
The original house was not built for the whole world. It was built to remedy the constitutional and civil catastrophe inflicted upon the chattel-descended people who had been brought unwillingly into the United States, held as property, denied personhood, emancipated by war and law, and then placed under federal protection by Congress.
V. Do Not Rehear the Same False Premise
A petition for rehearing that again argues only the Fourteenth Amendment phrase “subject to the jurisdiction thereof” will not correct the constitutional error. It will rehear the same false premise.
The Civil Rights Act of 1866 came first. The Fourteenth Amendment came after. Therefore, any rehearing petition that begins with the Fourteenth Amendment while bypassing the 1866 Act begins too late.
The phrase “all persons born” cannot be honestly examined apart from the phrase “not subject to any foreign power.” Likewise, neither phrase can be honestly examined apart from the people for whom Congress acted in 1866: the formerly enslaved, chattel-descended American people whose civil status, citizenship, and equal rights had been denied under slavery and hostile state custom.
The danger is not merely that the Court may reach the wrong result. The deeper danger is that the Court may decide the matter from the wrong constitutional starting point.
That is why the false premise must not be reheard.
VI. The Missing Question
The missing question in Trump v. Barbara was not simply: Who is subject to jurisdiction?
The missing question was: Who were the original remedial Subject Beneficiaries of the 1866 federal citizenship declaration?
Until that question is answered, the Court and the parties risk applying the wrong remedy to the wrong class. The matter is like arguing over the lock on a house without first identifying the house, its builder, its intended occupants, and the danger against which the lock was installed.
The phrase “all persons born” cannot be honestly examined apart from the phrase “not subject to any foreign power.” Likewise, neither phrase can be honestly examined apart from the people for whom the Act was written. Those people were the formerly enslaved and their posterity—the chattel-descended American African people who were made federal citizens by congressional remedy and constitutional necessity.
VII. The Ten False Premises
The prior argument appears to have rested upon ten false premises. These premises were not merely tactical errors. They formed the wrong constitutional architecture.
The first false premise is that the Fourteenth Amendment is the original source of federal birthright citizenship. This is false because the Civil Rights Act of 1866 came first and declared the citizenship rule that the Amendment later secured.
The second false premise is that the Civil Rights Act of 1866 is merely historical background. This is false because the Act is the operative Reconstruction foundation. It is the house upon which the constitutional lock was later placed.
The third false premise is that “all persons born” may be read apart from “not subject to any foreign power.” This is false because Congress did not write the phrase as a detached universal invitation. It wrote a sentence with a limiting condition.
The fourth false premise is that anchor-born persons stand in the same remedial position as chattel-descended Freedmen. This is false because the formerly enslaved were brought unwillingly into American power, stripped of civil status, and then remedied by Congress. Foreign-power-connected entrants arise from a different historical, legal, and moral category.
The fifth false premise is that the willing immigrant and the unwilling chattel American are constitutionally interchangeable. This is false because the United States has always known the difference between voluntary arrival and forced entry through slavery.
The sixth false premise is that later precedent may override the original remedial purpose of Reconstruction without squarely confronting that purpose. This is false because precedent cannot be used as a fog to bury the original federal citizenship remedy.
The seventh false premise is that the true Subject Beneficiaries do not need to be identified before judgment. This is false because a remedy cannot be properly applied unless its intended beneficiaries are known.
The eighth false premise is that President Andrew Johnson’s veto controversy is not decisive evidence. This is false because Johnson’s resistance and Congress’s override reveal the very matter being decided: whether the formerly enslaved would be elevated to federal civil status equal to that enjoyed by white citizens.
The ninth false premise is that “jurisdiction thereof” is the whole question. This is false because jurisdiction is only part of the later constitutional lock. The prior statutory foundation includes “not subject to any foreign power” and must be read with the 1866 Act’s remedial purpose.
The tenth false premise is that the Court may universalize a remedial citizenship so broadly that the original remedy is displaced, diluted, or effectively transferred away from the people for whom it was created. This is false because a remedy that loses its beneficiaries is no remedy at all.
