To the Editor:
Robert A. Goldwin’s article, “Why Blacks, Women & Jews Are Not Mentioned in the Constitution” [May], is, quite simply, a gem. In this bicentennial year, it contributes richly to our understanding of what the Framers had in mind, and why they adopted that remarkable document in its original form.
There is one point made by Mr. Goldwin, however, in which he seems to be in error. Speaking of the time of the Constitutional Convention, he writes, “New York discriminated against Catholics but was the only state in which Jews could hold office.” He does not mention either Rhode Island or Virginia.
In Rhode Island (the powerful influence of Roger Williams notwithstanding), laws were enacted in 1663, 1719, and 1730 that restricted both citizenship and eligibility to hold public office to Protestants. These laws, however, aimed primarily at Catholics, were repealed in 1783.
In Virginia, Thomas Jefferson’s Virginia Statute for Religious Freedom, which was finally adopted in 1786 after fierce opposition, not only disestablished the Anglican Church but also ended all forms of official support or penalty for any religious beliefs in that state. The pertinent language from that statute reads as follows:
That our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry; that therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which, in common with his fellow citizens, he has a natural right; . . . all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.
It would appear, therefore, that in 1787 there was no legal barrier to Jews holding public office in either Rhode Island or in Virginia.
American Jewish Committee
New York City
To the Editor:
Although I agree with many of the sentiments expressed by Robert A. Goldwin, I find that he not only grossly understates the extent to which the 1787 Constitution legitimized slavery and racism, but also sadly understates its power to deal with both. Actually, the Constitution is a better document than both Mr. Goldwin and Justice Thurgood Marshall think.
The plenary power of the Congress “To regulate commerce . . . among the several States” enabled it to tamper with, even eliminate, the institution of slavery “among” or within the states. This is the reason Madison, Jefferson, and other slave protectors downgraded Congress’s power to regulate commerce “among the several States” to interstate commerce. They also projected a states’-rights gloss on the Constitution, as if the federalists or nationalists had not won the 1787 constitutional struggle. The Founding Fathers created a commercial or mercantile republic, not a popular democracy.
Mr. Goldwin tries to sanitize the Constitution with a clever rhetorical device. He repeatedly refers to the “three-fifths clause” as if it did not refer to slaves. Conveniently dropping the “three-fifths” which symbolically, metaphorically, and significantly devalued or dehumanized blacks, he deceptively declares that “nowhere in [the Constitution] are slaves called anything but ‘persons.’” The motive of the “three fifths-of-all-other-persons” provision in the original Constitution may not have been unequivocally racist, but its meaning, operation, effect, and legacy unquestionably have been.
Kenneth S. Tollett
To the Editor:
Robert A. Goldwin’s perceptive article on the “unspoken principles” of the Constitution argues that in a rule-of-law system, in which all citizens have effective formal equality, “it is not only unnecessary but inconsistent and harmful” to give constitutional recognition to such subcategories as race, sex, religion, or national origin. He leaves to the reader’s imagination the criteria for introducing such categories outside the Constitution.
It may be of some interest in this bicentennial and pre-election year to observe how the two major political parties reflect the spirit of constitutional silence in their own inner constitutions, their party rules.
Both national party rules now have explicit language prohibiting quotas. They take this with a grain of chivalry, however, and reserve equal places for both sexes (at all levels among the Democrats, an equal number of National Committeemen and National Committeewomen on the Republican National Committee).
Elsewhere, they have been moving in opposite directions, in ways not known to the general public.
The Democrats, after winning Supreme Court approval for their 1972 use of racial quotas, in 1978, in response to internal criticisms, forbade them. After the 1984 election, smarting from GOP charges that they were a “party of special interests,” the Democratic National Committee withdrew from their rules official recognition of caucuses based on race, ethnicity, region, and sexual preference. The direction of the Democrats’ movement is thus from a hyphenated view of citizenship toward Mr. Goldwin’s view of the Constitution.
Unbeknownst to most Republicans, meanwhile, the GOP rules-makers have been marching to a different drummer. The Republican National Committee (RNC) has since 1976 introduced nonvoting auxiliary seats set aside for blacks, Hispanics, “heritage groups” (mostly Asian and non-Northern European whites), labor, and, as recently as 1984, a special appointive seat on the (purely advisory) executive committee for a “representative of Jewish-Americans,” the only religious group so recognized and hyphenated. The RNC has also made regional caucuses, from which the auxiliaries are excluded, the mandatory basis of party organization between conventions.
