What You Might Not Know About the Constitution

Many of you know that I am a law student. Some of you know that I have enrolled in a class titled, "Race and Law." It has been an incredibly pertinent experience; the current contest for the Democratic presidential nomination has been layered with racial overtones.

Before taking the class, I was, of course, aware that our nation has struggled with race since its founding. I had a pretty clear understanding that African-Americans "got a raw deal". I was even convinced that evidence of existing endemic racism was irrefutable.

I remembered Rodney King, and like a lot of white Americans, I was outraged when the police were absolved of guilt at their first trial. I remembered the OJ trial, and like a lot of white Americans, I thought he got a sweetheart deal from a jury that considered his race more than they considered the evidence. I remembered Toni Morrison calling Bill Clinton the nation's "First Black President." I was happy for him -- and hopeful that the racial divide might narrow a bit under his leadership. I supported his efforts to formally put the nation on record as being sorry for slavery.

Ahh... those were the halcyon days.

For the first time in my life, I am now confronting the true depth and breadth of our nation's ugly race history. I can tell you about lynchings (they consisted of a lot more than stringing a more often than not blameless Negro up in a tree; blacks were just as likely to be subjected to depraved torture regimes that were often drawn out to extend over a period of days... castration was common... random whippings -- sometimes of pregnant women -- passed for recreation). I can tell you about vote suppression. About fire hoses -- capable of piercing brick walls from 30 feet -- being turned on children. Yes... our history is gut-wrenching. It's little wonder we've chosen to forget so much of it.

None of that is the topic of this essay though. Instead, I want to remind you of something that, unbelievably, remains with us.

It's become fashionable for politicians to say that slavery left an indelible moral stain on the fabric of our nation. I've heard it referred to as our great national shame.

Yet... Yet...

Our nation's charter -- The Constitution of the United States -- to this day contains unstricken text that established the legal framework for slavery.

To wit:

Article 1, Section 2 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.)

Shorter Constitution: slaves are worth 3/5 of a "real person".

Article 1, Section 9 The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

Shorter Constitution: For now, you can keep herding Africans onto ships and bringing them to the United States to be sold 9and killing the majority of them in the holds of your ships), but the party is over in 20 years.

Article 4, Section 2 No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Shorter Constitution: Slaves are property and have to be returned to their rightful owners if they manage to get away...

Now, it is true that nearly 150 years ago, the 13th Amendment was adopted to end slavery; as such, it defanged Article 4, Section 2. A couple years later, the 14th Amendment was ratified -- it superceded Article 1, Section 2. And, of course, Article 1, Section 9 expired of its own volition; Congress provided an exclamation point by passing legislation that outlawed the further importation of slave stock on January 1, 1808. (Of course that didn't end the slave trade -- slave traders bought and sold native stock instead of raiding Africa.)

So what is my point? Why raise this?

Well, I want to let you all know that I am testing the waters for my most ambitious activist effort to date.

It is my belief that when nothing less than the Constitution stands testament to this nation's greatest moral failure -- one that lasted several hundred years and continues to effect millions of people today...

It is my belief that when the text remains in that Constitution...

Well, there exists only one remedy adequate to the task of mitigating the wrong: a Constitutional Amendment.

The only way to right the wrong is to amend the Constitution with a statement of acknowledgment and regret. I haven't worked out the legislative text yet, but honestly, that will be the easy part. The first step is building consensus.

As an activist, I know that for every hundred efforts launched, maybe one will succeed. I also know that Bill Clinton ran into a buzzsaw when he brought up the idea of apologizing for slavery. Honestly, the odds are stacked against this.

But... times have changed... Millions of young people have engaged the political process. Strom Thurmond, Jesse Helms, George Allen... not around anymore... Seven years of George W. Bush divisiveness has engendered a backlash -- we want to turn the page to a brighter, more hopeful, more unified tomorrow.

In addition, the argument is substantively different. Clinton talked about apologizing for slavery. I'm asking why we've allowed the remnants of slavery to poison our Constitution for so long? What purpose is served by continuing to suggest that African-Americans are property... are worth 3/5ths of a white person? Why do those clauses remain in our Constitution?

