America's Unwritten Constitution: The Precedents and Principles We Live By (44 page)

As time passed, Americans poured prodigiously into the Northwest thanks in no small part to the Ordinance’s inducements, and in the process settlers began to endow the Ordinance with a special symbolic sanctity. For the region’s numerous residents, the Ordinance was in effect their primary constitution—their basic frame of government and their highest source of law, their Magna Carta. Indeed, to many northwesterners the promises made in this sanctified text seemed to be prior to and even higher than the federal Constitution itself. Congress had pledged not to unilaterally abandon these guarantees, and even if some future federal constitutional amendment purporting to modify the Ordinance without settler consent might be technically legal, such an act would be an unthinkable breach of fundamental first principles of fairness. The Ordinance thus reinforced the idea—an idea also clearly visible in the Declaration—that certain higher-law rights preceded all legitimate government.

Of course, the most basic of these basic rights was a universal right to be free—a right that the Declaration did not recognize in practice, and that likewise found little support in the federal Constitution as actually implemented in antebellum America. Thanks to the three-fifths clause, proslavery policies had lots of friends in high places in the national government. But the Northwest Ordinance offered antislavery Americans a much purer symbol of what America could and should be—a symbol of the West, a symbol of the future, a symbol of hope, a symbol of free soil, free men, and freedom.
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The key clause of the Northwest Ordinance—the golden apple in its
silver frame, to borrow a phrase—read as follows: “There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted.” If these words look vaguely familiar, they should. When the American people finally put a constitutional end to slavery in 1865, they did so via a Thirteenth Amendment whose words consciously and closely tracked—and thus paid tribute to—the great Northwest Ordinance.

The ties between the antislavery ordinance and the antislavery amendment ran even deeper than this textual similarity alone might suggest. Many of the men who pushed the amendment through were from the Northwest—men like Lincoln and Senator Lyman Trumbull from Illinois, and Congressman John Bingham and former governor Salmon Chase of Ohio. The Old Northwest—Ohio, Michigan, Indiana, Illinois, Wisconsin, Minnesota—formed much of the backbone of the Republican Party. Men from these places filled out the Union Army at every level, from Grant and Sherman on down. Without these northwesterners, there would have been no President Lincoln, no Civil War victory, and no Abolition Amendment.

The nationalism visible in section 2 of the Abolition Amendment—“Congress shall have power to enforce…”—also had deep roots in the Northwest Territory and in the Northwest Ordinance. The taming and republicanization of the Northwest was a grand nationalist and nationalizing project. Residents of this region had arrived there from many different places (especially from free states, of course) and inclined toward a distinctly nationalist worldview. Whereas nineteenth-century Virginians like Robert E. Lee gave pride of place to their home state (which had preexisted the Union by more than a century and had helped found the Union in the 1770s and 1780s), northwesterners tended to see themselves as Americans first and state residents second. America had chronologically preceded the states they now called home. Indeed, via the Ordinance, America had founded these states qua states.

SEVERAL OF THE EPIC CONSTITUTIONAL THEMES
of the Northwest Ordinance—higher law, freedom, nationhood—can also be discerned in a brief 1863 address delivered by the nineteenth century’s most famous northwesterner. Like the Ordinance, the Gettysburg Address gestured back to America’s preconstitutional experience (“Four score and seven years ago…”). Indeed, the Address gestured back to words (“all men are created equal”) composed by Thomas Jefferson, the very same man who had composed the first draft of the Northwest Ordinance. And just as the Ordinance presaged the specific language of the Thirteenth Amendment, so the Address foreshadowed the Fourteenth. Whereas Lincoln’s first sentence evoked the past, his last sentence envisioned the future, calling for “a new birth of freedom.”

