"We the People", but, Who are We? - Part III

[Gary Hunt]

"We the People", but, Who are We? - Part III

Gary Hunt
Outpost of Freedom
July 20, 2011

So, we have established that "rights" were not conveyed by the Fourteenth Amendment, only "privileges and immunities".  Or, have we?  Of course, to this point, it is only words and omission of words that can lead us to that conclusion.

Understand, however, that the Constitution, the Bill of Rights and early legislation was written so that all could understand what was being required.  After all, as James Madison said (Federalist Papers #62), "Law is defined to be a rule of action".  If it is a rule of action, then it must be written so that anybody can understand it.

Let's see if we can determine whether the premise that rights were not conveyed is properly construed, as presented.  To do so, we must, once again, return to the past -- to those who lived the times and understood what the intention of the 14th Amendment really was.

Our answer can be found in another Supreme Court decision, decided just 7 years after the ratification of the 14th Amendment.  The case is Minor v. Happersett, 88 U.S. 162 (1874). 

At issue was whether the Fourteenth Amendment conveyed the right to vote to a woman, since she was made "a citizen of the United States" by that Amendment.  Understand that many states did not recognize woman as being full citizens and they were denied the right to vote, own land, sue in court, inherit property, or hold office; or portions of some of these restrictions, depending on the state.

Understand that this case was heard just seven years after the ratification of the 14th Amendment, and all parties were fully aware of the Amendment, its interpretation and ramifications.  They lived the times, unlike those of us who have to search back to find the intent of laws and amendments.

The case introduces the problem with the following statement of facts:

The fourteenth amendment to the Constitution of the United States, in its first section, thus ordains:

'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside.  No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States.  Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction, the equal protection of the laws.'

And the constitution of the State of Missouri thus ordains:

'Every male citizen of the United States shall be entitled to vote.'

 

Minor, as described by the Court, set forth the following arguments:

1st. As a citizen of the United States, the plaintiff was entitled to any and all the 'privileges and immunities' that belong to such position however defined; and as are held, exercised, and enjoyed by other citizens of the United States.

2d. The elective franchise is a 'privilege' of citizenship, in the highest sense of the word.  It is the privilege preservative of all rights and privileges; and especially of the right of the citizen to participate in his or her government.

3d. The denial or abridgment of this privilege, if it exist at all, must be sought only in the fundamental charter of government,-the Constitution of the United States.  If not found there, no inferior power or jurisdiction can legally claim the right to exercise it.

4th. But the Constitution of the United States, so far from recognizing or permitting any denial or abridgment of the privileges of its citizens, expressly declares that 'no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.'

5th. It follows that the provisions of the Missouri constitution and registry law before recited, are in conflict with and must yield to the paramount authority of the Constitution of the United States.

The Court (in the decision) then posed the question:

The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone.

In providing an answer to the question, we find:

Looking at the Constitution itself we find that it was ordained and established by 'the people of the United States [Preamble to the Constitution],' and then going further back, we find that these were the people of the several States that had before dissolved the political bonds which connected them with Great Britain, and assumed a separate and equal station among the powers of the earth [Declaration of Independence], and that had by Articles of Confederation and Perpetual Union, in which they took the name of 'the United States of America,' entered into a firm league of friendship with each other for their common defence, the security of their liberties and their mutual and general welfare, binding themselves to assist each other against all force offered to or attack made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever [Articles of Confederation].

Whoever, then, was one of the people of either of these States when the Constitution of the United States was adopted, became ipso facto a citizen-a member of the nation created by its adoption.  He was one of the persons associating together to form the nation, and was, consequently, one of its original citizens.  As to this there has never been a doubt.  Disputes have arisen as to whether or not certain persons or certain classes of persons were part of the people at the time, but never as to their citizenship if they were.

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Other proof of like character might be found, but certainly more cannot be necessary to establish the fact that sex has never been made one of the elements of citizenship in the United States.  In this respect men have never had an advantage over women.  The same laws precisely apply to both.  The fourteenth amendment did not affect the citizenship of women any more than it did of men.  In this particular, therefore, the rights of Mrs. Minor do not depend upon the amendment.  She has always been a citizen from her birth, and entitled to all the privileges and immunities of citizenship.  The amendment prohibited the State, of which she is a citizen, from abridging any of her privileges and immunities as a citizen of the United States; but it did not confer citizenship on her, that she had before its adoption.

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It is clear, therefore, we think, that the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted.  This makes it proper to inquire whether suffrage was coextensive with the citizenship of the States at the time of its adoption.  If it was, then it may with force be argued that suffrage was one of the rights which belonged to citizenship, and in the enjoyment of which every citizen must be protected.  But if it was not, the contrary may with propriety be assumed.

