Constitutional Doesn’t Mean “Good”

When the news cycle lit up with stories about the SCOTUS rulings on Arizona Senate Bill 1070 and the Affordable Care Act, I found myself scratching my head. To hear liberal pundits talk about those rulings, you’d think that the Constitution is, objectively speaking, the gold standard, hell, the only standard, of democracy and good in America.

I get it when law makers weigh everything, ultimately, against the Constitution. Their job, after all, is to protect the Constitution and make and enforce laws based on constitutional principles. But news makers’ uncritical commentary on the Constitution is more troubling. It begins and ends with the assumption that the Constitution is not just the standard of law in the U.S., but the basis of all that is good.

Historically, the Constitution was a compromise between the interests, on one side, of capitalists who at the time were accumulating a lot of their capital through slavery and Indian removal, and, on the other, the anti-authoritarian impulses of a newly independent people. Those founding fathers represented both interests, often in the same bodies. The dominant impulse was for just enough freedom to protect their interests as property owning capitalists and not a whit more.

So here’s a bold statement. We will never achieve true equity under the Constitution as it is currently constructed. Nope, in order for that to happen, we need to muster the mettle, gumption and pluck to one day do like the South Africans at the fall of apartheid and convene a convention to change that baby up. That, to me, is the unfinished business of the human rights movements of the 1960s.

Not there yet? Give me a minute.

George Washington presided over the first constitutional convention. Washington was the son of a wealthy planter and a slave owner. James Madison is known in history as the father of the Constitution because his Virginia Plan provided the template. He also was a slave owner.

The Constitution was written in order to protect the interests of Washington, Madison, and other slaveholders involved in its framing. Throughout the process of creating the Constitution, slavery, whether in debates over a fugitive slave clause or over including slaves and other property in determining proportional representation, was very much on the agenda. And in the end, slavery survived as part and parcel of the society whose basic rules the Constitution was created to delineate.

So I’m guessing you follow me. The Constitution is a document that was written by a group of very flawed men in order to protect their own deeply conflicted and often contradictory interests in a society that, at the time, was busily trying to wipe Native Americans off the face of the continent in order to acquire territory on which to expand a nation, the wealth of which was being created by slavery, and all while excluding women from voting and from full protection of the law. Long sentence, I know, but sometimes you gotta get it out in one breath to make a point.

If you think that’s ancient history, consider this. The Constitution allows police officers to stop and frisk people based on “reasonable, articulable suspicion” even when there’s no probable cause and even when that “suspicion” ends up landing a wildly disproportionate percentage of the time on Black people. According to the Supreme Court, you gotta do more than show how African Americans are disproportionately stopped and frisked in order to prove racial animus. You have to show that the folks doing the frisking are doing it specifically because of the race of the person being targeted. That, sadly, is virtually impossible.

Then there’s the case of the Office of Hawaiian Affairs. In Hawaii, state funds for programs benefiting Native Hawaiians and revenue generated from certain public lands stolen from the Hawaiian people are administered by an Office of Hawaiian Affairs (OHA). That office was established in 1978.

Until 2000, the OHA board of trustees was elected exclusively by Native Hawaiians. In 2000, the U.S. Supreme Court struck down this restriction by a 7-2 vote. According to Justice Kennedy, “A state may not deny or abridge the right to vote on account of race, and this law does so.”

Talk about your double edged sword. I get that OHA elections were unconstitutional. But they were good in principle. Native Hawaiians should have the right to exercise exclusive control over the trustees of resources set aside specifically for Native Hawaiians. If the goal is the serve the needs of Hawaiians, why the hell would non-Hawaiians want a vote unless they have a conflicting interest?

The Constitution is not race neutral. Its guarantee of equal protection is constructed around a notion of the rights of individuals that too often stands as a barrier between aggrieved groups and justice. Equal protection may provide tactical cover in moving forward a racial justice agenda, but it is not the end game. The end game involves moving beyond equal to equity, and equity was never anticipated in the “original construction and intent” of the Constitution.