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What You Might Not Know About the Constitution

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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.

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