When the Federal Constitution was adopted, all the States, with the exception of Rhode Island and Connecticut, had constitutions of their own.  These two continued to act under their charters from the Crown.  Upon an examination of those constitutions we find that in no State were all citizens permitted to vote.  Each State determined for itself who should have that power.  Thus, in New Hampshire, 'every male inhabitant of each town and parish with town privileges, and places unincorporated in the State, of twenty-one years of age and upwards, excepting paupers and persons excused from paying taxes at their own request,' were its voters; in Massachusetts 'every male inhabitant of twenty-one years of age and upwards, having a freehold estate within the commonwealth of the annual income of three pounds, or any estate of the value of sixty pounds;' in Rhode Island 'such as are admitted free of the company and society' of the colony; in Connecticut such persons as had 'maturity in years, quiet and peaceable behavior, a civil conversation, and forty shillings freehold or forty pounds personal estate,' if so certified by the selectmen; in New York 'every male inhabitant of full age who shall have personally resided within one of the counties of the State for six months immediately preceding the day of election . . . if during the time aforesaid he shall have been a freeholder, possessing a freehold of the value of twenty pounds within the county, or have rented a tenement therein of the yearly value of forty shillings, and been rated and actually paid taxes to the State;' in New Jersey 'all inhabitants . . . of full age who are worth fifty pounds, proclamation-money, clear estate in the same, and have resided in the county in which they claim a vote for twelve months immediately preceding the election;' in Pennsylvania 'every freeman of the age of twenty-one years, having resided in the State two years next before the election, and within that time paid a State or county tax which shall have been assessed at least six months before the election;' in Delaware and Virginia 'as exercised by law at present;' in Maryland 'all freemen above twenty-one years of age having a freehold of fifty acres of land in the county in which they offer to vote and residing therein, and all freemen having property in the State above the value of thirty pounds current money, and having resided in the county in which they offer to vote one whole year next preceding the election;' in North Carolina, for senators, 'all freemen of the age of twenty-one years who have been inhabitants of any one county within the State twelve months immediately preceding the day of election, and possessed of a freehold within the same county of fifty acres of land for six months next before and at the day of election,' and for members of the house of commons 'all freemen of the age of twenty-one years who have been inhabitants in any one county within the State twelve months immediately preceding the day of any election, and shall have paid public taxes;' in South Carolina 'every free white man of the age of twenty-one years, being a citizen of the State and having resided therein two years previous to the day of election, and who hath a freehold of fifty acres of land, or a town lot of which he hath been legally seized and possessed at least six months before such election, or ( not having such freehold or town lot), hath been a resident within the election district in which he offers to give his vote six months before said election, and hath paid a tax the preceding year of three shillings sterling towards the support of the government;' and in Georgia such 'citizens and inhabitants of the State as shall have attained to the age of twenty-one years, and shall have paid tax for the year next preceding the election, and shall have resided six months within the county.'

[Note: you may want to review the list of voter qualifications, above, and consider that we were strong and building our country into the greatest nation in the world, when the voters had to be above debt to vote -- rather than able to vote themselves "a chicken in every pot".]

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And still again, after the adoption of the fourteenth amendment, it was deemed necessary to adopt a fifteenth, as follows: 'The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude.'  The fourteenth amendment had already provided that no State should make or enforce any law which should abridge the privileges or immunities of citizens of the United States.  If suffrage was one of these privileges or immunities, why amend the Constitution to prevent its being denied on account of race, &c.?  Nothing is more evident than that the greater must include the less, and if all were already protected why go through with the form of amending the Constitution to protect a part?

* * *

... Women were excluded from suffrage in nearly all the States by the express provision of their constitutions and laws. If that had been equivalent to a bill of attainder, certainly its abrogation would not have been left to implication. Nothing less than express language would have been employed to effect so radical a change. So also of the amendment which declares that no person shall be deprived of life, liberty, or property without due process of law, adopted as it was as early as 1791. If suffrage was intended to be included within its obligations, language better adapted to express that intent would most certainly have been employed. The right of suffrage, when granted, will be protected. He who has it can only be deprived of it by due process of law, but in order to claim protection he must first show that he has the right.

So, clearly, from this decision, rendered shortly after the Fourteenth Amendment was ratified, we see that there is a distinction between "rights" and "privileges and immunities", and that any grant of right would require a constitutional amendment to confer it on any other than "We the People".

This does beg the question of whether the Fifteenth Amendment confers more than the right to vote.  Does it also confer the right to hold office, when the requisite for that office is "Citizen of the United State" [Art. I. Section 2, clause 2, and, Art. I, Section 3, clause 3, Constitution], and, "a natural born Citizen of the United States" [Art. II, Section 1, clause 5, Constitution], unless such "right" is specifically conferred?