dcprotestProtesters in Washington, D.C.. Photo by Neil Cooler // Licensed under CC2

The following excerpts were taken from a larger piece, which was originally published on the blog “Boy Boxes Bear – Collected Miscellanea”. The full text is available here

The night of November 24, 2014, I was 3,000 miles away from home.

I’d had the Guardian Liveblog of the Ferguson Grand Jury proceedings up, and I contemplated powering through the night, despite my 8am class the next morning. But I fell asleep.

Even knowing how the movie would end, I woke up the morning of November 25 hurting. All day, on the metro on my way to class, then back home upon discovering that class had been cancelled, I fought tears. If I wept on the 4 line to Saint-Germain-des-Près, who would know why? Who would bother to ask?

You tell yourself that this has happened often enough that cynicism should have set in by now. Laughter with traces of madness, that should be my response. It shouldn’t still hurt this bad.

But, confirmed on Facebook, flowing through and around the massive islands of solidarity were rivers of racism, water turned to blood. It wasn’t the callousness or the severe lack of empathy that mule-kicked me in the chest, it was the people it came from. In this day and age, as interconnected as the country is, chances are you are or will be close to someone who will see you crying on a day like November 25, 2014, and will refuse to understand why.

Exhortations for calm come from all of the usual suspects. Admonitions to comb through Officer Darren Wilson’s grand jury testimony before leaping to rash judgment, entreaties not to trash the businesses of the community. All of it ran right on time. Like clockwork, assuming that with such debilitating rage, one would still want to calculate the efficient expenditure of one’s wrath.

All day long, the list of names circulated, grew longer. Victims of police shootings. Unarmed victims of police shootings. Black unarmed victims of police shootings. Another list that circulated was one containing last words. Amadou Diallo: “Mom, I’m going to college.” Trayvon Martin: “What are you following me for?” Oscar Grant: “You shot me. You shot me!” Sean Bell: “I love you too.” Michael Brown: “I don’t have a gun, stop shooting.” Kimani Gray: “Please, don’t let me die.”

A black American child today will grow up in a country where someone who looks like him or her is murdered every 28 hours by a police officer, neighborhood watchman, or vigilante.

On July 8, 2014, nine days before Eric Garner would be put in a chokehold and killed, Israel launched Operation Protective Edge.

For children in Gaza who, at that point, had made it to the age of seven, it would mark the third major bombing operation in their lifetime.

*

Perhaps the biggest impediment to solidarity between the black American and the Palestinian Arab has, ironically, been the promise of participation.

Methods for interpreting the American Constitution, its intentions, its purpose and its audience are proliferative. As far as framing the issue of constitutional interpretation in the terms of constitutional construction and the role of the people in that process, the theories of minimalism, popular constitutionalism and the ethical modality are most perspicuous in affording a space for “the people” in that equation. On their face, Minimalism, Popular Constitutionalism, and the Ethical Modality espoused by law professor Philip Bobbitt deal most explicitly with popular sovereignty, though they differ greatly as to where the “people” stand in relation to the federal judiciary. There exists a spectrum that sees Supreme Court Justices as actively involved in constitutional jurisprudence and the normative movements of the nation on one end and, on the other, an allowance to “the people” to exercise tradition as they see fit with the Justices either looking on in silence or giving those flashes of popular sovereign movement their stamp of approval. But in each of these, tradition is invoked and, by extension, “the people.” In each context, however, “the people” seems to mean something different, and the space provided for the “people,” thus, differs with each theory.

Lurking beneath the amorphousness of the definition of “the people” is the problem of constitutional evil, most specifically the fact that the document intended to ensure the freedom and political participation of Americans was drafted and ratified with a particular audience in mind, an original tribe. The halting expansion of political participation and of the freedoms afforded Americans has raised the issue of whether or not the Founding Document was and is a moral document. For whom is the Constitution and the freedoms embodied therein meant?

Some of the scholarly discourse centered on this very question has given rise to a “constitutional skepticism,” calling into question the document’s integrity and forcing an interrogation of its ugly parts, its evils, and the fact that it is a document that was formed during the commission of America’s Original Sin.[1]

It is not my intention to equate the divine inspiration that powered the Bible’s construction with the intellectual and ethical acrobatics that attended the Constitution’s creation, but the problem of cognitive dissonance exists in the Christian struggling to maintain fidelity to a Bible that has been invoked to perpetrate horrors as it exists in the legislator, Supreme Court Justice, American struggling to maintain fidelity to a document whose freedoms were not initially meant for the people the document was meant to govern. Adherence to the New Testament does not necessitate breaking from the Old.

