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Kansas Constitution

 

Kansas Constitution

Kansas Constitution

Page 1 of the Kansas Constitution
Created July 29, 1859
Ratified January 29, 1861
Location State Library of Kansas
Read online Kansas Constitution at

The present Constitution of the State of Kansas was originally known as the Wyandotte Constitution to distinguish it from three proposed constitutions that preceded it. The Wyandotte Constitution was drawn up at Wyandotte (now part of Kansas City) in July 1859, and was the fourth constitution voted on by the people of Kansas Territory, as the battle between proslavery and antislavery forces, as well as other issues during the Bleeding Kansas era, spread to the debate over the terms of the new state's charter.

Adoption

The previous proposed state constitutions were the Topeka Constitution of 1855, the Lecompton Constitution of 1857 and the Leavenworth Constitution of 1858.[1]

The Wyandotte Constitution was approved in a referendum by a vote of 10,421 to 5,530 on October 4, 1859.[2] Only white men over the age of 21 held rights to vote in the referendum by language in the constitution itself. The Topeka Constitution had given voting rights for ratification only to white men and "every civilized male Indian who has adopted the habits of the white man" over age of 21. The Lecompton Constitution and the Leavenworth Constitution had given voting rights for ratification only to "male citizens of the United States" over the age of 21.

In April 1860, the United States House of Representatives voted 134 to 73 to admit Kansas under the Wyandotte Constitution; however, there was resistance in the United States Senate. As slave states seceded from the Union, their senators left their seats and on January 21, 1861, the Senate passed the Kansas bill.[2]

The admission of Kansas as a free state became effective January 29, 1861.[2]

Terms And Violations of the United States Constitution

The constitution settled the terms of Kansas' admission to the United States, particularly establishing that it would be a free state rather than a slave state.[1]

In contrast to and in violation of the United States Constitution, however, as is discussed in more detail below, the constitution has provisions based in "rights of man" (some of these were based in "rights of white men" originally but the racial qualifier has been repealed), rather than "rights of person". It also establishes the religious concept of "natural law", prohibited by the United States Constitution.

Within that context, the constitution rejects slavery and gives certain property rights to married women. In its original version, since repealed, it gave males and females equal rights with regard to schools. It also gave voting rights only to white male citizens and prospective citizens, over the age of 21, which was also later modified to remove restrictions on race and sex and age for those between 18-21 years of age and to repeal voting rights for prospective citizens. [1] The militia was also established to be composed of "all able-bodied white male citizens", later modified to "all able-bodied male citizens".

Solon O. Thacher of Lawrence gave a rousing speech opposing the exclusion of African-Americans from Kansas. The motion to exclude was defeated despite the fact that all the Democrats and a few of the Republicans favored the exclusion.[3] An outcome would have been prevention of resident free African Americans, as well as the dangers created by frontier bounty hunters.

Preamble

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The Kansas constitution is the only state constitution to recognize "civil privileges" through "Almighty God" distinct from rights of citizens of the United States.[4]

The First Amendment to the United States Constitution prohibits the establishment of religion. It states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . . . ". The First Amendment applies to the states through the Incorporation doctrine, as Everson v. Board of Education and other Supreme Court cases have held.

The preamble also conflates "America" with "United States" in defining the boundaries of the country of which its residents establishing the constitution are citizens.[4]

Men's Rights Provisions

In Bill of Rights, Section 1 (Equal Rights), the constitution states:

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This and other establishments of "rights of man", rather than "rights of person" as in the United States Constitution, effectively deny citizens who were not men rights granted by the United States Constitution. Moreover they establish the religious concept of "natural law" in violation of the United States Constitution, which prohibits establishment of religious law.

In Article 15 (Miscellaneous), Section 6 (Rights of Women) it states:

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The provision to allow women to hold separate property in marriage tracked a provision originally proposed in the Topeka Constitution that sought to prevent some of the effect of common laws of coverture. The Topeka constitution had a provision that also recognized the concept of parental custody rather than "possession" of children and also had a concept of parental incapacity, thus protecting rights of children, that was eliminated in the Wyandotte constitution. Both the Topeka and Wyandotte provisions sought to modify coverture rather than using language that did not violate or conflict with the United States Constitution in its basis "rights of person", however.