Thus, though under the Constitution it still remains possible to be a citizen of these United States plain and simple, in the GOP one can be distinguished, in accordance with categories now acceptable in the party rules, as, for example, a Midwestern, Jewish-American, labor Republican of Austro-Hungarian heritage, but not (as yet) as a Catholic-American gay dentist Republican of Swiss heritage.
A special RNC Committee on Participation is now meeting to consider how these arrangements can be fine-tuned for 1988 (e.g., whether the minority auxiliaries should be given full voting privileges). A full-dress staff report given to the national press in 1986 in preparation for these deliberations declined to question the official status of minority auxiliaries and even defended the National Origins Immigration Quota of 1924 as a nondiscriminatory, GOP-sponsored, pro-labor device.
The preamble to the rules of the Republican party inveighs against “favoritism” of any kind. Mr. Goldwin’s article suggests a pointed question: when a group is singled out for special representative status in a rule-of-law regime, who is being favored, members of the designated group or all those citizens on whom the rules are silent?
Josiah Lee Auspitz
To the Editor:
Robert A. Goldwin denies that in any just sense the Constitution of 1787 can be said to discriminate against the rights of blacks, Jews, or women. His argument is that
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 equals as human beings. . . . These principles, all stemming from the primacy of individual rights, are the unmentioned foundation of the Constitution. . . .
I agree thoroughly with Mr. Goldwin as to the merits of the Constitution of 1787. But I do not think that conclusion can be sustained by the argument he has advanced. It certainly cannot be sustained by asserting—without any argument or attempted proof—that what is both “unspoken” and “unmentioned” is nonetheless the most vital element in the Constitution.
Elsewhere Mr. Goldwin declares that “the principles of the Declaration of Independence . . . are the bedrock foundation of the Constitution.” But what is Mr. Goldwin’s evidence for the truth of this assertion? And what does he mean by “bedrock”? Does it mean that the “republican form of government” guaranteed to every state in Article IV—but nowhere defined in the Constitution—is in fact defined by the principles of the Declaration? If so, what is his evidence for such an assertion?
The principles of the Declaration, Mr. Goldwin says, include “the primacy of the rights of individuals [and] their equality with respect to their rights.” But why is this primacy authoritative? According to the Declaration it follows from “the laws of nature and of nature’s God.” The rights are moreover said to be “unalienable” because mankind has been “endowed” with them by our “Creator.” The primacy of individual rights in the Declaration is inseparable from its theology. Will Mr. Goldwin undertake to defend that theology?
I doubt seriously that any present member of the Supreme Court of the United States recognizes the authority Mr. Goldwin ascribes to the Declaration of Independence. Certainly Chief Justice Rehnquist does not. Here is what he says in his celebrated lecture on “The Notion of a Living Constitution”:
If . . . a society adopts a constitution and incorporates in that constitution safeguards for individual liberty, these safeguards do take on a generalized moral rightness or goodness. They assume a general social acceptance neither because of any intrinsic worth nor because of any unique origins in someone’s idea of natural justice but instead simply because they have been incorporated in a constitution by the people.
One cannot imagine a more forthright or unequivocal statement of legal positivism. Nor can one imagine a more forthright rejection of the authority of the principles of the Declaration of Independence.
Mr. Goldwin must find better arguments than any he has hitherto brought forth, if he wishes to persuade the Chief Justice. And he must deal more forthrightly with the pro-slavery clauses of the 1787 Constitution itself. The only clause to which he addresses himself is the three-fifths clause of Article I. But the most egregious presence of slavery in the Constitution is in Article IV, the clause requiring the rendition of fugitive slaves:
No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.
By this clause, the government of the United States undertakes to enforce the laws of the slave states, as the agent of the slave states. It is a pledge to preserve slavery in the states that choose to have it, for as long as they choose to have it. And notwithstanding the fact that the slaves are called “persons” here, the law of their enslavement simultaneously regarded them as chattels. As chattels they were held as property, and bought and sold. But as persons they were responsible for their actions under the criminal law. By definition, a chattel cannot have a rational will. By definition, a person cannot be a chattel. Yet under the laws recognized by the Constitution a Negro slave was both a person and a chattel. This schizophrenia cannot be ignored.
But the greatest of all the difficulties for Mr. Goldwin’s argument is this: that the same Article IV which commits the United States to perpetuating slavery, by catching and returning all who attempted to flee from it, also guarantees “to every state . . . a republican form of government.” There is not a word to suggest that catching slaves and returning them to slavery, and guaranteeing republicanism, are in any way incompatible. Here then is where the heaviest burden of proof lies upon the defenders of the Constitution. Mr. Goldwin has not yet made even a beginning.
