Bob Moses Speaks at Harvard Kennedy School of government

Bob Moses Speaks at Harvard Kennedy School of government

Education

Civil Rights: Constitutional Property to Constitutional People

Civil Rights:  Constitutional Property to Constitutional People

It was a relief to hear him say it.
I was driving in Miami on my way to
Florida International University,
Thursday, January 30th, between two
and three, the sun was shining and I
was listening to “Talk of the Nation”.
A caller from Florida identified
himself as a long time democrat and
said he could not, and, if given the
chance, would not vote for an African
American for President.  
It might not have been a relief if the
caller had been angry –– he wasn’t, or
had insulted people  –– he didn’t;

calmly he let listeners in on who he
was, a man, a democrat, who was,
simply, not ready to vote for an
African-American for President, voicing a theme that Scott Malcomsom says, has sounded from colonial times to the present, the idea that he was normal, free and beyond race and therefore “fully human”.

I thought his comment radical, in Ella   
Baker’s sense of “radical”:  getting
down to and understanding a root
cause.

It was a surprise to have her write it.  I was reading in the Op-Ed page of the New York Times about a young reporter, Russell Berman, and his Talk of the Campaign Trail about two women at the Democratic Primaries in Maryland:

One, seventy-seven and an Obama supporter, confided that she just isn’t sure she’s ready for a woman President.  Another, eighty-three and a Hillary supporter, confided that she just isn’t sure she’s ready for a black President.

Two remarks around which Maureen Dowd organized her comments:

We’re not just in the most whirlwind (she wrote vertiginous) election of our lives.  We’re in another National Seminar on gender and race that is teaching us about who we are as we figure out what we want America to be.

In his speech to accept the Republican nomination for the U.S. Senate in Illinois in 1858, Lincoln dealt with this question as it arose in his time:

If we could first know where we are and whither we are tending, we could better judge what to do and how to do it.

The Pre-Amble to the Constitution says:  We the people of the United States…do ordain and establish this Constitution.

Radical!  And radical also in Ella Baker’s sense of “radical”: facing a system that does not lend itself to your needs and devising means by which you change that system.

Radical but flawed.  Flawed in its notion of who the “Constitutional people” were, the people who had Constitutional rights and obligations, the people who were to use the Constitution to govern themselves and everyone else living under the Constitutional tent.

Flawed in the reach of its “we”.
Scott Malcomsom perceives a similar flaw surfacing one-hundred and seventy-seven years later in SNCC as it wrestled with “what to do and how to do it” on the eve of Freedom Summer:
In appealing successfully to white America through the spectacle of white death – in appealing to the basest and most contemptible of white thoughts, that white people are simply more valuable than others – SNCC had strangled something in itself.  I lost track of human unity.
Scott argues that in 1787 the framers of the Constitution also lost track of their human unity by saying, in effect, “Not we”:
In Colonial and Revolutionary America, he writes, “whites, unlike all others, did not gain their racial character from their race.  Their character was a human character.  Other people’s characters were racial.”

The announcers on NPR responded to the caller from Florida by saying perhaps if he got to know Obama, he might be able to reconsider his position.  A fully human announcer speaking to a fully human caller  about the need to give the benefit of doubt to a stranger.


When Kingman Brewster died, it fell to Sam Chauncey to say how Kingman should be remembered and to plan a memorable space on which to write it down.  Sam designed a low black marble wall to enclose Kingman’s grave in the Grove street cemetery where all President’s of Yale rest and had etched on it two sentences:

The presumption of innocence is not just a legal concept, in common sense terms it depends on that generosity of spirit which sees the best not the worst in the stranger.

A stranger, a nine-year old West African boy, thrown into a river of strangers bound for Colonial America, deposited in Norfolk Virginia, acquired his slave name, Somerset, along with his slave master, Stewart.  

It was 1749 when Charles Stewart adopted “personable” Somerset as his personal slave.  Twenty years passed, and Somerset traveled with Stewart to England to help with his sister’s family when her husband died.  It is 1769, Somerset is twenty-nine and plots his escape.  

Two years passed and on October 1, 1771, Somerset left Stewart only to be captured.  But this time history happens.  An English God-parent petitions the King’s Bench for a writ of Habeas Corpus and Lord Mansfield, the Chief Justice, issues it.

On December 9th, a Captain Knowles appeared in King’s Bench with Somerset and explained:
Stewart had delivered his slave Somerset so that he, Knowles, could take the slave to be sold in Jamaica.

