"Irredeemable America"

No country can prosper when its history is replaced with a narrative of evil

Sorry, America, but your future leaders don’t like you much at all

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I’ve been the recipient of some useful information this week: that it’s possible to graduate from law school, then practice law for forty years, without understanding a thing about the Constitution of the United States.

I learned this in the course of an exchange on Substack Notes with a person whom I shall not identify, for my purpose is not to mock or belittle her. Suffice to say that her c.v. claims the qualifications mentioned above, and I have no reason to doubt her. For after a moment of incredulity, I reminded myself that given the sad decline of American higher education since the Sixties, such ignorance is all too common.

The subject under discussion was the Arizona Supreme Court’s ruling that an 1864 law banning abortion is now “enforceable,” thanks to the reversal of Roe v. Wade, which returned the abortion issue to state jurisdiction. My interlocutor opined that the both the Court’s ruling and the law itself are unconstitutional, because in 1864 Arizona was not a state but a territory, and because at that time women did not have the right to vote. And when I asked for specifics, she referred me to the First Amendment—specifically to the provision recognizing the right of the people to assemble peacefully to petition the government for redress of grievances.

Now this of course is patent nonsense: The First Amendment has nothing to do with voting rights, much less the territorial status of Arizona in 1864. But her argument is problematical in a more fundamental way, for if it’s true that no law affecting women is constitutional if it dates from a time before women got the vote, then many other state and federal laws must also be unconstitutional.

The debate went south from there: I found myself confronted with the argument that certain provisions of the Constitution were unconstitutional. That was when a moment of incredulity struck me. How could anybody with a legal education make such an argument? Well, the explanation came in the form of an example: the Eighteenth Amendment (1919), which prohibited “the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes.” According to my interlocuter, the proof that the Eighteenth Amendment was unconstitutional is the fact that it was repealed by the Twenty-First Amendment in 1933.

Once again, this is patent nonsense. Any constitutional amendment, duly proposed and ratified, becomes an integral component of the Constitution. It cannot be unconstitutional. If it’s a bad measure, as the Eighteenth Amendment surely was, it can be modified or repealed. But unless it is, it’s part and parcel of the supreme law of the land.

Then the debate went South. When I made the above point—that whatever is part of the Constitution is constitutional by nature—I was reminded of slavery. Specifically, my attention was directed to the notorious three-fifths clause that, she alleged, declared black slaves to be three-fifths of a person. Supposedly, this provision was unconstitutional because it protected slavery. Arguments along this line have long been favorites of the lumpen-Left, which likes to claim that the Constitution is a racist document, framed specifically to protect the institution of slavery. As usual with claims from that quarter, this one is baloney on a stick.

In fact, the Constitution as originally adopted was notably silent concerning slavery, touching upon it indirectly in but two instances: the three-fifths clause and the setting of a date on which Congress would be free to prohibit the slave trade. Both provisions were compromises designed to keep the slavery issue from blowing up the Constitutional Convention and undermining the union of the states.

When the question of apportionment of representation in the House of Representatives was debated, the slaveholding states wanted their slave population to be fully counted. This, of course, would have given them more power in the House. For just that reason, the non-slave states didn’t want slaves to be counted at all. The compromise arrived at was that three-fifths of the slaves would be counted for purposes of congressional apportionment only. This was not a racist declaration that slaves were “three-fifths of a person.” Indeed, it had no effect at all, positive or negative, on the status of slaves.

 As for the prohibition of the slave trade, the slaveholding states were against it for economic reasons, slave labor being economically essential to their plantation economies. The non-slave states, mainly on moral grounds, wanted the slave trade prohibited immediately. And once again there was a compromise: Section Nine of the Constitution prohibited Congress from outlawing the slave trade before 1808. It should be noted that the federal government exercised that option at the earliest possible moment. In 1807 Congress passed, and President Jefferson signed, a bill outlawing the slave trade as of January 1, 1808.

The charge that the Constitution was designed to protect the institution of slavery is therefore a canard, and the proof of that is on prominent display in American history. For if our founding document did protect slavery, the slaveholding states need not have seceded from the Union in 1860. But their leaders well knew that in the long run, the Constitution could not protect their “peculiar institution.” They foresaw that the country’s westward expansion and changing demographics would tilt the balance of political power against them, and that’s why they headed for the exits.

Indeed, it was the Framers’ success in maneuvering around the slavery issue, thus keeping the slaveholding states in the Union, which guaranteed the end of American slavery. For if the Constitutional Convention had deadlocked over that issue, a slaveholding Southern Confederacy would probably have been established around 1790 instead of in 1860. Thus two Americas, one free, one slave, would have shared the continent, forging an alternate history whose details can only be guessed.

As it was, however, the constitutional Union established in 1789 endured long enough for the states of the North and West to conclude that it was worth preserving, even at a blood price. And because slavery was the root cause of the conflict, the Civil War destroyed it.

That’s the history that postmodern progressivism has replaced with its puerile narrative of systemic, all-pervasive American racism. And as my recent experience on Substack Notes attests, that narrative has thoroughly polluted the minds of those Americans to whom the country once looked for leadership: our educated elites. But that adjective, educated, no longer applies to them, for the typical product of contemporary higher education is an ignoramus with a head full of falsehoods who has been taught that America is irredeemably evil. No country can prosper under leadership like that.