Constitution 2.0
The New Republic disagrees with the Constitutional Law in Obama’s milestone speech on race.
The American conversation right now suffers from an odd pathology–our tendency to leave the fundamental changes to our Constitution made after the Civil War out of discussions of our nation’s most important document. At the Supreme Court last week, the justices endlessly debated what the Second Amendment meant in 1789. But, as Charles Lane wrote recently, the 14th Amendment, which was not even mentioned by the justices, is the essential bridge between the 2nd Amendment’s militias and the modern day invocation of the right to self-defense that was at the heart of the case before the Supreme Court. The same day, in his majestic speech on race, Barack Obama left the Reconstruction Amendments out of his recitation of the history of race and the Constitution.
The lede for the article is at the end is incorrect: Obama didn’t get it “wrong” so much as he perhaps watered down his speech for most people to understand. But the rest of the article is very, very good.
It makes the point Yale Law uber-prof Akhil Reed Amar champions: that the Constitution should be viewed as originally a pro-slavery document created in the time of local militia distrust of imperial standing armies. The slavocratic theme of the “first” Constitution culminated in the brutal Civil War. As a result of Union Army’s victory, Lincoln and others reforged the Constitution with the Reconstruction Amendments, changing the spirit of the Constitution from distrust of big government to distrust of the states. After all, it was the Southern states who rebelled, and it was their local militias–once the heroes of the first Constitution–that wound up betraying the Union. Modern understanding of the Constitution, our “second/Lincoln” Constitution, should be seen in this light.
Great as it was in many ways, our 1787 Constitution produced over 70 years of sectional conflict that was ultimately resolved in one of history’s bloodiest wars. That Civil War, and the Union victory in that war, is what paved the way for the Constitution we celebrate today. With the 13th Amendment, a document that bent toward slavery became stridently anti-slavery. The 14th Amendment guaranteed equal citizenship, civil rights, and due process for all Americans and gave Congress vast new power to enforce these mandates. The 15th Amendment and subsequent measures extending the franchise to women and young Americans made the right to vote a fundamental constitutional value.
