by Gabriel J. Chin, Professor of Law, UC Davis School of Law. This post is part of our 2014 Constitution Day symposium.
Americans know their history and want to change it. No ancient injustice is ever settled; Lenny Bruce and the Scottsboro Boys were pardoned long after their deaths. There is a constant flow of high school and college diplomas awarded to elderly people who were denied them decades ago for illegitimate reasons, including University of California students of Japanese ancestry who were unable to finish because they were interned in World War II, high school students expelled for participating in civil rights marches, excluded because of their race, or who could not graduate because the schools were shut down entirely rather than allow racial integration. My students and I are petitioning the California Supreme Court to posthumously admit Hong Yen Chang to the bar, over a century after they excluded him because of his race. The examples go on and on.
In this context, the popularity of the Constitution is remarkable. It is studded with oppressive, offensive measures. One would think that those who, say, protest the disgraceful name of the pro football team in Washington, would insist, independently of the substantive meaning of the Constitution, that the document be revised and restated to eliminate the parts protecting slavery or which are otherwise inconsistent with widely shared contemporary views of justice.
Part of the reason the Constitution stays the same is because it is hard to amend. But there is more than that. Women and men, people of all races, and others who were once outside the Constitution but are now part of it can live with it because they feel the meaning of the words can change over time.
For example, people who support non-discrimination might nevertheless regard the Fourteenth Amendment as something of an embarrassment; in Section 2, it seems to grant constitutional approval of the denial of the vote to female citizens. Similarly, the Fugitive Slave Clause is still in force (and of course the Thirteenth Amendment permits slavery for those convicted of crime).
Ultimately, arguably the most offensive part of the Constitution is one of the most popular, the preamble. The Constitution, it said, was ordained and established by “we the people of the United States” for “ourselves and our posterity.” The republic was white and male, by text, tradition, and canonical statutes (such as the Naturalization Act of 1790, passed by the first Congress and signed by George Washington, which limited the privilege of naturalization to “free white persons”). When the words were written, they unmistakably excluded African Americans, Asians, Native Americans and women, and they were intended to have that effect, evidently, for so long as the Framers’ posterity trod the earth.