Wednesday, February 3, 2016

"Why Alternative Constitution Day": Professors Starger, Davis, and Francois contribute to the Alternative Constitution Day Online Symposium

Why Alternative Constitution Day

Thanks to Professor Ellis and the Race and Law Prof Blog for hosting this symposium. Although the original “Constitution Day Proposal” appeared on my [Colin Starger's] blog, the proposal was actually co-written by Professors Peggy Cooper Davis, Aderson Francois, and myself. The basic idea emerged from the process of co-authoring a paper entitled “Beyond the Confederate Narrative.”

In our paper, we argue that contemporary civil rights jurisprudence remains haunted by a Confederate “oppression narrative” that interprets the Constitution in a manner that too easily defeats claims of federally guaranteed human rights. We oppose this “States’ rights” mode of interpreting the Constitution because we believe it misunderstands the revolutionary nature of the change to our constitutional order wrought by the Civil War and resulting Reconstruction Amendments. Alternative Constitution Day is a way to correct this misunderstanding and to celebrate what we see as the “true birth” of our modern commitment to human dignity. We also hope it might help spark further conversation.

So what is the Confederate narrative of the Constitution? It is a story grounded in the assumption that liberty is best protected by limiting federal power and by protecting the power and independence of States. It is also a story in which the States' reunion after the Civil War was a modest reform by which state-sanctioned slavery was ended, but States’ rights were virtually unaffected. It is the story animating the phrase “equal sovereignty.”

While the presumption underlying the Confederate narrative has innocent sources – the threat of oppressive distant rule loomed large at a time when interstate communication and travel were slow and arduous – the story has justified more than an abstract belief in the value of individual liberty and decentralized power. This view of the Constitution protected slave power, undermined the Civil War Amendments, and rationalized Jim Crow subordination. In more modern times, the narrative has defeated claims that the Constitution protects rights such as that to vote, to receive an education, or to have access to public accommodation. The same old story stands behind resistance to recognizing the right of same-sex couples to marry.

Fortunately, the Confederate narrative does not stand unopposed. There is another tradition of constitutional interpretation we call the People’s narrative. The People's narrative is one in which the nation rejected both slavery and its assault on human dignity and altered its slavery-tolerating Constitution to give the Federal government power to protect the People’s rights. This more optimistic story involves guarantees of national citizenship and national protection of citizens' rights. This is the narrative animating the Reconstruction Amendments.

Of course, we recognize that the passage of the Reconstruction Amendments did not immediately and automatically grant dignity to all. Thus, women had to wait until 1920 before enjoying the constitutional right to suffrage. The right to marriage equality is less than a year old. However, even though race- and sex-based oppression continues to this very day – as do other forms of oppression – our contemporary struggles for justice now have a profound constitutional grounding. Nothing expresses that grounding better than the Reconstruction Amendments – the last of which was ratified on February 3, 1870. That is what we celebrate today.

Colin Starger, Associate Professsor of Law, University of Baltimore School of Law

Peggy Cooper Davis, John S.R. Shad Professor of Lawering and Ethics, New York University School of Law

Aderson Francois, Professor of Law, Howard University School of Law

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