“The nearest approach to justice to the negro for the past is to do him justice in the present.” –Frederick Douglass, “Self-Made Men”
Much behavior from social justice advocates stems from a lack of trust in American institutions, including government and the document meant to bind them: the United States Constitution
. This distrust, starting with the false promise of a “Constitutional revolution” in the late 19th century, has had problematic effects, including compelled speech and the denial of constitutional rights to those considered beneficiaries of the misinterpretations and manipulations of those rights by government officials, most disturbingly illustrated by the failure of Reconstruction
in the post-Civil War South. However, I believe that the Constitution, in itself, is a liberal and just document; those meant to uphold it have always been the problem. What to do about them
is the real conundrum.
For many, black people owe nothing to the United States Constitution. The 13th, 14th, and 15th Amendments were virtually null and void after the Northern Reconstructionists returned to their side of the Mason/Dixon Line. A backroom deal in which Rutherford B. Hayes traded the wellbeing of black Americans for the U.S. Presidency gave rise to the Ku Klux Klan, legalized segregation, ubiquitous discrimination, and state-sanctioned terrorism. It would be another century before black Americans would be freed from legalized second-class citizenry and dehumanization. Throughout all of this, the right to be free, the right of equal protection before the law, and the right to vote were enforced as frequently as jaywalking in New York City—not much at all.
But what does this mean for us in 2023? At a conference last summer, I conversed with a black academic who insisted that the United States Constitution was inherently racist. This is a sentiment similar to the one in which classical liberal values, in general, are considered racist in that they can be ignored or manipulated to perpetuate oppression. My answer to both sentiments is always the same: the problem has less to do with the tenets of the Constitution or classical liberalism and more to do with the bad-faith actors in charge of upholding them. If a drunk driver is pulled over, we don’t get rid of cars; we punish the perpetrator. Likewise, the Constitution—and the classical liberal values reflected in it—are not the problem; we are.
, a black man who lived through both slavery and the promises and failures of Reconstruction, embodied a faith in the Constitution from a classical liberal standpoint. Even in the 1850s, Douglass said the Constitution, “interpreted as it ought to be interpreted, is a GLORIOUS LIBERTY DOCUMENT.” The Constitution did not fail to protect all of its citizens, those charged to uphold it did
. Nevertheless, even with the addition of the Civil War Amendments and other Amendments mandating equal treatment for all Americans, many people still see the Constitution as inherently racist.
So what is to be done? Many progressives, especially those who embrace the tenets of critical social justice, would lean toward a kind of social engineering in which people are mandated into decency by policy (at best) and interpersonal intimidation (at worst). It may be the only way to rid the world of those who would manipulate the Constitution for illiberal ends. However, trying to legislate vice out of human hearts and minds may be akin to trying to separate water from wetness. James Madison
had a similar point in The Federalist Papers
: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” 
Is coercion the best way to make people into angels?
This seems to be the justification for compelled expression, exemplified by mandatory diversity statements, most popular in institutions of higher education when applying for employment or promotion. These statements seem to imply, regarding the promotion of diversity, equity, and inclusion, that fashioning oneself as an “angel” of social justice is an attempt to socially engineer the “devils” out of college faculty or administration. But is this not compelled speech and, therefore, unconstitutional? Some may say “Yes, but so what?” If the ends—life, liberty, and happiness for those traditionally denied such things—justify the means, those traditionally denied minorities may insist they have the right to enjoy the benefits of the Constitution while denying it to others . . . in the name of diversity, equity, and inclusion. Ibram X. Kendi reflected this sentiment when he famously wrote, “The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.”
In reference to Madison’s words, it would seem, we must be devils to produce angels.
The special pleading of those who would compel speech to garner what they see as social justice was on full display at Stanford University when Judge Stuart Kyle Duncan tried to give a talk. In a Wall Street Journal
article, Duncan explained, “A federal prisoner serving a term for attempted receipt of child pornography (and with a previous state conviction for possession of child porn) petitioned our court to order that he be called by feminine pronouns. As my opinion explained, federal courts can’t control what pronouns people use. The Stanford protesters saw it differently: My opinion had “denied a transwoman’s existence.”
