In a series of three articles on this page over the Independence Day weekend, a Howard University historian reflects on Justice Thurgood Marshall's remarks concerning the Constitution and black Americans.
Justice Thurgood Marshall's recent address about the bicentennial of the U.S. Constitution, ''Defective From the Start,'' shocked and offended some Americans, but in fact it was a thoughtful, sobering and appropriate commentary on freedom and law in American history. Let me try to explain why.
The Supreme Court is the final arbiter of the American constitutional system, and the influence of the justices is perhaps unequalled by any other branch of government and has always been especially great on the status and destiny of blacks. Among Americans, only blacks have been enslaved and emancipated, defined and redefined, by the law. The issue of who is the Negro and where does he fit in American society runs like a dominant thread through American history. The attempt to formulate a Constitution almost crumbled on slavery and the foreign slave trade. Slavery and its expansion kept the nation in turmoil for almost a century and led to a brutal Civil War. Nor was this great question ''settled'' by the war and its aftermath. Inevitably, the Supreme Court spoke to it, often and with immense and telling effect.
Out of the colonial legacy, blacks had been defined as slaves for life, as property. For them there was no freedom of movement; they could not marry legally; they could be killed but not "murdered," and they could not become literate. Even if they were "free," the presumption of slavery was omnipresent. The Negro was defined in the law ''as nothing,'' as a ''dead thing,'' as a ''four-legged animal.''
Once blacks were defined as property, the peculiar dynamics of that definition came into play. Inherent in Anglo-Saxon jurisprudence is the idea that property is sacred. Property, it was believed, was an inherent and inalienable natural right of man, and therefore beyond the control of organic and positive law. Blacks were slaves; slaves were property; and property was sacred!
The spirit of liberty pervading the Revolutionary War era was expressed fully in the Declaration of Independence. As originally presented to the Continental Congress by, among others, Thomas Jefferson, it sharply condemned the slave trade. Southern delegates demanded that the article be removed. Jefferson capitulated. No direct expression about the slave trade found its way into a document whose keynote was human freedom.
When the framers met to write the Constitution, rights of blacks were again compromised. The framers represented the solid, conservative, propertied class which, made desperate by the failures of the Confederation, drew together to establish a strong government. The record shows that members were not seeking to realize any notions about democracy and equity but to set up a system of government that would be stable and efficient and would safeguard their vested interests against the onslaught of the masses.
This remarkable assembly gathered in Philadelphia in May of 1787 to reconstruct the American system of government. They were equal to the task of constructing a national system strong enough to defend the country on land and sea, pay the national debt, and afford sufficient guarantees to the rights of private property.
Their dedication to the primacy of property rights is stated again and again. In the mind of Elbridge Gerry, the evils suffered under the Articles of Confederation were due to the "excess of democracy." Gouverneur Morris declared that "property was the main object of society" and urged a government of men "of great and established property -- autocracy . . . Such an autocratic body will keep down the turbulence of democracy." James Madison, Father of the Constitution, argued that it was from the faculties of men that the rights of property originated and that the protection of those faculties was the "first order of government."
Thus when the Founding Fathers gathered in Philadelphia in 1787, they were well aware of the thorny problems of vested rights in slavery and the slave trade. The Constitution gave its approval and protection to both. For purposes of representation and taxation, slaves were counted as three-fifths of a person. The slave trade was extended to 1808. Fugitive slaves were to be delivered up and returned to their masters. In the Founding Fathers' debate of the military clauses of the Constitution, it was not explicitly stated but was acknowledged that the national military power might be used to suppress slave revolts.
The Founding Fathers produced fundamental first principles designed to protect, even entrench, the institution of slavery. It was understood that slavery did exist and that the South was determined to preserve it and otherwise would not join the new union.
These compromises were not "flaws" or "flukes" of the Constitution, as they have been recently described. They were well debated, well thought out, and were the "original intent" of the august delegates.
Indeed, at the time, women were characterized as "Daughters of the Republic" -- a nice phrase but one having no basis in the law. The Constitution -- "the machine that would go of itself" -- did not bring justice to the doorstep of all Americans, certainly not to blacks and not to women either. An early-19th-century black writer could remark that "if America is the cradle of democracy, I fear the baby has been rocked to death."
In the formative period of constitutional law, then, the outstanding feature was the development by state and federal courts and the Supreme Court of the doctrine of vested rights. Systematically, the courts warned that they would render null and void any law or legislative act that infringed upon the rights of citizens to hold property. There were some checks relative to the protection of life and liberty of citizens other than blacks. But the major purpose of American government was to create a tranquil and secure society in which man could pursue wealth.
The Supreme Court's decisions in Calder v. Bull (1798), Fletcher v. Peck (1810), the Dartmouth College case (1819) and Wilkinson v. Leland (1829) drive this point home. Property and civilization were inextricably intertwined, the security of property rights being held as fundamental to the production of the wealth upon which American civilization rested.
precede In a series of three articles on this page over the Independence Day weekend, a Howard University historian reflects on Justice Thurgood Marshall's remarks concerning the Constitution and black Americans.