The bicentennial we celebrate this year honors the Constitution written in 1787, that is, the original, unamended Constitution. Some well-meaning citizens have denounced celebrating or even praising that Constitution. They contend that its many severe defects should be considered a matter of national shame. For example, lacking the Thirteenth Amendment, the original Constitution permitted slavery to continue; lacking the Nineteenth Amendment, it did not secure the right of women to vote; and, lacking the First Amendment, it provided no protection for religious freedom, not to mention other rights. Why, they ask, should we celebrate a constitution that treated blacks as less than human, that left women out, and that did not combat religious intolerance?
These charges would be distressing if true, but fortunately they are false. They stem from a misreading of the document, a misreading that comes from not appreciating the importance of knowing how to read the original Constitution on subjects it does not mention.
Why bother with subjects not mentioned? Because, as a matter of fact, we have no choice. The list of unusually important subjects the Constitution does not mention is very long. The fact that they have not been mentioned has not prevented cases and controversies from arising, nor has it relieved courts and legislatures of the duty of determining what is constitutional with regard to them. The words “education” and “school,” for example, do not occur in the Constitution, but even so the courts have been busy for decades deciding school controversies. There is no mention of labor unions, corporations, political parties, the air force, radio and television broadcasting, telecommunications, and so on, but the courts deliberate constitutional controversies on these subjects all the time. The list of subjects not mentioned in the text of the Constitution also includes words like “abortion,” “contraceptives,” and “sodomy,” and phrases like “right to privacy,” “substantive due process,” and the “high wall separating church and state”—all matters on which the Supreme Court has pronounced.
The inescapable fact is that many subjects not mentioned in the Constitution must be interpreted, unavoidably, by anyone for whom the meaning of the Constitution is important. My argument is that there are valuable lessons to be learned about how we are constituted as a nation, and what in the original Constitution is worth celebrating, by devoting serious attention to subjects not mentioned in it. For that purpose, I propose close attention to three such subjects—blacks, women, and Jews.
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Blacks
What to do about black slavery was a major concern in the Constitutional Convention; it was discussed at length in the debates, with frequent direct reference to both slavery and race. But neither term was mentioned when it came to the writing. No words indicating race or color, black or white, occur in the text of the Constitution, and neither do the words “slave” or “slavery.” Circumlocutions are used in the text to avoid the use of any form of the word “slave”; for example, “person held to service or labor,” and “such persons as any of the States now existing shall think proper to admit.”
In fact, the word “slavery” entered the Constitution for the first time, after the Civil War, in the Thirteenth Amendment, which thereafter prohibited slavery anywhere in the United States. The words “race” and “color” were first used in the Fifteenth Amendment for the purpose of securing the right of all citizens to vote. The words “black” and “white” have never been part of the Constitution.
What difference does it make, one may well ask, that the words were not used, if the ugly fact is that black slavery existed and was given constitutional status? Consider, for example, perhaps the most notorious and, I would contend, the most misunderstood constitutional provision relating to black slavery, the famous “three-fifths clause.”
As Benjamin Hooks, executive director of the National Association for the Advancement of Colored People, put it recently in criticism of the original Constitution: “Article I, section 2, clause 3 of the Constitution starts of with a quota: three-fifths. That is what black folks were in that original Constitution.” Hooks is not alone in this view. The historian John Hope Franklin has written of this same clause that the Founders “degraded the human spirit by equating five black men with three white men”; and the constitutional-law professor Lino Graglia contends that the provision “that a slave was to be counted as three-fifths of a free person for purposes of representation” shows “how little the Constitution had to do with aspirations for brotherhood or human dignity.”
These three agree in expressing the widely-held view of this clause that, for the Founders, blacks were less than human, somehow or other only a fraction of a human being. The constitutional clause they are referring to reads as follows:
Representatives and direct taxes shall be apportioned among the several States . . . according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons.
In short, count all of the free persons and indentured servants, do not count the Indians, and then add three-fifths of the slaves. The question is, what, if anything, does that provision tell us about what the Founders thought about slavery and about blacks as blacks and as human beings?
James Madison said, in the convention, that slavery was the central problem. Southern delegates emphasized that there was no chance of union including the South without accepting the long-established existence of slavery in the slave-holding states. But slavery was a flat contradiction of the principles of the Declaration of Indepence, the principles that are the bedrock foundation of the Constitution—the primacy of the rights of individuals, their equality with respect to their rights, and the consequence that the consent of the governed is the only legitimate source of political power. Almost all the delegates were fully aware that slavery profoundly contradicted these principles and therefore had no proper place in the Constitution.
