A Living Constitution

Our nation is very familiar with debates regarding the constitutionality of rules, regulations, actions, and laws enacted by the Federal Government. As I write this, there are constitutional challenges brought about by our current president with issues involving his profiting from foreign individuals staying at his hotels and questions about his ability to declare a national emergency to pull in funding to build a border structure between the United States and Mexico. The questions involve whether the United States Constitution gives the president authority to do something or bars the president from doing something. We are operating with a legal document that will be entering its 231st year of service in 2019, and it is clear to all that our founding fathers could not have written a document to address ever situation that our government finds itself in today.

 

Historian Joseph Ellis writes about the approach taken by the framers of the constitution in his book The Quartet and helps us understand our relationship to the document ratified in 1788. Ellis writes, “the multiple ambiguities embedded in the Constitution made it an inherently ‘living’ document. For it was designed not to offer clear answers to the sovereignty question (or, for that matter, to the scope of executive or judicial authority) but instead to provide a political arena in which arguments about those contested issues could continue in a deliberative fashion.”

 

James Madison, who greatly shaped the text and structure of the Constitution, was focused on creating a document that could pull together the delegates of the 13 states and create a stronger centralized government. Madison knew that he would need the support of large and small states, rural farmers and more industrialized people from burgeoning cities, and would need to convince them that they would all have a voice and that no one group would unduly dominate another. Ellis suggests that we should see the Constitution as a forum for continuous discussion and improvement. He believes that the intent of the framers was to create a guiding document that would provide for national unity and governance, while reacting to the needs and evolving nature of the nation through time. To look at the Constitution as a sacred text whose word must be followed in all situations raises the level of our founding fathers to an unreasonable level. It assumes that they were somehow more than human and that the document they created is somehow greater than any other legal document before or since. The only way we can truly move forward with governance is to continually re-imagine and reshape the Constitution to function within the unique demands and challenges of the time.

Slavery in the American Constitution

In his book The Quartet, Joseph Ellis examines the debates leading up to the adoption of the current United States Constitution and the actions of four men in particular to drive the nation toward true nationhood and the adoption of the Constitution. George Washington, Alexander Hamilton, James Madison, and John Jay all played crucial roles in advocating for a constitution that gave strong power to a centralized national government that could bring unity and cohesion among the former British Colonies. A central tension and challenge in uniting the colonies existed around slavery and today, as we look back at the founding of our nation and at our Constitution, we cannot help but think about the role that slavery played in the founding of our nation and about the meaning of its inclusion in our Constitution. Regarding slavery, Ellis writes, “Whether this was a failure of moral leadership or a realistic recognition of the politically possible can be debated until the end of time.” Our views of our nations founding and the role that slavery played is hard to think through and is something worth evaluating on a deeper level. Precisely why it was included in the Constitution and the role it played at the nation’s birth is challenging and the meaning attached to it changes as you shift the perspective through which you understand the Revolutionary War and America at the time of the Constitutional Convention.

 

The quartet in Ellis’ book wanted to bring together the North and the South in a single nation, but the economies of both were moving in different directions, with the South becoming increasingly reliant on slaves for economic production (as a side note: a recent comment to my blog suggested that the North enabled slavery by purchasing slave produced products from the South – something I don’t know about but certainly seems likely). To have truly put an end to slavery in the newly independent America would have required a monarch (or tyrant) who could have stamped out the practice by force (something the colonies had just revolted against). Manumission, the process for freeing slaves was also expensive, often requiring that freed slaves be provisioned with enough resources to sustain themselves once free. It is no wonder that the forces of economic self-interest and a fear of tyranny forced an impasse between abolitionists and those whose future and society relied on slavery. A compromise on the issue appears to be absolutely necessary in order to bring the former Colonies together under a single government.

 

At the time our constitution was written, many delegates to the Constitutional Convention recognized the abhorrent evils of slavery. Ellis includes a notebook entry from John Dickinson, a delegate from Delaware who wrote about the compromise written into the new Constitution, “Acting before the World, what will be said of this new principle of founding a Right to govern Freemen on a power derived from Slaves. … The omitting of the WORD will be regarded as an Endeavor to conceal a principle of which we are ashamed.” The fact that slavery cut against Jefferson’s words in the Declaration of Independence was not lost on all of our founding fathers. Dickinson and others were aware of the contradiction between the words and principles of our revolution and the structure we built into the Constitution. The political dynamic that united our nation allowed for such evil to continue, but at the same time also provided a way for it to be dismantled. The unending debate in the United States will continue to grow as we debate the best way to interpret the inclusion of slavery in our constitution.

