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.
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.
"A constitutional amendment takes that out of the way because an amendment by definition cannot be unconstitutional as it *is* part of the constitution.
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.
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.
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.
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.
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.
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."
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.
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....
http://www.foxnews.com/story/0,2933,351181,00.html
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.
http://www.communicationagents.com/sepp/2004/07/15/aids_experiments_on_children_in_new_yorks_incarnation_center_a_human_tragedy.htm