If, on the one hand, the continuation of slavery was unavoidable, and, on the other hand, it was a contradiction of the most fundamental principles of the Constitution the delegates wanted and thought necessary, what could principled anti-slavery delegates do? One effective and consistent thing they could do was try to make the political base of slavery as weak as possible, to diminish its influence and improve the chances of eradicating it sometime in the future.
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The struggle that took place in the convention was between Southern delegates trying to strengthen the constitutional supports for slavery and Northern delegates trying to weaken them. That issue—the initial and subsequent political strength of slavery—was in contention on the question of representation in the House of Representatives. It was agreed that every state, regardless of size, would have two Senators. But the number of representatives from any state would be apportioned according to its population, and that raised the question of whom to include in the count.
Slave-state delegates were in favor of including every slave, just as they would any other inhabitant. Madison’s notes indicate that the delegates from South Carolina “insisted that blacks be included in the rule of representation, equally with the Whites.”
On the other side, delegates from the non-slave states were opposed to counting the slaves, because it would give the South more votes and because it made a mockery of the principle of representation to count persons who had no influence whatsoever on the lawmaking process and who therefore were not “represented” in the legislature in any meaningful sense of the word. Counting the slaves for purposes of representation would also give the slave states an incentive to increase their slave population instead of decreasing it. In short, considering the chief purpose of this clause in the Constitution, it is obvious that an anti-slavery delegate would not want to count the slaves at all.
In the end, two things were done. First, it was agreed to use the census for two opposed purposes: representation and direct taxation. As the count of persons went up in any state, seats in Congress and direct taxes to be paid went up as well; as the count of persons went down, both the number of Congressmen and the direct taxes to be paid went down. Combining these two, and thereby establishing opposing incentives, seems clearly intended to provide a restraint on a state’s either getting too much representation or avoiding paying a fair share of direct taxes. The additional compromise was that three-fifths of the slaves would be included in the population count, as the alternative to including all or none.
If none of the slaves had been included, as Northern delegates wanted, the slave states would have had only 41 percent of seats in the House. If all of the slaves had been included, as Southerners wanted, the slave states would have had 50 percent of the seats. By agreeing to include three-fifths, the slave states ended up with 47 percent—not negligible, but still a minority likely to be outvoted on slavery issues.
However the slavery provisions look to us today, they had to be explained to concerned citizens in the South as well as the North. Charles Pinckney reported to the South Carolina ratifying convention that he thought they had “made the best terms for the security of [slavery] it was in our power to make. We would have made better if we could, but on the whole, I do not think them bad.” Northern delegates were, at the same time, saying the opposite in a very similar fashion. James Wilson reported to the Pennsylvania ratifying convention that he thought they had succeeded in “laying the foundation for banishing slavery out of this country,” but he regretted that “the period is more distant than I could wish.”
In brief, both North and South, in trying to weaken or strengthen slavery, had sought more and gotten less than each had wanted, but for the sake of union had accepted a result that was “not bad.”
The struggle between pro-slavery and anti-slavery forces for control of Congress, begun in the Constitutional Convention and continued relentlessly for more than seventy years thereafter, was the major cause of the Civil War, and persisted long after that war and the constitutional amendments that followed it had ended slavery.
But to understand what the original Constitution had to say about blacks, the point is that the “three-fifths clause” had nothing at all to do with measuring the human worth of blacks. Northern delegates did not want black slaves included, not because they thought them unworthy of being counted, but because they wanted to weaken the slaveholding power in Congress. Southern delegates wanted every slave to count “equally with the Whites,” not because they wanted to proclaim that black slaves were human beings on an equal footing with free white persons, but because they wanted to increase the pro-slavery voting power in Congress. The humanity of blacks was not the subject of the three-fifths clause; voting power in Congress was the subject.
Thus, the three-fifths clause is irrelevant to the question of what the Founders thought of the slaves as human beings. What is relevant are two indisputable facts: in the original Constitution there is no mention of color, race, or slavery, and nowhere in it are slaves called anything but “persons.”
There is nothing particularly new in the point that the original Constitution does not mention slavery. Luther Martin, a Maryland delegate to the Constitutional Convention who opposed ratification, explained to the Maryland legislature in 1787 that the authors of the Constitution did not use the word slave because they “anxiously sought to avoid the admission of expressions which might be odious in the ears of Americans.” And Frederick Douglass, the great black leader and orator, commented on this silence in 1852, arguing against the “slander” on the memory of the Founders that the original Constitution was pro-slavery. “In that instrument,” he said, “I hold there is neither warrant, license, nor sanction of the hateful thing.” And a major element of his evidence is that “neither slavery, slaveholding, nor slave can anywhere be found in it.” “Now, take the Constitution,” he concluded, “according to its plain reading, and I defy the presentation of a single pro-slavery clause in it.”
