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September 29, 2005

Legal scholar turns critical eye on U.S. Constitution

Starry-eyed Americans enamored of their Constitution as “the owner’s manual of the greatest form of government the world’s ever known” got a harsh dose of reality this month from a leading legal scholar.

The Constitution is a flawed document, misunderstood by historians and abused by the court system, and its selective enforcement depends not on purported individual rights but on who is in power, according to Derrick Bell, visiting professor of law at New York University School of Law, who spoke at Pitt Sept. 16 as part of the inaugural, federally mandated U.S. Constitution Day.

“We here are mandated to commemorate the document that most citizenry likely believes represents the greatest expression of statesmanship and compromise ever written,” Bell told a packed house in the Pitt law school’s moot courtroom. “Commemorating the adoption of the nation’s founding document is not inappropriate,” he said.

But when hyperbole is not balanced by critique then neither the nation nor its Constitution is well served, said Bell, a Pitt law school graduate who has been an advocate for civil rights in a nearly 50-year law career.

Bell is the University of Pittsburgh School of Law Distinguished Lecturer and Scholar for 2005-06.

“Professor Bell is uniquely qualified to speak on the issue of constitutional relevance as a lawyer, teacher, activist and pre-eminent scholar and author on issues of race and class in our society,” said new Pitt law Dean Mary Crossley, who introduced him. “He has published widely on race, racism and American law, and helped stimulate the critical race movement in legal scholarship.”

“My perspective on the document that is acclaimed as the source of liberty and justice for all is that it is more often praised than practiced,” said Bell.

The framers of the Constitution, particularly in the Preamble (which he read for the audience), expressed stirring sentiments for representing all the people, for forming a more perfect union and for propagating values of equality and justice under the law, noted Bell. “The framers were wise, but their decisions were circumscribed by political necessities. There are traceable compromises the framers made that were necessary to ensure ratification” — compromises that violate both the letter and the spirit of the document itself, he said.

The framers were not a representative body and they created a non-representational government, Bell maintained, despite age-old claims to the contrary.

“Those who gathered in Philadelphia in 1787 were men of wealth, with investments in land, slaves, manufacturing and shipping,” Bell said. The constitution they adopted was intended to serve their primary interest: the protection of wealth and property. “And they further realized that rights of property and liberty, which were under threat under the unworkable Articles of Confederation, might be under even greater threat from a strong central government.”

So, they set up structured procedures for electing officials that had the effect of excluding not only slaves, free blacks and women, but also most white men, Bell said. “There was no right to vote in the Constitution; voting rights were left to the states and under the voting laws in most states only those whites of economic stature were able to meet the property, education and even religious standards that were prerequisite to voting and holding office.”

As for serious flaws, most scholars agree that the incorporation of slavery into the Constitution — at least 10 provisions-worth — was the most serious error and one whose consequences have been felt throughout American history, Bell said.

“The framers were re-enforcing a long-standing policy of slavery that had been in effect for more than a century, along with all the rationales of African inferiorities that had been used to justify the institution,” Bell said.

Other “justifications” included that: many early Americans viewed slaves as their most important property; the colonies and then the states were developed and enriched either directly or indirectly on the forced labor of hundreds of thousands of human beings; the war for independence was financed in substantial part on the profits of slavery and, perhaps most importantly, the Southern states would never ratify a document that outlawed slavery.

“The framers had no answer to the admonishment that property and thus slaves would not be exposed to danger by the government instituted for the protection of property,” clearly a paradox, Bell said.

“After slavery, the second most undemocratic provision in the Constitution was, and is, the composition of the Senate: the so-called equality of representation that gives each state two representatives regardless of population,” Bell said.

Most historians view this as a necessary concession to the small states, he said. “The ones who insisted on it, however, were the slave states, to augment and protect the 3/5ths provision, enabling them to count five slaves as three persons for purposes of the proportion of population represented through this ‘compromise’ – so slave states had disproportionate representation in both the House and the Senate.”

A third slavery-related constitutional flaw, also backed by the slave states, is the Electoral College, which adopted the same formula as representation in the House, Bell said.

“Slave states could again utilize the 3/5ths provision to have a strong hand in the selection of the chief executive,” he said. “It’s no accident that after Adams, the next three presidents came from the slave state of Virginia.”

