In 1857, Frederick Douglass explained why another celebration of liberties, analogous to that of the 200th anniversary of the Constitution, was irrelevant to black citizens of the United States.
“To him, your celebration is a sham; your blasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciation of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgiving, with all your religious parade and solemnity, are to him, hypocrisy-a thin veil to cover up crimes which would disgrace a nation of savages.”
Today, as we celebrate the 200th anniversary of the Constitution, its framers are treated as biblical prophets and the Constitution as scripture. Many consider it the perfect document, embodying liberty and freedom for all. While it does contain broad aspirational language, it guarantees little or nothing for a great number of people. It may pay lip service to equal protection under the law, but it does not even contemplate economic equality.
In 1787, the Constitution excluded black people from consideration as persons. As Justice Thurgood Marshall recently stated, “the effect of the framers’ compromise-guaranteeing liberty and justice to all, and denying both to Negroes-has remained for generations.” Because of this tragic paradox, a Civil War was fought before the 13th, 14th, and 15th Amendments could be added to the Constitution. Today, black people are not equal citizens, despite these corrective measures.
Black leaders who advocate liberty and justice are jailed and murdered. It is not chance that Marcus Garvey and W.E.B. Du Bois were prosecuted and that Malcolm X., Medgar Evers, and Martin Luther King were murdered. The FBI, afraid in the 1960s of the rising up of what it termed a “Black Messiah,” embarked on an illegal program of covert acts designed to “neutralize” those it perceived to be black leaders.
The Constitution’s initial racial contradictions continue to dominate our society. Racist attacks on black people by law enforcement officials and private citizens are a daily occurrence. The Constitution as interpreted by the courts only outlaws intentional acts of racism. The fact that black people go to segregated schools, live in segregated neighborhoods, and are unemployed at three times the rate of whites is presumed by the courts to be unintentional and therefore irreparable under our law.
Even when it was recently demonstrated that persons convicted of murdering whites are four times more likely to be sentenced to death than persons convicted of murdering non-whites, the Supreme Court found that this “discrepancy” did not violate the Constitution, and it upheld the death sentence of a black man convicted of murdering a white one. In doing so, the Court considered the results of the study “unexplained,” refusing to recognize the fact that racism is endemic to the criminal justice system, just as it is to every other area of American society.
For Indian people, the treaties made with them pursuant to the Constitution have been one massive swindle. The expression “Indian-giver,” which many believe refers to the inconstancy of Indians, is, in fact, properly directed at the white man and his sorry trail of broken treaties. Treated as a conquered nation by the Constitution and the Supreme Court, Indian people are still being subjected to systemic genocide. Their land, the basis of their religion, culture and life, is regularly stolen. Over the last 70 years, the White Earth Band of Chippewa Indians has seen its reservation reduced from over 800,000 acres to approximately 6% of that, or 48,000 acres. Congress ratified this mammoth rip-off in March 1986. Today also the Navajo people are being forcibly “relocated” from their ancestral lands at Big Mountain, Arizona. Indian leaders, like Leonard Peltier, who stand up for their people are persecuted and unjustly jailed.
In this country, the culture and economy of Latinos constitute the sport of imperialism. Two hundred years ago, those who have come to be known as Chicanos had their own land and culture. The U.S. war against Mexico in the 1840’s resulted in the annexation of what is now Texas, California and New Mexico, plus parts of Arizona, Nevada, Utah, and Colorado. The 1898 war against Spain, begun to obtain its colonies, resulted in the armed occupation and conquest of Puerto Rico—which, to this day, the United Nations recognizes as having colonial status. The peoples in these lands continue to speak Spanish. They did not ask to become citizens. They are deemed to be such. Today, many in this country seek to deny them their language and culture in the form of the racist “English Only” and “English First” movements. In spite of these and many other efforts to destroy their mores, on this 200th anniversary Latinos can celebrate their resistance to being colonized and absorbed.
The treatment of Latino immigrants reflects this country’s treatment of its Latino citizens. Immigrants from El Salvador and Guatemala are routinely denied political asylum. U.S. citizens who, in the exercise of religious beliefs, seek to give them sanctuary are treated as criminals. The new Simpson-Rodino immigration law may be the most discriminatory anti-immigrant law in the history of this country. Border areas have been converted into militarized zones, and reports of beatings and rapes of detained refugees are numerous. U.S. citizens with darker skins or Latin accents are stopped on the street and asked for identification. Courts have largely upheld discriminatory treatment of immigrants and afforded them few constitutional rights.
