Unrepresented In The Constitution: Who Was Left Out?

The United States Constitution, first drafted in 1787, has been amended numerous times since its inception. Despite its opening words, We the People, the Constitution did not represent all people in the United States. The document was written by propertied white men, and it only applied to propertied white men. Whole groups were left out, including women, who were unable to vote until 1920, and Native Americans, who were defined as an alien people in their own land and stripped of their land and autonomy. The Constitution also protected slavery and legalised racial subordination.

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Women: unable to vote, considered second-class citizens

Women have historically been denied the right to vote in many countries, including the United States. The struggle for women's suffrage in the US was a lengthy and difficult battle that required decades of agitation and protest. Beginning in the mid-19th century, supporters of women's suffrage lectured, wrote, marched, lobbied, and practised civil disobedience to achieve what many Americans considered a radical change to the Constitution.

The first Woman's Rights Convention in the US, held in Seneca Falls, New York, in 1840, was inspired by the World Anti-Slavery Convention in London, which had refused to seat US women delegates due to their sex. Despite the efforts of suffragists, many women remained unable to vote long into the 20th century due to discriminatory state voting laws. The 1852 Constitution of the US restricted suffrage to males over 20 years old, and it was not until the 19th Amendment was passed in 1920 that women were legally guaranteed the right to vote.

However, even after the 19th Amendment, women of colour in the US continued to face discrimination. While the amendment protected all women from discrimination on paper, in practice, it only gave white women the right to vote. Women of colour, including Black, Native American, Asian American, and other racial and ethnic minority groups, were denied their right to vote for another 45 years until the passage of the Voting Rights Act of 1965.

The struggle for women's suffrage has also been a global issue. The Kingdom of Hawai'i introduced universal suffrage in 1840 without mentioning sex, but a constitutional amendment in 1852 rescinded female voting. In Europe, Finland in 1906 and Denmark in 1913 were the first two countries to enact women's suffrage, while Switzerland was one of the last, granting women the right to vote in federal elections in 1971. In the Arab world, the Second Permanent Constitution of 1970 in the Northern Yemen Arab Republic stated that "all citizens are equal before the law," and women voters used this phrase to vote in the 1983 election.

Native Americans: outside the constitutional system, governed by treaties and statutes

Native Americans have historically been excluded from the constitutional system in the United States, instead being governed by a complex interplay of treaties, statutes, and tribal laws. While Native Americans are mentioned only three times in the Constitution, their status has been shaped by a multitude of factors, including historical treaties, federal statutes, and tribal sovereignty.

Prior to 1871, the federal government primarily dealt with Native American tribes through treaties. Many of these treaties remain in force today, despite often being negotiated in ways that disadvantaged the tribes. Language barriers and unfamiliar legal concepts made it difficult for tribal negotiators to fully understand the terms of these treaties. As a result, courts today interpret these treaties in favour of Native Americans, respecting the intent and understanding of the tribes at the time of negotiation.

The Indian Reorganization Act of 1934, a New Deal initiative, aimed to strengthen tribal government. Tribes operating under this Act are known as "IRA" tribes and have been empowered to borrow funds for economic development and form tribal corporations. However, some tribes, such as the Navajo, chose to opt out of the Act's coverage. The Act also ended the recognition of additional Native American tribes as independent nations and prohibited the formation of new treaties. Instead, the federal government now interacts with tribes through statutes.

Native Americans are subject to federal statutes, including tax laws, unless specific treaties or legislation provide exemptions. The abandonment of federal treaty-making with tribes in 1871 shifted the primary constitutional provision supporting federal power over Native Americans to the commerce clause. This clause gives Congress the power to regulate commerce with Indian tribes and individual tribal members, including some off-reservation transactions.

Despite being subject to federal statutes, Native American tribes possess inherent rights to govern themselves. Tribal authority on Indian land is not granted by the states but is an organic power. Congress can limit tribal sovereignty, but unless a treaty or federal statute removes a power, the tribe is assumed to possess it. This balance between tribal sovereignty and federal authority has led to a complex legal landscape, with the Supreme Court playing a significant role in interpreting and defining the status of Native Americans and tribes within the federal system.