These two very different speakers, Luther Martin and Frederick Douglass, knew this fact about the silence of the Constitution about slavery, and so did many, many others. But apparently it needed to be pointed out in their times, and it needs to be pointed out today. And especially when we recall that there is an equal silence about race, do we see the importance of reminding ourselves about this point that seems to have been persistently forgotten by most Americans, even by unusually knowledgeable ones like Benjamin Hooks and John Hope Franklin.
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Despite the existence of slavery and the persistence of it for seventy-five years more, the Founders left us with a constitutional document that has accommodated a very different order of things with regard to the place in our society of the descendants of former slaves. I do not contend that delegates foresaw the present-day consequences of emancipation, that the descendants of black slaves would become voting citizens and officeholders throughout the nation. But it is true that the Founders left in their text no obstacles to the profound improvements that have come about. In what remained in the text after the addition of the amendments abolishing slavery, there is no residue of racism, however much of it may remain in the society itself.
Therefore when the time came to terminate official segregation, we had to purge the racial provisions from federal regulations like those segregating the armed forces, and from state constitutions and state and local laws—but not from the Constitution of the United States. In fact, lawyers and judges were able to argue for profound changes by asserting that they were in accord with and demanded by the Constitution. We did not have to change it to fit new circumstances and times. Instead, the argument could be made, and was made, that conditions had to be changed to fit the Constitution. In that historic national effort, it spelled a very great difference that there was no racism in the original Constitution.
We must acknowledge that there was indeed strong and widespread racism among many Americans that helped to sustain for so long the vicious system of black slavery and its century-long aftermath of racial segregation, discrimination, persecution, and hatred. How best can we understand the meaning of the disjunction between the racism widespread in the society, and the absence of it in the written Constitution?
If a written constitution is not in close accord with the way the society itself is in fact constituted, it will be irrelevant to the everyday life of the people. But it must be more than an accurate depiction of how the society is constituted. A constitution will be a failure if it is no more than a beautiful portrait of an ugly society. A good constitution provides guidance and structure for the improvement of the society. A good constitution is designed to make the political society better than it is, and the citizens better persons. It must be close enough to the institutions and the people as they are to be relevant to the working of the society in its everyday activities, but it should also have what might be called formative features, a capacity to make us better if we live according to its provisions and adhere to its institutional arrangements. The constitutional goal for Americans would be to develop a nation of self-governing, liberty-loving citizens in a new kind of political society where the fundamental rights of all would be secure—and that would mean a society where slavery would have no place.
In that formative way of thinking about the task of constitution-writing, it seems entirely possible that the most foresighted and skillful of the Founders sought to make a constitution that—while accepting and even protecting slavery for a time, as an unavoidable evil, the price to pay for union—tried to make provisions for its ultimate extinction, and even gave thought to the constitutional preparations for a better society that would eventually be free of it. In that respect the original Constitution was better than the political society it constituted.
We would face a very different situation in our own time if there had been in the original Constitution any evidence of the kind of thinking ascribed to the Founders by Chief Justice Taney in the Dred Scott case. Taney said that the Founders thought that blacks were not included in the declaration that “all men are created equal,” and that blacks were “so far inferior, that they had no rights which the white man was bound to respect.” But Taney was wrong; there is no such racism to be found in the Constitution, then or now, not a word of it. Those who wrongly now assert, however laudable their motives, that the “three-fifths clause” was racist, that it somehow denied the humanity of blacks, do a disservice to the truth, first of all, and also to the Constitution, to the nation, and to the cause of justice and equality for black Americans.
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Women
The fact that blacks are not mentioned in the original Constitution requires some explanation because there are several provisions obviously concerning black slavery. But no such explanation is required in the case of women. Not only are women not mentioned in the original Constitution, there is no provision anywhere that applies to women as a distinct group. To the best of my knowledge, there is no evidence that the subject of women was ever mentioned in the Constitutional Convention.
This has led to the charge, heard frequently during the prolonged debate over the proposed Equal Rights Amendment, that “women were left out of the Constitution.” The fact is, however, that women were not left out; they have always been included in all of the constitutional protections provided to all persons, fully and equally, without any basis in the text for discrimination on the basis of sex. How were they included without being mentioned?
