Outpost of Freedom blog

“We the People”, but, Who are We? – Part I

Gary Hunt
Outpost of Freedom
July 18, 2011

In some research for another article (The Fourteenth Article in Amendment to the Constitution), I ran across a rather enlightening revelation.  It was, just 60 years after the Constitution, a clear and concise definition of just (and only) who the “We the People”, in the Preamble to the Constitution, really are.

Now, most of us will assume that any citizen of the United States is one of, “We the People”.  I must admit that until recently, I, too, believed this to be the case.

Regardless of the (political) correctness of this assumption, we must understand that the law is what it was intended to be, not what we might want it to be.  There is only one means by which that can be changed, and that is the amendment process defined in Article V, of the Constitution.

So, here is what was revealed to us, by the Supreme Court of the United States, with regard to a definitive answer to the question.  The case is Dred Scott v. Sandford  –  60 U.S. 393 (1856)

As recently as ten years before the Fourteenth Amendment was submitted to the States by the Congress, an historical, and often referred to, case was heard by the Supreme Court.

Scott was born a slave, in Missouri.  As such, he was not a citizen.  His “owner” laid hands on Scott, his wife and 2 children.  Scott sued Sandford for assault.  Scott was awarded his freedom by a Saint Louis County, Missouri, Circuit Court.  The case was appealed to the State Supreme Court and reversed.  The Circuit Court then reheard the case.  Scott made exception to the instructions to the jury.  The jury then ruled against Scott.  Based upon the “Exception”.

The case eventually ended up in the Supreme Court.  In its decision (below), the Court pointed out that Scott had claimed to be a citizen of Missouri, which would give him standing to sue Sandford.  It found that though Scott was not a citizen of Missouri, or, of the United States, that standing for the Court to hear the case was based upon the Courts acting on the fact that the question of citizenship was not in the plea that brought the matter before the Court.

You will see that even though Scott had no standing, the Court decided to hear the case, anyway.  If you do not challenge jurisdiction (Sandford’s obligation), the Court may assume jurisdiction, the laws of the land notwithstanding..

Chief Justice Taney delivered the opinion of the Court.  Excerpts are from that decision.

“That plea denies the right of the plaintiff to sue in a court of the United States, for the reasons therein stated.  If the question raised by it is legally before us, and the court should be of opinion that the facts stated in it disqualify the plaintiff from becoming a citizen, in the sense in which that word is used in the Constitution of the United States, then the judgment of the Circuit Court is erroneous, and must be reversed.  It is suggested, however, that this plea is not before us; and that as the judgment in the court below on this plea was in favor of the plaintiff, he does not seek to reverse it, or bring it before the court for revision by his writ of error; and also that the defendant waived this defence by pleading over, and thereby admitted the jurisdiction of the court.“

Since the matter of citizenship was not in the plea that brought the matter before the Court, the Court will not rule on Scott’s standing.

However, the Court now finds that it has a forum to define just what a citizen is — a point that had only been addressed in rather ambiguous terms in the Constitution, and not since addressed by the Congress, or the Court.

Taney goes on to ask this important question:

Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen? “

Further defining the question, he says:

The only matter in issue before the court, therefore, is, whether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State, in the sense in which the word citizen is used in the Constitution of the United States.

While the decision covers many aspects, and many ways, of addressing the question, I will provide only those that are concise and indicative of the sense of the Court and the decision held to.  Remember, as you read, that this decision predates the 14th Amendment.

The words ‘people of the United States’ and ‘citizens’ are synonymous terms, and mean the same thing.  They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives.  They are what we familiarly call the ‘sovereign people,’ and every citizen is one of this people, and a constituent member of this sovereignty.  The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty?  We think they are not, and that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.  On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

Well, there is an interesting phrase, used in the discussion of the Fourteenth Amendment by the Senate, “remained subject to their authority”.

In discussing this question, we must not confound the rights of citizenship which a State may confer within its own limits, and the rights of citizenship as a member of the Union.  It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States.  He may have all of the rights and privileges of the citizen of a State, and yet not be entitled to the rights and privileges of a citizen in any other State.  For, previous to the adoption of the Constitution of the United States, every State had the undoubted right to confer on whomsoever it pleased the character of citizen, and to endow him with all its rights.  But this character of course was confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States.  Nor have the several States surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States.  Each State may still confer them upon an alien, or any one it thinks proper, or upon any class or description of persons; yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States.  The rights which he would acquire would be restricted to the State which gave them.  The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so.  Consequently, no State, since the adoption of the Constitution, can by naturalizing an alien invest him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen, and clothed with all the rights and immunities which the Constitution and laws of the State attached to that character.

