What may be the elephant in the room for all four essays is that no reified document is immune from human imperfection. In Rhetoric
, Aristotle wrote, “it is proper that laws, properly enacted, should themselves define the issue of all cases as far as possible, and leave as little as possible to the discretion of the judges.” This sounds like a push for universal law devoid of contingent considerations, a point taken up by lawyers and scholars responsible for legal realism and critical legal studies
, schools of thought that share the common denominator of holding that legal decisions should not be made outside of their social contexts. Documents like the Constitution
are unavoidably a-contextual and a-temporal in nature. What is to be done?
believed that lawmakers should define as much as possible and leave as little as possible to future judges. He had several reasons for this. He wrote,
in the first place, because it is easier to find one or a few men of good sense, capable of framing laws and pronouncing judgements, than a large number; secondly, legislation is the result of long consideration, whereas judgements are delivered on the spur of the moment, so that it is difficult for the judges properly to decide questions of justice or expediency.
The Constitution is, indeed, the result of “long considerations,” consisting of much contention and disagreement. Not everyone had the wherewithal to carry out such a foundational endeavor. The founding fathers found themselves with a lofty task of creating a document that could live—i.e., could be revised through several steps—because they were wise enough to know they could not predict every future legal situation and that most citizens did not have the wherewithal to legislate and administer justice. Nevertheless, what must not be revised was the American resolve to follow the Constitution regardless of personal and subjective desires.
Aristotle elaborates on this last point in his subsequent statement.
But what is most important of all is that the judgement of the legislator does not apply to a particular case, but is universal and applies to the future, whereas the member of the public assembly and the diecast have to decide present and definite issues, and in their case love, hate, or personal interest is often involved, so that they are no longer capable of discerning the truth adequately, their judgement being obscured by their own pleasure or pain.
Aristotle and, apparently, those who composed the Constitution, knew that the contingencies of context could alter the connotations of a law and that human emotion would often taint the color of law
. They considered most humans too emotionally erratic to be trusted to make decisions on the spot, based on contemporary contingencies. They had to be beholden to a set of rules that could keep their emotions in check.
However, isn’t Reconstruction’s failure the result of such unchecked emotion? Rutherford B. Hayes’s desire to be President at the expense of black Americans, Ulysses S. Grant’s alcoholism, and Andrew Johnson’s Southern resentment were all emotional obstacles to the just administration of the law. I conclude that the issue is not that the Constitution is inherently oppressive in nature, as critical legal theorists may conclude. It is not. The issue is that those left to uphold it can be and have been oppressive.
In “Speech on the Dred Scott Decision,” Frederick Douglass
insisted that “Slavery lives in this country not because of any paper Constitution, but in the moral blindness of the American people, who persuade themselves that they are safe, though the rights of others may be struck down.” Douglass reiterates Aristotle’s point. The problem is not the Constitution; it’s the people responsible for upholding it.
“We, the people”—not we, the white people—not we, the citizens, or the legal voters—not we, the privileged class, and excluding all other classes but we, the people; not we, the horses and cattle, but we the people—the men and women, the human inhabitants of the United States, do ordain and establish this Constitution, &c.I ask, then, any man to read the Constitution, and tell me where, if he can, in what particular that instrument affords the slightest sanction of slavery? Where will he find a guarantee for slavery?
The Constitution must be followed to the letter to prevent people from making decisions based solely on selfish wants. If laws are inherently unjust, we must work to revise them accordingly. The Constitution did not fail black Americans. People did. Reconstruction did not fail because Americans followed the Constitution; it failed because they did not.
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