The Ends of Constitutionalism

John C. Calhoun

John C. Calhoun

Gentle Readers, I’ve spent the last week thinking about constitutional theories. I’ve done so before, but they happen to have returned to the news through the continuing operations of a domestic terrorist organization. I wrote about them last week, though I don’t consider it my best effort. Consider this more inspired by than specifically about the ongoing seditious conspiracy.

In Prelude to the Civil War: The Nullification Controversy in South Carolina 1819-1836, William W. Freehling remarks that a debate concerning infrastructure projects, internal improvements in the parlance of the time, “most early-nineteenth-century disputes between nationalists and sectionalists, turned into an argument over the Constitution.” Given the tremendous prestige granted to the Constitution, it only stood to reason that any contending parties would find imprimatur for whatever policies they preferred within its text. If we judged from this point alone, we would have to consider our dating badly wrong. By no means could our years begin with any other digits than one and eight, in that order. Everyone, bar a few individuals more honest and historically informed than amenable to the ever-excessive, oft-violent cult of American patriotism, stands for the Constitution. In standing for the Constitution we name ourselves red, white, and blue saints contending against traitorous sinners.

I don’t use the religious language for effect. The frame of the argument neatly recapitulates tropes very popular in the rhetorical histories of various Christianities: Once, all agreed and lived together in paradise. The nude frolic could not last. We fell from grace and lived shackled to our sins. But now we have a chance at restoration, to come around to the right and live in conformance to the grand design. This could easily be the story of Martin Luther or Joseph Smith as the story of original intent and strict construction, the story of a proslavery Constitution or an emancipationist Constitution perverted to opposing ends. We could call any version true, so long as it comported with our values. If we wanted to really separate ourselves from the crowd, we might burden ourselves with inconvenient facts as well as the airy freight of rhetoric. Even if we do, Constitutional debates ultimately come down to what we want and how we think we can best achieve it.

This doesn’t necessarily render Constitutional considerations irrelevant, but it does mean that we cannot take them in isolation. People adopt the constitutionalisms they do for what they consider good, real world reasons rather than fuzzy abstractions. That doesn’t necessarily make constitutional theory insincere, but does mean that it follows and flows from policy preferences. If we take it at face value, a practice once popular among historians as well as the lay public, then very little of American history makes much sense. We mistake states’ rights for a cause, rather than a method. We have no explanation at all for how a diehard nationalist like John C. Calhoun became his generation’s most famous anti-nationalist. Going down this road leads one to thinking that slavery had little to do with the Civil War or any of the sectional crises before it, rather than serving as their indispensable driving force.

The ex-confederates and their latter-day admirers, many of whom must know better given the ink they spill trying to defend slavery, want just that from us all. If white supremacy remains taken for granted and invisible in American history, then it becomes that much easier to prosecute today. By removing African-Americans and their interests from history, we can deny that they have one except as objects acted upon by whites. With only the most superficial knowledge of how white supremacy operated and operates, we happily consign it to the past even as we continue it in the present. We had slavery, but we ended it. We had segregation, but we ended that too. Neither has any persistent effect, either on its own or in the form of attitudes and circumstances perpetuated despite de jure achievements.

One must truly sleep through life to miss that black Americans do not do as well as whites. Even if we don’t know the statistics, the brute facts confront us every day. The color of wealth, and the power and authority it brings, remains almost entirely white. Absent a robust understanding of both how white Americans have denied black Americans advancement, we must conclude not that injustice persists but rather that something about black Americans makes them, by their nature, inferior. We can call it culture, but this pretends that black culture exists utterly apart from white culture. It transforms black Americans into Martians, strange visitors fundamentally alien and incomprehensible save in that we can comprehend the supposedly existential threat they pose to us. They thus become a thing to battle, rather than fellow people with whom we have shared a country since before we called it a country.

If you don’t believe me, then consider this musical genre. Its performers hail chiefly from one identifiable racial group, speaking about their experiences both real and idealized. Its lyrics regularly glorify crime, including violent crime. If you watch the news often enough, you know I have just described rap and hip-hop. If you turn the radio to the right station, you will soon learn that I instead described country. Neither, with the exception of the occasional musical about a founding father and Johnny Cash, regularly graces my ears but the lyrics speak for themselves.

We invented race for that purpose, of course. We must keep to our traditions, lest we admit our own responsibility. In appreciating how fundamentally we built it into our system, it would take at least a minor miracle to have kept it clear of our constitutionalisms. Plenty of Americans, then and now, don’t even try to pretend otherwise. They deem civil rights legislation unconstitutional, a point on which the Supreme Court has chosen to concur. Programs that help the poor? As poverty in America comes with black skin, we find that unconstitutional as well. In the world of disinterested constitutionalism, these things just happen. They have their consequences, but we have the poor and wrongly-colored to bear those.

No one can hold the devoted constitutionalist responsible. They must follow the rules, the same as everyone else. Those rules come down to us themselves disinterested and thus inherently fair. We should know; we made them. How could we, white with innocence, do otherwise? All through our history we have the same distinguished record of pure principle. Such abstractions cleanse anything. We had no slavery; we had property rights.

This distinction, from time to time, brought petitioners to the Congress asking compensation for slave property lost or damaged in the course of wars. Such requests provoked considerable controversy. For many white Americans, asking the government to pay for lost slaves like it paid for lost cattle asked far too much. But for others, it asked only the absolute minimum. They had their rights, you understand. It had nothing to do with slavery, in that the Constitution protected all property alike, and everything to do with it in that slave property remained slave property. On these small issues, easily forgotten and deserving of future blog posts, the Congress could produce sectional alignments typical of the late Antebellum solid decades before and in the midst of eras where we do not usually understand slavery as a particularly divisive issue. Competing constitutionalisms then squared off, but they did not square off on their own terms. Both sides had preferred ends which their constitutional theories served.

We can pretend otherwise, but doing so doesn’t just turn hated minorities into aliens. It does the same for cherished national totems, rendering them inert, uninteresting paragons from whom we insist we must learn but from whom we have likewise stripped anything worth learning. We built such statues, out of marble or imagination, for devotion rather than education.

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