For not wanting to compel speech, and for simply pointing out that such compelled speech is beyond his power as a federal judge, anyway, Duncan was seen as anti-trans—not pro-freedom. For upholding the Constitution, Duncan took several jeers from student protestors, including one who shouted. “We hope your daughters get raped!”
However, Duncan goes on to make an inadvertent point about the protestors’ justification for their behavior. After admitting that he grew angry and returned some insults to the student protestors, he expressed his refusal to apologize because, as he writes to conclude the article, “Sometimes anger is the proper response to vicious behavior.” What Duncan seems to miss is that his concluding statement may be the one point on which he and the protestors can agree. The difference between the two is the definition of “vicious behavior.” Remember, what Judge Duncan saw as a promotion of free expression, the students saw as the denial of a trans-woman’s existence. The students, judging the judge’s act as vicious behavior, acted according to Duncan’s own sentiments.
Perhaps more important is Duncan’s thought on how the protestors, law students at a prestigious university who most certainly know the content of the Constitution, should
have behaved. He writes, “The most disturbing aspect of this shameful debacle is what it says about the state of legal education. Stanford is an elite law school. The protesters showed not the foggiest grasp of the basic concepts of legal discourse: That one must meet reason with reason, not power. That jeering contempt is the opposite of persuasion.”
What Judge Duncan does not realize is that protestors like this, often driven by critical theory—i.e., thoughts and acts motivated by cultural Marxism
—have given up on reason and persuasion. “Rational, linear thinking” is, after all, considered a white way of knowing
; centering feeling over reason is the duty of countercultural leaders. What’s more, they have given up on persuasion. They abide by an outlook described by rhetorician Wayne Booth as a bad-faith form of listening: the students saw Duncan as the kind of person who would think, when having what seems
like a good-faith debate, “I know that only by listening closely to my opponent can I hope to outsmart her—and thus gain what I want, no matter what it costs her.”
This aligns with the Frankfurt School, a critical Marxist think tank that heavily influenced contemporary modes forms of political protests. Prominent theorists from this organization insisted that any communication coming from a hegemonic source would be “inherently manipulative.”
Knowing that protestors of the sort experienced by Duncan see the world through a similar lens, it should not be a surprise that they prefer shouting down the powerful over constructive dialogue; all they have is the former because, for them, the latter cannot be trusted.
So, what does all this have to do with the Constitution and Reconstruction? The Constitution’s efficacy took a huge blow with the failure of Reconstruction; one can understand a reluctance to trust its power to protect marginalized groups. Works like Michele Alexander’s The New Jim Crow
show how dishonorable lawmakers found a loophole in the 13th Amendment
to justify a disproportionate number of minorities in the prison system, where they are used as free labor. The 14th and 15th Amendments—due process and enfranchisement, respectively—were simply ignored. Ultimately, the Stanford protestors see the Constitution in the same way they see Judge Duncan: a hegemonic “trick” blatantly disinterested in minority wellbeing. For them, Duncan, in a sense, is the personification of the Constitution: oppression disguised as the defender of life, liberty, and the pursuit of happiness. And all protestors need to do is remind themselves of how the Civil War Amendments are still being manipulated—e.g., the disproportionate number of blacks doing prison labor—to justify racist behavior.
The justification behind these student protestors and other critical social justice activists is that, in order to strengthen society and ensure racial justice, the formerly oppressed must now emulate their historical oppressors and see the Constitution as a set of “suggestions,” at best. They must make a mockery of the First Amendment
because it gives Duncan and anyone else not aligned with their politics the power to express their “erroneous” viewpoint. But what now? Do we succumb to the protestors and accept the cancellations and shout downs that have become their modus operandi? Again, I am inclined to reference Madison: Do we accept as fact the idea that only devils can bring out our better angels?
