34 Race and the Core Curriculum in Legal Education
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34 Race and the Core Curriculum in Legal Education FRANCES LEE ANSLEY [Professor Ansley taught the following material in a law school course. Ed.] Race and the Constitution It hardly needs saying that the Constitution represents contested and bloody ground. The celebration of the Constitution's bicentennial brought on a great debate about race and the Constitution. No doubt scholars of differing persuasions would have raised the race question during the bicentennial in any event, but a highly publicized speech by Justice Thurgood Marshall underscored the question in a dramatic fashion and provoked additional responses. Justice Marshall wrote: The focus of this celebration invites a complacent belief that the vision of those who debated and compromised in Philadelphia yielded the "more perfect Union" it is said we now enjoy. I cannot accept this invitation, for I do not believe that the meaning of the Constitution was forever "fixed" at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, that we hold as fundamental today'! Those in sympathy with Justice Marshall's sentiments rejoiced at his ringing words. Critics, on the other hand, accused Marshall of "blaming" the founders for "act[ingJ immorally ," of having made a "virulent" attack on the framers.2 One author argued that Marshall had "bewilderingly given Dred Scott new life" by accepting the Court's representation of the framers' beliefs and instructed the justice to "give up the effort to revive this foul-smelling corpse."3 The Washington Legal Foundation called for Marshall's resignation because his remarks displayed a "deepseated bitterness and dislike that impair his capacity."4 William Bradford Reynolds, then Assistant Attorney General of the United States, stated that Marshall was "absolutely right to remind us" of "the most tragic aspects of the American experience" but expressed grave concern that the substance of Marshall's analysis was to consign the original unreconstructed Constitution "to the dustbin of hisCopyright © 1991 by California Law Review, Inc. Reprinted from California Law Review, Vol. 79, pp. 1511, 1539-51, 1560-61, by permission. Copyrighted Material Race and the Core Curriculum in Legal Education 215 tory." In Reynolds' view such a move would itself be tragic because" [n]otwithstanding its very serious flaws, the Constitution in its original form constituted the greatest advance for human liberty in the entire history of mankind, then or since."5 After a brief sociolegal introduction to the institution of slavery, we began to explore the drafting of the Constitution with respect to slavery, what one author has called "the witch at the christening."6 We looked first at the Declaration of Independence, a comfortably familiar document, but went on to read about a less well-known episode in the Declaration's history. When Thomas Jefferson first drafted the Declaration of Independence, he included a passage that was highly critical of George III for sanctioning the slave trade. However, the passage was eventually purged from the document. The Constitution of 1787 is a monument to silence on the slavery question. Although the reality of eighteenth-century chattel slavery is built into the structure of the Constitution of 1787, the word"slavery" never appears in the document. It is quite possible for an uninformed twentieth-century reader to scan the entire 1787 Constitution with moderate care and never realize that slavery was an issue for the framers, let alone that the Constitution embodied a series of conscious and momentous decisions on the slavery question for the nascent republic. In the three-fifths clause, "free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed" were counted for purposes of determining a state's representation in the House of Representatives (and for purposes of apportionment of direct taxes), while only three-fifths of "all other persons" were to be counted.? The "other persons" were slaves. This provision most often appears in contemporary popular rhetoric as proof that slaves were devalued by the Constitution of 1787 because each was counted as only three-fifths of a person-less than a full human being. Though the substance of the rhetorical point is well taken, nevertheless, the more each slave counted, the better for the perpetuation of slavery. Antislavery forces wanted slaves...