Wednesday, December 23, 2015

Mirow on Latin American Constitutions, Part 6

Despite the efforts of liberal deputies at the constituent assembly in Cádiz, the Constitution of Cádiz used racial classifications to define membership in the Spanish Nation. The structure set out by the Constitution is scattered among a few articles that must be read in conjunction with each other and was the product of months of debate. The Constitution made a distinction between “Spaniards” (españoles) and “citizens” (ciudadanos), the latter possessed political in addition to civil rights. This division had great significance to the Spanish populations in America. Before the promulgation of the Constitution, the assembly, known as the Cortes, decreed the equality of Spaniards of both hemispheres who were born in and whose origin was the Spanish territories. This transatlantic or imperial equality was incorporated into the text of the Constitution itself in Article 1 quoted in post 5.

 From the standpoint of the Americas, the question of the inclusion or exclusion of blacks and indigenous people was a battle for political power within the Cortes. Counting American blacks and indigenous people, the Americas would gain a majority voice within the representative structures contemplated by the deputies. Peninsular Spaniards worked diligently to ensure they maintained power, and accordingly narrowed the scope of citizenship. Many American deputies fought back. For example, José Miguel Guridi y Alcocer, a Mexican deputy, argued, “After having blacks suffer the injustice of enslaving their ancestors, for this very reason are they to be subjected to the other injustice of denying them the right of citizen? One injustice cannot be the reason or support for another.” Despite strong advocacy at the Cortes that the promise of hemispheric equality included racial equality and a broad net for defining citizens, free and enslaved blacks were excluded from the ranks of citizenship, although free blacks were Spaniards who might, under special circumstances, become citizens.

American deputies at the Cortes argued that indigenous people should be counted for the purposes of electoral censuses. They raised accounts of pre-Columbian civilizations, the theological works of de las Casas, and the status of indigenous people under derecho indiano as subjects of the Crown of Castile. Indigenous peoples were granted citizenship under the Constitution of Cádiz, but implementation of this new status was met with practical and social impediments. Indigenous individuals as citizens had solid legal authority to attack levies of money and work or social constraints that might be inconsistent with the Constitution. There were successes.

 Arguments to abolish the slave trade and slavery failed in the Cortes against supporters of these practices who raised fears of economic ruin and political upheaval as consequences of dismantling them. With some notable exceptions, many American deputies argued to maintain the slave trade and slavery.

The relationship between race and citizenship under the Constitution of Cádiz is more complex than I have been able to sketch out here. Nonetheless, I thought you might like to read a few of the provisions of the Constitution related to this topic.
Article 5. Spaniards are:
 First. All free men born and legal residents (avecindados) and their children in the dominion of the Spains. 
Second. Foreigners who have obtained a letter of naturalization from the Cortes. 
 Third. Those who without such letter have lived ten years as legal residents (de vecinidad), spent according to law, in any town of the Monarchy. 
 Fourth. Freed blacks once they have obtained liberty in the Spains. 
Article 18. Citizens are those Spaniards who by both bloodlines trace their origin from the Spanish dominions of both hemispheres and are legal residents (avecindados) in any town of the same dominions. 
Article 22. For Spaniards who by whatever bloodline have or are reputed to have their origins in Africa, the door to the virtue and merit of being citizens is left open: consequently the Cortes shall give a letter of citizenship to those who have performed proven services to the Country, or to those who have distinguished themselves by their talent, force and conduct with the condition that they are the children of a legitimate marriage of free parents (padres ingenuos), that they are married with a free woman (mujer ingenua), and legal residents (avecindados) in the Spanish dominions, and that they exercise some profession, office, or useful industry with their own capital. 
Article 28. The basis for national representation is the same in both hemispheres. 
Article 29. This basis is the population consisting of the natives (naturales) who by both bloodlines are of origin of the Spanish dominions, and of those who have obtained a letter of citizenship from the Cortes. . . .
I hope you find these provisions interesting. My next post will be my last as a guest blogger for December.