VIII. The Primary Beneficiaries Doctrine
The Primary Beneficiaries Doctrine states that the original remedial Subject Beneficiaries of the Civil Rights Act of 1866 were the formerly enslaved, chattel-descended American African people and their posterity.
This does not mean that no one else has rights. It does not mean immigrants are to be despised. It does not mean the United States should act cruelly toward children, families, or strangers. It means that a specific federal remedy created after slavery must first be understood according to the people for whom it was created.
The American African chattel-descended people did not come to America as willing immigrants. They did not enter under the protection of a foreign sovereign. They were brought unwillingly, held as property, denied legal personhood, and then restored by federal act and constitutional amendment. Their status is unique. Their remedy is unique. Their federal citizenship foundation is unique.
To treat the willing immigrant and the unwilling chattel American as constitutionally interchangeable is to erase the very injury Reconstruction was designed to remedy.
IX. This Is Not Anti-Immigrant
This memorandum must not be misrepresented as hostility toward immigrants.
It is not a call to hate immigrants. It is not a call to mistreat children. It is not a call to despise strangers. It is not a call to mock families who came to America seeking life, labor, peace, and opportunity.
The distinction being raised is not racial hatred. It is constitutional category.
There is a difference between willing immigration and unwilling chattel entry.
The willing immigrant came, or descends from those who came, through voluntary migration, however difficult that journey may have been. The chattel-descended American African people did not come as immigrants. Their ancestors were brought unwillingly, held as property, denied personhood, subjected to inherited bondage, emancipated by war and law, and then federally recognized through Reconstruction remedy.
Therefore, Rehearing Under MORATORIUM does not attack immigrant people. It protects constitutional truth. It says that before the Nation extends, transfers, or universalizes a Reconstruction remedy, it must first identify the people for whom that remedy was created.
X. The Johnson Veto Controversy as Smoking Gun Evidence
President Andrew Johnson’s veto controversy is not incidental. It is among the strongest evidence identifying the intended class of the Civil Rights Act of 1866.
Johnson objected to Congress elevating the formerly enslaved to the status and civil rights enjoyed by white citizens. Congress overrode him. That conflict reveals the Act’s target, purpose, and beneficiaries. The issue was not whether the whole world would receive automatic American citizenship by soil-birth. The issue was whether the formerly enslaved, chattel-descended people within the United States would be recognized as citizens and protected in their civil rights.
Therefore, Johnson’s veto controversy functions as constitutional evidence. It shows what Congress knew it was doing. It shows what Johnson opposed. It shows what the override accomplished. And it shows why the original Subject Beneficiaries must not now be buried beneath later interpretive drift.
Johnson was wrong in his resistance, but not blind in his fear. He understood that the Civil Rights Act of 1866 would not merely free a people; it would federally identify them, elevate them, and place the power of the Union behind their civil status. That is precisely why he feared it. But that is also precisely why Congress was right to override him.
XI. The Reconstruction Drift
The official drift away from the 1866 foundation began with The Slaughter-House Cases. There, the Supreme Court narrowly interpreted the Fourteenth Amendment’s Privileges or Immunities Clause and helped diminish the broader remedial vision of Reconstruction. Slaughter-House was the root narrowing.
The drift then passed through Minor v. Happersett, where the Court discussed citizenship while leaving unresolved broader questions concerning those born on American soil. Minor did not restore the Civil Rights Act of 1866 as the house. Instead, it continued the Court’s movement into later constitutional abstraction.
The drift then took a jurisdictional turn in Elk v. Wilkins. Elk should not be treated as the root error. Elk involved a Native man born into tribal political relations, and the Court held that birth within the territorial United States did not automatically make him a citizen under the Fourteenth Amendment. In one sense, Elk helps expose the insufficiency of mere soil-birth citizenship. It proves that birth on American soil alone was not always treated as enough. But Elk also helped shift the citizenship conversation toward the phrase “subject to the jurisdiction thereof” rather than returning to the Civil Rights Act of 1866 and its language “not subject to any foreign power.” Elk is therefore not the root of the drift. It is the jurisdictional detour within the drift.
