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Who is entitled to justice?
James C. Johnston Jr.
The Constitution as it now stands supports the strange idea that everyone in this country or its territories is entitled to equal justice under the law. This was not always so. When the Constitution was actually written, as a result of a series of compromises among various vested interests, it was anything but an all encompassing document embracing the equal rights of all humanity. But over time it has come closer to embracing the ideal of equality before the law whether a person is a citizen of this nation or not.
To begin with, the thirteen states, who fought to win our collective freedom from British rule, really didn’t like each other very much and sort of saw themselves as thirteen semi-autonomous republics with total jurisdiction reserved to each state within its own well defined boundaries. Actually, I must clarify this point by saying about said boundaries, well defined as the various states understood where their Western boundaries to be.
The document under which the Not-So-United-States were governed was a Loosey-Goosey Thing called The Articles of Confederation. It produced the weakest democratic government one could imagine. National taxation was a no-no. The central government, as it existed in a very anemic form, could ask the states to contribute money to support the government if they felt up to that generous gesture of national support. Let’s say that the time never seemed right for that sort of gesture.
Under the Articles of Confederation there was no provision for a standing army, and even our navy, as it existed after the Revolution, was disbanded. Our greatest navel hero, The Great Scots-American Captain John Paul Jones, hero of the battle between his ship Le Bonne Homme Richard and H.M.S. Serapis, went off to Europe to support himself by selling his services to the highest bidder. Finally, he entered the employment of Catherine the Great of Russia who appreciated the great treasure that she now had, but alas he passed away there, but did in the end make his back to us posthumously to be respectfully interred at the Annapolis Naval Academy.
Even the Barbary Pirates showed the new United States government no respect. These four North African states who saw piracy as an occupation and just another business venture along with slave dealing, something truly disgraceful which Americans were also engaged in, involved the selling off of the crews and passengers of captured American ships. This was a new problem, because before we won our much celebrated independence, we former British colonies were protected by the mightiest naval force ever to exist on planet earth, the thousand-ship-British Navy. Oh, about the United States Navy, we sold it off after the Revolutionary War, remember?
As semi-autonomous-states, we were not getting along all that well. Congress was a sort of debating society which could not agree on almost anything, because questions had to be decided by a vote of two-thirds on most issues. Besides that, they had no power to tax. Nor did they really have any sort of real policing function. The idea, reflecting back on the British who seemed to want to control everything, the Articles of Confederation created a central government with no actual power at all. And that was just what everybody seemed to want at the time.
In 1785, Maryland and Virginia almost went to war! The Casus Belli was over the rights of navigation of waterways like the Potomac River. Shots were exchanged from armed craft until somebody was actually shot. This had a sobering effect on these sister states, and they brought their quarrel to the Great Man himself, George Washington.
Washington had held this new nation together by sheer force of will during the American Revolution while the Continental Congress debated, dithered, and sometimes acted abominably. Washington respected the ideal of the superiority of civilian power in a national state and was above all things a gentleman of integrity. When at the end of the war, he was encouraged by his officers to seize control of the government and rule as a king, he refused them, resigned his commission, and he retired from his command.
With Washington’s guidance, Virginia and Maryland reached an accord and ended their conflict. Things went so well, that these states invited all thirteen states to a meeting in Maryland for the following year, 1786, to discuss mutual problems of governance. This became known as the Annapolis Convention. Only five of the thirteen actually showed up, but things went so well, that all thirteen states were asked to come to Philadelphia in the following year to take up where the Annapolis Convention had left off.
It was now the sweltering spring and summer of 1787, and 55 delegates from twelve of the thirteen met with the view to amending The Articles of Confederation. Rhode Island did not send a delegation to the convention, because they said that had not the funds to do so.
In a very short time, it became obvious that the mere amending process could not fix the deficiencies of this impossible instrument of government. It was generally agreed that an entirely new Constitution reorganizing the government along a more centralized power structure was a prime necessity.
