Constitutional racism
Constitutional racism refers to the ways in which the U.S. Constitution, as originally adopted in 1787, embedded provisions that legalized and perpetuated the institution of slavery, specifically targeting individuals of African descent. Key compromises during the Constitutional Convention reflected the economic interests of southern states reliant on slavery, leading to the inclusion of three significant clauses. One provision permitted the continuation of the slave trade until 1808, while another, the Three-Fifths Compromise, counted enslaved individuals as three-fifths of a person for congressional representation, excluding them from voting rights. Additionally, the Constitution allowed for the retrieval of runaway slaves, enforced by fugitive slave laws, which were upheld by the Supreme Court in landmark cases such as Scott v. Sandford. This ruling denied the citizenship and civil rights of African Americans, intensifying tensions that contributed to the Civil War. Although the Thirteenth Amendment abolished slavery in 1865, the legacy of constitutional racism continued to influence social and legal structures in the U.S., including discrimination against other minorities throughout history. Understanding constitutional racism is crucial for examining the historical and ongoing impact of these legal frameworks on American society.
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Constitutional racism
Three provisions of the Constitution of the United States, as adopted at Philadelphia in 1787, legalized slavery. These provisions, which provided a constitutional basis for treating those descended from Africans as inferior to those descended from Europeans, form the basis of what has come to be known as constitutional racism.
Some delegates at the constitutional convention wanted to abolish slavery, but the southern states, driven by economic dependency on the institution, insisted on retaining it. To ensure that the newly drafted constitution would be adopted by both northern and southern states, a compromise emerged between proslavery and antislavery delegates, and three specific clauses were included.
One provision, Article I, section 9(1), allowed the slave trade to continue until 1808 for exisisting states. The part of the Constitution dealing with amendments, Article V, stipulated that this provision could not be amended.
Another compromise involved the status of slaves. Because the number of seats allocated in the House of Representatives for each state were to be apportioned on the basis of population, southern states might have considerable power in the new national legislature. However, a segment of the southern states’ population was made up of slaves, who were not considered to have any civil rights and therefore could not vote. The compromise, provided for in Article I, section 2(3), was to calculate the number of persons in each state based on the decennial census, with each slave equal to three-fifths of a White person. Native Americans, who were not considered American citizens, were counted in the census, but their numbers were not used in calculating how many congressional seats were to be apportioned to the states.
A third provision, Article III, section 2(3), enabled slave owners to retrieve runaway slaves even from states that had abolished slavery. Congress later implemented this provision by passing the fugitive slave laws (1793, 1850), which in turn were held to be constitutional by the U.S. Supreme Court in Scott v. Sandford (1857). In this case, a slave owner moved from Missouri to Illinois, taking along his property and his slaves. Because Illinois law prohibited slavery, Dred Scott, one of the slaves, sued to gain his freedom. The court ruled, however, that descendants of Africans, even those who obtained freedom from their former masters, were not citizens of the United States, had no civil rights, and therefore could not file a lawsuit or vote in an election. Scott v. Sandford provoked a constitutional crisis because laws in northern states that disallowed slavery and granted some civil rights to descendants of Africans were in effect nullified. The court’s decision did much to infuriate opponents of slavery and sowed the seeds for the Civil War.
With the adoption of the Thirteenth Amendment to the Constitution in 1865, slavery was abolished. The Fugitive slave laws, accordingly, were nullified. Southern states obtained additional seats in the House of Representatives, as they could count every former slave as one person instead of three-fifths of a person. Reapportionment based on the 1870 census gave equal weight to black and White citizens but still excluded Native Americans.
The doctrine of “reason of state” has been used to discriminate against various minorities on several occasions. Under this doctrine, the preservation of the state is held to have priority over constitutional rights. Recent instances are associated with World War II, when the U.S. Supreme Court upheld the constitutionality of military rule of Hawaii and the internment of Japanese Americans.
Bibliography
Aceves, William J. “Amending a Racist Constitution.” University of Pennsylvania Law Review Online, vol. 170, 2021, scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1259&context=penn‗law‗review‗online. Accessed 11 Nov. 2024.
Anastaplo, George. Reflections on Slavery and the Constitution. Lanham: Lexington, 2012. Print.
Del Guercio, Gerardo. The Fugitive Slave Law in the Life of Frederick Douglass, an American Slave and Harriet Beecher Stowe’s Uncle Tom's Cabin: American Society Transforms Its Culture. Lewiston: Edwin Mellen, 2013. Print.
Kaminski, John P. A Necessary Evil? Slavery and the Debate over the Constitution. Madison: Madison House, 1995. Print.
Konig, David Thomas, Paul Finkelman, and Christopher Alan Bracey. The Dred Scott Case: Historical and Contemporary Perspectives on Race and Law. Athens: Ohio UP, 2010. Print.
Murphy, Angela F. The Jerry Rescue: The Fugitive Slave Law, Northern Rights, and the American Sectional Crisis. New York: Oxford UP, 2015. Print.
VanderVelde, Lea. Mrs. Dred Scott: A Life on Slavery's Frontier. New York: Oxford UP, 2009. Print.