8 Shameful Things our Founders Believed–II

Picking up from last Friday: Shameful Things 3 and 4.


  1. Kidnapped Africans were property—bought, sold, and claimable—defined as “three-fifths”  human, but only for census purposes.

In describing the “real (and it was a very exciting) controversy was in regard to slaves, whether they should be included in the enumeration,” Joseph Story noted that, as finally adopted, the third paragraph in Article I, Section 2 was a compromise between northern and southern states—not over whether slaves were human beings, but in what fraction they could be measured, without giving undue political advantage to their master:

§ 642. Viewed in its proper light, as a real compromise, in a case of conflicting interests, for the common good, the provision is entitled to great praise for its moderation, its aim at practical utility, and its tendency to satisfy the people, that the Union, framed by all, ought to be dear to all, by the privileges it confers, as well as the blessings it secures.  It had a material influence in reconciling the southern states to other provisions in the constitution, and especially to the power of making commercial regulations by a mere majority, which was thought peculiarly to favour the northern states.  It has sometimes been complained of, as a grievance; but he, who wishes well to his country, will adhere steadily to it, as a fundamental policy, which extinguishes some of the most mischievous sources of all political divisions—those founded on geographical positions, and domestic institutions.  It did not, however, pass the convention without objection.  Upon its first introduction, it was supported by the votes of nine states against two.  In subsequent stages of the discussion, it met with some opposition; and in some of the state conventions it was strenuously resisted.  The wish of every patriot ought now to be, requiescat in pace.

That’s “rest in peace,” kidnapped Africans.

A minor qualification: as the original text indicates, if you were a Black freeman or would become a free agent at the end of your contract, you could be counted as a full human to determine representation or taxation—but that didn’t mean you were a citizen, eligible to vote, or to own property.  At founding, four states permitted Black freemen to vote.  According to Story, those cases amounted to little more than a rounding error.

Slavery was, of course, the backbone of the post-colonial economy south of the Mason-Dixon line, so those questions weren’t formally addressed until the Confederacy was defeated.  In the five years following the end of the Civil War, the 13th, 14th, and 15th amendments were ratified, abolishing slavery, defining citizenship and qualifications for electors, and forbidding denial or abridgement of the right to vote “by the United States or by any State on account of race, color, or previous condition of servitude.”  Though the Congress was given specific power to enforce each amendment “by appropriate legislation,” the States remained free to define voter qualifications in nearly every respect.  As a result, it would take another century of litigation and confrontation to clear away most vestiges of property ownership standards, literacy tests, education requirements, and poll taxes that were invented to deny the franchise to African-Americans.  As far as the other privileges and incidents of citizenship were concerned, it wasn’t until the Supreme Court’s decision in Brown v. Board of Education in 1954, overturning “separate but equal” public education in the South, that those barriers were breached.  The Congress enacted the Civil Rights Act of 1964 and the Voting Rights Act of 1965, thereby providing the legal tools necessary to prosecute and correct alleged violations of the guarantees of citizenship conferred by the 14th and 15th Amendments—almost a century after their ratification.

“The Last Plantation”

Personally, I think the most indefensible violation of our basic founding principles and most hypocritical vestige of slavery is the continuing denial of the rights to representation, self-determination, and full exercise of the franchise by the citizens of the United States who reside permanently in the District of Columbia.

Unlike every citizen of every state since 1789 and every citizen located on a military base in a state since 1986, citizens of our Nation’s capital can neither nominate nor vote for their own Senators or apportioned Representative.  Their fleeting voting rights were removed by Congress in 1801, their residence becoming not a state but that of a “federal district.”  Ratification of the 23rd Amendment in 1961 restored their rights to select three Presidential and Vice Presidential electors, and it also had the benefit of requiring the Congress to enforce the privileges and immunities of citizenship guaranteed by Amendments 14, 15, 19, 24, and 26.  Since the Republic was founded around them, D.C citizenry have had their own elected delegate to the U.S. House of Representatives for a total of 43 years—from 1871-1873, and from 1971 to the present.  Their delegate to the U.S. House of Representatives is permitted to vote only in committees to which she is appointed by leadership.

U.S. Constitution, Page Two

 I was peripherally involved in the passage in 1978 of a constitutional amendment that would have given the District full representation in the House; it repealed the 23rd Amendment and simply conferred statehood on D.C.  It was ratified by only 16 of the required 38 states within the prescribed seven years.  From the time I enrolled in law school in 1970 until that period expired, every argument I heard advanced against the measure ranged from merely specious to racist.  (I heard a member of the northern Virginia delegation refer to the city, openly in debate, as “darkest Africa.”)