You can all find accounts of how this was done in hundreds of other sources. I need not recall the story of how this working instrument of government was laboriously worked out by a relatively dedicated few who had to convince a frequently feckless majority of the wisdom of the over-all work which was the result of many compromises. We were, in fact, set up as a sexist fascist state favoring wealth, property, and human bondage over human rights, equality, and freedom. But through the mechanism of the amending process, we largely fixed it over the next two centuries.
Now why do I characterize this “New Republic” erected on the Eastern coast of North America a “Fascist State”? First of all, women were excluded from voting, holding office, or actively participating in government. Women were not whole-citizens. Politics, as a real participatory activity, was limited to white men of property. Only they could vote, hold office, and in most cases own real-estate. White women could own real-estate if they were unmarried or widowed. Womes were restricted from participation in public life and even the management of their own property. They were totally subjected to the rule and authority of their husbands under law as it existed in early America under the Constitution. It was a long and slow process to change this awful reality.
Many a woman saw property she brought to a marriage dissipated by the gambling of a frequently drunken fool she had been bonded to in marriage who could strip her of all her tangible wealth, and in many cases enjoy authority over her in all things.
Secondly, to secure the support for the new Constitution, “The Great Two-Third’s Compromise” was worked-out. Not only was slavery suffered to continue and persons of color relegated to the status of mere chattel, they could be used to inflate the populations of slave states by being counted as two-thirds of a person in order to establish higher population figures for assessing how many representatives a state could have in the national legislature’s lower house, The House of Representitives.
Thirdly, the national sin of slavery which had been a part of our collective reality since the first 19 people of color were brought into Virginia as slaves in 1619, became enshrined in law and would continue to be so until the passage of the Thirteenth Amendment in 1865. That constitutes a state of fascism every bit as reprehensible and egregious as that which existed in Mussolini’s Italy or Nazi Germany under Adolf Hitler. Yes, if you consider our history as a nation as beginning in 1607 with the settlement of Jamestown, for more than half of that history we have been a slave-owning-society where we also banned half of our population from participating in government on the sole basis of their gender. Is that “fascism”? I would argue that it was, and if we are not very careful, could be again, because just under the surface of things there is a very ugly boil of irrational hatred which could erupt again in a very ugly fashion. The symptoms of this sick phenomena are already to be seen today.
Women have only been fully fledged citizens since 1920 when they were granted the full rights of citizenship under the provisions of the Nineteenth Amendment . It took even longer to get women full property rights, or even the right to have their own bank accounts and check books! Our evolution away from fascism has taken a very long time and was a very hard fought fight. Even so-called “Progressives” like Democratic President Woodrow Wilson was a not-so-closeted-racist and hater of women’s rights who had women arrested for demonstrations, chaining themselves to the iron fencing at the Whitehouse, and having them “force-fed” when some of them engaged in hunger-strikes by having a rubber hose forced down their throats, tearing their esophagus and other tissues, and into their stomachs. These women were often in their middle years, their sixties, their seventies, and even older. Several of them died of shock. Others were broken by their ill treatment while seeking their basic human rights which had long been enjoyed by white men of property enough to qualify them to vote or pay a poll tax. Can this be called fascism? I’ll let you be the judge of that.
Above all, we must remember that everyone under the jurisdiction of the Constitution of the United States of America, either citizen or non-citizen, has the right of due-process under the law and cannot have their rights brushed aside without their day-in-court and appeal to the laws of the United States of America and its system of lawful enforcement. This is one right that we must be very willing to protect as it is the ultimate guarantee of all of our freedom. This is not just abstract ideal. This faith in our system of universal justice must be our ultimate article of faith as true Americans under the rule of law. The United States has happily become no place for fascism!
So just who is entitled to justice against personal abuse, and even forced deportation to a place of horror without the full exercise of their human and civil rights? The answer shall and must forever be, all of us citizen and non-citizen alike, because we are all the equal children of nature’s God under The Constitution. As an American brought up in freedom, I must believe this to be true.