The place to start is that famous provision we considered previously, Article I, section 2, clause 3, describing who will be counted for purposes of representation in the House of Representatives. The phrase “the whole number of free persons” is chiefly where the women are, but they are also among “those bound to service for a term of years,” and even among taxed Indians and “all other persons.” It is quite remarkable that they are not excluded from any one of these groups because, in 1787, women did not vote or hold office anywhere in the United States and were excluded from every level of government. What would be unremarkable, and typical of the time, would be a clear exclusion of women.
For example, in the Northwest Ordinance we encounter provisions of this sort:
So soon as there shall be five thousand free male inhabitants, of full age, in the district . . . they shall receive authority . . . to elect representatives . . . to represent them in the general assembly. . . . Provided also, that a freehold in fifty acres of land . . . shall be necessary to qualify a man as an elector of a representative. [Emphasis added]
Under the terms of this famous ordinance, written in the same year as the Constitution and reaffirmed by the first Congress, which included James Madison and many other delegates to the Constitutional Convention, those who are counted for purposes of representation are men only, and voters are spoken of directly as men. That was, for the time, not at all exceptional. What is exceptional is the provision in the Constitution that everyone shall be counted. “The whole number of free persons” includes males and females. In the original Constitution, unlike the Northwest Ordinance, the words “man” or “male” do not occur, nor does any other noun or adjective denoting sex. By not mentioning women or men, speaking instead only of persons, the Constitution must mean that every right, privilege, and protection afforded to persons in the Constitution is afforded to female persons as well as male persons, equally.
The terms used throughout the original Constitution are consistently what are now called non-sexist: for example, “electors,” “citizens,” “members,” “inhabitants,” “officers,” “representatives,” “persons.” There are pronouns—“he,” “his,” and “himself”—but in the entire text of the original Constitution, there is not a single noun or adjective that denotes sex.
There are some who think that because of these pronouns, all masculine, the Founders meant that only men were to hold national office, and most certainly the Presidency. But it can be shown that the text itself presents no obstacle whatever to having a woman in the office of President or any other national office, because these pronouns can clearly be read as generic or neuter or gender-less—or whatever we call a pronoun capable of denoting either sex.
The Constitution says of the President that “He shall hold his office during the term of four years” (the emphases here and throughout this section are all added). It says that when a bill passed by Congress is presented to the President, “if he approves he shall sign it, but if not he shall return it,” etc. There are similar usages of the pronoun for the Vice President and for members of Congress, and the question is, are those pronouns exclusively masculine and therefore a definite indication that these offices are to be held by men only, or could they be genderless pronouns, leaving open the possibility that the antecedent is meant to be either a man or a woman? If the latter is the case, as is my contention, then there is no obstacle in the Constitution, and there never has been, to women occupying any office under the Constitution of the United States, including the Presidency, and every protection and every right extended to men by the Constitution is extended equally to women.
My argument rests on several provisions where the masculine pronouns must certainly be read as referring to women as well as men. Consider Article IV, section 2, clause 2, providing for the return of fugitives from justice. “A person” charged with a crime who flees from justice and is found in another state shall be delivered up on demand of the governor “of the State from which he fled. . . .” If the “he” in this clause is assumed to mean men only, and not women, we get the absurd result that male fugitives from justice must be returned to face criminal charges, but not female fugitives.
We find similar examples in the amendments. The Fifth Amendment provides that “no person . . . shall be compelled in any criminal case to be a witness against himself.” The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” Will anyone seriously contend, just because the masculine pronouns are used here, that these protections were extended only to males accused in criminal prosecutions, and that the Constitution means that accused women cannot claim the same rights to confront their accusers, to compel the presence of witnesses, to be represented by a defense lawyer, and to be protected against self-incrimination?
All these examples demonstrate the absurdity of interpreting the masculine pronouns as applying to men only. And if the masculine pronouns in these provisions are genderless, then it is at least plausible that the same pronouns are genderless when used elsewhere in the same text. And if they are, and since, in fact, there is not one noun or adjective in the Constitution as ratified that in any way refers to sex, we must conclude that women are included in the Constitution, on an equal footing with men, as persons, citizens, electors, etc.—and always have been.
