Black Letter Law

Originalists

One of the most disconcerting “facts of life” in our new MAGA world, is the complete disregard for the Constitution of the United States.  For decades, even for centuries, we learned the meaning of the Constitution.  We KNEW what the authors of the Constitution and the Amendments  intended.  They were prolific writers, and felt the need in their Age of Enlightenment to explain their reasoning, and to have it examined by others.  Jefferson, Madison, Hamilton and others put their thoughts to paper, and challenged others to debate and discuss.  

 The “founding fathers” of the Project 2025 playbook for the alteration of American society, all claim that they are “originalists”, following in “Black Letter” obedience the original intent of the Founding Authors.  But when that original intent somehow doesn’t “fit” their own warped interpretation of America, they go back and “alter” the original intent.  It’s historically fraudulent, an act that the Enlightened leaders would find academically abhorrent.  But that’s what’s happening.

Religious Freedom

The biggest “lie” is that the United States was founded as a “Christian Nation” under Christian principles.  Here are the facts.  The authors of the Constitution were generally Christians.  But they were also the direct descendants of those who fled Europe searching for religious freedom.  John Adams, a very religious man, had great-grandparents who were original Puritan settlers in Massachusetts.   They fled religious tyranny of the Church of England.  Religious freedom was embedded in his heritage.  

Thomas Jefferson himself, while a “standard” Anglican, wrote about his departure from Christian theology.  His concepts, shared in the Virginia Statute of Religious Freedom, exalted the freedom of men to make up their own mind about religion, and called for government to stay out of religious affairs.  Jefferson created the concept of a “wall” between church and state, a “wall” that has been chipped away by recent Federalist Society Judges’ opinions.

But there are a lot of even clearer MAGA precepts that disregard the “black letter” intent of the Founders. 

We The People

The Founding Fathers had a clear concept of who was “part” of the United States.  There were “free people”, those not owned by others and not under a term of contract (indentured servitude, or contractual enslavement).   Within that class of “free people” were citizens: those who could vote in the state and national elections.  For example, an emancipated Black person would be a “free person”, but not qualify as a citizen in many states.  Women  may or may not be citizens, but they were “free people”.  

Then there were enslaved people, who were owned by others.  In a purely political compromise, they were considered three-fifths of a person for counting, and for taxation purposes.  But they were not “free” nor “three-fifths of a citizen”.  They were enslaved.

And finally there were Indians. They were not citizens, and not counted as “free people”,   because they were considered members of separate nations, the Indian nations.  That’s also why the United States would make treaties with Indian tribes (almost always broken). Indians were treated as Nations;  the United States often waged war against them.  When we see Palestinians starving in Gaza, keep in mind that the avowed US strategy against the Plains Indian tribes was to destroy the buffalo and create starvation. That forced the tribes onto government reservations. (This was the strategy of Ohio’s own General Phil Sheridan).  The Israelis aren’t the first to choose such a horrific path.

Census

Article 1, Section 2 of the Constitution provides for an “enumeration” of the people of the United States, for the purpose of determining the number of seats in the House of Representatives each state will get.  That enumeration (the census) is clearly defined:

…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.

Who gets counted?  It’s a simple math equation:  free persons (including indentured servants) and three fifths of other persons (enslaved folks).  Who doesn’t count – Indians.  So when the President, or the Heritage Society, claims that only “citizens” should be counted, that’s simply not what Mr. Madison and the Constitutional Convention said, or meant. 

Free persons are simply that, free.  They may or may not be “documented persons” in our current ICE-terrified world, but they are free.  Therefore, they are subject to being enumerated, and that enumeration is used to determine representation.  Don’t like it?  As the MAGA world is fond of saying about the Second Amendment (another mis-interpreted Madisonian concept) – then change it.  Article V of the Constitution lays out two separate paths to making those changes, called Amendments.

Free Persons

Once we get the concept of free persons versus citizens, there are several other Constitutional areas that become clear.  The Fourth Amendment, protecting against governmental search and seizures, states that it applies to “the people”.  That’s the same as “free persons”, and not the same as citizens.  So undocumented migrants in the United States aren’t citizens, but they are “free people” and therefore covered.

The same is true about the Fifth, Sixth and Eighth Amendments that create protections in criminal prosecutions.  Those again guarantee that “no persons” shall be denied their rights.   When the MAGA-world rejoices at the ICE “round-ups” and “detention centers”, they are in direct contradiction of the criminal rights of the Constitution – granted to persons, (not just citizens).

And then there’s the mighty Fourteenth Amendment, which starts with the phrase: “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.”  We already know what the phrase “all persons” means.  

And then the Fourteenth applied Federal law to the actions of the 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.”  There’s that pesky “any person” thing again.  There’s no exception for the “undocumented”; those who might have entered the United States without permission.  They still remain “a person” under Constitutional definition.

Born in the USA

This doesn’t just apply to rights, but the concept of birthright citizenship.  The authors of the Fourteenth were well aware of what “all persons” meant, and knew what “born” meant as well. Arguing that immigration status (other than diplomatic status) could determine birth citizenship is totally foreign to the “black letter law” of the Constitution, as well as the intent of those that wrote the Fourteenth.

The Black Letter Law of the US Constitution is clear. What isn’t clear is whether we allow these so-called “Originalists” to change America’s origin story to fit their own nefarious plans. 

That’s un-American, and so are they.