The Constitution: A Love Story
When the 112th House of Representatives opened this past January with a reading of the United States Constitution, the intended political message was clear—the Republican Party was back to rescue the Constitution.
Less clear was what Constitution Republicans were vowing to save. The version they ordered read was, in fact, stripped of language the leadership considered “superseded by amendment,” even though those measures are still in the text. Some are embarrassing. The provisions protecting slavery, for example, call into question the infallibility of the Founding Fathers. Since one of the standard conservative talking points is that the “original intent” of the framers is an infallible guide to wisdom, the fallible parts were better left unmentioned.
As a matter of fact, the new majority was more eager to amend the Constitution than to read it. The reading of the censored Constitution actually took place on the second day of the House session. The leadership found time on the first day to introduce H.J. Res. 1, the latest and most radical iteration of the “balanced budget amendment,” which would make it all but impossible for any future Congress to raise taxes—thus gutting one of the central aims for which the Founders in Philadelphia wrote the document.
This story illustrates the paradox of right-wing “constitutionalism” in the 21st century: On the one hand, it proclaims its patriotic devotion to the document against unpatriotic progressives who want to “destroy” it. On the other, it is faintly embarrassed by what the framers wrote and openly contemptuous of what they achieved.
This strange double discourse became louder after the 2010 election, as conservative lawmakers in Virginia proposed an amendment permitting state legislatures to repeal federal statutes. It progressed to an eager call by right-wing academics for a constitutional convention to purify the Constitution of federal power. It bottomed out when Senate Minority Leader Mitch McConnell explained that a balanced-budget amendment is needed because the people can’t be trusted: “The Constitution must be amended to keep the government in check. We have tried persuasion. We have tried negotiations. We have tried elections. Nothing has worked.”
Doublethink will probably dominate the airwaves for the next year. Republican “constitutionalists” are to constitutional law what Hannibal Lecter is to surgery. Consider Rick Perry, the current presidential front-runner and a self-styled constitutional authority. In his book, Fed Up! Our Fight to Save America from Washington, he warns us that “since the dawn of the so-called Progressive movement over a century ago, liberals have used every tool at their disposal … to wage a gradual war on the Constitution.”
Rick Perry is here to save it. How? Well, first he wants to make sure that people stop reading the part that gives Congress the power “to regulate Commerce with foreign Nations, and among the several States,” and with that, convince us there’s no warrant for federal spending for “health care, education, transportation, and countless other domestic programs”—including Social Security. Next in urgency is repealing the 16th Amendment (income tax) and the 17th Amendment (popular election of senators), which don’t belong in the Constitution because they were put there by the people “in a fit of populist rage.” Then, Perry has since made clear, we need the federal Marriage Amendment, to make sure that the “limited government” in Washington can regulate our intimate relations; next, perhaps, an amendment permitting Congress to overrule the Supreme Court; and, finally, “clarifying amendments” explaining that the Bill of Rights and the 14th Amendment don’t mean what they seem to say about separation of church and state, protection from execution without due process, the right to vote, or equal protection of the laws.
In short, Perry, like many of today’s “constitutionalists,” loves the Constitution to death. It is ingenuous, however, that Perry admits that amendment may be necessary; conservatives of the Ron Paul/Michele Bachmann stripe insist that the Constitution already contains Christian-libertarianism hidden between the lines in a da Vinci–coded “original intent.”
These figures represent a movement that wants to change our form of government, making it radically less democratic and producing an enfeebled “night-watchman state.” They want to do this either by rewriting our charter or, more likely, by proclaiming that it has always contained this toxic mix of the Articles of Confederation, Ayn Rand gibberish, and fairy-tale history.
Given this challenge, one would think that progressives would flock to the banner of the Constitution. This is a fight we can win, after all; last I checked, the Constitution was reasonably popular. We have to be willing to fight the battle, though. Needless to say, President Obama has not uttered a full-throated refutation of the right’s claims, but few figures on the progressive side of the spectrum have, either.