The drift then landed in United States v. Wong Kim Ark. Wong Kim Ark was an actual Supreme Court holding, not merely custom. The Court held that Wong Kim Ark, born in San Francisco to Chinese parents who were legally domiciled residents and not diplomats, was a citizen by birth under the Fourteenth Amendment. But the later use of Wong Kim Ark hardened into a custom-like constitutional assumption. Its descendants treated the case as if it resolved every birthright-citizenship question for every immigration context forever, while the 1866 Act foundation and its original Subject Beneficiaries remained unexamined.
Thus, the drift chain may be stated as follows:
Slaughter-House narrowed.
Minor abstracted.
Elk detoured.
Wong Kim Ark hardened.
XII. The MORATORIUM Can Assure the Rehearing
The MORATORIUM can help assure the legitimacy and necessity of rehearing because it removes the false accusation that the petition is merely anti-immigrant or politically reactionary.
If anchorist advocates oppose MORATORIUM, they expose themselves as opposing Education Before Adjudication and the identification of the original Subject Beneficiaries.
If they accept MORATORIUM, they must pause the anchorist premise and confront the 1866 foundation.
Either way, the false premise is brought into the light.
This is why the rehearing should not merely be accompanied by MORATORIUM. The rehearing should proceed under MORATORIUM.
The Court is not being asked to surrender its dignity. The Nation is not being asked to enter chaos. Immigrant communities are not being asked to endure hatred. The original federal citizens are not asking for revenge. The Administration is not being asked to act lawlessly.
Instead, all parties are being invited to the highest constitutional ground: Education Before Adjudication.
XIII. The Highest Moral Ground
This matter may be the highest moral step available in the unique American story.
It has the power to unite parties that otherwise disagree, because every party in America stands, in some measure, upon the backs of the chattel-enslaved ancestors of the federal citizens now in question. Democrats, Republicans, Independents, courts, civil-rights organizations, immigrant advocates, conservatives, liberals, states, cities, businesses, universities, churches, and public institutions have all inherited benefits from a Republic built in part through the unpaid labor, suffering, and denied citizenship of the chattel-descended American people.
Therefore, who would openly oppose Education Before Adjudication?
Who would publicly resist identifying the original Subject Beneficiaries of the Civil Rights Act of 1866?
Who would dare oppose a peaceful MORATORIUM that seeks no reparations, no revenge, no punishment, no condemnation, and no belittlement of others, but only constitutional truth?
Even the courts would have a subtle and honorable way out of their constitutional predicament. Rehearing Under MORATORIUM would allow the Nation and the Court to return to the foundation without humiliation, without panic, and without pretending that the false premise never happened.
This is not merely a litigation tactic. It is the highest moral ground available to the Nation.
XIV. The President’s Lawful Executive Duty
The constitutional drift did not occur through the judiciary alone. While the Supreme Court began the official drift through Slaughter-House and later cases, the political branches also failed to preserve the full force of the Civil Rights Act of 1866.
President Andrew Johnson resisted and vetoed the Act. Congress overrode him. President Grant later attempted to answer the crisis through Reconstruction enforcement, including the Enforcement Acts and the creation of the Department of Justice. But after the national retreat associated with the Compromise of 1877, the original Subject Beneficiaries were again exposed to state customs, violence, civil disability, and political abandonment.
This history matters because the President is not merely a litigant before the Supreme Court. The President has an independent constitutional duty to take care that the laws be faithfully executed. That duty includes faithful execution of federal civil-rights law, especially where the original remedial beneficiaries of that law have been displaced by judicial drift, political neglect, or custom contrary to the Act.
This memorandum does not ask the President to defy the Court. It asks the President to perform his lawful duty by seeking rehearing, directing the Department of Justice to examine the 1866 foundation, inviting Congress to recover its Reconstruction responsibility, and leading a peaceful MORATORIUM for national education before further adjudication.
