[September 17th is
Constitution Day, so to celebrate this week I’ll AmericanStudy a handful of
contexts for that foundational American document. Leading up to a special
weekend post on threats to the Constitution in 2019!]
On the history,
significance, and limitations of the Constitution’s first evolution.
One of the most
striking things about the Constitution that was ratified
on June 21, 1788—when New Hampshire became the necessary
9th state to ratify—is that it was already different from the
document that was created on September 17, 1787. The Federalist and
Anti-Federalist debates about which I wrote in yesterday’s post spilled over
into the ratification
debates throughout state legislatures, and eventually necessitated the
February 1788 deal that became known as the
Massachusetts Compromise: that the group of Amendments drafted by George
Mason and known as the Bill of Rights would be immediately added to the Constitution.
(There were initially twelve
proposed Amendments, but only ten of course made it into the final version.)
It was only after that compromise that the legislatures of four states—Massachusetts,
Maryland, South Carolina, and New Hampshire—ratified the Constitution, so in a
very real sense the document would not exist (not as anything other than a
statement of principles, at least) without the Bill of Rights.
I would argue
that the true significance of the Bill of Rights lies not just in that
necessary role, however, nor even in the important and often
ground-breaking specific concepts and guarantees that it
includes. To my mind, the Bill of Rights was and is so significant because
it immediately and permanently established the Constitution as a living
document. That is, while the body of the Constitution had laid out (in
Article Five) the
process by which the document could be amended, there was no guarantee that
it would be so altered; and I believe that the longer it had existed in a static
form, the more it might have seemed to be set and unchangeable as a result. But
instead, before that document was even ratified, and more than a year before it
and the government it created took effect as the law of the land (on March
4, 1789), it was amended. Those amendments were the result of a messy set
of debates and compromises, but that too was precisely the point, on multiple
levels: they remind us that the Constitution likewise was produced through a
process; and they make clear that it was designed to allow for that process to
continue, and through that process to change the document (and thus the laws
and nation).
Of course, the
messy process that created the Constitution was also
frustratingly and prominently racist, and the Bill of Rights (perhaps unsurprisingly,
drafted as it was by a
slave-owner) in no way escaped that all-too central element. After all,
virtually every individual and collective right guaranteed by the Bill of
Rights was at the same time legally denied to enslaved African Americans, who
could not assemble in protest nor (in most cases) practice their religion of
choice (that is, while of course many enslaved African Americans converted to and
practiced Christianity, they hardly ever had any individual choice in the
matter), who certainly had no right to a trial by jury nor to resist the
authorities, and who day in and day out were subject to the most cruel and
unusual punishments. While the 3/5s clause is the Constitution’s most overt and
shocking illustration of the fundamental
place of slavery and racism in the nation’s
founding, I would argue that the gap between the Bill of Rights and the
individual and collective experiences of enslaved African Americans is the
document’s most engrained discrimination. This evolution was so important that
the Constitution might not exist at all without it, but for hundreds of
thousands of Americans, it was one more set of illusory and false promises.
Next ConstitutionStudying
tomorrow,
Ben
PS. What do you
think?
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