I return to the question: Who are the People? Surely, it is more than a useful fiction or abstraction.
“We the People” refers to actual people: those who directly or indirectly authorized the adoption and ratification of the Constitution. But in the beginning these were not all the people dwelling in the land. Women were excluded, also slaves, and native Americans who were the original occupiers of the land. Only freeborn males were counted: white, English, and mostly Protestant.
In the 2nd of the Federalist Papers, Alexander Hamilton credits divine providence with having brought to this rich and fertile wilderness a united people: “a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, who … fighting side by side through a long and bloody war, have nobly established their general liberty and independence.”
It was not until 1920 that women were granted the right to vote. And the matter of their full political and social equality remains unfinished business.
The 14th Amendment, ratified in 1868 and which grants citizenship to all persons born or naturalized in the United States and guarantees them equal protection of the laws, should have applied also to Native Americans residing in the states. Yet, that right was not fully realized until 1924, with passage of the Indian Citizenship Act, which granted full citizenship to “non citizen Indians born within the territorial limits of the United States.” During the First World War, Native Americans served in armed forces and were granted citizenship, and this act came as a consequence and in recognition of their service.
However, there was and remains a problem with regard to Native Americans. They were not immigrants to this land. Rather, they were indigenous residents; it was their land. Nor were their ancestors nomadic transient dwellers, as is sometimes assumed, who never really occupied it. On the contrary, the territory of the United States was not a wilderness, when Europe began the colonization of America. There were Indian nations here before any of the states, and an international order.
So it is likely that the United States acquired this land by usurpation. These nations still existed and, therefore, granting citizenship to its members is, to say the least, an ambiguous act. The Constitution does not explicitly recognize this fact, but there is recognition in Section 1 of the 14th Amendment, that there may be persons residing in the states who are not under the jurisdiction of state or federal laws. The legal and moral issues involved are too great and complex to be examined here, but they cannot justly be ignored.
Slavery was abolished in 1865 by the adoption of the 13th Amendment. The 14th Amendment granted full rights and immunities of citizenship to all persons born or naturalized in the United States and required that representation in legislative bodies be apportioned according to “the whole number of persons in each state.” Finally, in 1870, the 15th Amendment was ratified prescribing the right of all citizens to vote, regardless of their “race, color, or previous conditions of servitude.”
Although there is reason to believe that these liberating measures might have come about in the course of time, and fear of their inevitability may have prompted the so-called Confederate States to secede, there is no doubt that their proximate cause was the American Civil War.
Which raises the question of the meaning of this terrible, cataclysmic event. According to law, it was an illegal rebellion and insurrection. The act of secession by 11 states violated the Constitution of the United States. By their vote to secede, the legislators of the seceding states became outlaws. Their waging war against the government of the United States was an act of treason. Viewed under the cool light of reason, secession was simply illegal. It may also have been a tragedy, and the figure who best represents this is Robert E. Lee. But Lee was no hero. In any case, attempts to romanticize the Civil War are misguided, misleading and unjust.
It is noteworthy that a leading argument put forth by its proponents to justify secession, was that the government of the United States had become tyrannical. Secessionists appealed to the law of nature. They argued, citing Locke, that the national government has the duty to protect the life, liberty and property of the people, and that slaves are property—not people. The U.S. government’s intention to abolish slavery was a violation of natural law and hence tyrannical. By their tyranny, tyrants forfeit their right to rule. Therefore, secession is justified. The argument is odious and fallacious.
But to return to my theme, almost a century more would pass before legislative measures were taken to guarantee equality of civil rights. In 1954, the Supreme Court declared segregation to be illegal; and a decade later the Civil Rights Act was passed. And still the effort to establish freedom and equality for all continues. It was met with violent resistance, epitomized by the murder of Martin Luther King, Jr., in 1968, and the violence continues today with police brutality against people of color a cornerstone of the Black Lives Matter movement.
Nevertheless, through all of this “The People of the United States” has increased in substance and in reality. For it has come to encompass not only white Protestant males, but all persons — male, female, black, brown, white, gay, lesbian, transgender, pious and freethinking — and the trend toward diversity and inclusiveness continues.
Because we can appeal to all of these persons to exercise their equal right and duty as citizens to vote, to raise their voices against injustice, to seek a redress of grievance and to participate in the administration of justice — the notion of “The People” is not a mere fiction or legal abstraction, but an unshakable foundation of freedom.
“Power to the People,” although under the rule of law.
Author’s Postscript: Why has it been so difficult for us to achieve full equality? And why does the difficulty remain? The fault does not lie in the Constitution; it has been our only reliable means to achieve it. Rather it lies in ourselves. Human beings are just not very nice animals. They take comfort in their prejudices, and when the demands of justice seem inconvenient, they imagine themselves the victims of it. And they have an inexhaustible capacity to rationalize almost any unjust practice when it is in their interest. It is because of these dismal facts that constitutionalism is our only reasonable mode of action.