The Genius of America (15 page)

It does not deepen our understanding to read history backward or impose our moral judgments on our predecessors. But clearly, we find it hard to accept a world that could deny women or African Americans citizenship or the vote. But in 1787, the norm was that only white men with property were judged competent to participate.

The problem of participation under the Constitution is subtler and more interesting than just whether they lived up to our standards. By excluding parts of the population, the framers undercut their own theory of their system. Earlier we noted that for the framers, the product of their deliberative process was less important than the process itself. That is what has made the system so much more resilient than alternatives that place the ends ahead of the means. “But what,” a critic might rightfully ask, “if the product was absolutely morally indefensible?” The framers would suggest the impossibility of such an outcome in a system of representative government, divided powers and checks and balances. “But what if the voice that would have opposed such a product was excluded from representation?” This would undermine the legislative product because the process itself was not representative.

At the ratification of the Constitution, women and slaves were not represented, and white male votes in slave states counted more than white male votes in nonslave states. So slavery would be preserved, and for the next seventy years the country would struggle to maintain this distortion that the framers knowingly allowed in their system in order to hold the Union together.

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MENDING THE
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ONSTITUTION

As proud as they were of their new design for government, the framers recognized that, in Washington's words, “the People of America” might find the Constitution “less perfect than it can be made.” To address this probability, the framers provided an amendment clause. Through it, Americans could exercise their “right . . . to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness,” wrote Hamilton. The wisdom of this clause was immediately apparent when enactment of the first ten amendments, the Bill of Rights, became the quid pro quo for enactment of the entire Constitution.

The framers made enactment of amendments very difficult. They did not want the nation's basic law to be changed lightly. The door to what Washington called constitutional “amelioration” is not easy to open. The framers' fear of majority rule and desire for consensus compelled them to create high barriers for constitutional amendment. Two thirds of each house of Congress must first approve a resolution for amendment. Only then can it be submitted to the states for their consideration. Three fourths of the states (now thirty-eight states) must ratify the submitted proposal through their state legislatures for a proposed amendment to go into effect.

The Constitution also includes a second procedure for its amendment, the calling of a new constitutional convention. It has never been used.

Since the ratification of the Bill of Rights, some ten thousand amendments have been proposed, but only seventeen have been adopted. None of those seventeen changed the framers' basic arrangement for making the exercise of political power difficult. Governmental power has remained divided among the three branches of government and the two houses of Congress. Each branch of government maintained the power to check and balance the others. Consensus through compromise remained necessary for change.

Of the seventeen amendments since the Bill of Rights, all but four, thematically, built on the Constitution's promise of a representative democracy. Three of those specifically expanded the right to vote, first to African American men, then to women and finally to young people over seventeen years of age.

Expanding representation beyond those who held power at the time of the Constitution has proved difficult, despite the Constitution's promises of a politically empowered citizenry. It took struggle, and it took time. The amendments broadening political rights “are not just words, but deeds—flesh and blood struggles to redeem America's promise.”

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The greatest failure of the constitutional system was the American Civil War. In the grand sense, the Constitution's design to force compromise ultimately did not work on an issue that at root revolved around a moral choice with no compromise: Either slave owners had a property right to be protected, or slaves had a human right to be Americans. Both, ultimately, could not be true.

Although many delegates opposed slavery, including the slave owners Washington and Madison, and understood that it would undermine “the very vision of democracy embodied [although not defined] in the United States Constitution,” to win support for the Constitution, they did not, at least publically, even suggest its abolition. Moreover, for the new Constitution, the delegates compromised on a number of other issues affecting slavery: Each slave would count as three fifths of a person when determining state population for congressional representation and presidential electors; states could not protect runaway slaves; and Congress could not restrict the trans-Atlantic slave trade until 1808. As Abraham Lincoln would later note, “We had slavery among us. We could not get our Constitution unless we permitted them to remain in slavery, we could not secure the good we did secure if we grasped for more.”

Additionally, by creating the Senate as the bulwark of conservatism against tides of public opinion, and giving each state an equal voice, the framers created a base of power that southerners fought ferociously to preserve. When they saw they could preserve this base no longer, they rebelled.

For seventy years, from the enactment of the Constitution to the shelling of Fort Sumter, the history of America is dominated by repeated efforts to create new versions of these compromises that would allow slavery to continue in part of the country. As the country moved west, the question of slavery in the territories and the new states would be continuously debated by Congress. Southerners viewed the outcomes of these debates as critical to their existence. They were protected from all federal antislavery efforts by their voting block in the Senate. New states would mean new senators, and the South was determined to keep its equal share. At first, the matter was settled relatively easily by in effect pairing new slave and new free states. For example, Illinois was admitted as a free state in 1818 and Alabama as a slave state in 1819, giving each side eleven states.

But then, in 1820, Congressman James Tallmadge of New York and a large number of free-state congressman blocked, initially, the admission of Missouri as a slave state. To them, the nation had committed itself to the equality of men under the Declaration of Independence and to a “truly republican government” under the Constitution, and there could be neither as long as there was slavery. In response, southerners went on the attack. Soon-to-be-President Andrew Jackson of Tennessee saw the northern views as nothing short of a “wicked design of demagogues, who talk about humanity, but whose sole object is self aggrandizement regardless of the happiness of the nation.”

