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July 07, 2003

Racist Founders?

I haven't really done anything special for this Independence Day as regards my blogging, though I have done a bit. But since I have been investigating the blogroll for new inclusions, I did find Stuart Buck, one of the legalistic bloggers.

He makes a weak case against Spike Lee's argument that the founders were racist, but it did remind me to check my own position on the matter. This being the second time I thought about the litany of complaint, I figured I may as well bring up my commentary from the archives. I essentially believe that the Founders did not think any anti-racist declaration was a necessary condition for nationhood. In their eyes, a good nation could be compatible with racism, and while they could be counted on to rant against slavery and the south, it didn't suffice.

If you look at the Declaration of Independence, it is a litany of contemporary complaint. If we made one today it would probably include complaints against federal taxes, the BATF, OJ Simpson and Geraldo. The things people love to hate. In that course of those human events, the rebels listed all their sufferings, which didn't include racism nor sexism. So in creating a blank slate for their new world they set primary defenses against their enemies, but in sum it was a tirade against the tyrannies of monarchy. So today America, whatever its flaws, can never be institutionally monarchist. America is by definition, anti-monarchist. Whatever oppression happens in America today, it cannot be placed at the foot of monarchy. What is most important, thus in my view about the Declaration of Independence, is that it categorically rejects monarchism from the perspective of those most intimately familiar with its oppressive nature. We now call those folks our founders. Those 'victims', those 'complainers'.

So how could we, in principle, create a document that exclaims loudly against racism, as the Declaration of Independence did against Monarchy. What goes into creating an Anti-Racist Manifesto? Incidentally, that is what brought me, the second time around to the Harare Accords. If I were a legal scholar, I might ask myself, comparatively speaking, which set of laws between that of the new South African Constitution, which includes significant language from the Harare Accords, and our own system and amendments is more completely anti-racist. I would actually include the new Germany as well as several other nations. I suspect that theoretically speaking, South Africa beats us, considering as I have, some of the work of Kimberle Crenshaw, Linn Washington, Patricia J. Williams and Judge Higgenbotham. Of course, I'm not a legal scholar and am unfamiliar with the details of the South African legal system. However I am aware of the UN Treaty on Racial Discrimination and I know that the U.S. did not become a signer until about 1996. I also recognize that you can go to jail in America for holding up a 7-ll for 50 dollars, but not for firing somebody because you think he's a nigger. We have no criminal law for racism. You can be a capital R racist and run for office in America's form of democracy, because America's form of democracy is compatible with racism. But notice you cannot run for King. You cannot run for president of the supreme Soviet. So I ask you, what is a bigger threat to democracy? Monarchy, Communism or Racism? We've lived with racism longer than with Communism or Monarchy?

Because we have spent so much time and effort fighting Communism and Monarchy and relatively little time fighting racism, I think Americans are much better at identifying any strains of communist thought. We have had internal purges of communists and suspected communists, but not of racists and suspected racists. With respect to internal purges, the only Americans who have come under McCarthyite scrutiny because of race have been non-whites. I'm not suggesting that we appoint some Racial Tribunal and start marching white supremacists off to internment camps. Rather that we increase our ability to determine the 'sticking power' of racist ideas in people's heads and coupled with an anti-racist fiat in our government, cripple the ability of our democracy to be compatible with racism.

Now this is where I get in trouble with those poor misguided souls who are adamant about perfect colorblindness. But I only want to touch on that briefly in this context. Imagine a Declaration of Independence which could not identify the explicit nature of the crimes of the King. It would have been toothless. It would have been an example of using what I call the 'Asshole Card', which in contemporary America, because of colorblindness, unfortunately trumps the 'Race Card'. If Thomas Jefferson were to play the Asshole Card, he wouldn't have been an author of the Declaration, he'd have said, "Hey George is just an asshole who happens to be King. The fact that he's King is just a coincidence. Being an asshole isn't a crime."

This is all very interesting in light of the recent agitations against the racial discriminations of Affirmative Action. Their appropriation of the moral high ground of anti-racist rhetoric ought to put them squarely in the camp with Spike Lee. If the U of M can be considered racist for authoring the point system for undergraduates, certainly the authors of the Three Fifths Compromise are racist.

Update: The Claremont Institute recommends vindication.

Posted by mbowen at July 7, 2003 07:13 AM

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The idea of a document opposing racism as the Declaration of Independence opposes monarchism is an appealing one, but there is an important distinction between racism and monarchism. Monarchism is a phenomenon in and of government. Racism is a phenomenon which has its mechanisms distributed through all of the elements of society.

The Declaration of Independence is a manifesto which protests a form of government and calls for a transformation in government. A Declaration of Anti-Racism would have to be a manifesto whcih protests a form of society and proposes a transformation in society, which is a much taller order. The two are not directly comparable ...

Posted by: Jonathan Korman at July 8, 2003 12:15 PM

"...certainly the authors of the Three Fifths Compromise are racist."

Then you don't understand the three-fifths compromise. The Southern delegates, who regarded slaves as chattel, wanted blacks to be counted as whole persons for the purposes of apportionment and representation. Why do you suppose that was? What could the South possibly have to gain by counting blacks as persons when it came time to assign congressional seats and yet treating them as property otherwise? Compromise is, by definition, imperfect. The three-fifths compromise ensured that the Constitution would be passed, while putting off the resolution of the slavery question for almost 100 years.

