I suppose somewhere someday, some federally funded educational institution might celebrate September 17 with a program entitled “The United States Constitution: A Dreadful Document That Should Be Scrapped Right Away.”
Until that happens, however, Constitution Day will remain the most successful single regime of unconstitutional compelled speech in American history. Not that I, or any of my fellow constitutional-law professors, object: It’s also the only time of the year when ink-stained, paper-cut law nerds like us are actually invited to nice events.
This soggy holiday is a gift to an indifferent nation from former Senator Robert C. Byrd, who loved the Constitution so much that he thought everyone else should be forced to do the same. In 2004, Byrd attached a rider to an appropriations bill—the language appears before a section governing timing of FCC tariffs and just after one designating all trees of genus Quercus as America’s National Trees. Byrd’s rider requires any educational institution receiving federal funds to sponsor “an educational program on the United States Constitution” every September 17. Note that it doesn’t say the program has to be favorable to the Constitution. Viewpoint neutrality is scrupulously observed. But federally funded institutions might reasonably conclude that the pro-Constitution viewpoint likely would be more agreeable to the institution’s federal funders than the contrary view.
But for better or worse, it is Constitution Day. Let’s look at how the Constitution has fared in the past 12 months.
The major news item on many sites a year ago today was congressional testimony by General Martin Dempsey, Chairman of the Joint Chiefs of Staff, that he was prepared, if necessary, to recommend dispatching ground troops to the Middle East to fight directly against the Islamic State. One year later, there are still no boots on the sand—but the United States is more and more deeply enmeshed in a war that now seems more like a world war than a regional conflict. The fighting and the bombing is flooding Europe with refugees; it is drawing a newly aggressive Russia into an apparent military alliance with the odious Syrian government. It is clearly the most important and dangerous conflict anywhere in the world today.
Remarkably, however, the United States Congress is no closer to even debating, much less authorizing, this portentous military mission, than it was when it heard from General Dempsey.
Obama introduced an authorization bill that the Republican leadership scorned for not going far enough, and there the issue has languished for a year. Obama claims authority to proceed under the 2001 authorization permitting him to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” ISIS didn’t exist in 2001 but, hey, close enough for government work.
The fact that both parties seem to think the status quo is peachy tells us something important about the Constitution—namely, that no document means anything if our leaders decide not to honor it and our people are so divided they will not force them to.
By contrast, the past year has seen an astonishingly positive dialogue about a central value in the Constitution—the “equal protection of the laws.” Last year at this time, violent protests and riots wracked Ferguson, Missouri, and some other cities, sparked by the shooting deaths of unarmed black civilians. For some reason, Ferguson (and the heavy-handed military response by largely white police to a black crowd that had gathered to “petition the government for redress of grievances”) crystallized for Americans, black and white, what has been obvious but unvoiced for some time—that in many places around the country, the law enforcement and criminal-justice systems systematically subordinate and terrorize people of color.
Ferguson, and the massacre at Emanuel A.M.E. Church in Charleston, have forced a new look by ordinary people at the racial situation in the U.S. Americans have also begun to grapple with the Civil War and its radical constitutional legacy—the Thirteenth, Fourteenth, and Fifteenth Amendments. For a century and a half, some Americans have angrily claimed to be the most faithful stewards of the Constitution while at the same time defiantly brandishing the banners of treason. The sudden turn against the Confederacy and its trappings may be belated, but I honestly didn’t think I would live to see it. It is a sign of a country confronting constitutional promises it made a century and a half earlier and has never dared to fulfill.
Heartening as that may be, there is an anti-constitutional countertrend that should worry all Americans. On June 17—the day after the massacre at Mother Emanuel—a billionaire blowhard announced his candidacy for President by declaring all-out war on the nation’s roughly 34.6 million Mexican Americans, and, by inference, the entire Latino population, native and foreign-born, documented and undocumented, citizen and non-citizen alike. Not, I think, since the late Strom Thurmond ran in 1948 on the States’ Rights Democratic ticket has a presidential candidate lowered himself so deep in the gutter by directing hatred at one racial group: “When Mexico sends its people, they’re not sending their best,” Donald Trump told an audience, some of which he had hired himself. “They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.”
By contrast, George Wallace was a champion of human rights.
Anyone concerned about the Constitution should parse those words carefully. It’s customary to refer to Trump as someone without a “filter,” as if his campaign statements were simply a lunatic’s word salad. But it’s hard to imagine a statement more carefully calculated to stir racial hatred than that one. It begins by suggesting that immigrants from Mexico (he does not confine the slur even to the undocumented) are actually agents of a foreign government; it reaches its peak in an accusation of rape, the old calumny that Southern politicians used for years to whip white voters into racist frenzy; and it concludes with what one must call a half-hearted gesture at deniability. (Not racist; some Mexicans are “good people.”)
When the history of this campaign is written, I predict, it will emerge that these words were written for Trump by someone possessed of a good deal of political sophistication. Hatred is part of what is powering Trump’s campaign—raw, racist anger at the eclipse of white America.
Since he introduced this vulgar libel to the national dialogue, Trump has doubled down on it by openly proposing mass roundups, detention, and forced deportation of a minority population—a population that will, by his own admission, include a number of native-born American citizens.
The mean-spirited attack on American-born children explicitly assaults a central value of the Fourteenth Amendment: birthright citizenship. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,” says Section One. The aim was to prevent the creation of any new underclass that could be exploited for its labor, then disposed of for having outlived its usefulness (or even, as one influential Iowa conservative recently proposed, enslaved). Trump and his followers want to create such an underclass. The Constitution stands in his way, and he has dismissed it.
Why does this wretched spectacle stir indignation only among Trump’s designated future victims? He is, not to put too fine a point on it, making war on the Constitution and its values. That this racist hysteria is sweeping the country should concern us all.
Constitution Day comes every September. It usually takes place in fine weather, and a fine time is usually had by all. But designated holidays will not save a republic that abandons reason and justice. No document preserves itself when it dies in the hearts of the people.
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