The Constitution was silent on matters affecting women and reproduction. However, only white men who held property were permitted to vote. Until the mid-19th century, a woman had no legal existence, and thus no right to own property, or to be a party to a contract. A wife was the property of her husband, a daughter that of her father. Today, primarily as a result of women’s engagement in the struggle, they can vote, own property, and hold political office. Discrimination against them, while not outlawed by the Constitution, is forbidden by other laws. Yet, even these gains are in serious jeopardy.
The failure of the Equal Rights Amendment leaves the door open for those who would interpret the Constitution as “originally intended” by its framers-an interpretation meant to place women back in the 18th century. The constitutional right to abortion, moreover, recognized only 15 years ago, is under sustained attack.
Already, the Supreme Court has said that the Constitution does not guarantee poor women the right to an abortion unless they can pay for it. If President Reagan gets to appoint another Supreme Court justice, whether it is Judge Bork or someone else, it may mean that women will once more become prey of the backroom butchers, or forced to bear unwanted children.
The Constitution has done little to protect the rights of Asian-Americans. The equality that it sets forth in broad terms is contradicted in practice. Forty-five years ago, 110,000 Japanese-Americans were removed from their homes and interned in concentration camps. This was accomplished by virtue of an executive order signed by the President-an exercise of power the Supreme Court upheld. The Court found that the exclusion and internment of Japanese-Americans were sanctioned by the war powers the Constitution grants to the President. Today, Japanese-American citizens are still fighting for reparations and redress.
Such treatment was not unfamiliar to people of Asian origin. It was not until 1965 that special restrictions on immigrants of such ancestry were lifted. Theirs is a special history of discriminatory laws and practices. Racist violence against them continues today.
The short answer to the question, what is the Constitution’s significance for the protection of lesbians and gay males, is “none.” Two recent Supreme Court decisions and the federal government’s slow response to AIDS leave lesbians and gays little to celebrate on this anniversary. In the Bowers v. Hardwick decision, the Supreme Court upheld a Georgia law banning homosexual sex even in the privacy of one’s own home. In San Francisco Arts and Athletics Inc. v. United States Olympic Committee, it ruled that a lesbian and gay group could be barred from using the 2,000-year-old word, “Olympics,” in its athletic competitions. The Court refused to permit the use of the word even though it was demonstrated that the Olympic Committee permitted other groups, such as the police and handicapped children, to do so. Lesbians and gay men face discrimination in almost every aspect of their lives; and they cannot look to the Constitution for protection.
Thus, the Constitution has not, in practice, guaranteed equal treatment under law for many Americans. Yet, there is, at the core of this system, a basic mythology that says that the document known as the Constitution, at least when it is taken together with the Bill of Rights and other Amendments, is supposed to do just that. Nor does this document, in the area of economic and social rights, purport to offer any such protections. It does not guarantee such basic necessities as employment, food, shelter, health care, or education. This helps explain why a country as wealthy as ours has so many people who are unemployed, homeless, undereducated and poor.
The U.S. Constitution is not only more limited than those of many socialist countries, which guarantee the welfare of their peoples, but it also ignores the major premises of international human rights agreements. These embody the notion that, without the basic necessities, people cannot exercise such basic rights as free speech and participation in the political process.
Liberty in the Unites States is primarily defined as “freedom from” government interference. The government cannot interfere with the rights of free speech, freedom of religion, or ownership of private property, including the means of production. In practice, this means that those who own the newspapers, radio, and television stations control effective speech. An individual’s right to stand on a soapbox is hardly a meaningful way of influencing public opinion in the United States.
The liberty to control and use private property is essential to the continuance of a capitalist system. Thus, the U.S. Constitution does not guarantee basic necessities. In a system where some individuals make millions of dollars and control billions in resources, requiring property to be more equitably distributed or used for the common good would interfere with their “liberty.”
To insure “liberty” for the owners of capital in the United States, the government carries out a policy of exploitation and domination of the countries of the Third World. If Nicaraguans, Salvadorans, the blacks of South Africa, or the Vietnamese were asked the meaning of the 200th anniversary, they would surely reply that it is the anniversary of an imperialist and expansionist document. They would say that it is the anniversary of a document that guarantees them nothing except interference with their right to determine their own future. They would reply that it is a document that reflects a country that has caused them untold suffering.
The Constitution is a living document and it is only through struggle that even its minimal protections have been won. In two hundred years it has failed to guarantee equal treatment under the law to much of its population, and to produce a society that assures to its people the elements of a productive and decent life. It is, in fact, a document that keeps the ownership of the main productive resources in private hands. It is not a holy writ.