That’s where our own double consciousness kicks in. Earlier this year, I published an essay challenging the right’s assault on the Constitution. “Ordinary Americans love the Constitution at least as much as far-right ideologues,” I wrote. “It’s time to take it back.” Sanford Levinson of the University of Texas, the unchallenged doyen of constitutional law, immediately responded. The current Constitution, he wrote, is basically bantha fodder—undemocratic, unwieldy, and irredeemably tainted by slavery—and needs to be replaced. “I very definitely do not love the Constitution, and I don’t think that anyone else should either, except those who benefit from the status quo,” he wrote. “Otherwise, we’re all like deluded spouses who accept being battered as simply part of what the trials and tribulations of marriage/politics are all about.”
Are those of us who still admire the best features of our constitutional history, and hope for a better future, like battered spouses? Family metaphors can never be precise. They are not, in fact, even political in the way the debate over health care or the makeup of the Senate is. They are powerful because they touch our deepest joys and sorrows. The pain and injustice of family life—no matter how happy the family—are the true headwaters of political passion. To Levinson, the Constitution is an intimate abuser; no wonder he wants to close the door on it forever.
In the family constellation I carry in my heart, the Constitution is not and never has been abusive. It is neither an idol nor a love object to whose flaws I am blind. At times it is like my Uncle George, who used to give me a quarter after church, tousle my hair, and tell me to run along. Other times it is like Uncle Jack, who was pretty much all right until he had two drinks and began singing the VMI fight song. At times it is more like my Cousin Bill, who claimed to be a Costa Rican colonel, sometimes wore a lightning-striped toupee, and put his pet chipmunk down Cousin Chicky’s bridal gown at the wedding reception. At times it surely has retarded political goals I think should have been won, blunting social change that might improve the lives of those I love.
That is not all the Constitution has done for me. It is not even the most important thing. For I believe the Constitution saved, if not my life, at least its promise and the promise of the lives of those among whom I grew up. In a moment of great need, the Constitution—belatedly, even reluctantly, but nonetheless decisively—came to my rescue. As a result, I have my own passions about the Constitution. It may be a strange parent, but it is not an abusive one.
My story is not unique to me. It is the story of one region and two races that, not long ago, lived in a place where the Constitution did not apply. This was once vivid in the public mind, seared in place by televised images of dogs biting helpless women and fire hoses knocking down children. It is fading. Some who witnessed it have died; others have forgotten; and some have always stood ready to deny the depth of the evil that was overcome and the scope of the victory that was won.
“I just don’t remember it as being that bad,” Mississippi Governor Haley Barbour recently said about segregation. Haley Barbour and I are of the same generation, and, like him, I was a designated beneficiary of the segregated system. I remember it vividly.
Understand what segregation was: a radical new system locked in place between 1890 and 1912 to contain the forces of democracy and separate the South from the rest of the nation. It was not an antiquated vestige of the old slave South—something Southerners just forgot to clean up after the Civil War—but a modern, thoroughgoing racial dictatorship as oppressive as South African apartheid.
The separate drinking fountains and restrooms, while horrible, were the least of that system’s effects. The heart of the system was not enforced separation of the races but systematic, violent subordination of one to the other. Black citizens in the South were excluded from public life; they were denied the vote; they held no offices; they were given only limited access to the courts; they were economically exploited by whites under the color of law. Official violence maintained white supremacy, and if that failed, extralegal violence was also waiting—and law enforcement often made no effort to stop violence and even murder when it was directed against black people.
The system oppressed both black and white—not equally, but it oppressed both nonetheless. I grew up in a genteel part of a relatively civilized state of the Old South, but even so, the threat of racial violence was always in the air. We didn’t talk about it much, but all of us, black and white, knew it was there. No one, white or black, was allowed to question the “system”; those who did ran enormous risks. Dissent—white or black—could mean social ostracism, economic ruin, or physical danger. As in any dictatorship, the education I received at my segregated school was systematically shaped to reinforce the official racist ideology. Public officials, government sources, and the local news media ceaselessly repeated the official propaganda message, which was (as my hometown editor, James J. Kilpatrick, wrote in 1962), “From the dawn of civilization to the middle of the twentieth century, the Negro race, as a race, has contributed no more than a few grains of sand to the enduring monuments of mankind.”
