On March 6, 1857 the Supreme Court made what is undoubtedly the worst decision in the history of the court.
In a 7-2 decision, the court, with four slave-holding judges, ruled that a slave taken from a slave state into a free state does not make that slave free. The Court’s ruling also undid all of the previous Congressional compromises that attempted to control the spread of slavery saying those compromises were unconstitutional.
In America we can equate freedom with liberty, and rights with citizenship, and the right to vote as the holy sacrament of citizenship. A quick review of American history will show that America has been dealing with some aspect of citizenship (and voting) from the time a group of erudite revolutionaries sat down in Philadelphia to scrap the short-lived and inefficient Articles of Confederation to our very present time of illegal residents, refugees at the gates and radicalism within our borders.
Prior to devising a new government the Framers dealt with overthrowing the most powerful potentate of the time, so when it came to crafting a new constitution it was all about keeping monarchical tyranny at bay. They were more concerned with Spaniards radicalizing slaves to run off to Spanish Florida than thinking about who would be crossing the Mississippi River border or who would become a subversive citizen.
At first there was no real debate about citizenry: white property-owning males were full-blown citizens with voting rights. Everybody else was subject to some sort of restrictions. For instance, Blacks were on one end spectrum as slaves without rights; women were somewhere in the middle as non-voting citizens with possible property rights; Native Americans were treated as hostile land owners without property rights.
It took the Framers of the Constitution only four paragraphs into the Constitution to create a controversy that would last decades and would take a Civil War to settle. In Article I, Section 2 the Framers started to hammer out a a taxation and representation compromise. A revolution was fought over those fighting words.
Right off the bat we are hit with the whopper of all compromises — our original sin as a country. In the Declaration of Independence we blamed slavery on the king of England. But in the summer of 1787 in Philadelphia there was no king to blame. The sin was so flagrantly against our founding “Lockeian” principles of life, liberty and the pursuit of property and so defining, that the Framers would not call it what it was: Slavery.
This compromise is interesting because it is based on regional differences that divided the country as well as economic profits from the slave trade and exports of slave-labor-produced goods that united the country. There was no way to get around it. They were hoisted up on their own Revolutionary rhetoric. Now they had to figure out how a country dealing with progressive ideas on representation and taxation could get a government to politically work in a nation with half of the country using a business plan based on economics from the times of the Pharaohs.
Not having a crystal ball and dealing with their own prejudices at the time the Framers settled the matter by basing representation and taxation with a fractional counting compromise. The Framers started with a whole, then subtracted, and then reduced it.
Taxation with representation would sum up on “the whole Number of free Persons, including those bound to Service for a Term of Years, excluding Indians not taxed, three-fifths of all other Persons. The “Indians not taxed” must be parenthetical that was thrown in at the last moment when somebody asked, “What about the last of the Mohicans?” Indians not being property and hence not taxed-taxed would be excluded.
So basically at the start of the new government there were five types of native-born Americans: Free Persons; those bound to Service for a Term of Years, usually life; non-taxed Indians; women and free Blacks. This leads to the question what is a taxable Indian.
As far as voting was concerned that was left up to the individual state to determine who could and could not vote.
Well-intentioned people with a plan using twisted logic can be just as dangerous as somebody with no plan. The plan may seem sound at the time but ends up creating a timed-coil spring ready to fly out of its box like bees in a kicked-over hive.
All three branches of our government have dealt with who is a citizen from time-to-time. The Constitution gives Congress the power “To establish uniform Rule(s) of Naturalization.” Congress first exercised this power during the French Reign of Terror with the Alien and Sedition Act that extended the number of years a person had to be a resident before becoming a citizen. But when there is a void in one branch of government (unless one branch happens to be Congress) another branch of government will be glad to step in and kick the hive over.
By the mid 1850s Kansas was bleeding in a precursor to the Civil War and the Supreme Court took its turn to kick the hive in Dred Scott v Sandford decision. After numerous Congressional compromises starting with the Missouri Compromise on how to keep the Three-Fifths Compromise intact and in control of the ever expanding country and slavery, the Supreme Court said the Constitution gives slaves absolutely no rights and hence Congress has no authority to control slavery.
In fact Chief Justice Roger B Taney went so far as to say that if anything, the 5th Amendment protects those that own slaves by saying, “no person … (shall) be deprived of life liberty, or property without due process of the law…” Not the slaves’ life, liberty or property but the owners. Slaves were bought and sold and as far as Taney was concerned “they had no rights which the white man was bound to respect.”
It took a Civil War to free slaves and the passage of the 14th Amendment in 1868 to make them citizens. The “right to vote” would come in 1870.
Through the years the Federal government has expanded citizens’ rights. African Americans still needed the Civil Rights Movement to see that their natural born rights of life,liberty and the pursuit of happiness were enforced. Women have always struggled as second class citizens. Congress passed the 19th Amendment and on August 18, 1920 women were given the right to vote along with their citizenship. After nearly a decade of fighting in Vietnam, 18 year-old draftees secured the right to vote for all 18 year olds when Congress passed the 26th Amendment in 1971.
And what about the non-taxed Indians? Finally, after being chased clear across the continent, Native Americans finally received due process. It would take the Indian Citizen Act passed on June 2, 1924 to make them citizens and “subject to the jurisdiction” of the United States. Native Americans might argue, with some success, that they were always subjected to the jurisdiction of the United States (particularly the Army) and usually at the end of gun barrel. Native Americans might be citizens but some states up until 1957 refused them the right to vote. I am sure this was just a mere technicality, a parenthetical, that was somehow over looked.
So who is next up for expanded citizenship? How about corporations. In the “Bizarro World” of jurisprudence and so-called activist judges, corporations have been getting more and more individual rights, despite not being mentioned in the Constitution. It seems a non-human corporation would fall more under John Locke’s definition as “property.”
When the Supreme Court ruled in favor of Citizens United vs The FEC, corporations got a whopper of a deal. Although they were not given the right to vote they got something more valuable: the unlimited First Amendment right to buy speech to influence the vote.
Corporations have always had certain legal rights to guide their boards and investors. But this ruling gives the non-human corporations the personal right of free speech. The court once again used twisted logic saying that money is free speech. Money by its very nature, is never free.
The court ruled that not only is speech protected but so is the speaker even if that speaker is not human. So what about the penniless barking dog next door?
Like Taney’s ruling dismissing Congressional compromises, The Citizens United ruling did away with all campaign reforms dating back to 1907. This allows corporations and unions to contribute (buy) as much (free speech) as they want and spend it on political campaigns. The logic says the more money available to the speaker the more free speech that speaker has, which does not make sense politically or economically. If speech is free why does a corporation need unlimited amount of money to buy more speech? Money is the kissing cousin to just about everything good or bad. It’s the coiled spring in the box.
With this ruling corporations will never need the right to vote so long as money equals free speech.
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