Finally, there is precedent for this. Recent precedent. The 27th Amendment was ratified after a law student from Texas championed the cause. It too has no discernible legal effect (the Supreme Court has held that citizens, absent harm, do not have standing to bring suit to enforce it -- therefore Congress' COLA raises cannot be challenged). It too was an incredibly difficult issue to be on the wrong side of...

Anyway, it is my hope that you agree with me. As a fairly well-known blogger, I've come to build a pretty diverse rolodex. As a law student, I can draw on some intellectual heft more extraordinary than my own. As a sentient human being with a certain sense of justice -- and right and wrong -- I am willing to devote a significant amount of time to the effort. But I cannot do it alone. I need to develop the critical mass necessary to sustain the effort... to attract celebrity spokespeople... to energize the activist base necessary to make politicians fearful of us. In short, we need the groundswell that will make it safe -- or better yet, desirable -- for a Republican to vote -- or better yet, introduce -- the amendment.

Right now, I'm doing nothing more than dipping my toe in the water... measuring interest. I've created a google group that anyone can join. If you can take the 3 minutes (or less) to join the group, it will provide me with a rough measure of what kind of support for the idea exists. It will tell me to press on, or not.

Comments

[mbaty]

As someone pointed out, slavery is still in the Bible, and in fact, nowhere in the bible does it condemn slavery; the best you get is some verses about treating slaves well. Should the bible be amended? Because as it stands, it's got some serious credibility issues if we are to believe that it is 'God's holy words.' People still read it and take it seriously, I'm just glad we've evolved to the point where most of us agree that slavery is Evil.

[bronceye]

The Bible, also has phrases and directives as to how to treat slaves. Slavery was International and it was a way of life for thousands of years. The victors took slaves, the losers became slaves or were killed. Life was tougher than a slow internet connection, back then. A couple of centuries of slavery in the U.S. can be compared to millinea of business as usual. I have not owned a slave or been enslaved by anyone in my 60 yrs. You, have you been enslaved or seen anyone enslaved in America? A real comma in the writings of history. They shoot horses, you know. Get real.

[generationyes]

Eww.

[generationyes]

P.S. You're what 3/5ths of a moral human being looks like.

[BrighterStar]

HuffPost's Pick

I could not disagree more. The Constitution did not "create the legal framework for slavery," but rather created the political framework for the elimination of slavery. In 1788 slavery existed in most of the United States. The Constitution, however, laid the groundwork for the elimination of slavery. The Constitution specifically contemplated the elimination of the slave trade. Contrary to your position, the three fifths compromise was not intended say that slaves were three fifths human but rather to limit the political power of states that kept slavery. That provision of the Constitution was one of the reasons there were laws passed limiting slavery and eventually led the South to secede initiating the war the put a permanent end to slavery.

There are two ways to look at America"s past relationship with slavery. We could, on the one hand look at it the way you do as a great national shame. We could also, on the other hand, see America as a great nation because we put an end to the institution of slavery at a great cost of human life. We all agree today that slavery is evil and that no person should own another person. But that moral truth was not always recognized. The fact that we recognize slavery today for the evil it is due largely to the struggle of the western world including the United States.

[tomjuarez]

Oops that should have read:

"A constitutional amendment takes that out of the way because an amendment by definition cannot be unconstitutional as it *is* part of the constitution.

[Readbetweentheelevens]

"What purpose is served by continuing to suggest that African-Americans are property... are worth 3/5ths of a white person?"

But it doesn't say that. It never uses the word "White" or "Africans" or "blacks." Later court decisions use those words. The word "white" has no legitimate meaning in the context of people. The distinction used in the part you quoted is "free." Why does that need to be changed?

Change instead (in the country's culture) any suggestion that some people are white and some people are black. It's more accurate to speak of descendants from Europe and descendants from Africa (and those distinctions can still be more precise). The New World people didn't get so good a deal either, in fact, it wasn't really a deal.

Your point is one of an apology. Would you take an apology when reparations are in order?

