Is the Third Time the Charm? Reconstructing Personhood and Reimagining “We the People”

“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. Whiteness, rather than the state of being free, is what distinguishes “we” from “they.” “They” are not white but might be either enslaved or free. 

The question of whether either free or enslaved blacks were intended to be included among “we the people” was answered in 1857. In what remains perhaps the most famous freedom suit in U.S. history, Scott v. Sandford, the Supreme Court seized the opportunity to remove the possibility that under any circumstances, “we the people” might include people of African descent. Dred and Harriet Robinson Scott filed suits in which they claimed that physically moving from a slave state to a free state resulted in their manumission. Therefore, the Scotts concluded, they were “people” in a free state within the meaning of the Constitution. If the Scotts were correct, then they were entitled to be freed based on their claims of citizenship and their rights as free people. Their status as litigants was essential to their claimed status as people. By treating them as legitimate litigants, the courts heard their claims, if only to dismiss those claims. The suits were used to clarify the legal burdens of human chattel who, by definition, could not bring suit in any court.

Chief Justice Roger B. Taney framed the central question raised by the Scotts’s lawsuit as “can a negro whose ancestors were imported into this country and sold as slaves become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen, one of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution?” Chief Justice Taney’s opinion answers this question in the negative. In doing so, it maintains the divide between “we the free white people” and “they the other black persons” who might be either enslaved or free. Chief Justice Taney chose to answer the central question presented by the Scotts’s lawsuit by echoing the sentiments of the 55 delegates to the Constitutional Convention for whom being of African descent was enough to mark them as outside the group who were to enjoy the benefits of the “more perfect Union.” 

Chief Justice Taney’s words remained good law until the Civil War ended and the Reconstruction Amendments were added to the Constitution. Specifically, the Thirteenth and Fourteenth Amendments not only abolished slavery and involuntary servitude in most situations, but also overturned the Court’s decision in Scott. With the advent of the Constitution’s newest amendments, it appeared that blackness, freedom, and personhood were coexistent rather than mutually exclusive. Although “they the other persons” were on the verge of joining “we the people,” this would not be the case. The Reconstruction Amendments further operationalized the preamble’s “justice,” but they did so largely in terms of equality and due process, neither one of which now guaranteed belonging to “we the people.” Equality and due process required “they” be treated the same as “we” when circumstances rendered “they” and “we” substantially similar. In this way, “separate but equal” became the standard by which both constitutional equality and “we the people” were understood. Equality could be achieved without requiring the races either to occupy the same spaces or to enjoy access to the same things. Whether it was railroad cars, buses, schools, or neighborhoods, the Constitution was interpreted to mandate an equality that was not only racially segregated but also unequal. Under separate but equal, equality was illusory, and belonging was cast as beyond what the Constitution mandated. Much of what might have followed the erasure of the line dividing “we” from “they” was defined in terms of social relations that were the result of the private choices individual members of “we the people” might make regarding “they the others.” 

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.” The 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. 

Nevertheless, it cannot be said that nothing has changed. It is more accurate, perhaps, to note that things have changed very little with the exception of the expansion of who is properly counted among the “we” rather than the “they.” The twentieth century witnessed the broadening of the notion of whiteness to include those whose whiteness was essentially claimed as a matter of not being black. At the same time, “they” has also expanded to include those unable to establish their whiteness who, consequently, fall outside of “we.” Against this backdrop, the contemporary claims that black lives matter are, in many ways, like the claims Dred and Harriett Scott asserted on behalf of themselves and their daughters. Indeed, if black people and other people of color belonged to “we the people,” then it would be unnecessary to insist that black lives do, indeed, matter. While the Scotts could be said to have claimed a radical citizenship that neither the Constitution nor the Supreme Court was able to recognize, contemporary claims that black lives matter can be understood as a similarly radical assertion of personhood. Many of the Constitution’s guarantees require personhood rather than citizenship. Moving beyond the limits of citizenship to essential personhood raises questions about the continuing efficacy of both the internal and external deployment of “we” versus “they.” If the Constitution guarantees rights on the basis of personhood rather than citizenship, then radical personhood captures what black lives matter is intended both to communicate and to correct. It is intended to make plain that both the bodies and the lives of those who comprise “they” and function as the other against which “we” is defined are valuable. It is also intended to provide a starting point from which to consider who belongs to “we.” 

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. She serves as a board member for both the Constitutional Rights and the U.S. Human Rights Network, and she is a core member of the Project for the Advancement of Our Common Humanity (PACH).