Charleston, Black Originalism, and a Living Constitution (Part B)

The connections across time of the physical space of the old Mt. Zion church where the South Carolina Black Convention was held in 1865 and the modern A.M.E. churches at Mother Emanuel and Mt. Zion in Charleston that I discussed in my prior post have led me to think about how the voices from that convention 150 years ago still speak to us.  I previously quoted from the convention documents, but after the shooting at Mother Emanuel I re-read the document and was struck by the following:

  “. . . we have been deprived of our natural rights, which are founded in the laws of our nature, which consist of personal liberty, the right to be free in our persons, and the right of personal security and protection against injuries to our bodies or good name.”

What would the participants that week in 1865 meeting in Mt. Zion have thought about the June 18^th killings?  How frustrated would they have been that security from racial violence remains, 150 year later, so fragile and elusive even in the very congregation that some of the leaders and members attended?  If those authors were correct (and surely they were) that the “right of personal security and protection” is essential to liberty and equality, then the promise of the Fourteenth Amendment remains a promise unfulfilled.  It is unfulfilled when police departments fail to protect African-American and other communities of color from violence; it is unfulfilled when police officers wrongly perceive black men and women as "threats" and needlessly resort to violence; it is unfulfilled when victims of domestic violence cannot depend on state agencies to protect them from abusers; it is unfulfilled when a culture of violence clothes itself in rights only to perpetuate itself on the innocent.  

The Charleston Convention, like others from the period, stressed the interdependence of the right to actual physical protection with the problem of the “wall of prejudice” barring blacks from full membership across civil society.  The culture of prejudice and the culture of racial violence fed each other.  Thus the convention listed racial violence immediately after racial prejudice in civil society as the fundamental wrongs visited upon African Americans.  And when they wrote about violence they said “We have been subjugated to cruel proscription, and our bodies have been outraged with impunity.”  Bodies outraged with impunity.  They would have well-understood the meaning behind #blackbodiesmatter and #blacklivesmatter.

Like almost all other African-American speakers from this period, the Convention also stressed the fundamental role of the right to vote and hold office as a pivotal means for the black community to protect itself.  They saw clearly two things that are too frequently opaque for many white Americans today: First, racial violence is intimately connected with racial prejudice across all aspects of society, and, second, impairments of political power perpetuate that prejudice and violence. 

While there has been some mainstream discussion about the societal aspects of racism and the culture of white supremacy, we could use a much sharper focus on problems of the political underrepresentation of black Americans, the extensive use of a biased criminal justice system to systematically exclude black men from voting, jobs, and civil society, and the aggressive efforts to limit voter registration and exclude African-Americans, other people of color, and the poor from voting. (President Obama's eulogy for Reverend Pinckney touched on these points.)  Richard Cain, Alonzo Ransier, Francis Cardozo, and the other members of the Charleston Convention would have readily recognized these wider systemic connections to the shooting on June 18^th.  It is well past time that we learn and implement the lessons and principles behind the lived meanings of the Reconstruction Amendments so central to the black and white members of Black Reconstruction. 

Mother Emanuel and Mt. Zion are examples of how black institutions connect us all with the history of Reconstruction—a history of hope, aspiration, and achievement and also one of backsliding, terror, and failure.  But these institutions and their living history can also help us think better about what should be the meanings of the reconstructed Constitution.  Hopefully we will honor these institutions with a fuller engagement of that history across all of our institutions and social self-conceptions. 

To my mind this engagement includes a deeper exploration of how African-American historical sources and events can influence our interpretation of the Constitution and how we develop constitutional law today, whether through a better understanding of the meaning of equal protection as actual protection or by seeing the principles of dignity, respect, and full participation in civil society as components of the Fourteenth Amendment.  (Despite Justice Thomas’s protestations in his Obergefell dissent, African-American ideas about the social recognition of dignity before and after the Civil War--expressed in some of the very documents that Thomas has himself cited in other cases--plainly did include the belief that government recognition and respect was an important aspect of equal citizenship and the outlawing of slavery.)

Like the sermons I squirmed through as a child, I have gone on far too long on the topics of my scholarship.  I am very grateful to Al and the rest of the crew at the Faculty Lounge for the chance to explore, promote, and otherwise bore you with my current project.  For those I have not already dissuaded, you can see a draft of the first piece in this project, tentatively titled “Counterpublic Originalism and the Exclusionary Critique”, which is forthcoming in the Alabama Law Review and is now posted on SSRN.