A. Creation of National Gov’t and Separation of Power 7

The People - the polity

1. Property qualifications and other limitations on voting

   1. Many people who might have expressed themselves through mob activity or protests, but were not able to vote.

   2. And these forms of popular protest were viewed as illegitimate since it was the poor people participating.

   3. The white male property qualifications disappear in the 1830s.

1. Women’s suffrage movement

   1. No action until women’s suffrage for a very long time and very little action for Native Americans.

   2. 14^th amendment and women’s suffrage

      1. Nat’l Rep party opposed suffrage for women

      2. Francis and Minor tied citizenship to right to vote

         1. Privileges and immunities of citizens in 14^th amendment national in character

         2. Since feds had power to naturalize citizen, naturalized citizen’s right to vote was guaranteed by federal auth, otherwise state could make naturalized citizen second-class. A fortiori a state could not do this to natural born citizen.

         3. If states could deny franchise to citizens, then they could extend franchise to noncitizens, which would be wrong.

      3. Anthony was arrested when she was trying to vote

         1. Taxation w/o representation, denial of right of jury of peers,

   3. Minor v. Happesett (1874)

      1. Suffrage was never coextensive w/ citizenship of states

      2. Originalist – when constit adopted, no states extended suffrage to women

      3. States still retain right to control franchise

      4. If suffrage right of citizenship, then why was 15^th amendment necessary when 13^th conferred citizenship?

      5. MS allows noncitizens right to vote if they’ve declared that they will become citizens

      6. Modern Supreme Court does treat voting as embraced by 14^th amendment privileges and immunities

   4. 19^th amendment

      1. Gives the vote to women. There were no Giles like efforts to obstruct provision, but the only question that has arisen has arise in scholarly literature – whether 19^th amendment can function like a general protection for the rights of women outside of the areas of suffrage in the same way in which the 14^th and 15^th amendment was used as a broad rights protecting charter for all issues dealing with race.

      2. Siebel has done the most work on this. Siegal argues that 19^th amendment can be used to attack any of the reasons for discrimination that were previously used to deny women the vote.

2. Indians under the constitution

   1. What was the political legitimacy of the constitution or the colonization of North America.

      1. The issue of Indian removal was from the Carolinas and Georgia – tribal life was already disintegrating in the North – warfare and disease spreading – are not talked about as constitutional matters. The constitutional question was really more of a federalism question – whether it was the States or the federal gov’t who have power to act on issues that affect the Indian tribes.

      2. The constitution itself talks about federal power to conduct commerce with the Indian tribes. There were many early battles about who it was to remove and kill Native Americans – the federal or states. Who was it that would remove the Indians to Oklahoma, with the feds eventually doing the job.

      3. How can Indian tribes as sovereigns under federal law be reconciled with US treatment of the Indian tribes?

      4. In the Supreme Court under Marshall, there is quite a lot of respect for the Indians as sovereigns, but that has changed dramatically over time.

   2. American Indians and birthright citizenship

      1. US v. Sandoval (1913)

         1. Still open question about whether Indians were citizens

      2. McKay v. Campbell (1871)

         1. Indian tribes are distinct and independent political communities, retaining right to self-gov’t, though subject to protecting power of US.

      3. US v. Kagma (1886)

         1. Congress possessed plenary power over Indian tribes

         2. Power of Congress to organize territorial gov’ts and make laws for inhabitants, arise not so much from constitution, as from ownership of country in which territories are, and rights of exclusive sovereignty which must exist in nat’l gov’t

         3. Indian tribes are wards of nations – dependent on US for food, political rights; Power of US gov’t necessary for their protection and safety

         4. Owe no allegiance to states, who are often enemies

      4. Elk v. Wilkins (1884)

         1. SC rejected bid for right to vote b/c he had never surrendered citizenship of Indian tribe – was not naturalized, taxed, or recognized as citizen of Us

         2. Indians owe allegiance to tribes over US, and alien and dependent condition of members of tribes could not be put off at their own will w/o assent of US

            1. 
               Can only become citizens through naturalization or through treaty or statute
               

         3. 14^th amendment was to settle citizenship of blacks, not Indians. Indians are not born in US subject to juris – tribes are foreign nations.

            1. 
               Section 2 – excluding Indians not taxed b/c not citizens
               
            2. 
               Harlan – dissented and said that “not taxed” must mean that some Indians who are taxed can be citizens – who live off of reservations and were unconnected with tribes
               

      5. 1924 – Indians finally admitted as citizens through act of Congress

3. Chinese Exclusion Case (1889)

   1. Background

      1. Chinese man left SF for China, but w/ cert from customs inspector entitling him to return.

      2. When he returned, he was refused entrance – his right to land and his cert had been annulled by Act of Congress approve October 1, 1888.

         1. Act prohibited laborers from entering US who had departed before its passage w/ cert to return.

      3. The abrogation that began in the 1880s started a very long period of the legal exclusion of Chinese immigration.

   2. Ruling

      1. Act is in contravention of treaty of 1868 and 1880, but is not invalid b/c treaties are of no greater legal obligation than act of congress.

      2. Treaties and Acts of congress are both supreme – no hierarchy – often treaties are not self-executing and require legislation to carry into force.

         1. Self-executing treaties that relate to subject w/in power of congress are deemed equivalent of legislative act, to be repealed or modified at pleasure of congress.

         2. Last expression of sovereign will control.

      3. Court not invested with authority to pass judgment on determination of legisl department or their motivations. If legis. determines that foreigners are threat to US, SC is not one to pass judgment.

      4. Sovereign powers of national gov’t: make war, make treaties, suppress insurrection, repel invasion, regulate foreign commerce, secure republican gov’ts to states, admits subjects of other nations to citizenship - restricted only by constit – need for maintenance of independence and security throughout territory.

   3. Differences between European immigration and Chinese immigration

      1. The Chinese are seen as a threat – foreigners of a different race who will not assimilate with us.

      2. It was over 95% male – less immigration of intact families.

      3. They lived in bunk houses with other Chinese people rather than taking on the normal patterns of US life – not centered around the nuclear family.

         1. People thought that this indicated something from Chinese culture – Chinese women were discouraged from emigrating, because they had other obligations to other family members that prevented them from emigrating.

         2. Most men came under labor indenture contracts arranged between merchants in China and brokers in the US and the terms of the contracts didn’t contain provisions allowing for immigration of families.

      4. The legislation declared that all Chinese women were prostitutes, so when the wives or female family members did try to come to the US, they became aware that they might be thrown out for suspicion of being prostitutes.

4. Mormons and the Free Exercise clause – Division between belief and action

   1. Reynolds v. US

      1. Congress was deprived of all legislative power of mere opinion, but was left free to reach actions.

      2. Upheld constitutionality of law forbidding polygamy even though Mormons claimed it was req’d by religion.

      3. Cannot put doctrines of religious belief superior to the law and allow every citizen to become law unto himself. Gov’t couldn’t exist in these circumstances.

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