In a recent public forum, Supreme Court Justice Clarence Thomas made news by conceding that blacks were not part of “We the People” at the time of the Founding in the 1780s:
It is true, Justice Clarence Thomas acknowledged the other night, that the “we the people” extolled in the Constitution 225 years ago did not include people who looked like him.
But the Declaration of Independence did, he contended, and that was something that a black kid growing up in Savannah, Ga., was told early on.
In reality, African-Americans were not categorically excluded from the “people” who established the Constitution. The “We the People” in the preamble of the Constitution refers to those people who “ordain[ed] and establish[ed] this Constitution for the United States of America.” And, despite the existence of brutal slavery and racial discrimination, some blacks were included in that group. As Justice Benjamin Curtis pointed out in his dissent in Dred Scott v. Sandford, at least five states at the time of the Founding allowed free blacks to become citizens on the same terms as whites, and also gave them the right to participate the elections for the state conventions that ratified the Constitution:
It has been often asserted that the Constitution was made exclusively by and for the white race... [But I]n five of the thirteen original States, colored persons then possessed the elective franchise, and were among those by whom the Constitution was ordained and established. If so, it is not true, in point of fact, that the Constitution was made exclusively by the white race. And that it was made exclusively for the white race is, in my opinion, not only an assumption not warranted by anything in the Constitution, but contradicted by its opening declaration that it was ordained and established by the people of the United States, for themselves and their posterity. And as free colored persons were then citizens of at least five States, and so in every sense part of the people of the United States, they were among those for whom and whose posterity the Constitution was ordained and established.
Earlier in the opinion, Curtis explained why citizens of states at the time of the Founding were legally citizens of the United States as well, and described the relevant laws of the five states he refers to: New Hampshire, Massachusetts, New York, New Jersey, and (most surprising) the southern state of North Carolina.
None of this negates the terrible reality that the vast majority of African-Americans in 1787 were slaves, and as such clearly were excluded from political participation and otherwise severely oppressed. Even free blacks were also subjected to extensive official discrimination, including exclusion from the franchise in several states. Nonetheless, it is not true that African-Americans were completely excluded from the “We the People” who established the Constitution.
The myth that blacks were categorically barred from citizenship and political participation at the time of the Founding was popularized by defenders of slavery in the nineteenth century, most notably Chief Justice Roger Taney in his majority opinion in Dred Scott; Taney advanced this idea to justify his claim that, at the time of the Founding and under the Constitution, blacks “had no rights which the white man was bound to respect.” In the twentieth century, ironically, Taney’s argument was recycled by some left of center critics of the original Constitution. The disreputable proslavery origin of this theory does not prove it wrong. But the historical evidence does.
UPDATE: There is room for possible dispute over whether Justice Thomas actually said what the Washington Post and other media reported he said. I discuss the issue in this follow-up post.