CONSTITUTIONAL CONVERSATIONS
Language We Can Agree Upon
by
M. E. Boyd, Esq., “Miss Constitution”
Alexander Hamilton tells us that human beings are able to reason but that human beings are often not reasonable. Quite an understatement. The United States Constitution is a study in reasonableness and uses it to create a governing structure that attempts to contain other aspects of human nature that go to passion, and faction, and mob action or, in other words, the “immoderate.” The fact is that the Founders anticipated what we are experiencing in our culture today. True, they could not have foreseen the exact nature and the exact players involved, but they knew that human behavior remains a constant over time and thought they had created a way to accommodate the full range of the possible, good and bad, and still maintain a stable social order. They also knew that they had made a compromise over the very contentious issue at that time and that issue was slavery. The nation, after the Revolution against Great Britain, was governed by the Articles of Confederation, sort of a loose knitting together of states somewhat like the United Nations but lacking the teeth necessary, including a Presidency, to protect the nation from those in Europe licking their chops to pick off one state after another and re-colonize America. So, in the stronger United States Constitution, written in the summer of 1787 and ratified by nine of the thirteen states by 1788, slavery was allowed to continue but the seeds were sown for its elimination. The slave trade was banned in 1808 and slavery itself was banned in 1865 by the addition of the 13th Amendment to the United States Constitution. How the nation would incorporate both former slaves and free blacks after the Civil War has been an ongoing national discourse. “Our account of ourselves” as essayist Ralph Waldo Emerson (1803-1822) tells us.
Today, as racial issues bubble to the top of the consciousness of society, media personalities, pundits, activists, and others are demanding that we have a “conversation” about the ramifications of slavery in America including once-prevalent racist laws and attitudes and the price, if any, the nation should pay for having had slavery in our country in the first place. This “conversation”, to some, is really not a dialogue but a lecture and a rebuke. To some it is a cover for anarchy, insurrection, and destruction partially funded outside our country, and to some it is a genuine wish for a way forward in society.
In the spirit of finding some way for those involved to communicate, if they wish to, it is important that all of us understand the meaning of words and phrases used in our Founding documents, including the context of those words and phrases. One of the most misunderstood phrases quoted daily originates in the Declaration of Independence, written primarily by Thomas Jefferson with oversight from a committee appointed by the Continental Congress. In 1776 the thirteen colonies of Great Britain declare in part: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights. . .” What does the word equal mean in the context of this document? It means that all people are born with the same status – there is no hierarchy of status or aristocracy by birth as there was and is in Great Britain with its Lords and Princes and Princesses. It was later added to the United States Constitution that neither the federal nor state governments could grant titles of nobility. It also means that all people are equally endowed by God with unalienable rights – life, liberty, and a form of liberty called “pursuit of happiness.” Later, with the 14th Amendment, 1868, it came to mean that all people within the jurisdiction of a state have equal protection under the law. So, in a conversation about slavery and racism, equal means that slaves were denied the equal unalienable right from God to Liberty. When racist laws were passed by states, black citizens, whether former slaves or free people, were sometimes denied equal protection of the law. So, before we begin our national conversation, we can stipulate that the right to Liberty comes first from God, not the United States Constitution, and that that right was not recognized as valid for all persons. It is recognized as valid today. We can also stipulate that state or federal laws that denied black persons in America equal protection of the law are now completely gone, but application of the law and the unevenness of that application between rich and poor, between the connected and the non-connected, between those with political power and those without, and any remaining racial animus awaits a positive discussion. The issue of equal relative to merit, or opportunity, or talent, is a completely different discussion.
There are a few other language issues Miss Constitution would like to clarify so that we can all be on the same page. The Preamble to the United States Constitution, “We the People of the United States, in Order to form a more perfect Union,” does not mean that we today are supposed to be trying to perfect the Union. It meant in 1787 that we hoped our union would be smoother than the union of England and Scotland in 1707 that created Great Britain. The Preamble also states that the People wish to establish Justice and this, like the word equal has a particular meaning. It means fairness and impartiality, each person receiving his due. It does not mean a certain outcome or verdict in a specific case, as in a statement that if the jury does not convict so and so there is no justice. If there is fairness of due process and impartiality the actual verdict is up to a judge or jury to decide based on factual evidence. So, one may not get the verdict one might want but justice was served. The Preamble repeats the Declaration of Independence in elevating Liberty to our highest value. The People want to “secure the Blessings of Liberty to ourselves and our Posterity.” Liberty is personal choice within the constraints of the Rule of Law – positive law (statutes, Constitutions, rules, court decisions) moral law (right versus wrong), unwritten law (courtesy), and natural law (unalienable rights from God to life and liberty). We are free to choose within boundaries. A very balanced concept for a stable social order.
To save this great nation from a descent into the lawless and unjust, Miss Constitution would start with the simple step of agreeing on the meaning of the words we choose. Equal means the same rights, privileges, duties, and protections under the law; justicemeans fair and impartial process; unalienable means cannot be taken from the holder; conversationmeans genuine, respectful dialogue. Perhaps, as Alexander Hamilton hoped, reasoning human beings can follow the path set by the Founders toward the reasonable. Miss Constitution would hope goodwill, generousness of spirit, optimism, understanding, and love of one’s fellow man come into play, as well.
Copyright©2020 by M. E. Boyd, Esq., “Miss Constitution”
info@missconstitution.com