The anti-democratic Electoral College, which has survived hundreds of attempts to be eliminated by constitutional amendment, continues to confound the equality in the voting system, Bell said. It has led to anomalies such as the 1876 Hayes-Tilden presidential election that kept the winner of the popular vote out of the White House and was decided by a congressional committee. Recently, the Electoral College has forced presidential campaigns to be focused almost exclusively on “battleground states.” And it led to “the Supreme Court’s unprecedented exercise of raw legal power to decide the 2000 election debacle,” he said.


Bell cited other examples of misunderstood tenets of the Constitution.

“The guarantee of freedom of speech in the First Amendment is probably the most honored of our civil liberties and yet those who dare exercise that right by being critical of the government’s policies, particularly during times of crisis, well, they don’t fare very well,” Bell said. “The protections of the Constitution that are generally present during times of peace quickly disappear during times of peril.”

He cited examples where free speech was abridged legally, including the 1798 Alien Sedition Act; the suspension of habeas corpus during the Civil War; the 1917 Espionage Act and a re-enforced Sedition Act passed in 1918; the internment of 110,000 Japanese Americans during World War II; the Red Scare and McCarthy’s anti-Communist witchhunt in the 1940s and 1950s, and the government’s domestic spying abuses during the Nixon administration.

“I hope that makes you feel better about things happening today,” Bell quipped, “because there are precedents throughout our history.

“Now we have the Patriot Act that smuggled into law several investigative procedures with nothing to do with fighting terrorism, with little in the way of checks and balances and with a suspension of rights. With few exceptions, most of these measures have been approved by Congress and the courts over the strong objections of civil libertarians.

“We live in times of peril.”

Those willing to speak out against these actions are branded as disloyal or enemies by the current administration; in President Bush’s words “you are either with us or against us,” Bell pointed out.

“It wouldn’t be difficult to conclude that the Constitution means whatever those in power want it to mean and that the document offers little to no protection for non-dominant classes in their everyday lives or to individuals who are critics during a time of crisis,” Bell maintained.

“Liberty and justice for all was under-girded by economic policies that directly and indirectly enslaved millions,” he said. “This paradox of anti-democratic functions in a supposedly democratic society — say one thing, do another — the easy explanation is that it is blatant hypocrisy. That may be accurate but it is not analytical.”

For analysis, Bell paraphrased an argument by the late law professor Arthur S. Miller, who put forward that the United States has two constitutions: one written, one unwritten.

“The formal one represents what’s supposed to occur; the unwritten constitution consists of the informal understanding of what occurs in fact in society and government,” Bell said. “Powerful elites control the second.

“The present government spin-meisters are able to manipulate the media and the minds of many to support policies that tax workers rather than work, that see the natural world not as a common inheritance but as an object of exploitation,” all while they ignore or deny economic inequality, he said.

“Increasingly, our citizens are divided between those who have much and those who have all-too-little.”

Most of the media, for their part, are beholden to their corporate-owners who favor profits over truth, he added.

If Miller is correct, and if the written Constitution magically disappeared from human history, there would not be chaos in this country; instead very little would change, Bell said.

“A constitution is just a piece of paper, no better than the underlying consensus or lack thereof that it embodies. When consensus is lost, then you have a widespread ignoring of laws, and that becomes the norm,” Bell said.

“When I was asked to share my views on the issue of constitutional relevance, I thought immediately of the great abolitionist orator Frederick Douglass” (1818-1895), who was asked to speak to a Rochester, New York, ladies association on the anniversary of Independence Day in 1852, Bell said.

“Douglass said, ‘Fellow citizens, pardon me, allow me to ask why am I called upon to speak to you today? What have I or those I represent to do with your national independence? Are the great principles of political freedom and national justice embodied in the Declaration of Independence — are they extended to us?’

“’Your high independence only reveals the immeasurable distance between us. The rich inheritance of justice, liberty, prosperity and independence bequeathed by your fathers is shared by you, not by me. The sunlight that brought life and healing to you has brought stripes and death to my people. This fourth of July is yours not mine. You may rejoice. I must mourn.’”

Bell, who is African American, added, “I stand before you as representative of a people, many of whom, while not enslaved, suffer an unacknowledged oppression whose particular measures do not even begin to delineate the devastation of their lives. Freedom and justice under the law is more a statement of aspiration than a description of our actual governmental position.”

—Peter Hart

Filed under: Feature,Volume 38 Issue 3

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