Since then, the Congress has consistently refused to enact any further reform and—despite awarding the District “home rule” in 1971—has exercised its jurisdiction over the District “in all cases whatsoever” to countermand the expressed will of District voters by overturning laws passed by their elected Mayor and City Council.

For these reasons, 617,996 U.S. citizens—more than the population of Wyoming—call their home “The Last Colony (or Plantation),” the home of “taxation without representation.”  For some reason, I haven’t noticed any signs at Tea Party rallies expressing outrage on behalf of these fellow citizens.


  1. Native Americans were an inconvenient truth.

There’s one other provision in the original Article I that’s relevant; it’s the third of the Congress’s enumerated powers in Section 8:

 To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Why were “Indians not taxed” excluded?  According to Storey again, like potential freed slaves, the delegates apparently felt the need to address the existence of Indians of “that period, who were not treated as citizens, and yet, who did not form a part of independent communities or tribes, exercising general sovereignty and powers of government within the boundaries of the state.”  Said Story:

It was necessary, therefore, to provide for these cases, though they were attended with no practical difficulty.  There seems not to have been any objection in including, in the ratio of representation, persons bound to service for a term of years, and in excluding Indians not taxed.

Pursuant to Section 8, from the time of the Continental Congress under the Articles of Confederation until 1871, the government treated its relationship with Indian tribes as with any other sovereign: by negotiating treaties.  These agreements, negotiated by agents of the Executive Branch, subject to ratification by the Senate, acknowledged that Native American people were citizens of their tribes, living within the boundaries of the U.S.  Generally, tribes relinquished their rights to reside in and control entire parcels of land that they had inhabited in exchange for sovereignty over a reserved portion of that land; trade goods; yearly cash annuity payments; and assurances that no further demands would be made on them. Most often, part of the land would be “reserved” exclusively for the tribe’s use.

It goes without saying that the provisions of most of those treaties were honored more in the breach than the observance, as Western expansion continued.  In the case of Standing Bear in 1879, a Nebraska judge acknowledged that Indians were people, at least with respect to being guaranteed the right to writs of habeas corpus, but were not citizens insofar as any other rights were concerned.  It was not until 1924 that the Congress, prompted in large part by their uniformed service in World War I, conferred citizenship on all U.S.-born Native Americans by enactment.  It took two more laws, in 1940 and 1948, and a judicial decision to include those born before 1924 and to frustrate efforts by seven Western states that continued to deny their right to vote through “Jim Crow”-like tactics, including condoning physical violence.

Since 1831, the relationship between Native Americans and our national government has not been one of sovereign-to-sovereign in the international law sense, but—as defined by Chief Justice Marshall—rather as “ward to his guardian.”  They are “domestic dependent nations…occupy[ing] a territory to which we assert a title independent of their will.”  In essence, federally recognized Native American tribes retain all of their sovereign powers except those specifically taken from them by Congress.

This relationship has proved interesting, to say the least.  In 1790, the First Congress of the United States enacted the Nonintercourse Act, declaring that any transfer of land from federally-recognized tribes to non-Native Americans had to be approved by the Congress.  If such a transfer was not approved, it was not valid. This law was designed to protect Native Americans from unscrupulous and unfair transactions. Between 1794 and 1833, title to most of the land of the Passamaquoddy and Penobscot People was transferred to the State of Maine.  The land transfers were never approved by the U.S. Congress, but those tribes had not been recognized officially by the federal government.  In the early 1970s, these and other tribes in Maine sued to reclaim 12.5 million acres—60% of the state’s area—and $25 billion, essentially for back rent and use.  They bypassed the Indian Claims Commission and gained traction with victories in both state and federal courts.  (I remember this vividly because Rep. Bill Cohen (R-Maine) was a member of the House Judiciary Committee subcommittee that dealt with federal administrative claims, which I staffed.  Needless to say, there were a lot of involved and entertaining discussions.)  Ultimately, President Jimmy Carter initiated negotiations with the tribes and reached agreement with them in late 1978.  Negotiations were expanded in March 1980 to include all parties, who reached an agreement that was approved by the Congress and signed by the President later that year.  The tribes involved settled for a total of $81.5 million in compensation and buy-back rights.  The principal settlement terms included:

      • An agreement between the State and the Indian Tribes, called the Maine Implementing Act, that was enacted by the Maine Legislature. This specifies the laws that are applicable to Indians and Indian lands in Maine.
      • Purchase options running from certain landowners to the Maine Indians in which the landowners agreed to sell at fair market value 300,000 acres of land to the Tribes.
      • A bill that was enacted by Congress, called The Maine Indian Claims Settlement Act, extinguishing the land claims, compensating the Indians for their claim, and ratifying the Maine Implementing Act


Next Friday: Shameful Thing Five.

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