One theological understanding of the Bible is that the New Testament is a lens meant to color the Old Testament that preceded it. The analog would be, then, that the rights-affirming amendments to the Constitution should be read the same way, as lenses that should color our view and interpretation of the Constitution that precedes them.

America’s Original Sin provides precisely an instance of the Constitution turning against the way it spins. The Fugitive Slave Act and other legislative edicts propping up the peculiar institution made rescuing fugitive slaves and aiding and abetting their rescuers not only a concrete set of prohibitions against practical action but symbolic declarations as well. Within the Constitution and within the context of its invocation, Authority was pitted against meaning. In this Binding of Isaac, Abraham has no qualms sacrificing his son, holding his son on the same plain as the ram eventually provided for sacrifice. Meanwhile, those living in a different normative universe, one where they were the ones wearing chains and bearing on their backs the expressed malice of their owners or where they were the ones watching their brethren subjugated and advocating for the institution’s abolition, found themselves in a different posture in the narrative of Abraham sacrificing Isaac. From their position, standing in the gutter with their eyes trained on the stars, slave and abolitionist alike, from the Garrisonians to the John Browns to Frederick Douglass, asked of the sky what God would dare demand such a sacrifice. What document promising a “more perfect union” would dare license chattel slavery?

Where constitutional fidelity may have been a sensible given for the majority of Americans before and after the Civil War, the devotion of minorities, particularly oppressed minorities the mechanism for whose oppression was written into the very text of the nation’s laws, to the Founding Document raises fundamental questions not only as to the moral certitude of the Document but as to the aforementioned methods of interpreting it as well. Who are “the people?” The “people” are a multitude. Science-fiction author William Gibson is alleged to have said “[t]he future is already here–it’s just not evenly distributed.” Well, the protections of the Constitution have been here; they just have not been evenly distributed.

Slavery and its attendant legal/moral conundrums have necessitated moral, ethical and spiritual gymnastics on all Americans who have sought to deal with the issue that made the Constitution turn against the way it spun. Justice Story, writing the opinion in Prigg v. Pennsylvania, 41 U.S. 539 (1842), reversed Edward Prigg’s conviction and held the 1788 amendment to Pennsylvania’s “An Act for the Gradual Abolition of Slavery” unconstitutional, at the same time allowing state legislatures to nonetheless pass laws that prohibited state officials from aiding, in any way, a slave-catcher in the course of his duty. The idea, by apologists of the ruling, is that Story reasoned that slave-catching, a difficult enough enterprise in some cases, was only made more difficult by the non-assistance of local authorities.[2] A perhaps more obvious benefit, highlighted by Story apologists, is that this ruling helped preserve the Union at the time.[3]

These spiritual and intellectual contortions did not end with the striking of the Fugitive Slave Act. Professor Derrick Bell presents post-Reconstruction as a “nadir” for black Americans which has persisted in testing the notion of constitutional fidelity to the present day.[4] Bell writes of post-Reconstruction courts: “Judges were content to take sides by doing nothing. They exerted only that energy required to so narrowly construe seemingly applicable constitutional provisions and civil rights statutes, that one ponders why the Congress had labored at such length to produce laws that impressed the judiciary so little.”[5]

Post-Reconstruction in this light, and the era that saw the fruits of the labor undertaken by Civil Rights Strugglers, when the rose-tint of popular constitutionalism’s theorizing is pushed to the side, reveal an America where the victories of social movements are hollowed things, such that when you knock on them to test their strength, you hear only the emptiness ringing inside them. Voter suppression laws, produced in the laboratories of state legislatures, further evince the insubstantiality of the promise of inclusiveness held in readings of popular constitutionalism and minimalism.

