By GARY BLEDSOE
– ANALYSIS –
Last month many in our nation celebrated Constitution Day. It is without question that our Constitution has provided an avenue for much of the progress that we in the United States have experienced or achieved, but we must be mindful of the insights provided us by the late Thurgood Marshall in 1987, in reference to the Bicentennial celebration of the Constitution of United States of America. Justice Marshall noted that we must not get taken away like many writers who contend the U.S. Constitution is the greatest document ever written, or that the superior wisdom and propensity for justice of the authors can be clearly seen in its words and its construction. He noted that the document did not permit women to vote, permitted slavery and has been required to be amended on numerous occasions. He thought we should place an emphasis in our celebration on the great individuals who have made it work.
Once again, the most important lawyer of the 20th century was right. We see so many who have taken to our court system, many at great personal sacrifices, who have wagered great battles that made a difference to our country, Dred Scott did not win, but the words from the dastardly Supreme Court opinion in his case gave important direction to those crafting The 14th Amendment. Susan B. Anthony voted for Ulysses S. Grant when she knew women could not vote under the existing law, and she was prosecuted for doing so. This was one of those building blocks that years later led to the adoption of The 19th Amendment.
Daisy Bates was the head of the NAACP in Arkansas. She owned and ran a community based newspaper. When she had the audacity to join with Marshall to fight for equal educational opportunity for Black children, the banks called in her notes and the business community joined together to oppose her and the NAACP. Bates’ newspaper shut down, but those children in Little Rock joined with children in Kansas, South Carolina, Virginia and the District of Columbia to bring about a proper interpretation of our nation’s Constitution. The children who Bates was supporting were screamed at, cursed, assaulted, spit on and harassed in untold ways because they too had the audacity to seek justice through our Constitution. Courage can also be found in the Latino children who sought integration by enforcing California law or the Asian Americans who fought their internment during WWII.
Years after her parents left Tulsa because of the Tulsa race riots where whites burned down a thriving Black business community and killed many Black citizens, Ada Sipuel became the Plaintiff in the lawsuit which led to the integration of the University of Oklahoma Law School. She received many threats regarding her life and safety, and after she won at the Supreme Court, Oklahoma erected a fraudulent Law School at Langston University so it could continue and deny her admittance, even after the Supreme Court decision. Importantly, later in life Sipuel was actually appointed by the Oklahoma governor to become a member of the University of Oklahoma Board of Regents.
Heman Marion Sweatt was a postman who was denied a position for which he firmly believed that he was the most qualified. Sweatt felt the color of his skin was the reason he did not get the postal job that he sought, and further he felt that this was occurring with many other persons of color. After being admitted to the University of Texas School of Law, Sweatt was saved from lynching by kind white students once he was finally enrolled. As he was about to go outside, they warned him about the mob waiting for him so he stayed inside the Law School for most of that first night. He did not finish Law School and lost a wife some say as a partial result of his involvement in the case against the University of Texas. Lloyd Gaines who won the case to integrate the Missouri Law School disappeared before his Supreme Court victory could be implemented.
Lawyers too made many sacrifices. Marshall was almost lynched after a string of court victories in Columbia, Tennessee where he sought justice for African American residents who had been terrorized by the Klan. Jack Greenberg and other lawyers trying a case with a Marshall in Florida had to violate speed laws and endanger others because they too were attempting to avoid lynching by a mob that included law enforcement officials. Harry Moore, president of the Florida NAACP in 1950 when the case was being tried, and his wife Harriet were murdered because of their involvement in fighting hate groups in Florida in that same case. The Moore’s were heroes who were making our Constitution work. Details of this case were discussed in the Pulitzer Prize winning book, Devil in the Grove.
When I discussed this with law students the other day, they added other great examples like the plaintiffs in Miranda v. Arizona and Roe v. Wade who caused great changes in The Constitution but no doubt felt pain in the process.
Let’s celebrate our Constitution but be mindful of interpretations that are nefarious or clearly intended to cause injustice. The Preamble to the U.S. Constitution says that one intent of the document is to establish justice. The colonists had grown weary of a crown where individuals had no rights and the government, or rather the Monarch, had all power. We must see this provision in that light, meaning that we must see our Constitution as being both about protection of individuals from abuse by the government and about protecting all including racial, ethnic, disability and other minorities from government and government supported transgressions of their rights and interests. That is why the government is limited in its search and seizure, while the individual and groups of individuals are granted the right to counsel, an impartial tribunal and due process of law.
After The 14th Amendment became effective, the individual or groups of individuals were provided the Equal Protection of the Law. This too is why the Supreme Court has been required to stand in and make sure that individuals and unpopular or minority groups have needed protections. Because of this Law intending to primarily benefit persons of African ancestry and newly emancipated slaves, many others have derived great benefits and enhancements of their freedom. Importantly, as Marshall noted, the guaranteed Constitutional Justice was greatly expanded once The 14th Amendment became effective, because the Equal Protection Clause had to be joined with the liberty interest provided by The Constitution. We the People no longer meant not just those who were free in 1789, as the late Congresswoman Barbara Jordan famously complained during the 1974 Watergate hearings, but now it means all citizens without regard to race, creed or color.
As we find ourselves confronting more and greater Constitutional challenges in our nation today, we must come together and realize that it is the way of interpreting our Constitution that has made us a powerful, successful and pluralistic nation. Sadly there have been times when interpretations have gone the wrong way, because after all the interpretations must be done by human beings with all of our faults. In too many places around the world there could be no Linda Brown, Sweatt, Sipuel and Fred Korematsu. If we insist that our Constitution is about justice for individuals and individual groups, and that all Americans are deserving of its protections, we will have taken a giant step not just for our nation but for humanity as well. It seems as though in most places around the world there are problems between people who look or worship differently when they live in close proximity. Our example, though spotted and never close to completion, shows us what can be done even if for a short period of time.
The law of the land makes such a difference. In understanding this, however, we can even look to discussions in the federalist papers that I believe have been disregarded over time. For example, Alexander Hamilton said in Federalist Paper No. 78 that it was essential that the nation have an independent judiciary, but nowadays this seems to be a lost consideration as the majority and persons in power seek to ensure that the judiciary reflects them and their views without regards to the law or what may be right or wrong.
We might add how James Madison spoke clearly in Federalist Paper No. 10 about the form of government we were choosing and why it made such a difference. We did not choose a pure democracy but a Republican form of government that provided for broader representation. Madison saw it as an evil if the majority could eliminate rights of the minority so he thought that the broader representation and governmental structure would help. This is where the heroes make a difference, because it is they, who through great personal sacrifice, give true meaning to our Constitution and make it what it is known to be today. Where would our Constitution be today were it not for Marshall, Ruth Bader Ginsburg and plaintiffs like the ones described above.