A Shift in Sovereignty

In my last post I wrote about the complexities of sovereignty, of who has the supreme power and authority in a given polity and where that authority comes from. The Revolutionary War in the United States ushered in a new government with independent states, each sovereign within their own territory, held together by a loosely constructed national government. Power and authority held within the state was derived from the citizens of the state who had come together to forge new lives in America.

 

This arrangement, however, was not politically stable and did not hold the states together in a way that protected the interests of each state and of each citizen within each state. A new government was needed to cement the bonds between the states, and the new government required a re-imagining of sovereignty. Today it is obvious that the Federal Government is sovereign over the state governments. It is clear to us that our elected officials represent us and receive their power with the consent of our votes, but at the time of the American Revolution and at the time of the writing of our Constitution, this was not obvious. Joseph Ellis describes the shift in sovereignty in his book The Quartet by writing:

 

“Sovereignty had shifted from a monarchy claiming to derive its authority from God to a legislature claiming to derive its authority from ‘the people.’ Political power flowed not downward from the heavens but upward from the citizenry. Indeed, this was the fundamental change that had made the war for independence a revolution.”

 

This view of power and authority was radically different from a view of a monarch ordained by God to lead a people. There were many questions that were addressed in the constitution to answer questions about how power and authority would be transmitted through the people to the governing authorities of the nation, and at the time these were new ideas that required a shift in thinking about both power and governance. Sovereignty now had a new basis for legitimacy, and it was bottom up, growing from the public and not top down from a ruler.

Slavery in the Constitution

The United States Constitution directly addresses slavery by apportioning slaves as counting as three fifths of a person for census counting purposes. The clauses containing slavery are some of the most disappointing aspects of our democracy, and are often viewed as a black eye on an otherwise shining document. People often say that slavery was misunderstood at the time of our nation’s founding and often try to justify slavery’s inclusion in the constitution by saying that it was commonplace at the time and not something we should judge our founding fathers against.

 

The reality is much more complicated. Many people, including many of our founding fathers understood that slavery was abhorrent and against the principles upon which the nation was founded. For example the Wikipedia page for Gouverneur Morris, the man who actually penned the constitution includes this quote from 1787, “Upon what principle is it that the slaves shall be computed in the representation? Are they men? Then make them citizens, and let them vote. Are they property? Why, then, is no other property included? … The admission of slaves into the Representation when fairly explained comes to this: that the inhabitant of Georgia and S. C. who goes to the Coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections & damns them to the most cruel bondages, shall have more votes in a Govt. instituted for protection of the rights of mankind, than the Citizen of Pa. or N. Jersey who views with a laudable horror, so nefarious a practice.”

 

At the time of the American Revolution, the economy of the Southern Colonies was dependent on slavery, and throughout history we have seen mankind fail to live up to ideals and moral principles in the face of economic threat. I believe it is fair to argue that ending slavery would have taken a king or absolute ruler given the economic incentives of the South. Joseph Ellis addresses this in his book The Quartet by writing about the decisions made around slavery during our nation’s founding. The following quote from Ellis describes a failed draft of a constitution drafted after the revolutionary war, before the adoption of the Articles of Confederation:

 

“Slavery was too volatile a subject to be addressed directly;  indeed, there was an unspoken policy of silence surrounding the topic based on the broadly shared sense that it, more than any other issue, possessed the potential to destroy the political consensus that had formed around independence.”

 

To tie the nation together and lay the ground for a United States that could grow and govern itself through democratic means, the founding fathers could not abolish slavery. A professor of mine once described slavery as a scaffolding built around the principles of the Constitution for construction purposes. After completion, slavery could be removed without damaging the foundation and simultaneously enhancing the beauty of the finished project. I think it is important to accept that slavery was understood to be evil and that South allowed economic interests to trump human morality. I think it is ok to address our founding fathers and be critical of the inclusion of slavery in the Constitution while at the same time understanding that it was in many ways necessary for building the nation we live in today. This is a tough thing to look at directly, but the lesson we can learn is that we are often held short of our moral best by economic and personal self-interest, and we should be honest with ourselves about the times we act in our self-interest and not in the interest of the group so that we can avoid the perils that the South made at the time of our founding.

American Nationhood Had a Top-Down Start

The human mind seems to be very comfortable with dichotomies, and we are very good at telling ourselves stories to make dichotomies work. We really prefer ‘either-or’ situations and ‘this-or-that’ decisions over settings that are more ambiguous and require decisions between multiple options and interpretations. The way we understand and view history, and how our history has shaped our present moment, is one area where our dichotomous though preferences can arise.

 

In his book, The Quartet, Joseph Ellis looks at the founding of the nation and offers some insight regarding the creation of the Constitution which runs against the vision of our founding that we as a democracy like to believe.  In our country, we like to believe that American democracy was inevitable, a clear preference advocated by our citizenry, and pushed for by all. We look back at the revolutionary war and our founding and picture masses of people choosing freedom and making the right choices to lead our country to prosperity.

