Race and the Constitution

It's certainly no secret to anyone who asks me about classes which is my favorite this semester. Of Contracts, Property and Constitutional Law, there can be only one: the least practical and most political, of course. Con Law it is.

A week after Obama's race speech, my Con Law class has delved into the Equal Protection Clause cases, some of the most famous in all of constitutional law. I just finished reading Dred Scott v. Sandford, Plessy v. Ferguson and Korematsu v. United States. Up next are Brown v. Board of Education, Brown v. Board of Education II and a lesser-known case called Loving v. Virginia, which struck down an antimiscegenation statute in 1967.

Here's the relevant portion of the 14th Amendment, ratified in 1868: "No state shall ... deny to any person within its jurisdiction the equal protection of the laws."

Obama spoke last week about our nation's "original sin of slavery." While it's true that slavery ended more than 140 years ago, we too often forget how deeply racism had become embedded in the American culture. To illustrate the point, here is an excerpt from Dred Scott, the 1857 case which denied freedom to a slave who had made his way to the free states of Illinois and Wisconsin. The opinion was written by Roger Taney, the Chief Justice of the United States at the time.

"[Negroes] had for more than a century before been regarded as beings of inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion."

Yikes. Those, my friends, are the roots of white privilege.

You'd think that by 1896, we'd have made some progress on the High Court. Not much. Here is Justice Henry Brown in Plessy, which put a man in jail for refusing to give a white man his seat on the bus. The case established the infamous "separate but equal" doctrine, that survived for nearly 60 years, until Brown v. Board.

Justice Brown: "The object of the [14th] amendment was undoubtedly to enforce the equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either."

Later in the same opinion: "We consider the underlying fallacy of [Plessy's] argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it."

Finally, Justice Brown concludes, "If one race be inferior to the other socially, the Constitution of the United States cannot put them on the same plane."

Why do I trouble you with all this? Because the conversation about race will not be easy. Over the weekend, on his blog "Right from the Beginning," Pat Buchanan wrote this:

"Barack says we need to have a conversation about race in America.

"Fair enough. But this time, it has to be a two-way conversation. White America needs to be heard from, not just lectured to.

"This time, the Silent Majority needs to have its convictions, grievances and demands heard. And among them are these:

"First, America has been the best country on earth for black folks. It was here that 600,000 black people, brought from Africa in slave ships, grew into a community of 40 million, were introduced to Christian salvation, and reached the greatest levels of freedom and prosperity blacks have ever known."

See the above link for the whole post, if you must. I could hardly stomach it.

It would be easier for all of us, Buchanan believes, if we put this silly conversation to rest, instead of acknowledging that for hundreds of years, one race regarded the other as property; that, for the purpose of ratifying the Constitution, slaves were counted as 3-5ths of a person so that Southern states could get more representation in Congress; that for nearly a hundred years after the 13th Amendment abolished slavery, black children were not legally entitled to attend the same schools as white children; that exactly 100 years after the end of the Civil War did the Civil Rights Act actually give black people the right to vote in some states; and that only three blacks have been elected to the U.S. Senate in the last 130 years, among numerous other injustices.

But Buchanan does not mention any of this. Instead, he says, "We hear the grievances. Where is the gratitude?"

Can we, as a nation, go back on this despicable history? Of course not. But white people need not ask for gratitude. We should look for ways to heal the divide, not widen it. Obama says it best:

"In the end, then, what is called for is nothing more, and nothing less, than what all the world's great religions demand — that we do unto others as we would have them do unto us. Let us be our brother's keeper, Scripture tells us. Let us be our sister's keeper. Let us find that common stake we all have in one another, and let our politics reflect that spirit as well."