The second in a two-part post on my reaction to the movie "12 Years a Slave." See Part One Here.
How much of slavery’s dreadfulness do we see in our law and history? Is it enough? Americans in the founding era owned slaves. They sexually assulted slaves. They whipped slaves and they watched idly as child slaves were torn away from their mother slaves.
To be sure, our history and jurisprudence do not have to be protracted atonements for the sins of our Fathers. We have come so far since three-fifths. But as we lionize the American Founders, it becomes too easy to argue that slavery was legal and moral in its day, or that the Constitution eventually became a blueprint for equality for blacks.
In 1772, Great Britain’s highest court held that chattel slavery was unlawful in England. Revolutionary heroes must have feared England would take away their freedom not just to buy taxless tea, but to own and sell slaves.
Fast forward to the present. In a mere twenty-five years from its 2003 decision limiting affirmative action in Grutter v. Bollinger, the United States Supreme Court told us that the day of racial equality would be upon us. That is now fifteen years from today. After two and a half centuries of African slavery in America and another century of active, overt injustice, is fifteen more years enough?
In 1978, the Supreme Court mentioned slavery forty-one times in its seminal decision upholding race-conscious admissions in Bakke. Just this past year in Fisher v. Univ. of Texas, which again put the practice under strict scrutiny, that number dropped to ten, all in a concurrence penned by Justice Clarence Thomas. And in Shelby County v. Holder, the 2013 case dismantling the Voting Rights Act, the Court referenced slavery but once. That number may dwindle to zero the next time the Court takes on race.
We will find out soon, when it passes judgment on Schuette v. Coalition to Defend Affirmative Action, which examines Michigan’s constitutional ban on race considerations in public university admissions. The Court, which heard oral argument in this case on October 15, will likely hold that such bans are constitutional.
The ablution of slavery from our legal precedents explains our Court’s evolution on issues of race. But have we come far enough to justify turning this bloodstained page?
The level of satisfaction we convey with our history, our Constitution, and the state of race in America may represent its own kind of “unspeakable happiness.” I cannot yet say what we must do now, except, of course, remember. Nevertheless, I feel confident that if we see this movie we might share the same answer to a most pressing question. Is this enough?