In its day, the Declaration of Independence was a unique document, the first political document whereby a subordinate political entity declared itself coordinate. So says its first paragraph; its second paragraph states the principles justifying the rebellion:
We hold these truths to be self-evident, [1] 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.—[2] That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—[3] That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
These great words are the gist of the Declaration. However, since its day, they have been patriotically revered but politically debated or disregarded. Most but not all citizens have regarded them as the charter of basic American rights. Those who supported slavery and fought for its survival, and those who have continued to support and fight for doctrines of supremacy and domination“racial, religious, or sexual“over others reject the extension of these rights to all and identify themselves as unAmerican citizens of the United States. Yet these words have never had legal standing, and only a dozen years later, the drafters of the Constitution, many of whom had signed the Declaration, ignored its assertions about the equality of "all men” and their rights.
Unrecognized is the Declaration’s implication that these rights extend beyond "all men,” propertied or white, to all adults regardless of their race, religion, or sex. The portentous words which get little attention are the concluding ones of the second clause, "deriving their just powers from the consent of the governed.” These ten words make three important points. One, the "powers” of government must be "just” according to its laws. Two, those "powers” are derived from—that is, justified by—the "the consent of the governed.” Three, those "governed” are those living under the laws of the land. The clear implication is that the Declaration implies that "the governed” are all individuals, without distinction of any kind, living under those laws. (This language seems to permit resident non-citizens, including immigrants, to "consent” or not.) The converse is that government "powers” are unjust with the consent of only a minority of the governed.
A problem with this franchise of consent-givers is the breadth of those "governed,” who would include minors, temporary residents, and visitors from other countries. But the problem is not a significant one. Criteria for defining these categories are relatively easily constructed to exclude them from the political process. Other exclusions, given the principle of equality and the rights "unalienable,” are impossible to justify.
Yet the drafters of the Constitution turned their back on the inclusive democracy which this third point makes. They did not universalize "the governed,” define individuals as persons or citizens, or describe their political entitlements. They assumed that voting would constitute the means of expressing "consent” but did not establish standards of eligibility or election procedures.
Some of these deficiencies were left to the Fourteenth Amendment (1868), particularly Section 1, which reads:
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.
In the context of this post-Civil War amendment, "persons” meant Black as well as White (but not "Red”) individuals, defined them by birth or naturalization was "citizens,” and declared that states may not curtail their "privileges or immunities.” So far, so good.
But not for long. Section 2 muddles the concepts of person and citizen, and relies on a sexist understanding of both. It reads:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
It begins by "counting the whole number of persons,” including women but excluding untaxed Indians (i.e., those living on reservations). It retreats by restricting the electorate to males, when it specifies the penalties for any state which denies "the right to vote…to any of the male inhabitants” of the state. States could deny women the right to vote without penalty, yet they could grant women the right to vote, as Wyoming did in 1869. This amendment made explicit what had been implicit from the beginning, that the federal government recognized women as persons (five fifths, not three fifths, like slaves) for some but not all purposes, usually as citizens, never voters. Its muddle was its progress from "persons” to "male inhabitants” (who might not be citizens? who might be recent immigrants?) to "male citizens” who could vote.
Even so, Section 2 is not without merit. Its penalty for restricting the franchise suggests a possibility for dealing with the various (intended, attempted, or actualized) infringements of voting rights. States which unreasonably restrict the franchise by imposing poll taxes, requiring literacy tests, improperly purging their voting rolls, imposing unwieldy administrative requirements or other undue burdens on voters, or arbitrarily restricting access to or use of voting equipment or facilities, among other means, without cause could be penalized under this section of the amendment. However, I doubt that its penalty has been enforced.
In this regard, the asymmetry between Republicans and Democrats is becoming increasingly pronounced. Republicans are doing everything possible to restrict the franchise of voters likely to cast votes for Democrats (and to challenge the validity of the election). Democrats are trying to resist current or proposed restrictions. The different approaches to the extent of the franchise by exclusion or inclusion is a measure of allegiance to democracy, specifically, the commitment to the vote as the means to establish "the consent of the governed.”
The point of analyzing this aspect of Constitutional history is to note the potential threat posed by an "originalist” argument that the Founders and some government officials after them did not encode a democratic franchise in the Constitution, and only decades later added amendments extending it. Even so, the Fourteenth Amendment protects citizens only from state infringements, not federal ones, which were not then imagined as possibilities. The same cannot be said of the Nineteenth Amendment“"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex”“, which extends the franchise to women. Still, the Fourteenth and Nineteenth Amendments protect the rights of male and female citizens in a way which legislation or court decisions—Roe v. Wade is the obvious example—cannot.
The specification of persons by race or sex leaves open the possibility of denying personhood or citizenship on the basis of religion. A belief held by many Christians in their superiority as persons can be distorted into a diminishment or denial of the personhood of believers in other faiths, like Jews, Muslims, Buddhists, and Hindi, among others“distortions which can be used to circumscribe their citizenship and restrict their voting rights. Indeed, it remains an open question implicitly answered by assumptions about who is a person as a first qualification for citizenship. Fundamentalist Christians believe that a human zygote is a person entitled to the rights of citizenship“an assumption with obvious implications bearing on abortion and contraception. Without legislation or, better, an amendment defining personhood, a Supreme Court decision is likely to make a basic decision which will ignore or defy the religious convictions of millions of Americans and violate the two First Amendment provisions on religion.
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