These crimes are not that old.

[deecee22]

we dont have the need reason or will to an amendment to the constitution reguarding slavery. Most of us are too busy stacking the supreme court to overturn roe vs wade. I suggest All of the bloggers here needs to join this group as brothers, we all have something to learn and share.

[Hollyse]

A Republican Vote? What exactly are you asking for? No mention of Democrat or Independent Vote is enslaving other's to that of a Republican Lord and Master to the We the People's... Serf Status. As a serious blogger (whom as you say you are, well known throughout the blogger's world), how about considering law degrees aren't only awarded to the Republican individuals or Republican interest groups. You have much to learn as a student of law. We still haven't defined Bill Clinton's "is" nor what is considered "middle class" or "tax" or "rape". Heading into summer months we need only a light blanket rather than the heaviness of quilt thoughts and actions of our current administration We the People have been sweating, actually suffocating under this administration's winter quilt actions. Dehydration of the public eventually leads to death of a nation.

[MinuteMan]

Just what we need: another do-nothing constitutional amendment proposal. If you channel your effort into something more effective and necessary then you may be able to improve our nation. This is just like the many issues the right has effectively use to distract the minds of voters from the issues that really matter; distracting the public discourse in this way is not helpful even if the intentions are less cynical than the reactionary demagogues.

[SisterJ]

To insist that others "get over" history is to invite them OUT of the human race. History (collective human knowledge) has served us well. How did we learn what foods are poisonous? Because some poor souls in antiquity died eating them.

The story could have ended there, wiser, if not happier. But lots of people still eat poisonous foods. Yes, some are children, and many are uninformed. However, a good portion of the uninformed are actually ANTI-informed. Not only did they not get the memo; they point and laugh while you're reading yours.

The opinions of living people don't matter much to them, and they really don't care about dead people. Their summary of history is: "History. We won. Get over it." Their racial views? "Everyone is equal now. The game is over. Get out of the stands, people! "

Despite their intentional amnesia, the Constitution is both an historic and living document. It has been amended, yes, but certain portions should be MOVED to a museum, somewhere behind the "Whites Only" and "No Irish Need Apply" signs.

Why? Unlike the Declaration of Independence, the Constitution is a living document, used as a blueprint for daily decisions. It MUST remain relevant or it will be discarded and people will make their own laws...

I've joined Mr. Stark's Google group, and encourage more people to join.

[Jayhawk500]

What's interesting to me, the only thing interesting really, is that after reading your post I still don't know what the gist of your amendment would be. An amendment for what?

Our constitution does NOT still contain clauses establishing slavery. It has been amended to abolish slavery. That's what an amendment does; it AMENDS, changes the meaning of, the document as a whole; it means that that document no longer says what it used to say.

As a budding lawyer you should have learned the the meaning of a document cannot be discerned from one paragraph taken in isolation.

We do need to make amends to the African American community. Making amends does not mean saing "I'm sorry." That is an apology and it does not help without the amends. To make amends is to correct the wrong, to set things right. We do that with things like affirmative action, with education of young people, with schools and with community organization. In short, we do that with deeds, not with words.

[tomjuarez]

Well said,

This is the same reason why the right wingers are working so hard to get a constitutional amendment banning gay marriage. Because if they go down the road of legislation -even this group of SCOTUS jackbooted thugs would have to either overrule it as invideously discriminating or set down precedent that homosexuals choose to be so.

A constitutional amendment takes that out of the way because an amendment by definition cannot be unconstitutional as it is not part of the constitution.

This is what Stark seems to misunderstand. Slavery was abolished by the Thirteenth Amendment, and that amendment is not merely an addendum, but a part of the Constitution itself.

I'd further posit that leaving the language in is the better course -so that we can never forget what happened.

Good luck in your studies Mike -but understand that the practice of law is deliberative and shouldn't be reactionary.

[tomjuarez]

For some reason HuffPo is no longer showing my comment so here it is again -edited to correct my typo:

Well said,

This is the same reason why the right wingers are working so hard to get a constitutional amendment banning gay marriage. Because if they go down the road of legislation -even this group of SCOTUS jackbooted thugs would have to either overrule it as invideously discriminating or set down precedent that homosexuals choose to be so.