The new birth that Lincoln foretold was nothing less than a national conversion experience in which America, under God, would seek to free itself from the original sin of slavery and inequality. Today, that conversion experience is generally referred to as the Reconstruction, a new birth of freedom that had as its constitutional centerpiece a trio of amendments that marked the first formal additions to the Constitution since Jefferson’s presidency. The opening sentence of the Reconstruction’s central amendment prominently featured the word “born”—a word that built on Lincoln’s poetic imagery of birth and rebirth. Fittingly, this amendment’s new birth of American freedom began with Americans’ freedom at birth—the freedom of every American to claim citizenship on the day he or she is born. And not just citizenship, but equal citizenship, because America was, Lincoln had reminded his audience, dedicated to the proposition that all men are created—born—equal. (The imagery of birth was visible even earlier in Lincoln’s opening sentence, when he noted how the nation had been “conceived” and “brought forth”—born—in 1776.)

To put the point in a more legal and less literary way: Lincoln’s Gettysburg Address is a central work in America’s symbolic constitutional canon because the written Constitution itself links to Lincoln and ratifies his vision. After hearing Lincoln’s 1863 dream, America reelected Lincoln and his allies in 1864, and this reelection precipitated the Thirteenth Amendment.
(Lincoln in fact signed this amendment even though his signature was legally unnecessary.) When Lincoln died, America proceeded to ratify his vision even further by taking what he had claimed was America’s central proposition—that all men are created equal—and textualizing this idea in the Fourteenth Amendment. Eventually, Americans adopted yet another amendment extending the franchise to black men—an idea that Lincoln himself had publicly proposed only hours before he himself became a casualty of war and went to his final resting place, spiritually joining the soldiers he had eulogized at Gettysburg. This amendment, too, was an “altogether fitting and proper” tribute to Lincoln’s memory and vision, much as he had offered precisely such a tribute to the men who had died so that the nation might live.
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The American people’s profound, albeit informal, ratification of Lincoln’s Gettysburg Address did not end in the 1860s. Lincoln’s dream is continuously reenacted in twenty-first-century America as millions of citizens choose every year to make the Address their own in some special way—by reading it aloud in a classroom, by committing its ultra-terse text to memory, or simply by pondering its deep meaning and highly resolving that democracy and equality must not perish from the earth—or at least, must not do so on our watch.

SOME OF THE MOST SIGNIFICANT
reenactments and ratifications of Lincoln’s Address occurred in and around
Brown
and the Dream Speech, and these two texts themselves entered the American constitutional canon when they, in turn, won the hearts and minds of the American people in the 1960s. One important moment of affirmation occurred in 1957, when President Dwight D. Eisenhower—a celebrated war hero in the tradition of Ulysses S. Grant, and the most famous resident of Gettysburg, Pennsylvania—responded to violent efforts to defy
Brown’s
implementation by sending federal troops back into the South to make clear that the Union had won the Civil War and that the war had ended with the constitutional promise of a new birth of freedom.

Though Eisenhower himself did not quite say it this clearly—Ike did
not have Abe’s way with words—his successor did use his bully pulpit to reaffirm both Lincoln and
Brown
. Addressing the nation from the Oval Office on June 11, 1963, just weeks shy of the centennial of the battle of Gettysburg, President John F. Kennedy told his fellow Americans why he, too, had been obliged to use military troops to enforce the constitutional rights of several students “who happen to have been born Negro.” His remarks are worth quoting at length, for they perfectly illustrate how America’s symbolic Constitution works in tandem with the written Constitution.

Kennedy began by echoing Jefferson and Lincoln: “This Nation was founded by men of many nations and backgrounds. It was founded on the principle that all men are created equal.” As had Jefferson and Lincoln before him, Kennedy then proceeded to place the issues facing America in a global and geostrategic context and to reflect on the Jeffersonian/Lincolnian/Reconstruction idea of birth equality:

       
Today we are committed to a worldwide struggle to promote and protect the rights of all who wish to be free. When Americans are sent to Vietnam or West Berlin, we do not ask for whites only. It ought to be possible, therefore, for American students of any color to attend any public institution they select without having to be backed up by troops.