Posted by: Bob Chen at July 8, 2003 01:43 PM

The Three-Fifths compromise guaranteed political rights for white southerners disproportionate to their actual population with no provisions whatsoever for enfranchisement black southerners.

It Constitutionally codified the value of owning slaves into congressional voting rights, not for the slaves but for the slave owners. Essentially, the more slaves you own, the more seats you get in Congress by dint of the fact that your human population is larger than your citizen population. Furthermore it rewarded the South by giving them a political incentive to breed slaves, which was much less expensive than purchasing them outright from the Trade.

The framers essentially said, "We did not care if you ever give them the right to vote, it is not a condition of your right to vote." How that isn't racist is beyond my comprehension. Whether or not the South ever intended to grant voting rights to Africans had no effect whatsoever upon the conditions of the compromise. The framers thus granted these rights in perpetuity without regard to the conditions or rights of the slaves which smacks dead center in contradiction to their own stated principles of liberty.

There had to be some specific reason why no enfranchisement for slaves was granted on any basis and I contend that reason was already established in the jurisprudence of the day which reduced the standing of Africans in colonial courts. This difference in standing is well documented by Judge Leon A. Higgenbotham in his works on the legal systems of the time.

Posted by: Cobb at July 8, 2003 03:50 PM

I understand that racism operates in many different ways through society, but I think Americans tend to forget how much of the letter and spirit of the law favored white supremacy.

I think that the best way to illustrate this is by asking the questions about how racism might come to be illegal and how all institutions would be shaped by anti-racist law. So I was suggesting that had the framers included racist offenses in their complaint, it would have come as a natural circumstance that the nation's laws and institions would be significantly different simply because the burdens of proof would have favored plaintiffs in civil cases and that prosecutors would be able to investigate in those areas deemed criminal.

Even had these laws been passed as recently as 1900, it would have made a huge difference in the labor movement which would have had very significant economic and political consequences for people of color.

Posted by: Cobb at July 8, 2003 04:09 PM

I agree, but let me quibble over a turn of phrase: how "racism might come to be illegal" is an awkward way of describing a legal system with anti-racist values at its core. I believe you could have "racism systematically countered by law." But the expression "make X illegal" suggests something you can do to a thing (like a contraband product) or an action (like a criminal act). "Racism" is too diffuse to qualify as either of these.

Posted by: Jonathan Korman at July 8, 2003 07:04 PM

I still manage to wake up without a law degree and respect myself in the morning, but I agree with your quibble. I'm in that twilight area in which I believe my logic is strong enough to do law, but I lack a handy vocab of well-defined nuances.

What I've been angling towards is a set of anti-racist principles as distinguished from anti-discrimination laws. Consider this document on the persistence of institutional racism. I think if you had a set of principled (ick - dare I say it?) regulations, you could no sooner have institutional racism in business, than you could have institutional communism in banks. The two simply couldn't co-exist.

I think about what it means to a company when auditors come in and verify the books, or to a rancher when a government inspector comes to grade his beef. We submit to such scrutiny because in the end we believe it is better for our society that we do. And yet to suggest that we initiate similar regimes in service of anti-racist principle remain politically untouchable.

I honestly believe that Americans feel that it is their right to be racist and so oppose advancement of anti-racist ethics and law. I'll dig up something in a separate post.

Posted by: Cobb at July 8, 2003 08:33 PM

"The Three-Fifths compromise guaranteed political rights for white southerners disproportionate to their actual population with no provisions whatsoever for enfranchisement black southerners."

Indeed, it did. But three-fifths is two-fifth less than one whole, which is what the Southern delegates wanted, for the very reason you state. The compromise was struck in part to keep the Southern slave power in check. It may have given Southerners an incentive to breed slaves. But then so did the provision to end the importation of slaves.

The question you have to answer is this: was the Constitution worth compromises such as the three-fifths? Or would disunion have been preferable?

Posted by: Bob Chen at July 8, 2003 11:12 PM

Certainly, this Constitution was compromised. It was a compromise acceptable to the framers because, as I said, anti-racist principles were unsupported. The territorial integrity of the Union was more important than human and civil rights for these gents, none of whom we are aware of took any pains to publish any notable dissent on those grounds. I think it is a lack of such a dissent that leads many to conclude that our standards are 'modern' and it is therefore unfair to call the framers racist. I should like to find such a dissent.

I think that the example of African American history demonstrates the importance of anti-racist principle to the fundamental requirements of a pluralistic society. Therefore it comes as no surprise that constitutions penned since ours have adopted such principles. Without them and open borders, there is no reason to believe any nation could grow and prosper as our has without an express policy of imperial conquest, not that we are strictly innocent of that.

I am convinced that our future depends upon the fortification of anti-racist principles after the fact of the Constitution. This requires a kind of perspective I find lacking in debates about race. Indeed it could be said that most Americans have never seen clearly to principle in this regard and rather have only approached the matter facing in the right direction yet with relatively low standards. This is precisely the kind of misdirected reasoning that stands as the new law of the land vis a vis Affirmative Action. For the improper and spongy principle of 'diversity' we rule.

At this late date, we have already born many great costs for our lack of diligence, and it doesn't seem likely that any forseeable great trouble will force us to do right. But I'll keep watching and pushing.

Posted by: Cobb at July 9, 2003 08:21 AM