Friday, October 03, 2008

No Exceptions

Essential to the ideology of American Exceptionalism is the myth that the founding fathers were visionaries so intellectually and morally perfect that the Constitution they produced could could never be surpassed or improved upon. The founders themselves could not have believed this or they wouldn't have included a provision for amending their work. Besides that, a critical and unsentimental judicial analysis easily proves Madison, et. al to be as susceptible to hypocrisy and misjudgment as any other group of humans.

Thurgood Marshall, the first black Supreme Court justice and the only competent one so far, pulled the covers off our *perfect* Constitution in 1987, the year of its bicentennial celebration, calling it "a flawed document."

A New York Times editorial that year reacted to Marshall's criticisms saying: "Give Justice Thurgood Marshall a rap on the knuckles for violating the tradition inhibiting political remarks by members of the Supreme Court. But also give him a round of applause for helping, in this bicentennial year of the Constitution, to remind America that the document was not immaculately conceived."

Marshall's main criticism of the Constituion centered on the three-fifths clause, the fact of slavery, and the disenfranchisment of women, all of which he saw as betrayals of the principle set out in the Declaration of Independence that "all men are created equal" (For obvious reasons having to do with customary diction of the period, he skipped over the sexism inherent in Jefferson's language), and in a speech before the San Francisco Patent and Trademark Law Association in May, 1987, said:

I (do not) find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite "The Constitution," they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago.

For a sense of the evolving nature of the Constitution we need look no further than the first three words of the document's preamble: "We the People." When the Founding Fathers used this phrase in 1787, they did not have in mind the majority of America's citizens. "We the People" included, in the words of the Framers, "the whole Number of free Persons." On a matter so basic as the right to vote, for example, Negro slaves were excluded, although they were counted for representational purposes at threefifths each. Women did not gain the right to vote for over a hundred and thirty years.

These omissions were intentional. The record of the Framers' debates on the slave question is especially clear: The Southern States acceded to the demands of the New England States for giving Congress broad power to regulate commerce, in exchange for the right to continue the slave trade. The economic interests of the regions coalesced: New Englanders engaged in the "carrying trade" would profit from transporting slaves from Africa as well as goods produced in America by slave labor. The perpetuation of slavery ensured the primary source of wealth in the Southern States.

Despite this clear understanding of the role slavery would play in the new republic, use of the words "slaves" and "slavery" was carefully avoided in the original document. Political representation in the lower House of Congress was to be based on the population of "free Persons" in each State, plus threefifths of all "other Persons." Moral principles against slavery, for those who had them, were compromised, with no explanation of the conflicting principles for which the American Revolutionary War had ostensibly been fought: the selfevident truths "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

The classical scholar turned political commentator Garry Wills echoed Marshall's conclusions some years later in his book "Lincoln at Gettybsburg." In it Wills argues convincingly that the Gettysburg address, with its acknowledgment of the blood sacrifice of the Civil War, was actually a "second foundation" of the United States, which Lincoln by 1863 saw as necessarily abolishing slavery and fulfilling the promise of the principle of equality set forth in the Declaration of Independence.

Thurgood Marshall, one of the last of the great Americans, was pilloried from all sides for daring to suggest that the U.S. Constitution and those who framed it were less than perfect. But time has vindicated him, and as we now enter the jaws of a second great depression, it's appropriate to ask whether it's not time for a "third foundation," one which takes into account the ungoverned power of global capital and its pet howler monkey, the electronic mass media. Extirpating inequality in this country, insuring that all are indeed "created equal," required four amendments to the Constitution (13, 14, 15, and 19), plus some legislative fine tuning in the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the yet-to-be-passed Equal Rights Amendment.

I wish Marshall was still around to advise us what we need to do to get the ravenous beast of runamuck capitalism, with its awesome capacities for both creation and destruction, under control. We need good advice in this crisis, because, after all, the United States is just another imperfect country consisting of imperfect human beings. I hope that doesn't offend anybody; it's merely a simple observation of an obvious fact of life to which there are no exceptions.

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