We Are Still Only Partially Constituted
The Fourteenth Amendment to the constitution was the basis on which the Court in Brown v. Board of Education declared that “separate but equal” in public accommodations was unconstitutional. Nevertheless, after hitting a high water mark in the early 1990s, American public schools are, by some measures, more segregated today than they were in 1968. Of the four elementary schools in my own community, three of the schools have almost no black children enrolled, while the fourth school appears to have them all. And with the arrival of February, many children across the country are learning about people of color in their history classes for the first time all school year (with the exception, of course, of a cursory lesson on Martin Luther King, Jr. back in January).
It is with ambivalence, then, that I reflect on alternative constitution day. It is true that the government our founders constituted in their first document was far from the “more perfect union” to which American presidents are fond of referring today. The original constitution gave power primarily to white, land-owning males, and made structural space for those males to own enslaved Africans and their descendants in the United States. Although contemplated as having a claim to the franchise, women were ultimately excluded from the document’s guarantees, a marginalization that, like the exclusion of the less wealthy and non-Whites, continues to shape our society today.
Given these glaring omissions, a celebration of the “alternative constitution,” as defined by the adoption during Reconstruction of the Thirteenth, Fourteenth, and Fifteenth Amendments, seems justified. Those amendments, however, have not preempted the racial subordination that still plagues our country. The Fourteenth Amendment, even in concert with Brown v. Board, has not delivered integrated schools. The voting guarantee of the Fifteenth Amendment has not created governing bodies that are responsive to the structural conditions that facilitate residential and educational segregation in our communities. The Thirteenth Amendment’s insistence that Blacks be given access to our notions of humanity has not ensured that my daughter will see herself in the lessons her public school teaches about who does, and does not, count in America.
These failures are about more than limited judicial doctrine or gutted legislative mandates; they are also about the will of the people subject to the reconstruction amendments. Belonging and inclusion—commitments to which the alternative constitution nods—might be conveyed through language in a document, but is only made real when individuals internalize and act upon it. The Thirteenth Amendment may have abolished slavery, but racial subordination continues through the segregation and isolation of people of color, facilitated, in part, by the failure of individuals to examine their implicit assumptions that “good” schools and “safe” neighborhoods are necessarily devoid of non-Whites. The Fourteenth Amendment may insist on equal citizenship, but by virtue of her school’s demographics and the silence of parents on the topic, my daughter is nevertheless learning that some children are more equal than others. The Fifteenth Amendment may assert that we all have the right to participate in our democracy, but children across the country nevertheless learn that people of color are still not fully contemplated as part of the demos.
My hope, then, is that celebrations of the alternative constitution go beyond praise of the Amendments that merely addressed, on paper, the document’s original defects. Indeed, our fête of the day in 1870 where the last Reconstruction Amendment was passed should push us into conversations about how our commitments to the spirit of those Amendments have waned, and what each of us is responsible for doing in order to more fully realize their promise.
Osamudia James, Professor, University of Miami School of Law