Harry V. Jaffa
Robert A. Goldwin writes:
The information Samuel Rabinove provides is a welcome addition to what I wrote about religious tests in the states generally at the time of the writing of the Constitution. He confirms that in Rhode Island and Virginia, too, there was a history of religious tests as a barrier to holding office, although Jews were usually not the main target. Mr. Rabinove does not say whether any Jew actually held public office in these states at that time, but in any case there is no reason to doubt the accuracy of the information he provides and I am glad to know that in 1787 New York was not the only state in which there was no legal barrier to Jewish officeholders.
Kenneth S. Tollett makes two points; one has some merit, the second has none, and the two together are contradictory.
Mr. Tollett says that the commerce clause gave Congress power to regulate or “even eliminate” slavery. I tend to agree that it gave power to abolish the slave trade, foreign and domestic, especially if the power to regulate commerce is considered in combination with powers to make regulations respecting the territory belonging to the United States and to prohibit (after 1808) the migration or importation of slaves. But former delegates to the Constitutional Convention disagreed on the meaning of the key words and phrases in these provisions; Congress, consequently, never used the commerce power with regard to slavery. In any case, if Mr. Tollett thinks that the Founders gave Congress powers to abolish slavery, how can he also argue that “the 1787 Constitution legitimized slavery”?
On his second point, about racism and the “three-fifths clause,” Mr. Tollett is just plain wrong. He says I spoke of that clause “as if it did not refer to slaves.” But in fact I connected it to slavery throughout the article. The very first time I mentioned it I spoke of “the most misunderstood constitutional provision relating to black slavery, the famous ‘three-fifths clause.’”
What I did say is that the three-fifths clause does not refer to race. The usual criticism is that the clause shows that the Founders thought of blacks as “three-fifths of a human being,” and I showed that it has nothing whatsoever to do with what the Founders thought of blacks as human beings. If Mr. Tollett and I had been delegates, we would both have voted not to count slaves at all for purposes of representation, to reduce the slave-state power in Congress. Neither of us would have meant that blacks don’t count as human beings.
Mr. Tollett does no more than reassert the fallacious reading without evidence or argument. All I can offer to those who cling to the claim of racism in the original Constitution is direct advice: “Give it up. It’s wrong and you don’t need it.” Advocates of a society free of racism would be in a far stronger position if they would acknowledge, along with Frederick Douglass and Abraham Lincoln, that there is no racism in the Constitution, and never was, and use that fact to advantage in the continuing struggle to make American society as good as the Constitution.
Josiah Lee Auspitz shows by his examples the ludicrous possibilities when racial, religious, and ethnic distinctions begin to be made in American politics, even when the objective is to have political parties that exclude no one. But he also shows, I think, how powerful is the formative influence of the Constitution on our thinking because we are able, quite promptly, to see the folly of rules such as he describes even as we adopt them to “remedy injustices.” The lesson I draw from his examples is that, where there is injustice, we need to devise remedies that are themselves consistent with the principles of the Constitution.
Harry V. Jaffa says “I agree thoroughly with Mr. Goldwin” as to the merits of the 1787 Constitution, specifically that it cannot be said “in any just sense . . . to discriminate against the rights of blacks, Jews, or women.” Since that was my major thesis, readers may be puzzled by the harshly critical character of the rest of his letter.
In regard to my general point that the Declaration of Independence is “the bedrock foundation of the Constitution,” Mr. Jaffa is disappointed that I did not provide argument or proof that would persuade the Chief Justice of the United States to abandon his “legal positivism.”
It did not occur to me that that was my mission. I addressed the article to the thoughtful citizen who is concerned about what kind of nation we live in and what kind of heritage has been bequeathed to us, in order to know how best to sustain what is right and correct what is wrong.
I addressed directly three widely accepted criticisms that damage the reputation of the authors of the Constitution and diminish the righteousness of Americans in their own eyes. I wrote the article because I thought these criticisms were unfounded and needed correction.
The argument is, I think, clear enough, but if so perceptive a reader as Mr. Jaffa missed it, others might have too. I offered a demonstration of how to read the original Constitution on three of the many subjects it does not mention—blacks, women, and Jews—and drew lessons from the Constitution’s silence about these and the many other groups that make up the very diverse population of the nation.
No groups, only human beings as individuals, have constitutional status. The rights, privileges, and protections the Constitution affords belong to each of us as person or citizen, without regard to sex, race, religion, national origin, or any group affiliation. The clear principle, then, although unmentioned in the Constitution itself, is that we are all equal in the politically relevant respect, that is, equal in our rights, the same equality that is proclaimed in the Declaration of Independence.