The Topeka Constitution had stated that "The first General Assembly shall provide by law for securing to the wife the separate property acquired by her before or after coverture, and the equal right with the husband to the custody of their children during their minority; and in case of death, insanity, intemperance, or gross impropriety of the husband, their exclusive custody."

The British laws of coverture and similar Napoleonic Code Head and Master laws had been imported to some regions of the United States in spite of the United States Constitution's basis in "rights of person" and the public statements and expressions by some framers that they wanted to prevent operation of such marriage laws, which categorically define marriage terms, in the United States.

Only white men participated in the Kansas constitutional convention except Clarina Nichols, social activist and associated editor of Quindaro Chindowan, an abolitionist newspaper, who was asked to address the convention.

In the framing of the United States Constitution, the basis in "rights of person", rather than "rights of man" and the requirement that the United States Constitution is the supreme law of the land (in Article VI) were a deliberate rejection of provisions in the Declaration of Independence referring to "Laws of Nature and of Nature's God" and basing rights in men only with statements such as "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness" that are similar to those Kansas includes in its constitution. Moreover, some of the framers were engaged in civil disobedience of any common laws of coverture that existed in their regions during the colonial era and the Constitution was intended to prevent operation of these laws as a categorical legal definition of marriage.

Because only one year prior to the Wyanotte convention, the 1857 Dred Scott v. Sandford Supreme Court decision had ruled that black men and women were categorically not entitled to rights of persons or citizens in the Constitution (among other language, Chief Justice Taney's opinion stated that "the authors of the Constitution had viewed all black people as "beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect", and a dissenting opinion by Justice John McLean stated that "slave is not mere chattel. He bears the impress of his Maker, and is amenable to the laws of God and man."), this may have led to some confusion in Kansas on this issue. What was seen more broadly in the United States as an abuse of power by the Court in the Dred Scott decision was definitively prohibited by the post-Civil War Reconstruction Amendments, including the 1868 Fourteenth Amendment.

The Fourteenth Amendment, adopted with ten years of the adoption of the Kansas Constitution, states:

"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 or life, liberty, or property, without due process of law; nor deny to any person with its jurisdiction the equal protection of the laws."

As Reed v. Reed and other Supreme Court cases have held, it is a violation of the United States Constitution for a state to adopt constitutional or other legal provisions which categorically grant rights to life, liberty, and property to male citizens and deny the same rights to female citizens. It is also a violation of the United States Constitution to seek to enforce such provisions.

The original constitution also provided in Article II (Legislative) Section 23 that "The Legislature, in providing for the formation and regulation of schools, shall make no distinction between the rights of males and females." This provision has been repealed.

Certain "rights of person" in the United States Constitution, in In re Gault and other cases, have been ruled to apply to children and the "rights of man" provisions in the Kansas constitution violate this concept as well.

Even the concept in the Topeka Constitution that women had equal rights to the "custody" of children in their minority, as well as concept that one parent could be incapacitated (albeit referring only the man as incapacitated) became reduced in the Wyandotte constitution (and thus, the current Kansas constitution) to a concept that women had equal rights to the "possession" of their children, with no mention of minority of the children or provision for a parent to lack capacity. Because some coverture and other common law rights considered the father to hold all rights with regard to children they also assumed parental incapacity in the woman categorically, and this provision in the Topeka Constitution eliminated this aspect to these laws, but ironically then implies that that incapacity could not exist with an individual woman and for the same reasons as in a man.

Prohibition of Slavery

Article ___ Section 6. provides:

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Voting Rights

Voting rights were established for any white man over the age of twenty one who "shall have resided in Kansas six months next preceding any election, and in the township or ward in which he offers to vote at least thirty days next preceding such election" and who was either a member of one of the following classes "citizens of the United States" or Property restrictions or religious affiliation restrictions on voting were specifically prohibited.

Kansas removed the voting restrictions on citizens who were not white males in 1912, and the restrictions on citizens between the ages of 18-21 after the 1971 adoption of the Twenty-Sixth Amendment to the United States Constitution.

Kansas has also removed the provision for the voting rights for "persons of foreign birth who shall have declared their intention to become citizens".

Article 5 Section 1 now reads:

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External links

  • Kansas State Historical Society
  • Wilder, D.W., "The Annals of Kansas". 1886.
  • William G. Cutler, "History of the State of Kansas" 1883
  • Greenpapers: Four Constitutions

References

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