For too many people, our world is broken, and too many of us have stood silently for too long. There is too much hate, intolerance, and disadvantage in the world, but local, state, national, and international law all fail to produce solutions. We have forgotten that Black lives matter; that immigrant lives matter; that refugee lives matter; that women’s lives matter; that Muslim lives matter; that all lives matter. I am especially interested in this issue because I have devoted my professional career to teaching constitutional law, believing structural change is possible through constitutional reform. However, I am increasingly convinced that many legislative, executive, and judicial bodies rarely interpret the law in transformative ways, producing policies or laws that fundamentally restructure society. Instead, in this new century we find so much disadvantage, poverty, exploitation, violence, and despair. So what must we do to overcome hate, intolerance, and injustice? How do we reform our broken policies? Are there lessons to be learned from the American constitutional scene?
This year marks the American Constitution’s 228th anniversary since the Framers completed their task on September 17, 1787. The Constitution was fully ratified, after the addition of the Bill of Rights, in December 1791.
When the Framers met for those four months in Philadelphia, they constructed an enduring charter that would become a model of constitutionalism for many other nations in the years to come. The American Constitution was not perfect. It required ten amendments to gain state ratification, and another seventeen amendments since 1791. Three of the most significant amendments abolished American racial slavery, enshrined birthright citizenship and guaranteed due process and equality before the law, and ensured the franchise without regard to race or previous servitude. Later amendments would protect the franchise for women, although the broader Equal Rights Amendment failed ratification. Other nations claimed a similar constitutional narrative, promising a government of the people, by the people, for the people. Notwithstanding noble constitutional rhetoric in the U.S., in practice, there has been a continuous war on justice, fairness, and equality, denying the humanity and worthiness of many people, to advance the avarice, wealth, and privilege of the few.
Throughout the United States and the world, persons with the wrong race, the wrong gender, the wrong religion, the wrong class, the wrong sexual orientation, the wrong family, or some other arbitrary basis for exclusion, have been repeatedly oppressed and subordinated under law, with very little protection from such abuse under the Constitution. American jurists and politicians have regularly betrayed constitutional principles and the people, elevating the few above the many, or endorsing the tyranny of the majority. We live with the legacies of widespread exclusion and discrimination across the U.S. and the globe.
Consider the UN’s Millennium Report:
More than one billion people in the world live on less than $1 a day.
Nearly 3 billion people on our planet live on less than two dollars per day. For nearly half of the world’s population, including a disproportionate number of women and children, poverty confines their lives to hardship and despair; to diseases that have been preventable or treatable for decades; to illiteracy; to physical abuse, assault, and violence; and to exploitation.
The U.N. also reports that:
Every year 6 million children die from malnutrition before age 5.
Every 30 seconds an African child dies of malaria.
Every day more than 800 million people go to bed hungry; 300 million of them are children; some of them are right here in Wooster and other parts of OHIO.
Every 3.6 seconds another person dies of starvation; most are children under five.
More than 40 percent of the world’s population, 2.6 billion people, don’t have basic sanitation.
One billion people still use unsafe sources of drinking water.
According to similar reports from CARE:
Nearly a quarter of a billion children work.
Some countries still give educational preferences to boys over girls, leaving millions of girls and women illiterate and vulnerable.
Over 130 million children have never been to school.
Two million children are believed to be exploited through the commercial sex trade.
Similar statistics frame despair in communities throughout the United States. Some estimate that 16 million children battle hunger. Minorities and the poor live on the margins in urban and rural wastelands with poor educational opportunity, limited, low pay employment, squalid accommodations, and aggressive over-policing. Over two million Americans are incarcerated, many for nonviolent drug crimes. Human trafficking occurs in large and small cities throughout the country. Many communities like Baltimore. St. Louis, and Ferguson are volatile powder kegs waiting to explode.
These conditions are not natural. They are unjust. And these conditions are self-reinforcing and inescapable for all but a limited few. We need a new international coalition to declare war on global poverty, discrimination, violence, and exploitation. We need new leaders to design more effective strategies and to raise new resources to lift the billions of people on the planet up from poverty, slavery, and physical violence. And we need a theory of constitutional and international law that places on government an affirmative duty to dismantle all forms of caste. Current antidiscrimination paradigms will not eliminate caste systems. Instead, they extend caste from one generation to the next.
