We the People?
A case for a new beginning in  constitutional democracy

By
Frank L Palmieri

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 revolutionaries in France had justified their revolt against the king by issuing, very much like the American revolutionaries, a declaration - The Declaration of the Rights of Man - proclaiming the equality of all men. When the French revolutionaries, however, wrote a new constitution for France they established a constitutional monarchy and they divided the citizens into two classes - active and passive.

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.

Reading the document for the first time in many years it did not take me very long to come to the conclusion that the Constitution:

1. Did not define the rights of citizenship;

2. Explicitly addressed the rights of those who owned human property;

3. Empowered the new government to suppress insurrections.

Understood from this perspective, the rights enumerated in the first ten amendments were not intended as a guaranty of the people's liberties.

Rights of Citizenship

All of us would consider it absurd, at this point in our history, not to see themselves, as well as fellow Americans as citizens of the United States with specific rights guaranteed by the Constitution.

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.

The original thirteen states from 1776 to 1790, generally speaking, restricted voters to whites, males, freemen, taxpayers or owners of property with varying period of residency.

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.

Human Property Rights

If the ordinary person did not have under the original Constitution any voting rights as a citizen of the United States, those who owned humans as property did have their ownership rights explicitly protected. One only needs to read Article IV, Section 2, Clause 3 to discover:

No person held to service in one State, under the laws thereof, escaping into another, shall in consequence of any law or regulation therein, be discharged from such service of labor, but shall be delivered up on claim of the party to whom such service or labor may be due.

This, of course, is not unexpected, and one's first thought, as mine has always been, is to see it applying to black runaway slaves. Upon second thought, however, the historical record tells us that even white men, women, and children were property. In fact, one could rightly say that the first American slaves were not Africans but Europeans.

First American Slaves

Who were these first American slaves? If you can trace your family's migration to the American colonies prior to the 1850s, the chances are good that one of your ancestors was an indentured servant.

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:

"They were rogues, vagabonds, whores, cheats and rabble of all descriptions, raked from the gutter and kicked out of the country. There were unfortunate French, German and Swiss Protestants fleeing from religious persecution, starving and unhappy Irish, rack-rented Scottish farmers, poverty-stricken German peasants and artisans, brash adventurers of all sorts."

Many were induced to go the colonies by being deceived while others were forcibly kidnapped.

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.

Eventually the American planters came to prefer, even though more costly, the African slaves over European slaves.

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 Power to Suppress Insurrections

The Constitution makes reference to the militia twice. It is first enumerated under the powers of Congress. It may be found under Article 1, Section 8, and Clause 15. The original articles gives three reasons for calling out the militia:

1. To execute the laws of the Union;

2. Suppress insurrections;

3. Repel invasions.

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.

One of their real security fears, which surely motivated the need to keep and bear arms, in addition to conflicts with Indians, the French and Spanish, was obviously a slave revolt.

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.

Human Property is not a Person

From the preceding discussion, it should be obvious that the first ten amendments - The Bill of Rights - was not intended to apply to the people in the several states.

First, all the amendments are restriction upon the federal government and not the states. The first amendment, the one that provides for freedom of religion, only applied to the federal government since many states at the time did in fact have state established churches.

Second, the right to a free press only applies to those who were literate and could afford the cost of newspapers and books. Colonial America, remember, did not have any public schools and only a small minority of the population had the opportunity to take advantage of a college or university education. The cost of books and newspapers were far too costly for the average man or woman to afford.

Third, while it may be disturbing to our modern way of thinking, the fact remains that many of the inhabitants in the original thirteen American states were not considered to be people.

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.

The repeated use of the word "people" in the Constitution only applied at the time to an exclusive group of men with property. It certainly did not apply to indentured Europeans, African slaves, women, children and, perhaps, non-Christians and other indigenous savages.

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.

Finally, one should keep in mind that the liberties specified in the ten amendments were not originated by American love of freedom, but they were inherited from the English feudal experience which grew out of the noble's struggle with the king.

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.

It is only with the ratification of the Fourteenth Amendment in 1868 that the people in the several states become citizens of the United States. Like many European "countries" in the second half of the nineteenth and early part of the twentieth centuries, the United States after the Civil War moves from being a lose collection of "states" cooperating within a union into being a truly unified nation with one supreme national government.

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.

As a nation in the last two hundred years we have made great strides toward the inclusion of all the people into the democratic process. For ordinary people the journey has been long and slow in achieving victories in the federal courts and congress, as well as on the streets and lunch counters. We should look at our current condition as not the end of our democratic development, but just the beginning.

Some Observations on Contemporary Virginia

It is, at least to me, amazing how some individuals or groups can take institutions that grew from the feudalistic- undemocratic Euro-American experience and claim that they were established to protect our democratic rights.

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.

During this period that spans from 1634 to 1851 one could hardly say that Virginia was, by today's standards, a democracy.

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 recent resistance on the part of the City Treasurer to eliminate the city sticker for motor vehicles was motivated only in part by a loss of revenue and a possible reduction in staff.

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

The forces of reaction are always with us ready to preserve and protect their special status, powers and sinecures. Reactionaries, keep in mind, have learned to cloak their offices, styles of governance and political rhetoric with the mantel of democracy.

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.

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