Anti-Federalists: opposed the Constitution, wanted to protect against a strong central government

The Anti-Federalists opposed the ratification of the 1787 U.S. Constitution, fearing that the new national government would threaten individual liberties and hold too much power, given the absence of a bill of rights. They were chiefly concerned with too much power being invested in the national government at the expense of the states.

The Anti-Federalists included small farmers, landowners, shopkeepers, and laborers. In national politics, they favored strong state governments, a weak central government, the direct election of government officials, short term limits for officeholders, accountability by officeholders to popular majorities, and the strengthening of individual liberties.

The opposition from the Anti-Federalists was a powerful force in the origin of the Bill of Rights, which was intended to protect Americans' civil liberties. Their opposition also led to the adoption of the First Amendment and the other nine amendments that constitute the Bill of Rights.

The Anti-Federalists' opposition to the Constitution was not well-organized, and they lacked a unified plan. Their leading spokesmen were largely state-centered men with regional and local interests and loyalties. They attacked on several fronts, including the lack of a bill of rights, discrimination against southern states in navigation legislation, direct taxation, and the loss of state sovereignty. Many charged that the Constitution represented the work of aristocratic politicians bent on protecting their class interests.

Despite their passionate opposition, the Anti-Federalists ultimately lost the battle over ratification. Americans largely agreed that the Articles of Confederation had serious problems, and the Federalists capitalized on this sentiment by framing the ratification debate as a choice between the new Constitution and the deeply flawed Articles of Confederation.

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State-centered individuals: lacked organisation, had regional interests and loyalties

The United States Constitution was signed on September 17, 1787, by 39 delegates, including Benjamin Franklin. The document was a series of unfortunate compromises, and several delegates were disappointed with the final outcome.

Some groups of people were not represented by the Constitution. One such group was the Anti-Federalists, who were state-centred individuals with regional interests and loyalties. They lacked organisation and had no clear plan, as Madison observed of the Massachusetts Anti-Federalists: "There was not a single character capable of uniting their wills or directing their measures. [...] They had no plan whatever." The Anti-Federalists were opposed to the strong centralised government that the Constitution would bring about and were concerned about the lack of a bill of rights to protect individual liberties. They also criticised the discrimination against southern states in navigation legislation, direct taxation, and the loss of state sovereignty.

The Anti-Federalists' opposition to the Constitution was passionate, but ultimately unsuccessful in preventing its adoption. Their efforts were not entirely in vain, however. The debates around the Constitution vindicated the importance of freedom of speech and press in achieving national consensus.

The Constitution also failed to represent women and Native Americans. Women were considered second-class citizens, unable to vote until the passing of the 19th Amendment in 1920. Native Americans were excluded from the constitutional system, treated as alien people in their own land, and governed by federal treaties and statutes that stripped them of their land and autonomy.

Poor and illiterate: unable to afford lawyers, lacked awareness of their rights

The Constitution of the United States was remarkable, but deeply flawed. It did not apply to everyone and was not intended to protect all the people. The "consent of the governed" was limited to propertied white men only. Whole groups were left out, including women, who were essentially the property of their husbands and unable to vote until 1920, and Native Americans, who were defined as an alien people in their own land.

The poor and illiterate were also not represented by the Constitution. They were unable to afford lawyers and lacked awareness of their rights. As Madison wrote of the Massachusetts anti-Federalists:

> "They had no plan whatever. [...] They had no access to those impenetrable bulwarks of liberty - the courts. [...] These lawyers, and men of learning and moneyed men, that [...] make us poor illiterate people swallow down the pill [...]"

The Bill of Rights, which was passed to protect rights that citizens believed were naturally theirs, was written in broad language that excluded no one. However, it was not intended to protect all people, and the most common constitutional violations went unchallenged because those whose rights were denied were those least able to afford a lawyer or understand their rights.

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