 

The reality however, is that our nation was much more fractious at its founding than the stories we live with, and our history is as full of top down decisions as much as it is full of bottom up preferences. From the very beginning, with the idea of a national government, our actual history has run against what we like to believe as a democracy has been the defining principle of America. Ellis writes, “There was no popular insurgency for a national government because such a thing was not popular.” And he explains that our national government was built because, “a small group of prominent leaders, in disregard of popular opinion, carried the American story in a new direction.” It is interesting to look back at our nation and see the role that popular support played relative to the decisions of an elite. When we think about what our nation stands for and how our government should operate and direct our path, we should remember that in the past we have made more decisions based on more options than the often dichotomous choices we try to chose from today.

 

Continuing on the focus of top down versus bottom up support for a national government, Ellis writes, “The obvious alternative explanation is top-down. All democratic cultures find such explanations offensive because they violate the hallowed conviction that, at least in the long run, popular majorities can best decide the direction that history should take.”

 

To me this is a reminder that if I am not personally involved in studying an issue, and only understand it ephemerally from news and short stories, I probably should not consider my ideas or the popular ideas of citizens to be more valid than the views of experts. It is likely that we are not considering the full range of possibilities, and it is possible that what is popular and desired is not truly the best course of action. I don’t think this means I should remove myself from debate, but that I should spend more energy thinking deeply about the perspectives of competing interests. I may never fully understand the choice in the end, but I should not decide, based on popular opinion, that a decision was either right or wrong.

Bringing a Nation Into Being

Joseph Ellis looks at the founding of the nation in stark clarity in his book The Quartet: Orchestrating the Second American Revolution, 1783-1789. Ellis cuts through the ideas and stories we tell of our nation’s founding, and looks at the most pivotal actors that worked to establish a strong constitutional government in the United States.

 

Ellis begins by explaining that a national government was not something that our founding fathers were very interested in and that most people thought of themselves primarily as statesmen (as Virginians or Pennsylvanians) rather than as Americans. He writes, “creating a national government was the last thing on the minds of American revolutionaries, since such a distant source of political power embodied all the tyrannical tendencies that patriotic Americans believed they were rebelling against.”

 

Following the Revolutionary War, the United States operated more or less as independent states, loosely bound by the Articles of Confederation. Ellis suggests that four men in particular were crucial for bringing about a “second revolution” and forming a new more powerful central government across the states. George Washington, Alexander Hamilton, James Madison, and John Jay are the four founding fathers that Ellis attributes the birth of our nation to. Without their coordinated actions, Ellis argues, a new Constitution could not have come into being and the idea of “America” would have never taken hold.

 

Our founding fathers were not a unified group of wise sages who knew exactly what was needed to spark a political revolution to bring freedom, prosperity, innovation, and a new nation into being. Our founding fathers were a diverse group who argued constantly and could hardly agree on how the states should relate to one another. The quartet that Ellis identified were instrumental in forming the idea that the states should operate in unison with a strong overarching government, something that felt dangerous given the revolution against central authority that had just been raged. Washington, a Virginian, was the public face of a new government, leading the way to convince the south that the ideas of Hamilton, Madison, and Jay were sound. Hamilton, Madison, and Jay engaged in an effort to convince the states that a unified constitution would be valuable, prosperous, and fair with the writing the Federalist Papers. Their arguments evolved over time and existed as an exploration of their constitutional idea as much as a clearly defined goal for a new nation. Without the actions of these four, the nation may have never gotten going. They created the idea of America and brought about the system of government that we know today.

 

It is important to remember how close things came to not happening. The stories we tell ourselves about our founding make it seem as thought America was destined to become a great nation. We talk about our founding fathers as though they were a unified group of impossibly wise leaders, but the reality was that they were political amateurs, fearful of dissent and tyranny and unsure about a national government to bring them together. Our politics today calls back the founding fathers and argues about their intents, but it is clear from reading Ellis’ book that even our founding fathers themselves were not clear about their own intent.

Post Racial

The conclusion of Michael Tesler and David Sears’ book Obama’s Race, sums up the authors thoughts about President Obama’s election after their extensive review of voting patterns in the 2008 election and social surveys through the campaign and President Obama’s first year in office. As a candidate, Obama did not need to emphasize race for race to be an important factor. Neither John McCain nor Obama focused their campaign on race, but it was nevertheless an important element in the election. Candidate Obama wanted to transcend race in his campaign, but Tesler and Sears find that he was not able to do so successfully. To close out their book, the authors write,

 

“Regardless of what the future holds, we can say with a great deal of confidence that the election of our first black president was not a post-racial moment. Rather, racial attitudes were heavily implicated in every aspect of Barack Obama’s quest for the White House. From Americans’ earliest evaluations of Candidate Obama to their primary voting to their general election vote choice, Obama was heavily judged in terms of his racial background. Racial attitudes were strongly associated with both support for and opposition to Obama throughout the election year. With these positive and negative effects largely canceling themselves out in Obama’s aggregate vote tallies, many mistakenly took his victory as a sign that race no longer mattered in American politics. Behind such success in the primaries and general election, however, lay perhaps the most racialized presidential voting patterns in American history.”