This may not be considered “proof” by Mr. Jaffa, but I suggest to him that he reread Aristotle on the difference between mathematics and politics, and the folly of demanding proof in political matters. Mr. Jaffa writes more, and more frequently, than I do on the relationship between the Declaration of Independence and the Constitution. I will be watching, as his letters to the editor (his chief output these days) appear, to see what effect they have on the legal positivism of the Chief Justice. I gladly bequeath that task to Mr. Jaffa and look forward to a successful outcome.
Mr. Jaffa says that the primacy of the rights in the Declaration
follows from “the laws of nature and of nature’s God.” The rights are moreover said to be “unalienable” because mankind has been “endowed” with them by our “Creator.” The primacy of individual rights in the Declaration is inseparable from its theology. Will Mr. Goldwin undertake to defend that theology?
Mr. Jaffa commits several errors just in posing this question. First, “the laws of nature and of nature’s God,” in the first sentence of the Declaration, are not linked to individual rights at all, but to “the separate and equal station” the American people are entitled “to assume among the powers of the earth.” Second, “nature’s God” is not the biblical God. Third, Jefferson himself could tell Mr. Jaffa that individual rights and the Declaration’s ‘“theology” are separable. Carl Becker’s study of the successive drafts of the Declaration showed that Jefferson’s original draft, in which the argument for the primacy of rights was complete, did not include any of the phrases Mr. Jaffa has in mind. “Endowed by their Creator,” “appealing to the Supreme Judge of the world,” and “with a firm reliance on the protection of divine Providence” were all added in subsequent drafts, either in the Committee of Five or by Congress. I conclude that Jefferson did not think the primacy of rights in the Declaration “is inseparable from its theology.”
But Mr. Jaffa asks more: “Will Mr. Goldwin undertake to defend that theology?” I will not respond to that question on demand. In my copy of the Constitution of the Republic of Letters there is a clause prohibiting theological tests. I have written on the subject elsewhere, but there is a duty to remain silent when the Inquisitor asks the question. Let this suffice as an indication of my response: nowhere in the Hebrew Bible or the New Testament is there any mention of rights.
The most serious point in Mr. Jaffa’s letter is that I did not deal forthrightly with the pro-slavery clauses of the original Constitution. He contends that the Constitution treats the slaves simultaneously as both persons and property; this is, he thinks, schizophrenic, and, he says, “This schizophrenia cannot be ignored.”
But Mr. Jaffa can say I ignore this problem only by quoting me misleadingly, in this fashion: “the principles of the Declaration of Independence . . . are the bedrock foundation of the Constitution.” But if he had quoted the first part of the same sentence, and the full sentence that followed immediately, his complaint that I ignored the matter would have been seen immediately to be groundless. I said that Southern delegates made acceptance of slavery the price of union:
But slavery was a flat contradiction of the principles of the Declaration of Independence, the principles that are the bedrock foundation of the Constitution. . . . Almost all the delegates were fully aware that slavery profoundly contradicted these principles and therefore had no proper place in the Constitution.
I say “contradiction,” Mr. Jaffa says “schizophrenia.” The difference is more than his adoption or my avoidance of pop psychiatry. Contradiction is the more apt word. The anti-slavery delegates knew very well what they were doing. The records of the debates show that they were consciously making distasteful compromises that involved a profound contradiction; they knew at least as well as Mr. Jaffa that “by definition, a person cannot be a chattel.” They not only knew it, they said it in debate. But they thought union was worth the price and that achieving “this Constitution” was the best hope for freedom for all, including eventually the American slaves. It was a carefully considered compromise, a deliberate acceptance of contradiction, not schizophrenia at all.
Mr. Jaffa’s “schizophrenia” is worse than pop psychiatry, it is flat-out wrong and wrongheaded. Calling it schizophrenia conceals the real meaning of the struggle in the Convention for someone like Madison, principled and prudent, wanting not to endorse slavery and also wanting union. It is easy for someone without political experience and prudence to stand firmly on principle against compromise; but the person with political responsibility must have “a necessary regard to circumstances, which no statesman can disregard without producing more evil than good.” These are the words of Justice Curtis, in his excellent dissenting opinion in the Dred Scottcase, in which he defended the authors of the Declaration of Independence against the charge of hypocrisy for declaring, in a slaveowning nation, that all men are equal.
Mr. Jaffa decries the Constitution because under it slaves were property. Abraham Lincoln said on the same point that the Framers made great efforts successfully “to exclude from the Constitution the idea that there could be property in man.” Lincoln was only echoing James Madison, who, in the Convention, “thought it wrong to admit in the Constitution the idea that there could be property in men.”
There is always the possibility, of course, that Mr. Jaffa is right and Lincoln and Madison were wrong in their understanding of the Constitution, but can Mr. Jaffa prove it?