Standards of Redemption-Not Hero Worship

Redemption of founding principles, as I read Jack Balkin’s book, Constitutional Redemption, is not nostalgic naivete for some supposed heroic period of American history. Rather it is “fidelity to original semantic meaning” of the constitutional text that Professor Balkin has in mind by “originalism.” Accordingly, the significance of even intensely progressive clauses of the Constitution, like the Equal Protect Clause, is not predicated on their significance to the framers of the Fourteenth Amendment–for whom, as Balkin reminds us, women’s rights and anti-miscegenation laws were likely not within its framework–but on the combined assessment of individuals, social groups, politicians, and judges.

Professor Graber, in his post from August 2, 2011 at 19:43 is undoubtedly correct that constitutional storytelling can be manipulated to dress a narrow political point of view in the benighted raiments of antiquity. I nevertheless believe that accuracy in storytelling is important for portraying principles, trends, rulings, and contextual facts about America’s trajectory as a nation and Americans’ trajectory as a people.

Take as an example the question of Abraham Lincoln’s redemptive image, Father Abraham or Honest Abe as some called him. It is woefully true that this great figure he supported colonization into the early period of his presidency before abandoning the plan by January 1, 1863. But an immediatist abolitionist could not have been elected to the presidency in 1860. The general attitude even in the North was for ending the flow of slavery to the western territories but leaving southern states unrestrained in their slave regulations. To take one demonstrative example of the lack of popular support for abolitionism in the North: In December 1860, when Lincoln had already won the presidency, a mob tried to attack radical abolitionist Wendell Phillips after he gave a speech at the Negro Baptist church on Joy Street. Unable to get at its prey, the mob attacked black citizens and smashed house windows in the black section of the city. In such an atmosphere, neither Phillips nor William Lloyd Garrison–much less Susan B. Anthony or Charles Sumner–had a chance in the relatively liberal state of Massachusetts, where Lincoln received 62.9% of the state vote with Stephen Douglas coming a distant second with 20.3%. And if Douglas had won the presidency, there’s no guessing how much longer slavery would have been legal in the United States and how far northwest it might have spread. My point is that just as originalism’s claim to identifying the past through modern lenses is wrong so too is anachronizing contemporary standards to past events. The redemptive value of heros must be judge within the context of their own times.

One of Graber’s important points is that it’s one thing to praise a redemptive figure like Lincoln in general, and it’s easy to get support for such a view, but quite another thing when we begin to question how this moderate liberal would have addressed problems like redistribution or affirmative action: That is to say, the more detail the more nuance, and that’s generally true of history.

To be honest, I do not know for sure how Lincoln would have acted to the issue of affirmative action, although I am sure it would not have been in accordance with contemporary standards. What is certain is that he provided for the security of contraband during the Civil War and at the end of his life spoke about granting black veteran soldiers the right to vote. That was wholly inadequate to deal with all the facets of slavery and racism, but we should judge Lincoln according to his own day and age. The great orator and one time slave, Frederick Douglass, also rejected affirmative action in 1865, when he told the Massachusetts Anti-Slavery society to “Do nothing with us [blacks], for us, or by us as a particular class.” Douglass renounced that position after he saw the Souther recalcitrance with Reconstruction, its Black Codes, and Ku Kluxers. And we might imagine that had Lincoln lived to witness these injustices he too would have realized, just as did Douglass, that without the continued support of federal agencies like the Freedmen’s Bureau, blacks stood no chance at achieving real equality, neither in the South nor the North. It was, after all, Lincoln who signed the Freedmen’s Bureau Act into law.

As for redistribution, it is true that Lincoln did not support such an entitlement. That failure to advance justice on that score, however, should be attributed to Congress rather than Lincoln. Almost no one in the Republican or Democratic parties supported Representatives Thaddeus Stevens’s or George Julian’s land distribution plans. In retrospect, the country committed a grave wrong by preferring reunion to reparations, but Lincoln did not stand alone in such a tendency. Judged according to his own time, I believe Lincoln made positive advances in the direction of racial justice. That does not make him a messianic hero but a flawed one who made very positive strides to redeem the equality message of the Declaration of Independence.