Thereafter, the admission of new states became an arduous task, requiring a number of very thinly supported, ruggedly fought over compromises for the required congressional approval. From 1820 through Lincoln's election, Maine came in free in 1820; Missouri, slave in 1821; Arkansas, slave in 1836; Michigan, free in 1837; Florida, slave in 1845; Texas, slave in 1845; Iowa, free in 1846; Wisconsin, free in 1848; California, free in 1850 (one senator was proslavery); and Minnesota, free in 1859. Among the most notorious of the compromises was the Fugitive Slave Act of 1850, part of a congressional trade for the admission of California as a free state. This act effectively prevented citizens of northern states from sheltering runaway slaves.

Finally in 1860, with the election of the Republican Abraham Lincoln, the South was no longer willing to stay in the Union. The southern interest in protecting slavery outweighed all others. The Constitutional Conscience of the South failed to rein in southerners' political and economic self-interest. Lincoln said he was willing to compromise. He said he opposed legislation affecting slavery in slave states. His view was that peaceful emancipation would take “a hundred years at the least.”

But the slave states determined that they had no future under the constitutional structure. As one southerner proclaimed, “The democratic proclivities of the age pervade our whole country, nothing can arrest our downward tendency to absolute Government.” In other words, they understood that the rising demand for abolition of slavery would eventually overwhelm even the powerful checks that the framers had built into the Constitution to slow change. The country was nearing consensus, and their control over the slavery question was slipping.

Here was an irony. Some abolitionists had the same problem with the Constitution. Like the southerners, they thought its checks and balances worked against their interests, impeded their drive to end slavery. William Lloyd Garrison called it “a covenant with death, and an agreement with hell.”

So the Constitution, which depended upon compromise to resolve difficult issues, imploded. The South seceded, and the country went to war. “The system almost died.”

Northern victory and the post–Civil War amendments to the Constitution provided a legal end to slavery (Thirteenth Amendment), a promise of equal rights (Fourteenth Amendment) and the vote (Fifteenth Amendment) to former slaves. But in fact this did not really happen—proof positive of the framers' notion that important changes need to be accepted by more than a mere majority. The amendments were effectively imposed by northern Republicans who controlled Congress and ruled the southern slave states through the northern army. They were not supported by most white southerners and many northern Democrats. They were received as the rules of an occupying North. After a brief surge of African American participation in the economic and political life of the South, the door was shut. As the North's energy for and interest in “reconstruction” faded, the former slaves and their families were recaptured in a web of state and local laws and vigilantism (Ku Klux Klan).

The final blow was a political deal to resolve the presidential election of 1876. Neither the winner of the popular vote, Democrat Samuel Tilden, nor the Republican, Rutherford Hayes, had sufficient electoral votes. Congress was required to decide the outcome. In a deal for the withdrawal of northern troops from the South and the appointment of a southern cabinet member, southern Democrats supported the Republican candidate, giving him victory by one vote. He then kept his word. With the removal of northern troops, the southern states fell under the control of the “Redeemers,” a group of the Democratic Party that stood for white supremacy. The country as a whole again became more interested in the Union rather than real emancipation.

But the amendments did not disappear. They entered America's Constitutional Conscience. They would serve as a goal and as a standard by which Americans could measure their own conduct and that of their fellow citizens. They would serve as a to-be-fulfilled promise. Yet as Lincoln had predicted, it would take a hundred years of additional struggles for the realization of this constitutional promise.

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ING AND THE
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Martin Luther King had started speaking. It was August 28, 1963. To his back was the Lincoln Memorial. Before him some 250,000 Americans, black and white, crowded the National Mall eastward to the Washington Monument. Behind the memorial rose the Capitol's dome. These Americans had come to Washington, D.C., to insist that Congress enact an effective civil rights law. As King was soon to say, they had come to the “bank of justice” to cash “a check” that would give them upon demand “the riches of freedom and the security of justice.” They had come to insist the Congress pay on the nation's “promissory note . . . that all men . . . would be guaranteed the ‘unalienable Rights' of ‘Life, Liberty, and the pursuit of Happiness.' ”

America was a grim place for many of its African American citizens. Despite the promise of the Civil War amendments to the Constitution, political and economic discrimination and outright terror kept African Americans as second-class citizens, particularly in the South, but throughout the remainder of the country as well.

Up to this point, the administration of President John F. Kennedy had done little to advance a civil rights agenda. In the first years of his administration, there had been no broad public demand for change, and his 1964 reelection strategy called for southern Democratic support. The “New Frontier,” quipped the civil rights leader Clarence Mitchell, “looks like a dude ranch with Senator [ James] Eastland [an ardent southern segregationist] as the general manager.” But now things were rapidly changing. Discrimination was becoming a more national issue. “Freedom riders” from throughout the country descended on the South to highlight and protest its segregation. And violence against these mostly young people, black and white, was drawing America's attention. The year 1963 had proved particularly violent. That summer, King and the civil rights forces had marched to Birmingham, Alabama, “the most systematically segregated city in the South,” for boycotts and sitins. And in response, as King had expected, the sheriff overreacted; hosing, beating, setting dogs on and arresting over a thousand demonstrators, many of them children. So harsh was this treatment that some demonstrators broke their vow of nonviolence and showered the police with stones. In response came bombings and then more rock throwing and then more beatings. As many observers recognized at the time, “Non-violence was losing its power as an energizing ideology. A new, more bloody phase of the civil rights movement had begun.”