Private: The Constitution, Re-Invention and Equality

by Atiba R. Ellis, Associate Professor of Law, West Virginia University College of Law, @atibaellis. This post is part of our 2014 Constitution Day symposium.

On September 17, 1787, the framers signed the U.S. Constitution. The document they approved 227 years ago is a work of genius as it provided a democratic republic that has endured economic turmoil, mass insurrection, and disasters of various sorts -- forces that have toppled other democracies.  The U.S. Constitution, the oldest enduring written constitution in the world today, has endured and preserved democracy based upon rule of law.

Although one might point to the advantages and disadvantages of federalism, the dynamics of enumerated powers, or the political compromises that undergird separation of powers as powerful tactics the Constitution deploys, it is not in any of these mechanisms where the genius of the Constitution lies. Its true genius is its mechanism to allow we the people to reinvent our democracy as our times and ethics demand. It is this power of reinvention that has allowed our constitution to endure and matter to the world. 

This power of democratic transition is best illustrated in the way our Constitution has been reinvented, over time, from a document that enshrined inequality to one that strives for equality. The Constitution of 1787 reflected and implemented a social theory we would not recognize or sanction today. The Constitution endorsed states’ rights (though this name would not be invented until a century later to protect slavery) and left it to the states to structure the social relations of the nation. Thus, despite a Bill of Rights that protected the rights of citizens, the Constitution allowed the chattel slavery of Africans to endure in the United States when it was being abolished in other parts of the world. The Constitution allowed women to be treated as property. Despite our hymns to constitutional genius, the lived experience of the eighteenth and nineteenth centuries was rooted in inequality.

To focus merely on the genius of the original document (and as a consequence, elevate those times and those founders) is to fixate on an originalism that suffered subordination and endorsed a hierarchy. And, as our experience with the Civil War illustrates, the country came within a hair’s breath of being dismantled by faction and racism due to an unwillingness to recreate the United States.

Yet our Constitution endures because it has embedded within it mechanisms by which our evolving notions of equality and justice may receive constitutional protection from the tyranny of caste and status. Though volumes have been written on this topic, it is worth remembering in our celebration of the Constitution that the amendment process and the wisdom of legislators and judges who sought to make manifest the idea of equality helped to preserve the Union at its most imperiled points. One needs only recount the work of Reconstruction, the long march from segregation to Civil Rights, the movement towards women’s equality, and our modern day same-sex marriage cases to see how the long arc of equality has progressed. And all of these changes have been enabled through an American constitutionalism that, in the words of Harper v. Virginia, is not shackled to the political theory of a particular era.

Though we can rejoice over this “living constitutionalism,” we must remember that the work is far from over.  Though equality is a well-settled idea in constitutional jurisprudence and on the face of our laws, its meaning on a day to day level is still hotly contested.  Though formal equality as between races and genders is a given in American constitutionalism, the data and anecdotes that report on the inequality of the American lived experience illustrate how much farther our idea of equality needs to go. Police violence that tends to kill disproportionately men of color, the enduring poverty in this country that disproportionately burdens communities of color, domestic violence and income inequality that elevates the status of men over women, all harkens back to that dated nineteenth century inequality.  There are deep divisions of inequality that still must be addressed.

So we must ask:  how should the American Constitution be reinvented for the struggles of the twenty-first century?  I have argued here on this blog and in my forthcoming scholarship that many of these dilemmas lay at the intersection of racial status and economic class.  The dilemmas of Ferguson, for example, illustrate how this structural inequality has a racial dimension and a class dimension, which creates and reinforces a political, economic, and social underclass in our society.  We must look at this question squarely.  How we can rest with our modern conception of formal equality when it sanctions such enduring inequality? 

The Reconstruction Amendments, the post-Reconstruction right to vote amendments, the Civil Rights Act, the Voting Rights Act, and decisions like Brown v. Board of Education, Roe v. Wade, and Windsor v. United States, reinvented equality and subverted hierarchies in relation to racial, gender, and sexual-orientation identities. Perhaps we can, in our lifetimes, re-invent our Constitution to address the subordination that lies at the intersection of race and poverty.

Civil rights, Constitutional Interpretation, Economic Inequality, Equality and Liberty, Racial Justice, Supreme Court