Few people or institutions defied the system; some worked around it to inject some humanity into daily life. Many whites were what we called “decent folk.” My family fell into this category. My parents were people of powerful goodwill who in their public lives modeled tolerance and kindness and who, by the time they died, had formed deep alliances across the color line. But in private, for years, our family lived a life defined by racial separation—our church, our schools, our clubs, our jobs—and when white peers spoke in ways that “decent folk” did not, we lacked the vocabulary to rebuke them. I can recall the long lectures my grade-school teachers delivered about the need to keep black people in their place and the mornings my father stopped to offer a ride to another lawyer (one who had been part of the defense team in Brown v. Board of Education), who subjected us to vulgar fulminations against n-----s and meddling Yankees who were making trouble for us all.
This fetid system was in place because those charged with guarding the Constitution winked at it. Southern whites, though, always knew that they were violating the nation’s fundamental law. “We have been very careful to obey the letter of the federal Constitution,” Senator Walter F. George of Georgia explained early in the 20th century. “But we have been very diligent in violating the spirit of such amendments and such statutes as would have a Negro to believe himself the equal of a white man.”
The Congress and the Supreme Court had allowed this charade to be carried forward: “separate but equal” jargon justifying grossly unequal institutions; “nonracial” literacy tests and poll taxes “coincidentally” producing all-white electorates; imaginary “states’ rights” smothering the textually guaranteed rights of free speech and equal protection. The old Confederate states were allowed to wall themselves off into separate suffocating satrapies that seemed, when I was a boy, destined to stand forever.
These safeguards of segregation were not features of the Constitution but perversions and defiance of it—conscious violations of the spirit, as Senator George so cheerfully confessed. They were locked in place by men who believed the Constitution was just words on paper. But those words on paper brought this system down.
I was born in 1950. When I was 4, the Supreme Court shocked the South with Brown v. Board of Education, which said, “In the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” When I was 5, the 26-year-old Martin Luther King Jr. told the Montgomery Improvement Association, “If we are wrong, the Supreme Court of this nation is wrong. If we are wrong, the Constitution of the United States is wrong. If we are wrong, God Almighty is wrong.” When I was 9, college students in Greensboro, North Carolina, sat politely at a Woolworth’s lunch counter and demanded to be served. When I was 14, two-thirds of the members of the United States Senate broke a Southern filibuster and enacted the Civil Rights Act of 1964. When I was 15, Congress passed the Voting Rights Act of 1965. When I was 16, I worked as a volunteer in something many Southerners had for generations only dreamed about—a contested election in which people of both races could vote and the ruling party’s chosen candidate actually lost.
The Southern wall had crumbled. Many injustices remained; nonetheless, white and black, we were, ambiguously, free at last.
The Constitution did this for me. That may seem to some critics like a small respite in a history of abuse, but to me it was a gift of full membership in the national family. Governor Barbour may not want to remember, but I will never forget.
In the years since the walls came down, an industry of political scientists has grown up to explain that Brown v. Board really didn’t accomplish much. But, in this case, I was there. Brown did something remarkable. No longer could white Southerners ask, “How can we maintain our special system?” They had to—and they did—begin to ask, “Are we defying the Constitution?”
The next ten years were an extraordinary period: Everywhere I went as a boy, I found white people—young, old, lawyers, laypeople, Northern, Southern—arguing about the Constitution. Most of the people I knew were angrily asserting that segregation was constitutional, but after Brown, the idea of racial equality had jumped the color line and become a question whites could not ignore. When King in 1955 proclaimed, “If we are wrong, the Constitution of the United States is wrong,” whites were no longer laughing. Their inner certainty was shattered.
The greatest heroes of the civil-rights movement were the black Southerners, young and old, who hurled themselves against the wall of color. There was also another group of more ambiguous heroes—the federal judges of the South, whom author J.W. Peltason calls the “fifty-eight lonely men” of that era. Children of segregation (how could they have gotten to be judges otherwise?), they were charged by the Supreme Court with enforcing Brown and given little guidance on how to do so. The law and the Constitution made some (not all) of them, willingly or not, stewards of justice, imperfect but powerful. Eventually, men like John Minor Wisdom, J. Skelly Wright, Robert R. Merhige, and Frank M. Johnson Jr. achieved a kind of prophetic isolation; from that lonely place, they worked to transform the society that had spawned them.