 

From the very beginning of his time in office, President Obama was viewed differently by people who were more likely to sympathize with racial minorities and people who were more likely to harbor resentment toward racial minorities. A Republican and Democrat polarization became worse at the national level as President Obama’s race made people think first about identity and second about traditional conservative or liberal ideology.

 

I don’t believe that the ideas wrapped up in conservatism or liberalism truly mean anything in the post 2008 election world. Libertarians may favor a very limited government based purely on the written role of government in the Constitution, but the average conservative seems to be more in tune with racial identity within our two party system than they are in tune with ideas of limited government and any specific policy goal. Similarly, the term Liberal seems to stand in for multicultural as opposed to representing ideas of big or progressive government. What both parties now seem to be split on is race, but the arguments and debates between the two parties exist in the shadow of ideology, never acknowledging racial motives and instead arguing about tax structure and healthcare despite the fact that very few truly understand the alternatives, choices, and impacts of the policies adopted by either side. What we do understand, are racial and identity signals that are hidden within our debates and policy arguments.

 

I do not know how we get both sides to recognize that their politics are based less on ideology and more on identity. I do not know what happens to the political system when we acknowledge that identity is the driving factor over ideology or policy. What I do know is that the Democrat party has adopted a view of multiculturalism which is able to talk about race and the challenges faced by racial minorities, while the Republican party has adopted a view that society has become equal in terms of race and that we are ready for a period of post-racialism if only the Democrats could move on. Sears and Tesler demonstrate that we never achieved a post-racial America, and  the failure of the Republican party, and white people in general, to acknowledge their racial biases has created a hurricane of racial tension in this country. Black people today are not allowed to call out the racialized environment since our politics are so evenly split between the Democrats who accept the danger of racial attitudes in our country today and the Republicans who claim that racial discrimination is no longer a barrier. If we cannot stand on equal ground between our two parties in terms of how we understand the influence of race and identity in our politics, we will constantly be shouting over each other’s heads and never addressing the question that matters most: Who is American and what does it mean to be American and be diverse?

How We Remember American Slavery

In his book, Between the World and Me, author Ta-Nehisi Coats shares his understanding of the universe with his son. He focuses on the shared experiences of black Americans dating back to slavery and the time immediately after the institution fell. What Coats returns to over and over in his book is the idea of the physical relationship between black people, white people, and our country. His views are not pretty, but they represent a reality that we have tried to forget and that many of us have done a good job ignoring.

“In America,” he writes, “it is traditional to destroy the black body—it is heritage. Enslavement was not merely the antiseptic borrowing of labor—it is not so easy to get a human being to commit their body against its own elemental interest.”

I recently read a piece on Vox.com that was written by an individual who used to lead tours at a historical plantation in the South, and the author was struck by the questions people asked and about the way in which people made an effort to skip past the violent reality of slavery. The host was often asked questions that showed that people did not truly understand the brutality of slavery. Questions like whether or not house slaves appreciated getting to be in a house and not in a field. Many people had a view of slavery that sounded more like a view of minimum wage workers than of people forced into labor, exploited, and physically punished if they did not comply with the requests and demands of an individual with fully subjective control over their lives.

Growing up in Reno, Nevada I felt that I had a pretty good education regarding the Civil War. I was taught that the war was about slavery and not about state’s rights, but never in my classes did we truly discuss what it meant to be enslaved and the violence that the enslaved faced. I understood that there were violent reactions and punishments for those who fled slavery, but we did not discuss what it meant to not have ownership of one’s physical body, and for that body to be physically destroyed by another human being. I think that Coats is justified in arguing that we should think of slavery as not just borrowed or uncompensated labor (the way we may think about college interns today) but we should rather think of slavery as the destruction of a human being, physically, mentally, and emotionally. The toll on the body of the human being that slavery, lynchings, and punishment have brought to black people were meant to take away the power of the black person and to demote them to a lower place in a fictitious hierarchy of human beings. We must not forget what it meant to own another human being. Slavery and owning another human being meant that American’s did more than exploit an individual’s labor for economic gain. It meant that American’s had the authority to use violence, to distort the black body, and to control the physical experience of another human being for purely exploitative means.