Many who declare that Americans in 2018 should stick to the original words of the United States Constitution, ratified in 1788, fail to acknowledge that in reality the nation has been ruled by a substantially different Constitution for the past 150 years. The Union victory in 1865, and the amendments Republicans quickly enacted, gave this nation a new Constitution — one where, increasingly, national, not state, standards ruled. The consequences of this new Constitution have been profound.
Advocates of religious freedom typically rest their arguments on the First Amendment (1791), because it prohibited Congress from making any “law respecting an establishment of religion, or prohibiting the free exercise thereof.” What many fail to acknowledge, however, is that originally every state was free to establish a religion or to block its free exercise. Under the original Constitution, the state of New York could create a loyalty oath that barred Catholic immigrants from citizenship and suffrage, and it did. Under the original Constitution, Massachusetts and Connecticut could provide tax support for Protestant churches, and they did. Up and down the Atlantic seaboard, states that professed religious freedom commonly limited office holding to Protestants. In the early republic full religious freedom, as we understand it today, was scarce.
That the original Constitution never provided equal rights for African Americans, free or slave, is undeniable. Nor did it supply citizenship to free blacks. As with religious liberty, citizenship qualifications were left to the states. A majority actually recognized free people of color as citizens, but some did not. Moreover, as decades passed and free blacks multiplied, increasingly states denied them citizenship — and rights. No Constitutional guarantee hindered this rights rollback. No wonder that when Congress enacted the first Naturalization Act in 1790, it excluded non-whites.
In the view of Supreme Court justice Thurgood Marshall, speaking in 1987, the Constitution “was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today.”
That the Constitution left the rights of women to the states is also well known. One state, New Jersey, recognized women’s right to vote from 1790 to 1807, but then fell into line with other states, erasing that right. Although courts acknowledged the actual citizenship of white women, when they married, their property and their children became their husband’s. No constitution, state or national, limited husbands’ control of the property or the children. As with the rights of people of color, the Constitution provided women no recourse. When the first women’s political movement gained force in the 1840s a few states, notably New York, enacted legislation recognizing property rights for married women. But neither the U.S. nor any state constitution guaranteed such rights.