Constitutions, Courts, and History: Historical Narratives in Constitutional Adjudication

Conclusion

CONCLUSION The U.S. Constitution was drafted as a basic charter for a slaveholders’ polity. Slavery as the status quo of the day does indeed figure in the U.S. Constitution’s original language, such as in the Apportionment Clause calculating the basis of representation and taxation upon every free persons and three-fifths of all other persons.1 The only framer who did not own slaves at all, and even refused to hire slaves, was future president John Adams. There were framers who disapproved of slavery while at the same time owning slaves (take Thomas Jefferson as a prominent example), and others (like Benjamin Franklin) who actively participated in anti-slavery causes. Until the Civil War, 49 years of the Constitution’s total 72 years were spent under presidents from slaveholding states. In the U.S. following the Civil War, slavery was abolished in 1865 by the Thirteenth Amendment, which was followed by the Reconstruction Amendments and the Civil Rights Act. Among the Reconstruction Amendments the Fourteenth figures prominently, providing that “No state shall … deny to any person within its jurisdiction the equal protection of the laws.” It was under this provision that in 1896 the U.S. Supreme Court said, in Plessy v Ferguson,2 that the “object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color”,3 so introducing the doctrine of “separate but equal.” The Supreme Court announced the end of racial segregation thus vetted in 1954, in Brown v Board of Education.4 In the aftermath of 302 CONCLUSION the Civil War, a century passed before the next U.S. president (Lyndon B. Johnson) would arrive from a former slaveholding state. In 1989 Justice O’Connor found that the city of Richmond, Virginia, the former capital of the confederacy of slaveholding Southern states, did not show a record of sufficient past discrimination in the construction industry that would justify the affirmative action plan adopted to promote minority businesses under the Fourteenth Amendment’s Equal Protection Clause.5 During these years, from the dome of the Capitol, the building that has stood as one of the symbols of U.S. government since 1865, the statue of Freedom has overlooked these events. In 1856 Jefferson Davis, secretary of War and a slave owner himself, vetoed the concept of the statue. The reason was that Freedom as envisioned was to wear a liberty cap, “‘the badge of the freed slave’—an inappropriate symbol for a republic of white men who had never been slaves themselves. … Freedom got instead a helmet topped by an eagle’s head crested with Indian feathers.”6 Let us consider this record. Is this the story of abolitionism’s ultimate success? Is it the story of the evolution of the slaveholders’ charter into a decent constitution? Is it the story of the lasting marginalization of the South in federal politics? Is it the story of carefully crafted continuities fitted into the narrator’s own storyline? Is it the story of reaching peace with the most regrettable instances of past injustice? Is it the story of neutral principles being applied evenly across contexts? Is it the story of lack of awareness about the polity’s pasts? Even if one storyline is chosen as the right one, is it binding upon a court interpreting the Reconstruction Amendments? Or other provisions of the U.S. Constitution? This riddle provides a useful summary of the problems that the interpretation of constitutions with troubled pasts might present for a student of constitutional adjudication. Lawyers feel comfortable about turning to history for guidance. This is so not only because of legal reasoning’s much-famed path-dependence, but also due to a widely shared belief among lawyers about history being an objective and neutral aid to interpretation, and, therefore, appearing ultimately useful for reducing indeterminacy in constitutional reasoning. As a result, lessons drawn from history, when presented to other lawyers, are CONCLUSION 303 most often beyond serious reflection and criticism. Misconceptions about the characteristics of historical narratives are easy to detect and trace. It is far more difficult to chase them away, since they often operate below consciously adopted strategies of reasoning. The aim of this work was to show how, in polities living under constitutions with troubled founding myths, historical narratives...