I really appreciated Bishop James Conley’s “On the Square” article yesterday, ” America’s Atheocracy .” In fact, I like every bit of it, with the exception of one short paragraph:
It is true: the Constitution that America’s founders would later draft makes no mention of God. It is also true that this Constitution denies full rights to slaves and women.
As some of the commenters pointed out, the Constitution does make one mention of God, when it says, just at the end, after Article VII and before the signatures of the framers, that the work of its framing was done “in the Year of our Lord” 1787. It might be debated what significance to attach to this, but there it is.
I want to take issue with the second sentence here. In fact, the Constitution does not deny any rights to women at all, and it is not really correct to say that it is responsible for the denial of rights to slaves, either.
Take the case of women first. Throughout the Constitution, both the original text and the subsequent amendments known as the Bill of Rights, there are numerous references to “persons” and “citizens.” But no sex distinctions are drawn. Women, like men, have rights to due process, jury trials, freedom of religion, and so on. And if you think the Constitution “denied” women the right to vote, think again. It didn’t grant anyone a right to vote; it merely referred the question of voting rights to the states. The only federal officeholders, under the original Constitution, who were directly elected were the members of the House of Representatives. And the norm for federal suffrage, in each state, was simply that if you were qualified to vote for your state legislature’s lower (or “most numerous”) house, you were eligible to vote in U.S. House elections as well (see Article I, section 2). This is still the standard, by the way, qualified further by the constitutional expansions of suffrage in the Fifteenth, Seventeenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments.
The only other respects in which women’s rights differed from men’s, at the time of the founding, also had to do with matters under state control: rights in marriage, inheritance, and so on, were all matters of state law. Thus in every single respect, without exception, if women were “denied” any rights enjoyed by men, that fact was a function of a federalism that the Constitution simply incorporated and left alone. We might fault the framers for leaving it alone. But this would require us to reject both their principled and their practical judgment in favor of federalism. And—no small thing for Bishop Conley, perhaps—it would require us to judge contrary to Catholic principles of subsidiarity.
The slavery case is harder because the injustice was more obvious. (And it still is; if the case had been made to the framers on behalf of women’s rights as we know them today, they would have rejected it, and their arguments would deserve a hearing. Not so with slavery, which nearly all of them knew, and many of them openly recognized, was a violation of their stated political principles.) But here too, we should not say that slaves were denied their rights by the U.S. Constitution. The framers were more careful than that, never using the words “slave” or “slavery” in the Constitution, and doing nothing legally to prevent the ultimate emancipation of the slaves. Some would say they did a good deal politically to bolster the “slave power” of the South, and that might be disputed in turn—the Three-fifths Clause, the equality of states in the Senate, and so forth. But slavery was a creature of state law, and any state that undertook its abolition was certainly not prevented from doing so by the Constitution. All thirteen states had legal slavery in 1787, but by the time of the Civil War seven of the thirteen no longer did. Granted, these were the seven states in which such change came most easily, but if the Constitution “denied” the rights of slaves, it wouldn’t have been possible.
As Abraham Lincoln said many times, the framers of the Constitution did what they could to place slavery “in the course of ultimate extinction.” In 1787, dispensing with federalism, moving to abolish slavery, and creating a new nation were not things that could all be done simultaneously. But slaves were no more enslaved by the Constitution than women were disenfranchised by it.
