Are there holes in the Constitution? - Harvard Law Today
an aspirational document — with which we have to live, whether we fail it or not

The debate over the 1619 Project, which purports to condemn as evil the founding of America, rests upon the unique character of our nation. We are an aspirational adventure.

Unlike all other nations., we are not formed by language or tribal origin, not by unities of origin at all, but by the ideals we aim for. Every immigrant who came here voluntarily, and every descendant of those who did not arrive voluntarily but who willed to stay, cherishes the ideals that our founding documents — Declaration, Constitution, Bill of Rights — assert. Other nations generate; we are a work in progress; a long journey exploring the golden rules we expect, we believe in, we will not betray.

Into this celebratory optimism comes now an opposite view : that America was founded in slavery, in “colonization,” in hypocrisy of claiming great ideals while practicing brutal oppression. It is noted that almost all the Founders owned slaves and that few had any objections to dispossessing Indians. Much is made, for example, of the “three fifths” clause of the Constitution by which the apportionment of Congress members is determined : there it is, right in the document to which we all swear an oath to defend, that slaves are counted only three-fifths of a life. It is noted that every sort of impediment, first legal, later social, to assuring Black people the full equalities insisted upon by the Declaration: and indeed, Frederick Douglass, in his great “Fourth of July’ speech, noted that to the then slave, the Declaration was a mockery. We are all aware that barely 60 years ago, Blacks in many States were denied the most basic civil rights; and that even today, many people who hold positions of power, including some police, do not value or respect, equally, the lives and dignity of Black Americans: and we are told, by hose who extol the 1619 Project, that the persistence of these inequities is built in to our founding.

That is what we re asked to accept; but should we ? I differ. What I see is that the very perfection of our ideals is their curse. Political and social aspirations cannot be beyond the talents of we who are asked to live them. The equality of all reads well, because we conclude that it applies to us. It is OUR OWN potential inequality which we object to — not so much the possible inequality of others. By nature, self-preservation — not that of our fellows — is the basic instinct. we too easily read that instinct into Thomas Jefferson’s words which were intended to shield all, not just we ourselves. It is all good to say that the good of each of us is secured best by the good of all. That is what the preamble to the Constitution says — “the general welfare,” not the welfare only of me, only of you — and we easily utter these words only to feel, afterwards, that the general welfare is actually MY welfare first.

Nonetheless, the aspirations are there. They are written down, and we take an oath to defend and advance them, no doubt sincerely when sworn to.

Even as we fall short, in practice, of the ideals we say we honor, so too do we rise above the pessimism and generalizations written by the 1619 Project. America was NOT founded in slavery nor was African chattel slavery an American invention., It existed for at least 100 years before 1619 and, indeed, had existed throughout Saharan Africa for at least a milenium. The slave trade, rightly condemned, was just as much fueled by African tribes doing the capturing as by Portuguese and Spanish slavers buying the captives. At that time, moreover, slavery systems existed almost everywhere and had so existed since very ancient times. We think of African slaves, but the word “slave’ is derived from “Slav,” because it was Slavic peoples who were most often enslaved during the Byzantine and Venetian commercial heydays (6th to 16th Centuries).

Slavery nowhere was declared illegal until Massachusetts did so in its 1780 Constitution. Abolition of slavery arose, as a goal, during the rise of industry : slave labor was incompatible with industrial work. At the same time that slavery began to look infeasible economically, so did its moral injustice discomfort many; and Bishop William Wilberforce in England and Unitarian preachers in New England contemporaneously condemned it.

Abolition arose here, in America, and though a minority opinion, it built sufficient political and moral force to secure slavery’s end as a Civil war goal. That our founding documents echoed their equalities in our ears was not incidental. They were, in fact, vital to the political success that abolition finally won after decades of failure. Nor dare we overlook that the Founders, who mostly owned slaves in an era when slavery was common everywhere, were troubled by it and sought its end, albeit by voluntary means — several freed their slaves, and almost all wanted it phased out. Phase out is actually in the Constitution: the slave trade was to end in year 1808.

The much-maligned “three-fifths” compromise was in no way a backsliding. It was, in fact a major step forward. No slaves had ever before been counted as persons before the law., now they were accorded three-fifths enumeration, and their number was included in the most vital of political arrangements, the number of elected representatives given to a State. Those who decry the devaluation, compared to enumeration of white residents, argue backwards.

The question I now want to ask is, why has slavery had such vast political consequences in America when it had none in any European nation ? Including Spain and Portugal, the creators of Transatlantic slavery trade and for centuries its dominant practitioners ? First, for European nations,. almost all the slaves were imported into New World colonies, not the home country. Yet even there, emancipated slaves were accepted into society fairly readily. Tensions there were, and are; yet nothing like the hundred fifty years of opposition to equality in society that has occurred in the USA.

Second, the end of slavery was imposed here by a conquering army and its government. Acceptance by the conquered would have been difficult in any case, and with universal suffrage, everybody’s resentment found sanction in votes cast at elections. Yet I think we cannot dismiss what I said at the outset : our nation has founded itself upon the noblest of aspirations, from which we cannot help but fall short, even as the people of Israel — so we are told — constantly backslid from the Ten Commandments and honoring God. Set yourself goals almost beyond human capability, and you set yourself up for a fall.

Which is what we have done, for better or worse, by creating an America dedicated to the proposition that all men are created equal and have certain unalienable rights….

We did in fact found such a nation — not in slavery but in its opposite — and have to live with the consequences.

I think often of Solon, the great Athenian magistrate, who when asked by a foreign king whom he visited, did you give the Athenians the best laws, answered, “I gave them the best laws that they would accept.”

That is the way that prevailed all over Europe. it is realistic. It defers to human capability. It is NOT the way that we in America chose. We want the best laws, whether our people accept them or not. And many do not.

— Mike Freedberg / Here and Sphere