Race in North American constitutions

The two-century gulf between the US and Canada

By William Wetherall

First posted 15 February 2007
Last updated 15 July 2007

1789 US constitution   specifically outlaws racial discrimination only in an amendent on the right to vote
1982 Canadian constitution   prohibits racial discrimination except in affirmative action laws

The benefits of hindsight

The constitutions of the United States and Canada reflect huge changes that have swept these North American states over the past two centuries.

The US adopted its constitution at a time when owning slaves and forcing indigenous people off their lands were still widely accepted practices in the eyes of the men of European ancestry who wrote the constitution. Slaves were not fully human and only free males were regarded as true citizens. All such attitudes, taken for granted and justified then, are clearly fossilized in English that is sometimes very musty.

By the time Canada adopted its first constitution as a fully sovereign state, two centuries of social upheaval and reform in North America had left the descendants of indigenous peoples in both Canada and the United States, and the descendants of slaves imported mostly into the United States from Africa, with legal rights that most of the writers of the original US constitution or of its earlier amendments, would not have believed possible. The latest Canadian constitution not only harvests the fruits of the civil rights movements of the 1950s, 1960s, and 1970s -- including affirmative action -- but serves them in clear English.


1789 US constitution and amendments

The US constitution was drafted in 1787 and adopted in 1788. It came into effect when the congressional government of the United States formally began -- with George Washington as its first president -- in 1789.

The US constitution is the second oldest constitution in effect in the world, following only that of the European microstate of Serenissima Repubblica di San Marino (Most Serene Republic of San Marino) -- which has been a state since 301 (two decades after the end of the Three Kingdoms period in China, and two centuries before the arrival of Buddhism in Japan), and has been and a member of the United Nations since 1992.

The most remarkable thing about the US constitution is that is has lasted as long as it has. For it is not a particularly clear description of the legal condition of the United States as a federal entity today -- as we shall see when looking at the very up-to-date Canadian constitution of 1982.

The language of the original US constitution and some of its early amendments is at times extremely convoluted, with negatives embedded in negatives -- the work of early lawmakers insuring that future lawyers would not be unemployed.

"Indian Tribes" and "Indians not taxed"

"Indian Tribes" appears only once. "Indians not taxed" appears twice, both times concerning whose heads are wholly or partially counted when apportioning representatives of states.

Bear in mind that, until the Indian Citizenship Act of 1924, some Indians were nationals but not citizens of the United States. Only Indians that were citizens paid taxes (see Ethnic subnations in North America).

Natural born and naturalized citizens

The original 1789 constitution speaks of "Citizens" of the United States and of its states, and of "Citizens and Subjects" of foreign states. It limits certain officies to "a Citizen" or "a natural born Citizen" of the United States. Moreover, Section 8 of Article I of the original constitution gave Congress the power to establish a "Rule of Naturalization".

However, "citizens" are not defined as "persons born or naturalized in the United States" until Amendment XIV of 1868, which repeals the wording of Section 2 of Article I of the original constitution, according to which people who were not free counted only three-fifths as much as a free person.

The word "citizenship" is not used in the constitution.

Note that members of Congress must have been citizens for a number of years, while the office of the president is limited to natural born citizens.

Nation, national, and nationality

"Nations" appears only twice, in "foreign Nations" (where it seems to mean "foreign States") and "the Law of Nations". Neither "national" nor "nationality" appear in the contsitution or in its amendments, though such terms appear in federal laws that determine acquisition and loss of US nationality by citizens and nationals.

States as entities

The US constitution is particularly interesting in terms of how it and its amendments use the word "State". The States of the United States are clearly viewed as States in their own right, vis a vis one another, and vis a vis Foreign States. This helps explain why it is so difficult to amend the federal constitution, much less replace it with an updated version.

Article I: The Legislative Branch

Section 2: The House

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

Note   Overstruck sentence was modified by Section 2 of Amendment XIV of 1868 (see below).

Section 3: The Senate

No person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

Section 8: Powers of Congress

The Congress shall have Power To lay and collect Taxes [et cetera].

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

Article II: The Executive Branch

Section 1: The President

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

Article III: The Judicial Branch

Section 2: Trial by Jury, Original Jurisdiction, Jury Trials

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Note   The above provision was modified by Amendment XI of 1795 as follows.