No, but we need to do other things. First, I think we need to emphasize the positives of our societal progress while not forgetting about the negatives of the past. As Douglass said in “Self-Made Men,”—ironically reminiscent of yet different from Kendi’s conclusions—the best way to deal with the past is to bring justice to the present.
That is, we can discuss how far we’ve come while acknowledging the past, not as a reminder of trauma and guilt but as a cautionary tale. The Civil War Amendments failed, ultimately, because of the behavior of the war’s three subsequent presidents. Andrew Johnson’s revanchist racism, Ulysses Grant’s apathy, and Rutherford B. Hayes’s lack of integrity kept those Amendments from being enforced adequately, if at all. We must utilize those very Amendments to best ensure such “leaders” do not damage our present in irreparable ways. We are not in the late 19th century; we no longer live in a slave nation.
For this reason, we must follow the lead of people and organizations whose missions are to reinvigorate the idea of a deliberative democracy. We must learn to talk across differences in ways that acknowledge not just our shared laws but the values, attitudes, and beliefs that align or contradict those laws. Braver Angels
, an organization that only alludes to Madison inadvertently but still effectively (Their title derives from a play on the words of Abraham Lincoln
, who insisted we must abide by “The better angels of our nature” to keep the Union intact) is doing good work to promote constructive dialogue between political competitors. Organizations with similar missions should be highlighted in American society.
Perhaps the most important thing we can do is both remedial and preemptive in nature: bring back and emphasize civic education. The Stanford situation could have been the perfect moment to bring up the efficacy of the Constitution in 2023. Thus, when we do discuss this ignoble time in American history, the discussion should be framed in a comparative (that was then; this is now) or a relational way (we are closer to “a more perfect union” than we once were). The goal of such civic education is to make the people know what the rules are so that they can know when they are being broken and better ensure they are upheld. These laws are for the people, by the people.
A knowledgeable citizenry can hold the government accountable, but this does not mean judicial rulings will always be to one’s liking. What we can do, however, is know the law well enough to make our own way to ensure it is the glorious document of liberty even Douglass thought it was. We can call out violations of the 14th and 15th Amendments and close the loopholes that turn the 13th Amendment into just another kind of legalized forced labor. Our strengths are better used to scrutinize judges before their decisions than to heckle them after their decisions. One may not be convinced to agree with judges like Duncan, but I believe seeing him as an opponent looking at the Constitution from a different angle, and not the personification of the law’s past inefficacy, is a better way to ensure “a more perfect union.”
 Frederick Douglass, “Self-Made Men,” Frederick Douglass Heritage
, 23 Feb. 2023, http://www.frederick-douglass-heritage.org/self-made-men
.  James Madison, “Federalist No. 51” The Federalist Papers
. The Bill of Rights Institute, https://billofrightsinstitute.org/primary-sources/federalist-no-51
.  Ibram X. Kendi, How to Be an Antiracist
(New York: One World Press, 2019), 19.  Stuart Kyle Duncan, “My Struggle Session at Stanford Law School,” Wall Street Journal
. 17 March 2023. https://www.wsj.com/articles/struggle-session-at-stanford-law-school-federalist-society-kyle-duncan-circuit-court-judge-steinbach-4f8da19e
.  Ibid.  Ibid.  Judith Katz, “Some Aspects and Assumptions of White Culture in the United States,” Cascadia.edu
.  Wayne Booth, The Rhetoric of Rhetoric: The Quest for Effective Communication
(Blackwell Publishing: Malden, MA, 2004), 47.  James Arnt Aune, “Cultures of Discourse: Marxism and Rhetorical Theory,” Contemporary Rhetorical Theory: A Reader
, 2nd Ed. (New York: Guilford, 2016), 530.  Douglass, “Self-Made Men.”
Copyright and Fair Use Statement
“Liberty Matters” is the copyright of Liberty Fund, Inc. This material is put on line to further the educational goals of Liberty Fund, Inc. These essays and responses may be quoted and otherwise used under “fair use” provisions for educational and academic purposes. To reprint these essays in course booklets requires the prior permission of Liberty Fund, Inc. Please contact email@example.com if you have any questions.