We the People? By
Unless you are a constitutional lawyer,
most people, including myself, don't bother to closely read and think
about our Constitution. It was something new I had learned about the
French Revolution of 1789 that motivated me to dust our bookcase
desperately looking for a book, any book, with a copy of the Constitution.
The active citizens (citizens who met
property qualifications) were given the right to vote while the passive
citizens (citizens who could not meet the property qualifications) were
excluded from the voting process. It would be interesting, I thought, to
see how the authors of the American constitution addressed this issue.
In contemporary America one of the most fundamental rights of citizenship is the right to vote, but one cannot find in the original articles or ten amendments one word about voting rights or qualifications. The only clause that may come close is in Article 1, Section 2 which indicates that the qualification of electors (note the use of electors and not voters) for members of the US House of Representatives shall be the same as the qualifications of the "ůmost numerous branch of the State Legislature."
From the point of view of those drafting
the Constitution the people in the various states were not citizens of the
United States. Any clause to define the voting right of citizens, given
the historical context, would have been viewed as redundant and
excessively intrusive into the affairs of the several states. It was the
states then, who established the qualifications for voters and electors.
Virginia, for example, by constitution and statute required a freehold of at least 50 acres or of 25 acres with a plantation and a house; a Virginia voter also had to be male and white. In Massachusetts, the leading northern state of the period, voters were males who had an annual income of 3 pounds or an estate worth 60 pounds.
Of the original thirteen states, ten had
property qualifications for voters. To some extent economic barriers to
voting existed well into the twentieth century. It took the Twenty-fourth
amendment to abolish the poll tax in federal elections; the Voting Rights
Act declared poll taxes to be an infringement of constitutional rights in
state, as well as federal elections and ordered the Attorney General of
the United States to test their constitutionality in the federal courts.
It was a case brought by Virginians to the US Supreme Court that declared
poll taxes unconstitutional.
First American Slaves
Mostly they were the poor and hungry who
were unwilling or could not afford to pay their passage to the colonies.
To gain passage they voluntarily sold themselves into a term of slavery,
usually four to seven years. Many were convicts from jails whose execution
was commuted (crimes that are considered, by today's standards, minor
offenses during the American colonial period were punishable by hanging in
England); others were political or military prisoners captured during a
war or a rebellion. As one scholar of the subject observed:
If life for the common people in Europe was hard, conditions were far worse in the colonies. Many indentured slaves were made to wear iron collars and disciplined by whippings. Running away or other infractions, like a woman getting pregnant, resulted in extended terms of servitude (if the master had to pay for the care of the child, the child would be indentured to compensate the owner for his/her care).
And many never lived to enjoy their new
life as free persons in the North American colonies.
First, the term of servitude for blacks was unlimited. Second, the blacks were more productive and could tolerate the extreme heat. Third, black slaves could be replaced by breeding and sold for a profit. Finally, it was more difficult for a black slave to runaway, since he or she was by virtue of color easy to identify.
On the other hand, the white slave, once
any restrains were removed, could easily blend into the general
population. Given this background of the colonial American experience, it
is understandable why the founders had such a concern with insurrections.
The term "militia" is
again used in the famous second amendment (The Right to Keep and Bear
Arms) to the Constitution. Those who insisted on the first ten amendments
to the Constitution clearly believed that the right to bear arms was
necessary to the security of a free state.
As early as 1712 a black slave revolt was reported in New York in which two white men had been killed. Again in 1739 twenty blacks near the Stono River in South Carolina took
guns and powder and started on a march to Spanish St. Augustine. By the time white planters caught up to the group, it had grown to as many as 100. Before the rebellion was suppressed at many as twenty whites and forty blacks had been killed.
On a more general level, historians have documented as
many as 250 insurrections between 1780 and 1864. In Virginia as many as
ninety-one Africans were convicted of insurrection. Slave owners,
moreover, could not be sure if their indentured white slaves could be
trusted to fight with their masters.
Many - even white people - were property. The Constitution explicitly recognized their status as property in the Article 1, Section 2, and Clause 3.
This clause, if you remember your high school American history, required the counting of all persons in order to apportion representatives among the states. The clause, however, had to explicitly state that the enumeration included indentured servants (counted as a full person). Black slaves were to be counted as only three-fifth of a person.
If these two groups were considered persons or people it would have been unnecessary for the framers to explicitly require that they be counted.
(Supporting my interpretation is Number 54 of the
Federalist Papers, which discusses apportionment among the states. The
author states: "Slaves are considered as property, not as
persons.") One can reasonably conclude that these persons, as a
matter of state law, were considered property.
As for those who point to the Second Amendment as
confirming their constitutional right to own and bear arms, you can be
assured that it was not the intention of the founders to arm the people -
especially those without property or anyone currently or previously held
in bondage. One could reasonably add to this list Indians, criminals, and
any political or military prisoners.
The right of the people to peaceably assemble really refers to the rights of nobles to meet in Parliament to discuss the actions of the king. In no way does it refer to the right of ordinary people to hold meetings - especially mass meetings - to discuss political issues.
Even the right to petition the government to redress grievances refers to the rights of the nobles to speak to the king without fear of reprisals. The original role, in fact, of the Speaker in the House of Commons was to speak to the king on behalf of the nobles and to convey their grievances.
These rights in the first ten amendments were intended to protect a state's legislative institutions and local governing class. In short, Constitutional republics, their parliamentary institutions and courts, as well as their liberties grew from a very undemocratic period of Euro-American history - feudalism.
One can hardly say, given historical context, they were
really approved by all the people.
This was, in a real sense, the second American
Revolution, but this was again a revolution from above and not from below.
In many respects, the once independent states are today still struggling
in the federal courts and national congress with the supremacy of the
national government and peoples' rights as citizens of the United States.
It has been a very slow and difficult adjustment.
A most recent case in point is the discussion in the local press concerning Virginia's constitutional offices of sheriff, circuit court clerk, treasurer, commissioner of revenue, and commonwealth attorney.
The office of sheriff, originating in feudal England,
emerged in Virginia as early as 1634; the commissioner of revenue was
established in 1786 and the commonwealth attorney in 1788. All of these
offices were written into Virginia's constitution in 1851.
Virginia was, even as late as 1851, still a slave state. During this period it was, no doubt, the responsibility of the commissioner of revenue to assess for the tax purposes the value human property. If the human property should decide to flee, it was the responsibility of the sheriff to give chase, capture and return it to its owner.
These, in other words, were not institutions to protect
the people, but to protect the rights of property owners.
The real, and perhaps most significant change, was
really an unconscious power relationship (in a democratic society it is
not acceptable to discuss superior-subordinate relations in public). The
treasurer and the city's governing class could no longer enjoy watching
the "peasants" come bowing and scraping (no pun intended)
annually with paper in hand to prove they had paid their property taxes
and had the privilege to drive on the city's roads
You should not allow the rhetoric of those benefiting from the patronage of these officials to obscure the fact that these constitutional offices are undemocratic anachronisms that impose an excessive burden on the taxpayer.
The time has come for us to examine and, if necessary, for we the people to rewrite Virginia's constitution.