8 Shameful Things Our Founders Believed–I

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 these are Life, Liberty and the pursuit of Happiness.

U.S. Declaration of Independence—July 4, 1776

That sentence, from the document recognized universally as laying the foundation for the construction of our Republic, has gotten a lot of use lately, particularly by older, overwhelmingly White and male folks with an apparent fondness for tri-corner hats and teabags.  They also long for the good, old days of the Founding Fathers.  If only we could turn to their “original” or “textual” meanings when the ink was dry, they fiercely intone, all would be right in our Nation.

Since last Monday was the 225th anniversary of the adoption of our original Constitution, I thought a short history lesson might be the best tribute.

Following are selected provisions, as approved and witnessed by the signatures of 39 of 55 men from 11 states to the Constitutional Convention of 1787, held from May through mid-September in Philadelphia.  (A little contemporary color: Commander-in-Chief George Washington presided by acclamation; at 81 Ben Franklin was the oldest delegate; and Tom Jefferson—the author of those enduring words—was posted as ambassador to Paris and didn’t participate.)

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

* * * * *

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

U.S. Constitution, Art. 1, Sec. 2—September 17, 1787

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six Years; and each Senator shall have one Vote.

U.S. Constitution, Art. 1, Sec. 3—September 17, 1787

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.

* * * * *

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

U.S. Constitution, Art. II, Sec. 2—September 17, 1787

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

U.S. Constitution, Art. IV, Sec. 2—September 17, 1787

Based on these provisions, here is where our revered Founders stood on a few fundamental issues when they left the Pennsylvania State House two and a quarter centuries ago:

1. We didn’t really need a written enumeration of individual’s or states’ rights.

You read that right.  When the delegates departed Philadelphia, there was no Bill of Rights written into the adopted Constitution.  Of Virginia’s six delegates, only John Blair and James Madison voted to adopt the original instrument.  George Mason—who had earlier written the Virginia Declaration of Rights, which strongly influenced Jefferson in writing the first part of the Declaration of Independence—bitterly opposed the final product for that reason.  The other three joined him, as did a dozen from the other states.  (By virtue of his military status, Gen. Washington was ineligible to vote; besides Mason, James McKlurg, Edmund Randolph, and George Wythe opposed adoption.)  Two years later, Madison drafted 12 amendments to the Constitution, which drew heavily on Mason’s Declaration.   The last 10 were passed by his fellow Members of the First Congress and submitted to the states for ratification.  They were added to the original Constitution as its Bill of Rights after being ratified by three-fourths of the States in 1791.

Fun fact:  The last three of the original 14 states to ratify the Bill of Rights were Massachusetts, Georgia, and Connecticut—in 1939, on the sesquicentennial of their adoption by the Congress.

From my study of American history, I believe we owe much to the Commonwealth for producing the clear constitutional thinkers and architects of compromise it did at the time, especially Madison.  Their successors haven’t always done them justice.  Too many Virginians still wear on their sleeve the fact that Richmond was the capital of the Confederacy.  Their legislators and courts were just as inventive throughout the Jim Crow period as anyone’s, and their northern delegation did more over time than any other to continue to deny the citizens of the District their natural rights to vote, to be represented, and to govern themselves.  (See Thing 3, coming next Monday.)  In 1967—three years before I entered law school in the area—the State’s “Racial Integrity Act of 1924” was the last statute standing forbidding interracial marriages, when declared unconstitutional by the Supreme Court in the case of Loving v. Virginia.

2. Only White men who owned land were “created equal.”

Because complete authority to establish qualifications for electing the President and Congress was delegated to the several states, the right to vote went by default at the time to propertied White males, and for some considerable period thereafter.  It was Andrew “Old Hickory” Jackson and his allies who, in building their Democratic Party to elect him President in 1828, were responsible for most states eliminating ownership of specific types of property or assets as requirements for White males’ exercise of the franchise over time, up until the eve of the Civil War.  By recasting the terms in Article I, Section 2 for counting state populations for representation and taxation purposes, the ratified 14th Amendment elevated gender (“male”) and minimum age (“being twenty-one years of age”) qualifications into the Constitution.

This was not good news for anyone without a “Y” chromosome.

Next Monday:  Shameful Things 3 and 4.