It is very clear, therefore, that no State can, by any act or law of its own, passed since the adoption of the Constitution, introduce a new member into the political community created by the Constitution of the United States.  It cannot make him a member of this community by making him a member of its own.  And for the same reason it cannot introduce any person, or description of persons, who were not intended to be embraced in this new political family, which the Constitution brought into existence, but were intended to be excluded from it.

The question then arises, whether the provisions of the Constitution, in relation to the personal rights and privileges to which the citizen of a State should be entitled, embraced the negro African race, at that time in this country, or who might afterwards be imported, who had then or should afterwards be made free in any State; and to put it in the power of a single State to make him a citizen of the United States, and endow him with the full rights of citizenship in every other State without their consent? Does the Constitution of the United States act upon him whenever he shall be made free under the laws of a State, and raised there to the rank of a citizen, and immediately clothe him with all the privileges of a citizen in every other State, and in its own courts?

The court think the affirmative of these propositions cannot be maintained.  And if it cannot, the plaintiff in error could not be a citizen of the State of Missouri, within the meaning of the Constitution of the United States, and, consequently, was not entitled to sue in its courts.”

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 the personal rights 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.

Well, that makes pretty clear who could not be a “citizen of the United States”.  So, let us look, from the other side, at who was a “citizen of the United States”.

“It becomes necessary, therefore, to determine who were citizens of the several States when the Constitution was adopted.  And in order to do this, we must recur to the Governments and institutions of the thirteen colonies, when they separated from Great Britain and formed new sovereignties, and took their places in the family of independent nations.  We must inquire who, at that time, were recognised as the people or citizens of a State, whose rights and liberties had been outraged by the English Government; and who declared their independence, and assumed the powers of Government to defend their rights by force of arms.

In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

Now, clearly, it is those who initiated the fight for independence that are of the class recognized by the Constitution as “citizens of the United States”.  Many have pointed out that one of the first to “die for the cause” was a negro named Crispus Attucks, who was shot to death in the “Boston Massacre”, in 1770.  This, however, in the eyes of the Court, does not qualify him as one of the people — for which the country was intended.

Though the decision of the Court continues to give examples of just how the Court perceived this relationship, I would prefer to not include too many more of the over one-hundred and ten thousand words in the Decision.  There are some words, however, that warrant our attention in fully understanding what was intended by the founding of this nation, and so I will provide these few additional paragraphs:

“The language of the Declaration of Independence is equally conclusive:

It begins by declaring that, ‘when in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth the separate and equal station to which the laws of nature and nature’s God entitle them, a decent respect for the opinions of mankind requires that they should declare the causes which impel them to the separation.’

It then proceeds to say: ‘We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them is life, liberty, and the pursuit of happiness; that to secure these rights, Governments are instituted, deriving their just powers from the consent of the governed.‘

The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood.  But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.

Yet the men who framed this declaration were great men-high in literary acquirements-high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting.  They perfectly understood the meaning of the language they used, and how it would be understood by others; and they knew that it would not in any part of the civilized world be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery.  They spoke and acted according to the then established doctrines and principles, and in the ordinary language of the day, and no one misunderstood them.  The unhappy black race were separated from the white by indelible marks, and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.

This state of public opinion had undergone no change when the Constitution was adopted, as is equally evident from its provisions and language.

The brief preamble sets forth by whom it was formed, for what purposes, and for whose benefit and protection.  It declares that it is formed by the people of the United States; that is to say, by those who were members of the different political communities in the several States; and its great object is declared to be to secure the blessings of liberty to themselves and their posterity.  It speaks in general terms of the people of the United States, and of citizens of the several States, when it is providing for the exercise of the powers granted or the privileges secured to the citizen.  It does not define what description of persons are intended to be included under these terms, or who shall be regarded as a citizen and one of the people.  It uses them as terms so well understood, that no further description or definition was necessary.

Therefore, an attempt to apply the standards upon which this nation was founded to the morality of today, or, even, of 1856, when this case was heard, would be to deny the intention of the founders.  This does not preclude the utilization of the Fifth Article (Amendment Process) of the Constitution to effect change, which was to be partially achieved eleven years later.  It simply explains what a “citizen of the United States” was, prior to the Fourteenth Amendment.

Now the question arises as to whether the 14th Amendment changed who “We the People” are, or not. That will be the subject of the Part II.

* * * * *

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

Part V can be found at “We the People”, but, Who are We? — Part V