Stewart, feeling “betrayed and publicly insulted” insisted on a trial.  On June 22nd, 1772, the clerk of King’s Bench called the case of “James Somerset, a Negro on Habeas Corpus” and Lord Mansfield delivered his judgement, bewigged:
The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political … it’s so odius, that nothing can be suffered to support it but positive law.  Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England;
and therefore the black must be
discharged.

The issue flew across the Atlantic into Virgina and Revolutionary America where colonists who could not imagine their slaves as Constitutional people wrote a bit of “positive law” into the Constitution.

On June 30th, 1787, James Madison, took the floor of the Constitutional Convention in Philadelphia to argue:
The States were divided into different interests not by their difference of size, but … principally from (the effects of) their having or not having slaves … the institution of slavery and its consequences formed the line of discrimination.

Two weeks later, the Northwest Ordinance, passed by the Continental Congress in session in New York City, divided the Nation into Slave and free states, the line of discrimination being the Ohio River.
There is a clause about “Somersets” and their “Stewarts” in our Constitution:  Article IV, section 2, paragraph 3:
No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor is due.

Constitutional men, bent on establishing a “workable” government wrote a bit of “positive law” to establish the “strangers” in their midst as Constitutional property, bracketing, on the way, their religious impulses to understand the rule of law, the presumption of innocence as Biblical common sense:
There shall be one law unto you, and unto the stranger who dwelleth within thy gates, for ye were strangers in the land of Egypt.

Our Constitutional nation so conceived and so divided suffered and thrived for the next seventy years, but maintained its National Compact about slavery until Dred Scott ran away.  

On March 6th, 1857, Chief Justice Roger Taney issued a National paper on Constitutional people; the opinion he wrote in the case of Dred Scott v Sanford.  The Chief Justice informed the Nation that Dred Scott, a piece of “Constitutional Property” had no standing to sue in the Nation’s courts; the rule of law, the presumption of innocence, did not apply to “Constitutional property” as “Constitutional Property” had no rights which “Constitutional people” were obligated to respect; the Constitutionally protected right was the right of a Stewart to regain his property, a Somerset.  

The decision by the Chief Justice broke the National compact over how to protect slavery and in the metaphors of the historian Drew Gilpin Faust, this “Republic of suffering” spiraled into its “wars of death”:

The number of soldiers who died between 1861 and 1865, an estimated 620,000, is approximately equal to the total American fatalities in the Revolution, the War of 1812, the Mexican War, the Spanish-American War, World War I, World War II, and the Korean War combined.

In 1875, Democrats in Mississippi led a National workshop on race.  With their tactics and their violence Mississippi Democrats told the Nation and President Grant:
This is where we are and whither we are tending, here is what to do and how to do it.
After the Republican state legislature had been overthrown Mississippi Congressman John Roy Lynch had a conversation with President Grant.  He asked why Grant had not sent in federal troops.  Grant said he had responded as the head of the Party rather than the head of the Nation.  Ohio had not ratified the 15th amendment of 1870 establishing the right of citizens to vote, and a delegation of Ohio Republicans
Persuaded Grant that sending troops to protect the right to vote for Republicans in Mississippi, would cost Republicans in Ohio the Governorship.

Hayes became Govenor of Ohio in 1875 and then in 1876 ran for President.  In that election it was Mississippi’s “what to do and how to do it” that set the tone for South Carolina and Louisiana and set the stage for the grand compromise of 1877:  Republicans got Hayes as President; Democrats got the withdrawal of federal troops from the South; the Nation ended its “wars of death”.


“We hold.”  So said John Minor Wisdom, a judge in the fifth circuit, speaking in Baton Rouge Louisiana for a three judge panel.

On November 27th, 1963, five days after President Kennedy was gunned down in Dallas and one-hundred and five years after Chief Justice Taney broke the national compact on slavery, Judge wisdom held in his hands yet another national paper on Constitutional people; the opinion he wrote for the case of the United States of America v the State of Louisiana:
Among the Counsel:  Robert F. Kennedy, the attorney general of the United States, Burke Marshall, assistant attorney general for civil rights and John Doar.
We hold:
This wall, built to bar Negroes from access to the franchise, must come down.
Holding history more important than logic, Judge Wisdom held:
The Louisiana interpretation test and its current variant, the citizenship test, …, are rooted in the state’s historic policy and the dominant white citizen’s firm determination to maintain white supremacy in state and local government by denying to Negroes the right to vote.

Then comes a passage from Judge Wisdom that could have been written a century before by Chief Justice Taney:

We hold:
In such a conflict with the State the power of the Nation to protect itself and to go into its own courts to prevent the States from destroying federally protected rights of citizens derived from the Constitution would seen to be … inherent in our federal system.