XV. A Way Out for All Parties
Rehearing Under MORATORIUM gives every party a way out.
It gives the Administration a way to seek rehearing without appearing merely political.
It gives the Court a way to reconsider the foundation without humiliation.
It gives Congress a way to recover its Reconstruction responsibility.
It gives civil-rights organizations a way to rediscover the original federal citizenship remedy.
It gives immigrant advocates a way to avoid being cast as enemies of American Africans, while also confronting the difference between willing immigration and unwilling chattel descent.
It gives the original federal citizens a way to be seen, heard, named, and constitutionally restored without calling for revenge.
It gives the Nation a way to tell the truth before further judgment hardens the wrong premise.
This is why MORATORIUM can assure the rehearing.
Not by force.
Not by pressure.
Not by hostility.
But by placing the matter on the highest moral and constitutional ground.
XVI. Why This Matters During America’s 250th Year
This matter is especially urgent as America enters its 250th year. The Nation cannot build the next 250 years on the unfinished business of the last 250 years.
If the federal citizenship remedy created after slavery is judicially transferred, diluted, or universalized away from its original Subject Beneficiaries without full examination, the Republic risks deepening the very wound Reconstruction was meant to heal. That wound is not only racial. It is constitutional. It concerns the integrity of citizenship, the duty of Congress, the duty of the President, the role of the Court, and the promise of the Union itself.
President Lincoln spoke of a new birth of freedom. The Civil Rights Act of 1866 was part of that new birth. The Fourteenth Amendment secured it. But judicial drift, political retreat, and national forgetfulness have buried the identity of the people for whom that remedy was first made.
This rehearing moment offers a chance to recover the foundation before America steps into its next chapter.
XVII. Requested Action
For these reasons, I respectfully request that President Trump and the Department of Justice not proceed with any rehearing effort based only upon the phrase “subject to the jurisdiction thereof.”
Instead, I respectfully request that the Administration take the following lawful course.
First, seek rehearing on the ground that the Court and parties failed to center the Civil Rights Act of 1866 as the original foundation of federal birthright citizenship.
Second, direct the Department of Justice and the Solicitor General to examine the phrase “born in the United States and not subject to any foreign power” in light of the Act’s original remedial purpose.
Third, identify the formerly enslaved, chattel-descended American African people and their posterity as the original Subject Beneficiaries of the 1866 federal citizenship remedy.
Fourth, distinguish the willing immigrant journey from the unwilling chattel-descended American journey.
Fifth, treat Wong Kim Ark as a real holding, but challenge the later custom-like expansion of its descendants where they ignore the 1866 foundation.
Sixth, proceed by Rehearing Under MORATORIUM, so the Court and the Nation may examine the foundation before further adjudication hardens the false premise.
XVIII. Final Appeal
Mr. President, do not rehear the false premise.
Rehear the foundation.
Do not argue the lock.
Return to the house.
Proceed by Rehearing Under MORATORIUM.
Return to the Civil Rights Act of 1866.
Identify the original Subject Beneficiaries.
Let Education Before Adjudication become the peaceful national bridge by which America avoids further constitutional injury and begins, at last, to recover the unfinished federal citizenship remedy of Reconstruction.
Respectfully submitted,
Ted Hayes
American African Federal Citizen
Founder, Justiceville
Mr. Citizen Patriot
Footnotes
- Supreme Court Rule 44 governs petitions for rehearing before the Supreme Court of the United States.
- Civil Rights Act of 1866, ch. 31, 14 Stat. 27, § 1.
- President Andrew Johnson, Veto Message on the Civil Rights Bill, March 27, 1866.
- The Slaughter-House Cases, 83 U.S. 36 (1873).
- Minor v. Happersett, 88 U.S. 162 (1875).
- Elk v. Wilkins, 112 U.S. 94 (1884).
- United States v. Wong Kim Ark, 169 U.S. 649 (1898).
- U.S. Constitution, Article II, Section 3, requiring that the President “take Care that the Laws be faithfully executed.”