The possibility of constitutional redemption is not anchored in Lincoln–nor other civil rights movers like Harry Truman or Lyndon Johnson–but in the principles and standards to which Balkin draws attention. The existence of neutral clauses in America’s founding documents, to which I drew attention earlier, provides the necessary opening for disempowered groups to demand the country to come to terms with its injustices, not on the basis of an abstract philosophy but a written creed. This is why I disagree with Rogers Smith’s ascriptive understanding of American history. While Smith is correct that “successful American political actors have not been pure liberals, democratic republicans, or ascriptive Americanists, but have instead combined politically potent elements of all three views.” I believe that he is mistaken that “American liberal democracy is not the ‘core’ meaning” of United States national purpose.

My reasoning is similar Balkin’s because I think he is correct that among other aspirational provisions to the Constitution, the Preamble “sets a purpose that has never been fully achieved but is our duty to achieve.” Aspirationalism, in Balkin’s sense, is seeing “the possibilities and the resources in the Constitution and in the constitutional tradition” and recognizing “that developing and realizing these possibilities and resources in history is perhaps the Constitution’s most basic command.” But, unlike Balkin, I think that the existence and normative value of these aspirations comes not merely from a social group’s ability to put them “on the table” of politics or into positive law, but the existence of innate human rights (e.g. the right to privacy, travel, and dignity) that the government lacks the power to infringe upon absent a compelling state reason.

The Reconstructed Constitution and the Declaration of Independence contain ideals for equality that a truly ascriptive system, like Nazi Germany, simply does not. There is nothing comparable to the overtly racist Nuremberg Laws in America’s founding documents. What we have, rather, is a country with far too many failures–in matters of race, gender, sexuality, religion, and immigration, to name just those that come to mind–but those failures were violations of the standards, which Balkin sees as essential for redemption, not manifestations of them. The differentiation between reality and ideals allowed workers’ parties, abolitionists, feminists, and disabilities rights groups to have faith in the founding documents even as they condemned the nation for failing to live up to them.

On another point Graber raises in his post about Lincoln’s appointees to the Supreme Court, I want to commend him for bringing Chief Justice Salmon Chase’s service to mind. I think it important to also speak about Justice Noah Swayne as a visionary hero of the original principles.

Lincoln nominated him to the Court in 1862. Swayne did in fact care deeply about the plight of blacks in America. He espoused abolitionism even before the Civil War, at one time he and his wife freed slaves they received by marriage. As an attorney, Swayne had even represented fugitive slaves. His political views were closely tied to anti-slavery sentiments. He had joined the Republican party in response to the 1850 controversy about the Fugitive Slave Law.

It was Swayne who wrote the earliest federal opinion on the Thirteenth Amendment as a designated district court justice. In United States v. Rhodes, he found Congress’s decision to pass the Civil Rights Act of 1866 was in accordance with “the spirit in which the [Thirteenth] amendment is to be interpreted.” Without the Act’s provision granting blacks the same right to testify as any white citizen “simple abolition, would have been a phantom of delusion.” Even more powerfully, his often overlooked dissent to the Slaughterhouse Cases, spoke of the ratification of the Reconstruction Amendment’s as “a new departure, and mark an important epoch in the constitutional history of the country” which were in accord with (or we may say redeemed) “the fundamental principles of the social compact.” After his retirement, Swayne commended Justice Harlan for his dissent in the Civil Rights Cases. “In my judgement,” Swayne wrote “it is one of the great, indeed one of the greatest, opinions of the Court does you infinite honor, is all that could be desired, and will make a profound and lasting impression upon the Country” With this ideology, I think we can fairly say that Swayne was a redemptive hero of Reconstruction.

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