Excerpted From: Lisa A. Crooms-Robinson, Is the Third Time the Charm? Reconstructing Personhood and Reimagining “We the People”, 43 Human Rights 2 (2018) (Full Document)
“We the people.” These three words announce the formation of the Constitution's “more perfect union.” Seven years with the Articles of Confederation made it clear that the Union would benefit from a different balance between enumerated federal powers, state sovereignty, and individual liberties. To this end, “we the people” committed themselves to “establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessing of liberty to [them]selves and [their] posterity.” How these common objectives would be achieved was set forth in seven articles that established three co-equal branches of government, clarified rules for inter-state relations, outlined an amendment process, and declared the supremacy of the Constitution and other federal laws and treaties over state laws. These things “we the people” felt were essential to perfect the Union.
But who belonged to “we the people”? How did the people define “we”? The Constitution uses “we” to distinguish “the people” from “they” in two different ways. First, “we” individuates “the people” from an external “they.” This international “we the people” is asserted as against other nations with which the Union has relationships. Second, “we” individuates “the people” from “others,” for whom the Constitution's commitment to justice, domestic tranquility, common defense, general welfare, and liberty was not intended. This domestic “we the people” is limited to those “free persons” whose whole numbers counted in the Constitution's formula for determining taxation and representation. “We the people” excluded those “other persons” who counted for only three-fifths of those who were free. These “other persons” could be imported, taxed, and sold in a system Congress could change by neither amendment nor legislation before 1808. “They,” not “we,” could be returned to slavery against their will because of a constitutional compromise that protected the property rights of slave owners over the rights of sovereign states to choose whether or not to support the institution of slavery.
The 694,280 enslaved Africans accounted for in the 1790 census were the paradigmatic “they” to the people's “we.” Blackness marked those who, though never intended to be included in “we,” were useful as the “they” against which “we” gained its full meaning. Blackness created an almost irrefutable presumption of enslavement that applied to free blacks as well as those held in bondage. Freedom presumptively followed whiteness. The 1790 census illustrates how “we the people” was exclusively white and free. For the 3,135,205 free white men and women enumerated in that census, whiteness was more consequential than freedom. This is because while all free people were not white, “we the people” was exclusively white and presumptively free. In addition, “we the people” is made up of white men, women, and children. “They the others” are a disaggregated group of enslaved and free blacks, the particular makeup of which is not worthy of either enumeration or note. This helped to make the lives of free blacks quite perilous because the default understanding of blackness in America was as enslaved rather than free. For most, enslavement was much easier to establish than freedom. This was especially the case when black freedom was challenged under circumstances when the evidence of freedom was outweighed by the presumption of enslavement. While ness, rather than the state of being free, is what distinguishes “we” from “they.” “They” are not white but might be either enslaved or free.
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The divide between “we” and “they” continued to be reinforced largely as a function of race. “We” remained racially exclusive and doubled down on its service to maintaining white supremacy. In this way, the overly simplistic racial duality of white and black became the paradigm through which race was adjudicated and defined. As a matter of federal law, many individuals who claimed either personhood or rights related to immigration and naturalization had to be adjudicated as either black or white. In a process that seemed reminiscent of the admission of free and slave states to the United States, the cases seem designed to maintain the racial balance between “we” the whites and “they” the blacks. Race, as a matter of either due process or equal protection, was to be adjudicated in cases brought by litigants who presented constitutional questions of racial ambiguity. Most such cases sought to establish the litigants' whiteness in a framework that did not define “we the people” the same way both externally and internally. That is, although Congress and the Supreme Court might declare an individual to be part of “we” for the purposes of immigration and naturalization, that same individual might not be part of the internal or domestic “we the people.” 1 he latter “we” was defined by states who were free to enact laws that claimed to further the constitutional mandates of due process and equal protection of the laws with the “separate but equal” that justified the racial segregation of the Black Codes, as well as Jim and Jane Crow. Until 1954, states that defined equality in this way could maintain the racial integrity of whiteness by defining all non-whites as black. This is how the Supreme Court, in 1927, could conclude that Chinese-American children in Mississippi not only had no right to attend white schools, but also suffered no constitutionally cognizable injury as a result of being forced to attend black rather than white public schools. Only when the Supreme Court declared “separate but equal had no place in public education” in 1954 would legal efforts to maintain the racial exclusivity of “we” and “they” appear to be discredited. Only federal legislation such as the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968 would eventually aim to change the ways states defined and policed “we” and “they.” These laws, however, would not change the fact that membership in “we the people” continued to be defined in terms of race, generally, and whiteness, specifically.
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Throughout the narrative of both “we” and “they,” whiteness functions as the norm around which “we” is constructed. “We the people” are still free, which in 2017 means those who are incarcerated are not “we” but rather “they.” The racial disparities in the incarcerated population, such as the effects of this mass incarceration, further solidifies “they,” but it is an effect that does not warrant a remedy in a legal framework where equality guarantees require direct and credible evidence of an intent to discriminate against people because of their blackness, or their obvious lack of whiteness. Since 1991, when the world watched officers from the Los Angeles Police Department beat Rodney King into bloody submission, it has been clear that direct and credible evidence such as videos are subject to a narrative according to which “we the people” continue to see blackness as a dangerous and legitimate marker of “they” who threaten the very existence of “we.” As a contemporary matter, “we” are those the police and other members of law enforcement protect from “they.” “We the people” continue to be those among us who can lay claim to the justice, domestic tranquility, common defense, general welfare, and liberty the Constitution was intended to establish. As we stand on the verge of what has been called the Third Reconstruction, the United States has another opportunity to merge “we” and “they” while eliminating the role that whiteness and blackness play in determining who belongs and who does not. We can only hope that this time around we will emerge unified rather than divided. We will, in fact, have realized the people's objective of a “more perfect union.”
Lisa A. Crooms-Robinson is a professor of law, director of the Constitutional Law Center, and the associate dean for Academic Affairs at Howard University School of Law.