I did not know King or John Lewis or Ella Baker, but I knew some federal judges, and I saw the price they paid to remain true to their oaths. (One told me of finding his dog on the lawn, its throat cut.) In the midst of great danger, often against their own inclination, they too became heroes—and to me, they remain so.
It is easy to claim that the civil-rights movement failed. The South didn’t become the “beloved community” of which King spoke, a democratic society where citizens are bound together not only by law but by mutual regard. Racial and social divisions scar our national life. Today’s South is too often governed by white thugs like Haley Barbour.
White college students complain that minority students “segregate” themselves in dining and residence halls. Former Justice Sandra Day O’Connor even described white voters, placed in a strange-shaped voting district that was “only” 45 percent white, as injured by “an effort to segregate the races.” Those who speak this way do not remember. Segregation was not partial separation but total exclusion; it was not social reticence but proscription enforced by violence; it was not flawed democracy but successful dictatorship; it was not whites being in a slight minority but blacks having no vote at all.
I still remember, and I remember that the Constitution, for all its flaws, played a major role in bringing me and the place where I grew up out of darkness and into membership in a democratic national society. It was not the Constitution alone—if provisions and amendments alone could have done it, then the 13th, 14th, and 15th Amendments would surely have brought the Jubilee. One factor in the decline of Southern resistance, however, was a sense of shared loyalty to the Constitution, one that was forged over generations. This “constitutional faith,” to use one of Levinson’s most memorable phrases, would not easily have been transferred to a new Constitution, no matter how cleverly designed by a current assembly of notables. Its absence would have reduced the struggle to naked force, with no underlying appeal to shared values.
It is the power of constitutional faith—the power to constrain us toward outcomes we may oppose or even fear—that I revere about the Constitution. The amended Constitution that exists on the page—the document I read—is for all its flaws and gerrymanders a progressive document, making the American states one nation, placing that nation under the governance of a Congress elected by the people, empowering that Congress to act for the common good, restraining states from blocking the common good for parochial reasons. That document, as amended, embodies the progressive ideas of human equality, of human dignity safeguarded by due process and “equal protection of the laws.”
The far right is now stealing the Constitution in plain sight. I don’t speak here of ordinary conservatives who may differ with me on the scope of the Commerce Power or the meaning of the 11th Amendment but of the Bachmanns, the Perrys, the Pauls (father and son). These charlatans are not being answered as they should be, in part because too many progressives see only the imperfection and shame in the Constitution’s history and blind themselves to the promise of its text.
Last year, on the 37th anniversary of the “March on Washington for Jobs and Freedom,” the National Mall was filled with participants in Glenn Beck’s “Restoring Honor” rally. I went to the Mall and stood among the marchers and heard them discussing the horrors of immigration, the “tyranny” of an elected Congress, the rapture of guns, the satanic evil of Barack Obama. I felt a profound disquiet, not least because I spoke to many of them individually and found that these were, by and large, lovely people, Americans from small towns who were, in my judgment, being led astray—fed lies about their history and their Constitution—by people who should know better.
To restore my soul, I left the march and walked to the National Museum of American History, on the north side of the Mall. In a second-floor exhibit hall, the museum displays the original lunch counter from the Woolworth’s store in Greensboro where the first sit-in occurred in 1960. That lunch counter—like the Liberty Bell, the Wesleyan Chapel in Seneca Falls, the wall atop Cemetery Ridge, Ford’s Theatre, and the Stonewall Inn—is an inescapable part of our constitutional heritage. These physical things tie the words on the Constitution’s page to our lives in a way that we could never reproduce even with the most brilliant new Constitution. These places and objects are outward and visible signs of the inward grace that constitutional faith can sometimes produce, of the transformative potential, present always in American history, of dry words on paper.
I stood in front of the lunch counter and thought of the poisonous twaddle being pushed on the Mall behind me. I think now of the corrosive agenda of the right wing, which in many ways is the same agenda the Constitution’s opponents have followed since 1787: sanctioned inequality, theocracy, localism, xenophobia, legalized exploitation. Today, their hostility masquerades as reverence. They dare to accuse patriots of treason; they demand obeisance to an imagined Constitution; they plot the destruction of the real one.
I made a vow: Let others dream of constitutional conventions. As for me and my house, we will serve this Constitution.
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