Ghandi’s famed words, “You must become the change you seek in the world” are powerful words to live by! His dedication to nonviolence and its power to produce change are lessons for the world. I suspect that many of you have made this principle your living credo. Nonetheless, notwithstanding the personal commitments of many of us to live lives in the service of others, I often feel at sea, not believing as Dr. Martin Luther King, Jr., said, “that the moral arc of the universe bends towards justice.” There is still so much work to be done to eliminate discrimination and caste. More of us must increase our work against discrimination and poverty. Even in one of the richest countries in the world, commentators like Andrew Hacker have described the American scene as, “Two Nations, separate and unequal”. Glen Loury has discussed the anatomy of American educational caste. Michelle Alexander has written about the government’s use of prison as the new Jim Crow. Richard Delgado and Jean Stefancic have explained the silencing harm of hate speech. And, the late Derrick Bell has discussed the permanence of American racism.
I often don’t have faith in the law and, even more, I am increasingly impatient, hearing calls for gradualism as sirens for never. I just don’t think that establishing justice, fairness, and equality, or respecting human dignity are difficult for people who seek to do so. Instead, it seems that forces of privilege and defences of discrimination are stronger than ever. The law has done little to ease the despair of so many. Indeed, it appears to have done more to maintain injustice than to promote equality. Martin Neimoeller, the imprisoned German cleric who defied Hitler’s Third Reich, once wrote that:
In Germany, first they came for the Communists and I was not a communist so I did nothing; then they came for the Jews and I didn’t speak because I wasn’t a Jew; then they came for the trade unionists and I stood silent, and then they came for the Catholics, but I was Protestant, and then, finally, they came for me and there was no one left to stand up.
I interpret Neimoeller as follows:
In the United States, first they came for the Indigenous Native American Indians and I was not an Indian, so I did nothing about their loss of sovereignty, land, culture, and freedom; their slaughter was not my concern.
then they came for persons of African descent and I didn’t speak up because I wasn’t a slave or a former slave and I was not subject to segregation’s degrading stain of separation and inequity;
then they came for European immigrant women, and I stood silent to their economic exploitation, political subjugation, and the physical and sexual violence which was forced on them;
and then they came for religious minorities, but I was part of the religious majority, so I said nothing about religious favouritism and persecution;
and then they came for the poor, the vulnerable, and the illiterate, those who were and are categorically denied equal educational opportunity and the basic necessities of life, but I said nothing because I was wealthy, safe, literate and could defend and sustain myself;
and then they came for the LGBTIQ* community, but I was an insider under the law and I said nothing about their exclusion or caste;
and then they came for recent immigrants from Central and South America, Asia, and Africa, but I was a welcome foreigner because of my wealth or skills and not subject to their discriminatory laws,
and then they came for me and there was no one left to stand up!
My point here is that any constitution, including the American Constitution, likely has vastly differently meaning, depending on your position in the society. If you are on top, you may revere the Constitution as majestic and glorious. But in the words of the late Professor Bell, if you are one of the faces at the bottom of the well, or if you identify with their plight, you may find disdain in its many defects. I am in the later group. For me, the American Constitution has not done enough to fight hate, to teach or require tolerance, or to seek or advance justice.
For this result, there is plenty of blame to go around. First, I blame the Framers, the fifty-five men who adopted a series of economic, political and social compromises that enshrined inequality as a constitutional norm. The Framers forever tarnished claims of American exceptionalism by disregarding the principles that all persons are created equal and all are guaranteed life, liberty, and the pursuit of happiness.
Second, I blame the many Justices who have read the Constitution to allow discrimination and privilege. I blame John Marshall and his colleagues for using the Constitution to justify and defend the betrayal and annihilation of the Native Americans under the doctrines of discovery and conquest; I blame Roger Taney and his colleagues for declaring that persons of African descent, whether slave or free, were not citizens within the meaning of the Constitution, that they had no rights in which the white man was bound to respect, and that Congress lacked power to abolish slave property. I blame Justice Samuel Miller and his colleagues for using the Constitution to justify discrimination against women seeking to become lawyers or to vote, ushering in a century of Court practice that denied women any Fourteenth Amendment protections; I blame Henry Brown and his colleagues for using the Constitution to justify the separate but equal doctrine and other Jim Crow practices, extending segregation into virtually every aspect of American life. I blame Justice Black and his colleagues for permitting the military to declare American citizens of Japanese descent outside the protection of the equal protection guarantee. I blame Earl Warren and his colleagues for not acknowledging the white privilege inherent in segregation schools, along with its stigmatic injury to blacks. In so many decisions, justice was not blind. The Court has permitted widespread bias and disadvantaged, often grounded in antagonism or stereotypes. It has been reluctant to permit change, often arguing instead in favour of tradition. And rarely does change place people in the position they would have been in, in absence of the long period of discrimination.