A constitutional amendment takes that out of the way because an amendment by definition cannot be unconstitutional as it *is* part of the constitution.

This is what Stark seems to misunderstand. Slavery was abolished by the Thirteenth Amendment, and that amendment is not merely an addendum, but a part of the Constitution itself.

I'd further posit that leaving the language in is the better course -so that we can never forget what happened.

Good luck in your studies Mike -but understand that the practice of law is deliberative and shouldn't be reactionary.

[NCGigi]

Actually, I do know this about the US Constitution. And I'm for a new Constitutional Convention, and so was Thomas Jefferson. Jefferson anticipated that these conventions would occur about every 20 or so years, with each new generation.

That said, I think the orginal document should stand, just like the prohibition amendment (18th amendment) and its repeal (21st amendment) still stand. Keeping these amendments teaches us from one generation to the next what works and what does not. And this road map is helpful as in "Oh, yeah, we tried that, it didn't work."

[mamacat]

An interesting subject.
Every four years, a few politicians will bring up the "issues" of passing Constitutional amendments banning the burning of the American flag, and/or banning gay marriage. The next time a right wing politician starts trying to drum up support by bringing out these ideas, why not counter with the suggestion that we need a Constitutional amendment removing the language which treats slavery as legally sound? There should be a lot more support for your suggestion, than for the idea of banning freedoms.

On the other hand - as you mention, the offending language has been superceded by later laws and amendments, as well it should be. It occurs to me that most people alive today do not remember what it was like in this country before the revolutionary events of the 1960s. (Of course, no one has personal memories of slavery) It is difficult for me to put into words the things that I remember so vividly, so suffice it to say that sometimes it is good, not to obsessively dwell on bad things, but not to entirely forget them, either.
One very good way to remember what happened in this country is to leave the offending language in the Constitution. By doing so, we will never have naysayers, denying that slavery ever existed, like some deny that the Holocaust ever happened. We need to remember the past, just don't let the past keep us from moving on and becoming a better society.

[newsjunkie8]

"It occurs to me that most people alive today do not remember what it was like in this country before the revolutionary events of the 1960s."

I know of a person who remembers the events before the 1960s. He was born in 1941, thus 20 during the '60s.

His name is Rev. Jeremiah Wright....

[tbone99]

A report that makes it seem like blacks are still less than a whole person in this country.Another nefarious study using african american children as guinea pigs.. Makes it easy to understand why Rev Wright might have a point about the Aids virus.

http://www.foxnews.com/story/0,2933,351181,00.html

[tbone99]

BALTIMORE - Scientists using federal grants spread fertilizer made from human and industrial wastes on yards in poor, black neighborhoods to test whether it might protect children from lead poisoning in the soil. Families were assured the sludge was safe and were never told about any harmful ingredients.

Nine low-income families in Baltimore row houses agreed to let researchers till the sewage sludge into their yards and plant new grass. In exchange, they were given food coupons as well as the free lawns as part of a study published in 2005 and funded by the Housing and Urban Development Department.

The Associated Press reviewed grant documents obtained under the Freedom of Information Act and interviewed researchers. No one involved with the $446,231 grant for the two-year study would identify the participants, citing privacy concerns. There is no evidence there was ever any medical follow-up.

[tbone99]

And another,:

http://www.communicationagents.com/sepp/2004/07/15/aids_experiments_on_children_in_new_yorks_incarnation_center_a_human_tragedy.htm

[BinAgain]

My ancestors were immigrants,not even here during slavery days.Yet I feel guilty. lets just make sure it never happens again,to any race or religion. Watch the lawyers ! Watch people like Bush who like to mess around with the constitution in order to take our rights.

[patriotscholar]

Perhaps it would behoove us to insist that every child who goes to any school be taught the Constitution and the Bill of Rights, including, but not limited to, the Federalist papers.

[LeftRight]

Not to mention the Declaration of Independence!