For
Chief Justice Taney, this passage had to mean the right of a Stewart to recapture a Somerset.  Taney invoked original intent to state that the framers believed that “blacks had no rights which the white man was bound to respect, and that the Negro might justly and lawfully be reduced to slavery for his benefit.  He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made of it”.

But just because Constitutional concepts are central to our lived lives, they cannot therefore be just legal concepts.  Even the Constitutional Concept upholding the right of a Stewart to recapture a Somerset could not be just a legal concept; it too depended on a generosity of spirit, but one that saw the best not the worst in every other “Constitutional person”.

Benjamin Franklin, writing in 1751, expressed this as a generosity of spirit towards “whiteness”:
Perhaps I am partial to the white complexion of my country, for such kind of partiality is natural to mankind.

In his “House Divided” speech, one year after Dred Scott, Lincoln famously announced the demise of the “natural partiality” of whiteness:

A house divided against itself cannot stand… I believe this government cannot endure, permanently, half slave and half free … it will become all one thing, or all the other.

For seventy years, from 1787 to 1857 (Somerset to Dred Scott) the Nation struggled with runaway Constitutional Properties.  Then came its “wars of death” after which it did not become “all one thing or all the other”.  Mississippi’s constitution of 1890 launched its 2nd plan of “what to do (Beat the Negro down) and how to do it”(Jim Crow):  Caste replaced slavery, the noose replaced the whip. The Nation stuggled under this plan for another seventy years from 1890 to 1960:

On 1 February of that year four Negro college boys, freshman at the Agricultural and Technical College in Greensboro, North Carolina, asked politely for coffee at Woolworth’s lunch counter and continued to sit in silent protest when refused.  The ‘sit-in’, nemesis of Jim Crow, was born.

A minute later (just four years of intense, persistent and earned insugencies) came a lead editorial in the New York Herald Tribune on August 24, 1964:
The choice for both (the Democrat and Republican) parties is ultimately as inevitable as the issue is inescapable.  The dynamics of history won’t be thwarted; the call of conscience won’t be stilled.
The tide of the future rolled into (the Democrat Convention at) Atlantic City with the (Mississippi) Freedom Democratic Party, which, whatever its shakey legal foundations, represents the nation’s founding doctrine and certain destiny: that all men are created equal.

That tide of the future that rolled into Atlantic City in August of 1964 was the manifestation of sit-in energy transported into Mississippi by SNCC via Amzie Moore and his fellow leaders of local chapters of the NAACP, notably, C.C.Bryant, Webb Owens, E.W. Steptoe, Aaron Henry and Vernon Dahmer and by its state field secretary Medgar Evers.

Today, traveling to this event I picked up a copy of the current issue of U.S. News and World Report.  It has a picture of Obama on the cover.  In one article entitled, “The Obama effect”, Jay Tolson writes:
The big question now … is whether Obama’s compaigh can move enough Americans beyond their attachment to the dominant style of identity and special-interest politics.  Given who Obama is, it is no small irony that that style began to take shape in the civil rights era of the fifties and early sixties.
Tolson quotes Boston College political scientist, Peter Skerry who tags it “public interest politics”:
…public-interest politics depended on publicity and the media to focus the public’s attention on their favored issues. … First associated mainly with with liberal and progressive causes, it has long been adopted by everyone from conservatives and livertarians opposed to taxes to fundamentalist evangelicals protecting family values. …”I welcome (Obama’s) rhetoric”, Skerry says, but I don’t think he is the transformational leader everyone thinks he is”
In the same issue, Kenneth Walsh, in “One-on-one with Barack Obama” asks Obama:

“Transformational” presidents don’t come along very often.  Does that word apply to you?
To which Obama replies:
First of all, I don’t presume to think of myself as a “transformational figure.”  I’m just trying to win an election.  So that’s point number one.  I do think it’s a “transformational moment”.

And so it is, and so we should break with the politics that is “extremely rhetorical, exaggerates conflicts, and emphasizes grievances’, we should explore the constitutional reach of “we”, open our eyes and wake up to the fact that already Obama, one-hundred and fifty years later, is leading us into Lincoln’s conversation about where and whither, what and how, simple words with profound implications, inviting us to explore with each other, the caller and the announcer, the reporter and the participant, where we are and whither we are tending, … , what to do and how to do it.  Inviting us to make constitutional progress to become for the first time in our history a truly constitutional people; to make good on our claim:
“We the people…do ordain and establish this constitution for the United States of America.”

Comments: What do you think?