State Rep. Howse says Constitution is racist – Here’s why that’s wrong

In a Zoom video posted in September, State Representative and Cleveland City Councilwoman Stephanie Howse said, “Let me remind people: our founders were racists. This Constitution that we have; it is racist.” Although white supremacy was rampant in the 1780’s, our amended Constitution is against racial oppression and worthy of our respect.

Howse’s explanation

In a Twitter thread, she explains her reasoning:

“Who are the writers of the US constitution???? A group of people (actually white men who owned land) who agreed and participated in the enslavement of human beings and no rights for women. … So if the people who wrote the US Constitution believed and wrote our country’s laws to ensure no one but “white men” who owned land can fully participate in life in America = they writers are racists and the constitution is racist.”

Some drafters were abolitionists who never enslaved people

Many of our founders were slavers, but not all of them. The US Constitution was based on Massachusetts’ Constitution written by John Adams. Adams never had slaves and spoke out strongly against slavery. Gouverneur Morris wrote the Preamble, was influential in the drafting of the Constitution, and was an outspoken abolitionist during the Constitutional Convention. His family enslaved people, but he never did. Also, the 27 Amendments are part of the Constitution, and many of their writers (as recent as 1971) were not slavers.

Those drafters who did have slaves were not all determined to prevent non-whites from participating in American life either. Benjamin Franklin did enslave several people, but he also wrote that black and white people had equal natural capacities, a controversial idea for his time, 24 years before the Constitution was written. In the 1750’s Franklin advocated for the education of black people. He eventually became president of the Society for Promoting the Abolition of Slavery and petitioned Congress to end the practice.

Thomas Jefferson and James Madison also vocally objected to the practice of slavery. Although these two men hypocritically enslaved hundreds of people themselves, they did push for the abolition of slavery rather than its entrenchment in our Constitution.

Look at the text instead of the author

How should we test whether or not the Constitution is racist? Howse suggests we look at who wrote it rather than what it says. This is a type of ad hominem fallacy: attacking the writers’ character rather than what they wrote. Not everything a racist writes is necessarily racist, even if they don’t personally live up to the ideals they articulate. We must check for racism in the content, not just in the authors.

Article VI says “no religious Test shall ever be required as a Qualification to any Office“. This clause has an anti-racist effect, even if we could trace it back to a racist author. Some racial groups practice different religious faiths, and this clause paved the way for multiple Muslim women of color to join the ranks of Congress. Therefore, we can’t just say the whole document is racist because of its authors; we must identify which specific clauses are problematic.

If we condemn the Constitution because of its drafters in 1787, then the document would be irredeemable, since we can never change who wrote the original. However, if we judge it on its content, then it can be redeemed, because Article V describes how it can be amended if it falls short of our ideals, which we’ve done 27 times so far.

There were some problems in the original

We cannot deny that some now-obsolete clauses protected the racist institution of slavery in our past.

  • Article 1, Section 2 increased the Congressional Representation of slavers by 3/5ths of each enslaved person (“other Persons” who were neither free, contracted nor native American). The idea of treating any human as anything less than 100% of a person is abhorrent, but the real problem was that it gave any amount of their power of representation to their slavers. The fact that slavers wanted to count enslaved people as 100% was the problem, and the fraction was intended to disempower slavers.
  • Article I, Section 9 forced Congress to wait to end the slave trade (“importation of persons”) for 20 years. It was ended immediately afterward in 1808.
  • Article IV, Section 2 required escaped slaves (“Person held to Service or Labour”) to be returned to their slaver.

Note that several delegates of the Constitutional Convention fought against the inclusion of these clauses, such as Maryland’s Luther Martin and Virginia’s George Mason. Nonetheless, they have been overturned by the 13th and 14th Amendments. Their existence in our founding document is a painful reminder of our past, but they are no longer in effect in our current Constitution in modern America. Americans fought for change and succeeded, and we should not undermine their many victories for justice and equality.

Today’s Constitution is anti-racist

Howse says the founders created laws requiring people to be white, male and land owning to fully participate in American life. It’s true that there have been racist, sexist and classist laws in our country’s history, especially at the State and local level. Who wrote those laws, and the extent to which the Constitution’s drafters supported those laws, is outside the scope of this discussion, because this is about whether the Constitution is racist, not what other laws might have been discriminatory or oppressive.

We can easily imagine a racist Constitution which restricts rights and citizenship to only light skinned people of European descent. Just look at the Confederate Constitution which explicitly protected “the right of property in negro slaves”. That was a racist Constitution, but that’s not the one we have today. Nowhere in the US Constitution is any clause that limits a person’s rights based on the color of their skin or their race. The only time race is mentioned in our Constitution is the 15th Amendment, which prohibits voting discrimination “on account of race, color or previous condition of servitude.” Even the anti-racist 14th Amendment doesn’t mention race, as it grants citizenship to “All persons born or naturalized in the United States”.

Since 1868, racist enforcement of any law is unconstitutional, because the 14th Amendment promises “equal protection of the laws” to all citizens. For example, speed limit laws can be enforced in a racist way by ticketing more black people than white. That does not make the speed limit racist, but it does makes the unequal enforcement a violation of the Constitution. This Constitution that we have today is anti-racist.

Cause for celebration

Even Howse agrees that the Constitution is something to celebrate. Although she bemoans sexist restrictions in early America, she tweeted a commemoration of the day the 19th Amendment went into effect to protect women’s right to vote.

An earlier part of the Constitution protected only the rights of “male citizens” to vote, but rather than using that to declare “the Constitution is sexist”, we can celebrate that women’s right to vote is now protected by it. Similarly, we can celebrate the Constitution’s protections for racial minorities today, rather than proclaiming that it’s racist.

A more perfect union

The abolitionist Morris’ Preamble encourages us, the People of the United States, to “establish Justice” and “promote the general Welfare”. However, it acknowledges that the union created by the Constitution is not perfect, but “more perfect”, a work in progress. No matter how well written, no document can eradicate racism from people’s hearts nor guarantee an end to all injustice by itself. Bigots can try to twist the interpretation or application of even the most well-conceived, anti-racist law imaginable, and it is up to us to protect and live up to the ideals of equality and justice.

Which specific clauses would Howse change so that the Constitution would no longer be racist in her view? If you consider any part of the Constitution unjust, then name the clause and how you would rewrite it to be better, but don’t condemn the entire document and dishonor all those who fought to make it better. When condemnation is overly broad, backlash will follow, and we are seeing that right now in the form of overblown fear of Critical Race Theory. That’s why we must be specific in our criticism, to stave off hyper polarization and solve real problems with specific solutions.

Our amended Constitution does a darn good job of asserting the principals of equality that we should strive for, and that’s why I stand by the US Constitution, especially in those moments when these principals are threatened by white nationalists or anti-democracy authoritarians.

Further discussion

Is America a racist nation? Here’s a thoughtful debate hosted by Braver Angels, with each side respectfully represented:

Harvard Professor Alan Jenkins argues that the Constitution is “insufficient” for addressing racial justice, but blames court interpretation for weakening the 14th Amendment, rather than concluding that the amended Constitution is itself racist. He points to the 1996 South Africa Constitution as an example of offering more robust protections.

What the Constitution Really Says About Race and Slavery

Why Blacks, Women, and Jews are not mentioned in the Constitution

For a Few Decades in the 18th Century, Women and African-Americans Could Vote in New Jersey – Then some politicians got angry

Time to update the language of the Constitution?

Resolution declaring racism a public health crisis would address problems and their root causes – by State Representatives Stephanie Howse and Erica Crawley

Definition of White Supremacy

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