The debate over who “We the People” includes began at the Constitutitonal Convention, and it has continued ever since. (More)

We the People, Part II: Who Are “We?”

This week Morning Feature explores three different views of the U.S. Constitution, through the lens of the Preamble’s first three words: “We the People.” Yesterday we considered libertarian views and the question what are “We?” Today we look at conservative views and the question who are “We?” Saturday we’ll conclude with progressive views and the question why are “We?”

“The rich and the well born”

The Preamble opens with the words “We the People,” but the Framers were debating what those would mean even before they were written. Consider this famous quote by Alexander Hamilton:

This government has for its object public strength and individual security. It is said with us to be unattainable. All communities divide themselves into the few and the many. The first are the rich and well born, the other the mass of the people. The voice of the people has been said to be the voice of God; and however generally this maxim has been quoted and believed, it is not true in fact. The people are turbulent and changing; they seldom judge or determine right. Give therefore to the first class a distinct, permanent share in the government. They will check the unsteadiness of the second, and as they cannot receive any advantage by a change, they therefore will ever maintain good government.

The structural outcome of Hamilton’s argument was the U.S. Senate, whose members were originally chosen by the state legislatures to serve six-year terms. (He proposed that senators should serve for life.) Not until 1916, after the ratification of the Seventeenth Amendment, would all U.S. senators be chosen by statewide elections. And as this week’s attempt at filibuster reform shows, the Senate still retains an air of aristocracy.

Yet Hamilton’s statement reveals something deeper: a disagreement over who “We the People” should include. It might encompass “the mass of the people,” he argued, but he saw them as little more than rabble who “seldom judge or determine right.” In Hamilton’s view, “We the People” really meant people like himself: “the rich and the well born.”

“They are not included, and were not intended to be included”

In a brilliantly written riposte to modern conservatives who claim constitutional fealty, The New Yorker‘s Jill Lepore describes the surprising history and obscurity of the Constitution’s language:

If you haven’t read the Constitution lately, do. Chances are you’ll find that it doesn’t exactly explain itself. […] The document’s learnedness and the changing meaning of words isn’t the whole problem, though, because the charge that the Constitution is too difficult for ordinary people to understand – not because of its vocabulary but because of the complexity of its ideas – was brought nearly the minute it was made public. Anti-Federalists charged that the Constitution was so difficult to read that it amounted to a conspiracy against the understanding of a plain man, that it was willfully incomprehensible. “The constitution of a wise and free people, ought to be as evident to simple reason, as the letters of our alphabet,” an Anti-Federalist wrote. “A constitution ought to be, like a beacon, held up to the public eye, so as to be understood by every man,” Patrick Henry argued. He believed that what was drafted in Philadelphia was “of such an intricate and complicated nature, that no man on this earth can know its real operation.” Anti-Federalists had more complaints, too, which is why ratification – a process wonderfully recounted by Pauline Maier in Ratification: The People Debate the Constitution, 1787-1788 – was touch and go. Rhode Island, the only state to hold a popular referendum on the Constitution, rejected it. Elsewhere, in state ratifying conventions, the Constitution passed by the narrowest of margins: 89-79 in Virginia, 32-27 in New York, a 187-168 Massachusetts.

As one example, Lepore alludes to the U.S. Supreme Court’s infamous Dred Scott decision. Dred Scott sued in federal court, saying he and his family had been held unlawfully as slaves in Missouri. A jury found his owner not guilty, but the Supreme Court went further, holding that Scott and his family had no standing to bring the lawsuit at all:

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.

Thus, the Court held that Scott and his family were not included in “We the People.”

“All persons born or naturalized in the United States”

It took the Fourteenth Amendment to change that, and its opening clause seems conclusively inclusive:

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.

Yet by 1954, Jackson County in Texas had systematically excluded Hispanics from juries for decades, despite Supreme Court rulings that racial discrimination in jury selection violated the Equal Protection Clause. As a defense, Texas argued that – despite the plain meaning of “All persons born or naturalized in the United States” – the Fourteenth Amendment was intended only to address discrimination by whites against blacks. Hispanics, in that view, were not part of “We the People.” The U.S. Supreme Court disagreed in Hernandez v. Texas:

Throughout our history, differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws. But community prejudices are not static, and, from time to time, other differences from the community norm may define other groups which need the same protection. Whether such a group exists within a community is a question of fact. When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written or as applied, single out that class for different treatment not based on some reasonable classification, the guarantees of the Constitution have been violated. The Fourteenth Amendment is not directed solely against discrimination due to a “two-class theory” – that is, based upon differences between “white” and Negro.

“Nobody ever thought that that’s what it meant.”

That clearly inclusive explanation of the Fourteenth Amendment’s already-inclusive language would seem to settle the issue. Yet Supreme Court Justice Antonin Scalia disagrees:

Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that.

In Justice Scalia’s view, the scope of “We the People” was established by those who enacted and ratified a given passage of the Constitution. That is to say: “We the People” includes many Americans long dead – and conveniently unavailable to disagree with him – but not all Americans now alive.

Later this year, Justice Scalia and the Court will decide if “All persons born or naturalized in the United States” – to whom no state may deny “equal protection under the laws” – includes gays and lesbians who want to marry. And with Republican legislatures in states like Virginia proposing to gerrymander the Electoral College, the Supreme Court will likely be called upon to decide whether “We the People” includes those who live in cities and vote for Democrats. As Talking Points Memo‘s Josh Marshall tweeted last night:

Curious how much non-white votes would count for in new GOP electoral plan. More than 3/5? maybe 4/5? need to run the numbers.

Small wonder that conservatives were so outraged by President Obama’s Second Inaugural Address. He thinks “We the People” means … all of us.


Happy Friday!