           
It ought to be possible for American consumers of any color to receive equal service in places of public accommodation, such as hotels and restaurants and theaters and retail stores, without being forced to resort to demonstrations in the street, and it ought to be possible for American citizens of any color to register to vote in a free election without interference or fear of reprisal.

           
It ought to be possible, in short, for every American to enjoy the privileges of being American without regard to his race or his color.… But this is not the case.

           
The Negro baby born in America today, regardless of the section of the Nation in which he is born, has about one-half as much chance of completing a high school as a white baby born in the same place on the same day, one-third as much chance of completing college, one-third as much chance of becoming a professional man, twice as much
chance of becoming unemployed, about one-seventh as much chance of earning $10,000 a year, a life expectancy which is 7 years shorter, and the prospects of earning only half as much.

Building upon his earlier invocations of a southeastern proto-Democrat (Jefferson) and a northwestern Republican (Lincoln), Kennedy declared that “[t]his is not a sectional issue.…Nor is this a partisan issue. In a time of domestic crisis men of good will and generosity should be able to unite regardless of party or politics.…We are confronted primarily with a moral issue. It is as old as the scriptures and is as clear as the American Constitution.”

JFK then reminded America of the special—symbolic—significance of the hour at hand: “One hundred years of delay have passed since President Lincoln freed the slaves, yet their heirs, their grandsons, are not fully free.…Now the time has come for this Nation to fulfill its promise.” The president concluded his Oval Office address with a specific call to action to reaffirm and extend the Court’s teachings in
Brown:

       
I am, therefore, asking the Congress to enact legislation giving all Americans the right to be served in facilities which are open to the public—hotels, restaurants, theaters, retail stores, and similar establishments.…

           
…

           
I am also asking the Congress to authorize the Federal Government to participate more fully in lawsuits designed to end segregation in public education.…

           
…

           
The orderly implementation of the Supreme Court decision … cannot be left solely to those who may not have the economic resources to carry the legal action or who may be subject to harassment.

           
Other features will also be requested, including greater protection for the right to vote.

Speaking even more eloquently and urgently later that summer to hundreds of thousands who had thronged the national capital to demand racial progress, Dr. King made many of the same general points and called for many of the same legal actions.

When Kennedy fell to an assassin’s bullet in late 1963, just as Lincoln had fallen in 1865, he, too, was succeeded by a southern vice president named Johnson. But Lyndon was no Andrew, who had fought congressional Reconstructors tooth and nail. By contrast, the second President Johnson used the memory of his slain predecessor and every other argument and implement at his disposal—including the “fierce urgency of now” that King and his crusaders had so powerfully manifested—to push through two of the most important pieces of legislation in American history, the Civil Rights Act of 1964 and the Voting Rights Act of 1965. These laws emphatically affirmed the rightness of
Brown’s
constitutional vision—and King’s and Lincoln’s, too.
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Indeed, these laws, which remain on the books today, are qualitatively different from virtually all other legislation ever enacted by Congress. These two iconic laws are washed in the blood of American martyrs and heroes—Abraham Lincoln, John F. Kennedy, Martin Luther King Jr., John Lewis, Rosa Parks. In their actual enactment process, these statutes more closely resembled previous constitutional amendments than standard in-side-the-Beltway, lobbyist-driven lawmaking. Led by Dr. King, hundreds of thousands of ordinary citizens had risen up to demand legal redress for large historical wrongs; and in the mid-1960s, all branches of the federal government heeded the voices and the vision of this extraordinary mass movement.
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These two statutes thus not only helped canonize
Brown
and the Dream Speech but also entered the canon in their own right as part of America’s symbolic Constitution. Without these laws, it is impossible to imagine, for example, that Barack Obama could ever have been elected president. His election—as a tall, slim constitutional lawyer from Illinois, preaching and epitomizing the idea that all men are truly created equal—represents yet another symbolic affirmation of Lincoln, and yet another illustration of the uncanny ways in which various strands in America’s symbolic Constitution knit together to form a fascinating network of cross-reference and allusion.