“We the People”, but, Who are We? – Part V
Outpost of Freedom
August 3, 2011
In Part I, we established what the Supreme Court determined to be “We the People”, or, “citizens of the United States”, prior to the ratification of the Fourteenth Amendment.
In Part II, we saw that the Fourteenth Amendment conferred to those not of “We the People”, regardless of prior status, a new class of people who are granted “privileges and immunities”, though not the rights inherent with “We the People”.
In Part III, we see that within a few years of ratification of the 14th Amendment, the Supreme Court confirms that “rights” were not conveyed by that Amendment.
In Part IV, we found that the Supreme Court did recognize that there was a difference between a citizen of a state and a citizen of the United States, and that the latter was protected (jurisdiction existed) by the Fourteenth Amendment and to the former, it did not (no jurisdiction).
Now, we will move forward, 56 years, to 1964, to a case that reaffirms the classes of citizen, though begins to erode the protections previously provided to citizens of the United States.
The case is Malloy v. Hogan, 378 U.S. 1, and involves a discussion by the Court of just which Amendments (Bill of Rights) are extended to those who seek protection under the Fourteenth Amendment, when it says:
“It was on the authority of that decision that the Court said in 1908 in Twining v. New Jersey, supra, that “it is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law.”
So, the question that arose in this case is, to what extent does the Fourteenth Amendment apply to the protection of rights, and, which rights are protected. It redefines what was said in Twining, and requires that any right being protected “be a denial of the due process of law“. This is a simple paraphrase of “the equal protection of the laws”, from the Fourteenth Amendment. So, it simply expands that singular authority to include speech, press, and other rights within the first eight amendments, so long as “due process” can be brought into the equation.
It did not, however, even begin to address anything that would remove, or affect, the nature of the two classes of citizen. They remain unimpaired and intact.
Since the Courts will use a stepping stone process in “revising” laws to a more modern “interpretation”, Malloy afforded the Court the opportunity to undermine the distinction between the two classes. However, they chose not to walk upon that sacred ground. Their absence of comment on the two classes leaves that distinction intact.
So, we can see that from Dred Scott (Part I), in 1854, the Court established a foundation of this country as being built upon, by, and for, a certain class of people. This is probably best defined by the wording of Justice Taney, in that decision, to wit:
“It is true, every person, and every class and description of persons, who were at the time of the adoption of the Constitution recognised as citizens in the several States, became also citizens of this new political body; but none other; it was formed by them, and for them and their posterity, but for no one else and privileges guaranteed to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterwards by birthright or otherwise become members, according to the provisions of the Constitution and the principles on which it was founded. It was the union of those who were at that time members of distinct and separate political communities into one political family, whose power, for certain specified purposes, was to extend over the whole territory of the United States. And it gave to each citizen rights and privileges outside of his State which he did not before possess, and placed him in every other State upon a perfect equality with its own citizens as to rights of person and rights of property; it made him a citizen of the United States.
For the sake of discussion, this sacred class (within the United States) shall be referred to as “We the People”. But, perhaps, we should endeavor, with a bit more precision, to define just what/who those “We the People” were/are, in light of what Justice Taney said.
After much thought, I can only come up with three possibilities that might shed light on Taney’s description of that class known as “We the People”.
- That it would include only those who are defined by the rather common acronym, “WASP”, meaning “White Anglo-Saxon Protestant”. When we consider that in the Seventeenth and Eighteenth Centuries, Jews were not allowed to reside in some of the colonies; that loathing of Catholics (Popists) was common through most of the colonies, during that period, more effectually demonstrated by the objection to the Quebec Act of 1774, allowing Catholics to vote and hold office in Canada, are indicative of the sympathies of the times;
- Caucasians of European descent, which would include perhaps 99% of those who had immigrated to the colonies to begin life, anew; or,
- Those of Indo-European language groups (first defined in 1647 and including English, Dutch, Greek, Latin, Persian, German, Slavic, Celtic and Baltic languages), thus having a common heritage and culture, at least in the distant past.
There is no way that we can interpret, from what Justice Taney said, just who “We the People” were, though it is clear by the context of his description that it would include those above described peoples, or combinations thereof, “but for no one else.
Then, the Fourteenth Amendment was ratified and granted citizenship to people who were not of this class, “We the People”. Further, it granted then only privileges and immunities. It did not grant them rights.
This position (distinction between classes) is further supported by the ratification of the 15th Amendment (granting the right of suffrage (voting), regardless of “race, color, or previous condition of servitude”.
Then, in 1874, the Court, in Happersett (Part III), made clear that the Fourteenth Amendment did not convey rights. However, the Constitution makes clear that there are rights retained by the people (We the People), so since there cannot be conflict between the Constitution and an AMENDMENT (unless expressly resolved in the amendment), the distinction is further enhanced.
So, for all intents and purposes, there are four classes of people in this country, today:
- “We the People”, those descended from the Framers, or otherwise within the principles of the original Constitution, who have retained their rights;
- Those made citizens by the Fourteenth Amendment, with the privileges and immunities granted therein, and any rights specifically bestowed, by subsequent amendments;
- Those who are here, lawfully and in accordance with all laws, as visitors, and who have not violated any conditions of the permission granted to visit; and,
- Those who are here unlawfully, that have entered in violation of our laws or have violated the conditions of their permissive visitation.
The foundation of this country, then, rests upon an understanding that the purpose of the Constitution, and the country, is to provide a home for those of the class, “We the People”. That others who choose to assimilate into the American Culture do so with that understanding, and the understanding that they are the beneficiaries of all privileges and immunities, though only those rights specifically granted.
It can also be concluded that any who have designs contrary to the support and continuation of the United States, as intended by the Framers, and described herein, are inconsistent with the purpose of the country, and, as such, are against the Constitution and should be deemed unacceptable and unwanted visitors.
If the United States is to return to its former stature as the beacon to the world of freed enterprise by a free people, we must return, also, to the concept that allowed such concepts of freedom to prosper, and grow, in a rather short history, to what it had become by the end of the Nineteenth Century.
It can return to that stature only if we do return to those principles that made this nation great. Absent a dedication to that purpose, we are destined to be nothing more than a footnote in history. And, that will be our rightful place, if we fail to act to secure that which we hold so dear.
Thus concludes this series.
* * * * *
Part I can be found at “We the People”, but, Who are We? – Part I
Part II can be found at “We the People”, but, Who are We? – Part II
Part III can be found at “We the People”, but, Who are We? — Part III
Part IV can be found at “We the People”, but, Who are We? — Part IV