Professor Dorothy Roberts states that the fidelity of America’s black population to the Constitution is borne of a desire for equal citizenship, for a shot at participation in the American political experiment.[6] This dovetails with the late John Hart Ely’s emphasis on participational rights as a way to ensure the participation of ‘discrete and insular’ minorities in the political process.[7] Ely, a widely cited legal scholar and former dean of Stanford Law School, had as his signal hypothesis that constitutional provisions should be read, not as efforts to establish substantive rights, but as safeguards against the infringement of procedural rights, infringements upon the right to participate in popular self-government. The representative ingredient in our democratic soup is the most important, not just a spice added on for flavor but the principal out of which the whole project is made.

But what Ely posits shatters against the same thing that reduces minimalism, popular constitutionalism, and the ethical modality to dust when they attempt to assert their populist impulses. The Old Testament was not written for the Gentiles.

Minimalism, popular constitutionalism, and the ethical modality avoid elaborating their concept of the people or the popular consciousness. One might posit that those theories operate out of a bloodless theoretical naïveté, or if one wishes to be particularly caustic, one might accuse the three methodologies of constitutional interpretation of cowardice. So far, they have ducked the issue, skirted around the whip-scarred elephant in the room. Theorists walk around that tainted space, perhaps in the belief that if it is ignored, it can be treated as anomaly, slavery a singular happenstance rather than the pervasive boil on America’s flesh. If the racial imperative that powered it is a more pervasive thing than that, if it is indeed more widespread than a specifically historical orbit of hurt, then it is perhaps unavoidable.

With the Reconstruction Amendments, we have a cure for the evils built into the Constitution of 1787.

The Fourteenth Amendment invalidated Article 1 §2’s three-fifths clause. The Thirteenth Amendment invalidated Article 4 §2’s Fugitive Slave clause. Those are the evident changes. Less evident but perhaps just as powerful is the fact that those Amendments are now inseparable from the rest of the Constitution. Not only are they part and parcel of the Constitution’s fabric, they address its deficiencies. They attempt to cure its infirmities with an element of permanence. The discretion of judges and legislators and members of the executive branch are not enough to more distinctly outline the contours of the rights that may or may not be embodied in the structure of the Constitution, as Bobbitt posits. If it is in the Constitution, it cannot be ignored. And if one is wedded to efforts at determining the intent of base-text clauses, then one must be even more invested in gauging the intent and meaning of the Reconstruction Amendments. In this brand of intratextualism, the intention behind the Thirteenth, Fourteenth, and Fifteenth Amendments is the more important element. If the historical-linguistic context of a rights-based base text clause raises questions, the historical-linguistic context of rights-based amendments can provide answers.

Frederick Douglass, in a brobdingnagian struggle to see morality in a document that had legitimized his captivity and would not prevent any subsequent return to bondage, sought a revised interpretation that rendered the Constitution incompatible with slavery, writing: “[I]f the declared purposes of an instrument are to govern the meaning of all of its parts and details, as they clearly should, the Constitution of our country is our warrant for the abolition of slavery in every State of the Union.”[8] Douglass interpreted the document’s pieces in light of its whole.

Due process is accorded new meaning in light of the Amendments. The Eighth Amendment must be read in light of the peculiar institution that necessitated the creation of the Reconstruction Amendments. The Bill of Rights in its entirety is now made accessible to that part of the population formerly perceived as property.

But, Medgar Evers. But, redlining. But, Michael Brown.

But, Jim Crow.

But, Addie Mae Collins, and Cynthia Wesley, and Carole Robertson, and Denise McNair.

But….

[…]


[1] Robin L. West, Constitutional Scepticism, 72 B.U. L. Rev. 765 (1992).

[2] see generally R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (University of North Carolina Press, 1986).

[3] J.M. Balkin, Agreements with Hell and Other Objects of Our Faith 65 Fordham L. Rev. 1708 (1996-1997).

[4] Derrick A. Bell, Jr., The Racial Imperative in American Lawin The Age of Segregation: Race Relations in the South, 1890-1945 (University Press of Mississippi), pg. 3-28

[5] Id. at 4.

[6] Dorothy E. Roberts, The Meaning of Blacks’ Fidelity to the Constitution, 65 Fordham L. Rev. 1761 (1996-1997).

[7] John Hart Ely, Democracy and Distrust (Harvard University Press, 1980).

[8] Frederick Douglass, The Life and Times of Frederick Douglass, 261-262 (MacMillan Co. 1962) (1892).