By Bryan Fair
As colleges throughout the country prepare to mark the 231st anniversary of The Constitution of the United States, I am honored to share my own reflections on this extraordinary moment. I do so, first, by recalling the majestic language of the Constitution’s Preamble. Second, I recall the words of Chief Justice John Marshall that, “we must never forget that it is a Constitution we are expounding.” Third, I remember the trenchant critique of Associate Justice Thurgood Marshall who, on the occasion of the Constitution’s bicentennial, reminded the nation that the Constitution was defective from the start requiring numerous amendments and a civil war to overcome some of its most salient defects. Finally, I lament the expanding constitutional wedge among the people of the United States and the failure of statesmanship among the nation’s representatives.
We the People of the United States, in Order to form a more perfect Union, Establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
With those fifty-two words, the Convention delegates stated the goals of the new national charter, intending to improve vastly on the Union framed under the Articles of Confederation. The Preamble’s pledges: to form a more perfect union, to establish justice, to insure domestic tranquility, to provide for the common defence, to promote the general welfare, and to secure the blessings of liberty to ourselves and our posterity, presented a majestic American Creed, expanding on the founding words of The Declaration of Independence that all persons in the new nation are created equal and all are entitled to life, liberty, and the pursuit of happiness.
For most Americans, the nation has fallen far short of this credo. Instead, myriad American castes have emerged, notwithstanding bold constitutional promises. Was our constitutional creed a lie? Consider the condition of indigenous Americans. Consider the lives of African Americans. Consider the ongoing subjection of women. Consider the apartheid of the closet and the demonization of our LGBTQI family. Consider religious oppression and the vilification of Muslims. Consider the nativist criminalization of new brown and black immigrants. Consider the public exposition of white supremacy and nationalism. Consider the strategic attacks on our democracy and modern devices to deny or dilute minority voting strength. And consider the continuing denial of equal educational opportunity throughout pre-K thru 12 and university education. In these and other areas, we have dishonored the Constitution and the people.
Chief Justice John Marshall, representing the Federalists, expounded a generative federal power for the national legislature to address all national concerns and for federal courts to review legislative and executive acts in light of the Constitution’s limits. But, it is clear that Congress has never effectively addressed American castes by constitutional amendment or statute. Likewise, Marshall and his fellow justices rarely ruled in favor of the powerless and most vulnerable Americans. Even the most potentially transformative Court decisions, trumpeting the American Creed, did not prevent the instantiation of American castes.
A few in Congress and on the Court fought against various forms of caste. Charles Sumner explained that the principal aim of the proponents of the Fourteenth Amendment was to eliminate black caste. Charles Hamilton Houston and Thurgood Marshall took segregation to trial. David Souter opposed religious tyranny and oppression. Ruth Bader Ginsburg almost persuaded an all male Court to subject gender discrimination to the most exacting scrutiny. Anthony Kennedy laid bare state animus against LGBTQI persons. Justice Thurgood Marshall knew from three decades of fighting caste that the American Constitution was defective from the start, requiring a Civil War and landmark constitutional amendments to reconstitute the Union. Mr. Civil Rights knew firsthand the status of the outsider and understood American caste like few of his colleagues, most of whom never experienced any form of it.
Despite the Great War and Reconstruction, the lingering question is whether a nation conceived in caste for so many Americans can ever be redeemed? Is there a way forward without white supremacy, without male hegemony, without hetero-normativity, without religious intolerance, without educational inequality, and without political subjugation?
As you celebrate the Constitution, I hope you will think deeply about what you are celebrating. I hope you will examine critically whether the Constitution you celebrate permits American caste. I hope you will try to stand in the shoes of those who live American caste each day and ask what you will do about it. I hope you will use your voice and your talent to speak against all forms of American caste.
The statesmen who formed our nation pledged to establish justice. Their successors promised equal protection of the law. Thus far, our current representatives have failed to live up to those promises. We have not achieved a more perfect Union. We have not established justice. We have not secured the blessings of liberty for all. Instead, hate and extremism are the principal currency of the American President. The Attorney General defends separating children and parents at our borders. White nationalists are emboldened to assert hereditary entitlement. National parties remain afraid of too much democracy and seek to crack or pack districts to party advantage. And a divided Court seems poised to destroy unions, invalidate the remaining protections of voting rights, and to interpret the Constitution to do almost nothing to dismantle current caste. Thus, there is much work to be done.
I hope that many of you who are in college today will take up the challenge to fight hate and seek justice for all. Only then will we have a Constitution that is worth expounding!
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