The Constitution, Race, and Renewed Relevance of Original Intent: ...

Beginning in the several years preceding the American Revolution, abolitionist sentiment competed against this perspective. Some of the nation’s most prominent leaders, including Benjamin Franklin and Alexander Hamilton, advocated not only abolition but also racial equality. The impact of this messaging was reflected in many individual acts of manumission during and after the Revolution. By the end of the nineteenth century, every northern state (except New Jersey) had abolished slavery. All states, with the exception of Georgia, had also prohibited or imposed restrictions on participation in the international slave trade.

Although slavery was not universally embraced at the time of the republic’s founding, it nonetheless was subordinated to higher priorities including the formation of a viable union. The Constitution’s accommodation of slavery was the function of a conscious choice rather than the simple absence of moral development. The issue of slavery ultimately was resolved through the processes of war and reconstruction. Racism remained a powerful propellant of discrimination and oppression, however, as evidenced by an aftermath of segregation, lynching, peonage, and dual systems of criminal justice. Much of this experience extended to other groups, particularly those of non-European descent, whose migration to the United States was voluntary.

There is a mythology associated with constitutional law that tends to create unrealistic expectations and engender exaggerated concerns. Agents of change dating back to “moderate” abolitionists have looked to constitutional interpretation as a means of driving fundamental social reform. This perception may be anchored in an understanding that the judiciary is the institution that ultimately vanquished segregation. Although the Court declared segregation unconstitutional, its demise was ensured only when the political branches stepped up with appropriate laws and actions. Critics of an activist judiciary tend to ignore this dependency upon engagement of the political branches for change that is impactful and enduring. These realities do not obscure the utility of constitutional law as a means for achieving a “more perfect” condition. They suggest that in the context of significant division, and at least when issues of race are at stake, the Constitution is more likely to be a starting point than an ending point.