Joel Jacobsen

 We know how burning the flag flips people out. Imagine if a nationally-known journalist were to get onstage during a July 4 celebration and set fire, Jimi-Hendrix-Monterey-Pop-Festival style, to a copy of the United States Constitution.

That's what William Lloyd Garrison did on July 4, 1854. It upset a lot of people at the time, but I bet it would upset even more people today.  Sixty-seven years after the Constitution was drafted, Americans could still see it as it was, as a document produced by men and accepted by other men because rejecting it wasn't a realistic option. It hadn't yet ascended to the quasi-religious status of "the miracle at Philadelphia."

Garrison, whose life is wonderfully told by Henry Mayer, called the Constitution "a covenant with death and agreement with hell." This wasn't mere abuse; his listeners would have caught the allusion to Isaiah 28:15-16. In the King James version that would have been most familiar to Garrison's audience, the verses read:

Because ye have said, We have made a covenant with death, and with hell are we at agreement; when the overflowing scourge shall pass through, it shall not come unto us: for we have made lies our refuge, and under falsehood have we hid ourselves: Therefore thus saith the Lord GOD, Behold, I lay in Zion for a foundation a stone, a tried stone, a precious corner [stone], a sure foundation: he that believeth shall not make haste.

(Here are several modern translations, with commentary, which make the verses' - and therefore Garrison's - meaning a little clearer.)

I don't think anyone can seriously dispute that the Constitution was a compromise with evil. Not metaphorical evil, or the lesser of two evils, but the cloven-footed thing itself. When Garrison burned his copy, it gave off the smell of brimstone.

The whole idea of a Constitution in a democratic society is that the people, through democratic means, agree to place certain subjects beyond the reach of democratic control. The demos divests itself of some of its sovereignty. And one of the subjects that the Constitution placed beyond democratic control was slavery. 

From the moment the Constitution was ratified, it didn't matter if a majority of Americans, even an overwhelming majority, disapproved of slavery, or considered it a positive evil. In their supposedly democratic new state, they had no power to do anything about it.

It is telling, and a bit pathetic, that the drafters of the Constitution couldn't even bring themselves to use the word "slavery." Instead, they provided that “[t]he migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808”.

By “such people,” the drafters meant thousands of kidnapped Africans crammed into coffin ships and brought across the ocean to be brutalized. The modern equivalent, perhaps, would be UFOs beaming us up from the street and taking us to Andromeda to be worked to death growing strange crops. That was the miracle at Philadelphia.

Nor could Americans choose for themselves whether to offer shelter to Black people in search of the land of the free. The Constitution prohibited Americans from exercising their own moral judgment about that: “No person held to service or labour 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 labour, but shall be delivered up on claim of the party to whom such service or labour may be due.”

That meant that every sheriff in the nation was constitutionally required to be a slave driver, and the taxes of every citizen were used to prevent the ideals expressed in the Declaration of Independence from being realized.

The Constitution awarded slaveowners additional seats in Congress in proportion to their inequity. The "three-fifths clause" gave additional seats in Congress based on each state's slave population. The slaves themselves could not vote, and of course the people who were allowed to vote didn't represent the slaves' interests.  Apportioning congressional seats based on the number of slaves meant that, as far as the House of Representatives was concerned, the votes of white Southern males counted for more than the votes of white Northerners.  

Garrison wasn't alone in recognizing that the Constitution was, at best, an ignoble compromise. Abraham Lincoln explained it clearly just four years after Garrison's incendiary act.  In a Chicago speech he compared the Declaration of Independence to the Constitution:

I should like to know if taking this old Declaration of Independence, which declares that all men are equal upon principle and making exceptions to it where will it stop. If one man says it does not mean a negro, why not another say it does not mean some other man? If that declaration is not the truth, let us get the Statute book, in which we find it and tear it out! Who is so bold as to do it! [Voices—"me" "no one," &c.] If it is not true let us tear it out! [cries of "no, no,"] let us stick to it then, [cheers] let us stand firmly by it then. [Applause.]

It may be argued that there are certain conditions that make necessities and impose them upon us, and to the extent that a necessity is imposed upon a man he must submit to it. I think that was the condition in which we found ourselves when we established this government. We had slavery among us, we could not get our constitution unless we permitted them to remain in slavery, we could not secure the good we did secure if we grasped for more, and having by necessity submitted to that much, it does not destroy the principle that is the charter of our liberties.

At the time Constitution was drafted and ratified, Americans understood that their new nation would have a short lifespan if the 13 colonies didn't bind together. Thirteen separate countries would have been easy pickings for any European power. Only by joining together in a union could they hope to maintain their independence.

That was obvious to everyone concerned, and especially to the southern slaveowners, who in effect held the future of the United States ransom to their own short-term economic self-interest. Give us slavery, they said, or you don't get your union. So the people who declared themselves independent on the basis of the self-evident truth that all men are created equal gave them slavery.

America's founding contradiction was memorably captured by Samuel Johnson in 1775 when he asked: "how is it that we hear the loudest yelps for liberty among the drivers of negroes?" That contradiction was embodied, not resolved, in our Constitution.  The Constitution was history's true Faustian bargain. 

Lincoln coined that phrase “charter of our liberties” to refer to the Declaration of Independence. Justices of the modern Supreme Court perverted the phrase's meaning into its opposite when they assigned that title to the Constitution instead. A document that enshrined slavery a charter of liberties!

Were the justices not thinking about the meaning of the words they used? Or did they cynically see how extraordinarily useful it would be – to them – to encourage that ignorant pseudo-patriotism?

America has never gotten over its founding contradiction.  The many ways in which it continues to determine our criminal law will be the subject of future posts.