Wednesday, September 09, 2020

Doc Rivers, the Garrison-Douglass Debate, Thurgood Marshall, and the Nature of the Constitution

 by Michael C. Dorf

In an eloquent impromptu speech that quite appropriately received a great deal of attention, Los Angeles Clippers Coach Doc Rivers responded with a mix of outrage and sorrow to the theme of the Republican National Convention: fear. How grotesque, Rivers said, that the RNC brazenly tried to frighten its overwhelmingly white base and try to appeal to white suburban swing voters by grossly exaggerating the threat to civil order posed by the small minority of agitators who have used the occasion of generally peaceful protests demanding racial justice as an opportunity to loot, damage property, and provoke or commit acts of violence.

"We’re the ones getting killed," Rivers said. "We’re the ones getting shot. We’re the ones that were denied to live in certain communities. We’ve been hung. We’ve been shot. And all you do is keep hearing about fear."

The Rivers speech was extremely powerful and quotable. Here I want to focus on what he said at the end. Rivers observed that the movement for racial justice is hardly a movement for anarchy by noting, among other things, that his own father was a police officer and he believes "in good cops." He professed the patriotism of the African American community: “It’s amazing to me why we keep loving this country, and this country does not love us back." And he concluded this way: "All we’re asking is you live up to the Constitution. That’s all we’re asking, for everybody, for everyone."

It's the part about the Constitution that raises questions for me, because the Constitution has exacerbated many of our current problems. Were it not for the Constitution's essentially unamendable Senate ("no State, without its Consent, shall be deprived of its equal Suffrage in the Senate"), we might have a national legislature that better reflected the popular will, in which, among other things, the desperately needed $3 trillion COVID-19 package that the more democratic House proposed would have been enacted already, disproportionately benefiting the Black and Brown communities that have been disproportionately suffering the medical and economic impacts of the pandemic. Were it not for the combination of a very high bar even for ordinary constitutional amendments and life tenure for Supreme Court justices, we might have already reversed (through amendment or appointment) the judicial decisions that reinforce the disenfranchisement campaign that the Republican Party has waged against voters of color since Nixon flipped the parties' valences on race in the 1960s. Were it not for the Electoral College, Republicans would not have captured the White House in three of the last five Presidential elections despite losing the popular vote in all but one of those elections, and thus we would have been spared the catastrophic presidency of Donald J. Trump.

Given all of those terrible contributions that the US Constitution makes to our public life, why did Rivers ask that we "live up to," rather than abandon, it?

Students of history will see in my question an echo of the mid-19th-century debate between two leading abolitionists. William Lloyd Garrison famously burned a copy of the Constitution, which he deemed "a covenant with death and an agreement with hell," in light of the ways in which it accommodated and entrenched slavery. Frederick Douglass broke with the Garrisonians, arguing in an equally famous speech to Scottish abolitionists that the Constitution is not inherently pro-slavery but had been used to wicked ends by slavery's supporters. Who was right?

One potentially attractive answer comes from another great speech, this one by Supreme Court Justice Thurgood Marshall on the occasion of the Constitution's bicentennial. He declined to join the celebration:

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, we hold as fundamental today. When contemporary Americans cite “The Constitution,” they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago.

Much of what Justice Marshall said in that passage and the balance of his speech was addressed to debates over constitutional interpretation. He decried the antiquarian cast of much Constitution worship, which he associated with the misguided philosophy of originalism. I heartily endorse all that Marshall had to say on that score.

More to the current point, we can also read Justice Marshall's speech as staking out a compromise position between Garrison and Douglass. In this view, Garrison was right about the ante-bellum Constitution, but the Civil War, the Reconstruction Amendments, and over a century of civil rights struggle to change the Constitution's interpretation realized the potential that Douglass saw in the document. The Constitution we now have, properly interpreted, Justice Marshall can be read to have said, is worthy of our admiration.

That's a tempting synthesis, but I want to resist it at least somewhat. The worst features of our Constitution--the undemocratic Senate and Electoral College reinforced by amendment procedures and judicial insulation that are extraordinary by the standards of the constitutions of other democracies around the world--are hard-wired in clear text. They cannot readily be overcome by adopting one rather than another mode of interpretation. Douglass may have been right that the Constitution was not inherently pro-slavery, but it was and remains inherently anti-democratic or at least very substantially less than optimally democratic.

Of course, when Doc Rivers asked his fellow Americans to "live up to the Constitution," he did not mean that we should live up to the Senate, the Electoral College, or the Article V amendment procedure. He meant we should live up to the promise of the Reconstruction Amendments. Whether we can do so in light of the undemocratic hard-wired features is the question. Even if a majority of Americans would like to see our country move towards redeeming the promise of Reconstruction, the Constitution enables a minority to elect the likes of Trump.

Rather than close on that bleak note, I'll add as a postscript an observation: Trump constantly describes supporters of racial justice as "left-wing extremists." Yet it is notable that from Frederick Douglass to Thurgood Marshall to Doc Rivers, African American leaders have often staked out the moderate and incrementalist view as against the Garrisonian burn-it-all-down approach. Radicals want to "heighten the contradictions." Folks like Rivers who keep loving this country in the hope that it some day loves them back seek to bridge the contradictions.


Joe said...

For focus on the hard wired aspects of the Constitution (like the Senate or Electoral College) that are systematic problem zones, one can check out Sandy Levinson at Balkinization Blog or his writings. He often is rather pessimistic, including about those who he thinks too often ignores the problems & worships the Constitution too much w/o recognizing those problems.

I do think the Constitution has potential. Plus, realistically, you have to work with what you have. Over the years, it has been changed. It's possible. And, not just by court and legislative changes. Amendments.

Welch's Rarebits said...

Terrific post.

Frank Willa said...

Agree, these are difficult times...and agree '...we should live up to the promise of the Reconstruction Amendments...' The Reconstruction Amendments seem to cut both ways; it is possible to go forward to a more just society, so the Constitution is the vehicle to do that, and, given how long ago those amendments were passed, how difficult and frustrating the 'hard wired' aspect can be that seem to be insurmountable obstacles- no progress. And not to commend it, above other analysis, I found a series called 'Magna Carta Unlocked', but only for the notion that it started the arc from authoritarians to individual rights... a journey of some 1,000 years.(not that I agree with all it posits) Yes a slow arc, and a 'fragile' one.

And, to 'Joe', I did look to the 'Balkinization Blog' finding:'The Cycles of Constitutional Time.-Balkin'. The three cycles analysis seems insightful, and I liked the 'constitutional rot' a good insight, something to think about. Thanks

CEP said...

Under the interpretive rubric "last in time trumps earlier statements" — a concept that, by itself, calls most varieties of "originalism" into question, along with the term "amendment" — I heartily support the Fourteenth Amendment in its broadest conception. I won't ignore the original Article I, § 2 (especially, but not limited to, the "three-fifths of all other persons" clause), but like Justice Thurgood Marshall I won't celebrate it.

I also like to remember what Justice John Marshall meant, in context, by explaining that "it is a Constitution which we are expounding": That we're dealing with both broad and mechanistic statements of principles, and that the mechanistic statements have to be at least somewhat sensitive to changing contexts (such as, to name one obvious example, the concept of accounting for votes of people who actually live in the district set aside for the national capital but who are not "in" the government — a concept entirely unconsidered at the time).

Joe said...
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