We are speaking, of course, of a written document, the text of the original Constitution, which is not the same as asserting that women enjoyed political equality in practice in 1787, or for a long time thereafter. Women’s suffrage in the United States seems to have begun in 1838, when women in Kentucky voted in school elections. Women voted on an equal basis with men for the first time anywhere in the United States in 1869, in the Wyoming Territory. But as late as 1914, only ten more states, in addition to the state of Wyoming, had accorded women the right to vote. It was not until the Nineteenth Amendment was ratified in 1920 that the right to vote was made secure for women. That amendment provides that:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
First we must observe that this article was an addition to the Constitution, but it amended nothing and was intended to amend nothing in the Constitution of the United States. No provision in the text had to be changed or deleted, because there was never any provision in the Constitution limiting or denying the right of women to vote. The barriers to voting by women had always been in the state constitutions or laws.
It may very well be that the Founders never contemplated the possibility of a woman as President, or even women voting on an equal basis with men. Nevertheless, the text they adopted and the American people ratified presents no obstacle whatsoever to the changes that have occurred.
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Jews
The significance of not being mentioned in the Constitution becomes clearest when we consider the last of the three unmentioned subjects—Jews. Most of us, when we think of the Constitution and freedom of religion, think of the double security provided by the First Amendment, against “an establishment of religion” and for the “free exercise thereof.” These protections were not, of course, part of the original Constitution. The original Constitution mentions religion just once, but that one provision is remarkable. Article VI, section 3, says simply that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”
Jews had suffered persecution almost everywhere in the world for millennia. Universally despised, they had been beaten, tortured, murdered, and hounded from country to country and even continent to continent. The best they enjoyed, here and there, now and then, was a kind of safeguarded second-class status, where by one sort of decree or another they were permitted to engage in certain professions or businesses, or to live unmolested behind walls and gates in one or another section of a city. But these occasionally favorable arrangements were always precarious and often short-lived, never theirs by right but only by indulgence, not because they were entitled to decent treatment as citizens or subjects but because someone in authority had reason to protect them. Never did they have the security of political rights, not to mention the political power that comes with voting and holding office.
The question of religious tests was an old one in America and had been deliberated in every state from the moment of independence, and even before. At the time of the founding, almost every state had some form of religious test, but Jews were not the only target or even the main one. The chief concern was to bar Catholics in predominantly Protestant states, to bar some sects of Protestants in other states, and incidentally to exclude the very small numbers of “Jews, Turks, and infidels,” as the saying went.
There were religious tests in the constitutions of at least eleven states, but the tests varied. Delaware required state officers to swear a Trinitarian oath; Georgia required that they be of the Protestant religion; Maryland demanded belief “in the Christian religion”—thus including Catholics as well as Protestants, but excluding Jews and nonbelievers; and New York discriminated against Catholics but was the only state in which Jews could hold office.
Against this background we see the history-making significance of the provision prohibiting religious tests in the Constitution. Religious toleration was amazingly prevalent in America, given the intensity of religious conviction observable everywhere, but political equality for members of different religious groups was rare. That is, provisions for the free exercise of religion were common in the state constitutions, but political equality was a different story. The free exercise of religion happened in church or synagogue; it did not assure the right to vote or hold office. Nevertheless, for whatever reasons, in a nation that had almost universal religious testing for state offices, the delegates proposed and the states ratified a constitution barring religious tests for holding national office.
Add to this one other fact, less easily discernible. That fact is that Jews are not mentioned in the Constitution. As we view things now, that Jews are not mentioned is no more remarkable than that Baptists or Roman Catholics or Muslims or any others are also not mentioned. But Jews had never been treated simply as “persons,” let alone “citizens,” anywhere in the world for more than 1500 years. By not mentioning them, that is, by not singling them out, the Constitution made Jews full citizens of a nation for the first time in all Diaspora history. By this silence, coupled with the prohibition of religious tests, the Founders “opened a door” to Jews and to all other sects as well.
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The Constitution of the United States is unusual, and perhaps unique, among the constitutions of the world in the way that it protects the rights of the people. The unspoken principles—at least unspoken in the Constitution—are that rights are inherent in individuals, not in the groups they belong to; that we are all equal as human beings in the sense that no matter what our color, sex, national origin, or religion, we are equal in the possession of the rights that governments are instituted to protect; and, finally, that as a consequence, the only source of legitimate political power is the consent of the governed. Because these principles, all stemming from the primacy of individual rights, are the unmentioned foundation of the Constitution, it is not only unnecessary to mention race, sex, or religion, it is inconsistent and harmful.
In short, the reason no group of any sort included in the nation it founded is mentioned in the Constitution—originally and now—is that the Founders designed a better way to make sure that no one was left out, and that everyone was in on a basis of equality.
To anyone who asks why we should celebrate the bicentennial of this Constitution, let that be the answer.
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