Amendment XI   [Judicial limits in suits against states]
(Passed by Congress 4 March 1794, ratified 7 February 1795)

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Reconstructionist amendments following the Civil War

The outcome of the Civil War of 1861 to 1865 occasioned basic changes in the Constitution. These changes were effected by three "reconstructionist" amendments ratified between 1865 and 1870.

Amendment XIII (1865)

In December 1865, Congress ratified Amendment XIII, which abolished slavery. The amendment had actually been passed in January before the war's end in April.

Amendment XIII   [Slavery and non-penal involuntary servitude abolished]
(Passed by Congress 31 January 1865, ratified 6 December 1865)

1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Amendment XIV (1868)

In 1868, three years after the war, Amendment XIV recognized all people who had been born or naturalized in the United States as citizens, thus repealing the distinctions in Article 1 of the original constitution concerning free persons, non-free persons with limited terms of servitude, and non-free persons with unlimited terms of servitude. "Non-taxed Indians" continued to be a gray zone in US status laws.

Amendment XIV   [Rights of born and naturalized citizens in all states]
(Passed by Congress 13 June 1866, ratified 9 July 1868)

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Note 1]

Note 1   While it would appear that Indians born in the United States would be citizens, a December 1870 Senate resolution stated that the amendment was not intended to apply to Indians under the jurisdiction of a tribe. In other words, tribal Indians were part of the United States when it came to exercising federal authority within claimed borders, which included Indian lands, but were still considered affiliated with their tribes for purposes of federal nationality and citizenship.

See Ethnic subnations in North America) for further details about the legal status of tribal Indians -- and, for that matter, of whites who were regarded by treaties as citizens of tribes.

2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male [Note 2] inhabitants of such State, being twenty-one years of age [Note 3], and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Note 2   Amendment XIX, passed by Congress on 4 June 1919 and ratified on 18 August 1920, provided that "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex."

Note 3   The age of eligibility to vote was changed to "eighteen years of age or older" by Amendment XXVI, passed by Congress on 23 March 1971 and ratified on 1 July the same year.

Amendment XV (1870)

In 1870, five years after the war, Amendment XV held that no citizen would be denied the right to vote "on account of race, color, or previous condition of servitude." Gender was still a barrier until 1920, when Amendment XIX held that no citizen will be denied the right to vote "on account of sex."

Amendment XV   [Race, color, previous servitude no bar to vote]
(Passed by Congress 26 February 1869, ratified 3 February 1870)

1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.


Canada's Constitution Act of 1982

Canada became a self-governing entity still partly under British control with the promulgation of the British North America Act, 1867, now called the Constitution Act, 1867. Parts of this act are still effective, as are parts of many subsequent acts that have borne similar names over the years.

Canada patriated its constitution with the Constitution Act, 1982. Because Canada was still legally tethered to the United Kingdom up to the time this constitution came into effect, it had to be enacted "by the Queen's Most Excellent Majesty". It came into force by royal proclamation on 17 April 1982, which marks the start of Canada's existence as an entirely independent state. From this day, no act passed by the Parliament of the United Kingdom could extend to Canada as a part of Canadian law.

The 1982 act was a sweeping amendment of what remained of the 1867 act and some twenty amending acts through 1975. Part I of Schedule B of the act is called "Canadian Charter of Rights and Freedoms" and Guarantee of Rights and Freedoms, Fundamental Freedoms Democratic Rights, Mobility Rights, Legal Rights, Equality Rights, Official Languages of Canada, Minority Language Educational Rights Enforcement, General, Application of Charter, and Citation. Part II concerns "Rights of the Aboriginal Peoples of Canada" (see Ethnic subnations in North America).

Section 15 of Part I is especially interesting in that its subsections both probibit racial discrimination under law, and legalize affirmative action programs by exceptionalizing any law that might racially discriminate in the interest of ameliorating racial disadvantages.

Part I: Canadian Charter of Rights and Freedoms

Section 15: Equality Rights

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Note   Subsection (2) of Section 32 provides that Section 15 would not have effect until three years after Section 32 comes into force. Since Section 32 came into force on 17 April 1982, Section 15 had effect on 17 April 1985. The purpose of the delay was to allow the federal and provinical governments time to revise statutes that might be in conflict with Section 15.