Governance without representation

michael9/27/2015 4:01 PM 

There was a time and I know you know this well that the Constitution was purposefully written with exclusions in mind and quite frankly purposefully in my view. Women and blacks and Indians were probably foremost in their reasoning. These framers faced with the reality of their time were highly intelligent men whose lives were at stake. 

That raises many significant issues:

i) To my knowledge, the original Constitution+10 bill of rights does not exclude women. It uses generic language like "persons" and "citizens." So women were covered by the bill of rights. 

Indeed, there's nothing in the wording of the Constitution to exclude women from running for national office. That might have been inconceivable to the founding fathers, but for that very reason, it didn't occur to them to forbid it. By the same token, the wording of the Constitution doesn't prohibit blacks from running for national office. That's even before the 14th & 19th amendments.

ii) It's true that the original Constitution makes some minimal, grudging concessions to slavery. But even in Colonial times, there was a distinction between black slaves and black freemen. 

iii) The legal/Constitutional status of American Indians is the most historically complex. 

a) One point of tension was whether Indians were viewed as American citizens or tribal citizens. Were they viewed as citizens of a colony/state, and/or United States, or were Indian tribes viewed as sovereign states, to which Indians belonged?

Nowadays, I believe American Indians have the equivalent of dual citizenship: both American citizens and citizens of their own "nation" (i.e. tribe).

b) From what I've read, during Colonial American history, white settlers treated Indian tribes like sovereign states. White officials entered into formal diplomatic negotiations with Indian tribes, often resulting in treaties. And that's codified in the original Constitution, under the Commerce Clause ( Article I, Section 8, Clause 3).

In Colonial America, the balance of power between Indians and white settlers was more egalitarian inasmuch as some Indian tribes were militarily formidable. At that time they could bargain from a position of strength. However, as the US army began to achieve military dominate, the balance of power shifted. 

You still had treaties, but these were signed at gunpoint. Given the futility of military engagement, it was a kind of preemptive surrender to sue for terms of peace under terms more favorable to Indians than if they fought and lost. These are coercive treaties. 

c) From what I've read, the 14th amendment excluded most Indians from US citizenship. 

d) There was always tension between the Christian view of Indians and competition for land and natural resources.

Christian missionaries viewed the Indians as sons of Adam. Although they were heathen, the ancestors of the white settlers were no less heathen until missionaries evangelized their white forebears. Hence, you had organizations like The Society for Propagating the Gospel Among the Indians (1787), as well as noted individuals like Daniel Brainerd. Some white missionaries even sided with the Indians in territorial disputes (e.g. Samuel Austin Worcester, Elizur Butler). 

In addition, some children of white settlers grew up around Indians, and learned to speak Indian languages. You had whites like Davy Crocket who opposed the Indian Removal Act. 

e) You also had a distinction between Indians who lived with members of their own tribe, maintaining their ancestral customs, and Indians who were more assimilated. Some Indians were bicultural. They could move back and forth between white society and Indian society. 

Samson Occom is a prominent example. He was graduate of Eleazar Wheelock's Latin School and/or Indian Charity School. 

I doubt that even bicultural Indians were ever accepted as equals in "polite society" back then. However, polite society was generally snobbish. Very class conscious. 

iv) Their ambiguous legal status led to governance without representation. As Justice Harlan said, in Elk v. Wilkins:

Born, therefore, in the territory, under the dominion and within the jurisdictional limits of the United States…There is still in this country a despised and rejected class of persons with no nationality whatever, who, born in our territory, owing no allegiance to any foreign power, and subject, as residents of the states, to all the burdens of government, are yet not members of any political community, nor entitled to any of the rights, privileges, or immunities of citizens of the United States. 

https://supreme.justia.com/cases/federal/us/112/94/case.html