I often ask myself where are the great leaders of the new century?
Where is our Harriett Tubman, Sojourner Truth, our Susan B. Anthony or Elizabeth Cady Stanton? Where is our William Lloyd Garrison, our Frederick Douglass, or W.E.B Du Bois? Where is our generation’s Rosa Parks or Martin Luther King, Jr.?
We have models in Jimmy and Rosalyn Carter, Bryan Stevenson, and Morris Dees and Joe Levin, among others. Each of them started with a desire to help others. Each of them shared that desire and built organisations that would serve hundreds of thousands. More of us must build on their glorious example.
Margaret Mead reminded us:
Never doubt that a small group of thoughtful, committed people can change the world. Indeed, it is the only thing that ever has.
Who will foment our new rebellion against all forms of caste? Who will follow the noble, glorious examples of the past civil rights movements? Are we training such public servants and leaders? More of us must take up our pens and devices and seek to destroy poverty, discrimination, exploitation, and greed that relegate much of the planet’s population to lives of misery and despair. We need new leaders throughout the world, leaders who believe in equality and who are committed to corrective justice. We can’t wait for Barrack Obama or Hillary Clinton to improve our world. Each of us has the capacity to make a difference. We can change lives for the better, by participating in local politics. We can serve on school boards and city councils. We can volunteer and support local charities. We can use our votes to elect candidates who share a commitment to serve the most vulnerable people. We can fight hate, teach tolerance and seek justice in all aspects of our lives. And, we must ensure that the Supreme Court interprets the Constitution is ways likely to dismantle American caste.
So, what can we expect from the Roberts Court? The answer for me is, not much. First, in our great country, there is no federal constitutional right to education. Also, there is no right to equal funding of educational opportunities. And, there is no constitutional guarantee to equal curricular offerings. Jonathan Kozol has eloquently described the savage inequalities in American schools, but I do not expect this Court to use pending cases to declare such disparities inherently unequal and inconsistent with the Equal Protection guarantee. It seems much more likely that this Court will turn back the clock, turning the Equal Protection Clause against the children it was supposed to help.
Despite sixty years under the promise of Brown v. Board of Education, the law in the United States has not protected educational equality. Peter Irons has explained how the Court betrayed the children of Brown. This is another illustration of how the law simply serves the interests of the rich and powerful; it doesn’t remedy systemic inequality. It is absurd to expect the rich and powerful to use the law against their privileges. This is the dark side of the law.
This conservative Court believes that the best way to end discrimination is to ignore race in every context. But such colour-blindness does not end discrimination. It ignores it and its effects on the lives of the most vulnerable Americans: those children who attend its worst schools, in its worst neighbourhoods. The Court has reminded us recently how dysfunctional some school systems are, but its critique arose in the context of spending public money on vouchers at religious schools. I just don’t think members of the Court really understand or care how trapped some kids are by educational inequality. If they did they would read the Constitution far more broadly and correct the massive disparities in our public schools, imposing on school officials an affirmative constitutional duty to create one public school system for all Americans, not one for the rich and one for the poor, or one primarily for wealthy whites and a second for the poor of whatever colour.
Regrettably, the Court will surely miss another opportunity to teach the nation about what Thurgood Marshall called the generative power of the Constitution. If I were on the Court, I would explain the difference between policies advancing invidious racial bias and those advancing integration. The Court said in Brown, that segregation was inherently unconstitutional. It declared that segregation by the government stigmatised coloured children in ways likely never to be undone. I would explain that promoting integration is inherently constitutional and that educational integration may be our last best chance at undoing our deep legacy of segregation. I would explain that there is a constitutional difference between assigning all educational benefits to whites, for example, and telling whites and others that integration is a paramount goal and to achieve it a few families will not get their choice of schools. Every child is constitutionally entitled to a good school.
For me, then, the core value in our Constitution is the equality guarantee. We have yet to achieve its full promise.
All of us must re-dedicate ourselves, remembering Frederick Douglass’ admonition, “Power concedes nothing without demand. It never has and never will.” Our long history of civil wrongs has left us with a broken world, one in which we devalue most lives.
We must demand more civil rights. We must stand up for those who cannot stand up for themselves. We must create the change we seek in the world.
