Previously published in Krebscycle
Thurgood Marshall was not nostalgic about the US Constitution.
I do not believe that the meaning of the Constitution was forever "fixed" at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today.
In 2011 Harpers Magazine, the flagship of Upper West Side Liberalism, published a worshipful interview with Glenn Greenwald about a book in which he outlines his very different view of US legal history.
That the rule of law—not the rule of men—would reign supreme was one of the few real points of agreement among all the founders. Arguably it was the primary one.
In the course of this argument, Greenwald makes a series of pro-forma admissions that this shining ideal was not always actually put into practice.
But even when this principle was being violated, its supremacy was also being affirmed: resoundingly and unanimously in the case of the founders [..]
“blind justice”—equality before law—was orthodoxy in American political culture. The principle was sacrosanct even when it was imperfectly applied.
I have to confess that this "analysis" makes me so angry that I have a hard time formulating an even tempered response. As history, Greenwald's story is so grotesque and incoherent that words like "delusional" and "fraudulent" seem inadequate. The only way to make sense of what Greenwald wrote - and the breathless adulation he receives among some sectors of the "progressives" - is to decode the underlying message. And that underlying message is profoundly ugly and should provoke some soul searching among Mr. Greenwald's fans. Let me first show you a little bit of why Thurgood Marshall's view was so different from that given by Greenwald before looking at what he and his fans actually mean.
Justice Marshall noted that Gouvernor Morris, the "Founder" who actually wrote up the Constitutional draft, was quite clear about limitations of the sacrosanct principle.
"The inhabitant of Georgia [or] South Carolina who goes to the coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections and damns them to the most cruel bondages, shall have more votes in a Government instituted for protection of the rights of mankind, than the Citizen of Pennsylvania or New Jersey who views with a laudable horror, so nefarious a Practice."
But "the principle was sacrosanct even when it was imperfectly applied"! It's not just that the Constitution explicitly sanctioned slavery (equality before the law, imperfectly applied!), but that voting rights were generally limited to white male property owners, the "Senate" was explicitly modelled after the Roman Senate that represented the interests of the Roman slave owning aristocracy, there was an ongoing genocidal attack on Native Americans and theft of their lands ... but the principle was sacrosanct! Even when imperfectly applied! Resoundingly! Greenwald puts it like this:
[..] the country’s vigorous embrace of the principle of equality before law enshrined it as aspiration. It became the guiding precept for how “progress” was understood, for how the union would be perfected.
In 1829, not much more than 30 years from the day the principle of equality under law was, you know, enshrined, the Supreme Court of North Carolina decided that a white man named John Mann could not be punished for beating and then shooting a young woman we know only as "Lydia, the slave of one Elizabeth Jones."
On the trial it appeared that the Defendant had hired the slave for a year--that during the term, the slave had committed some small offence, for which the Defendant undertook to chastise her--that while in the act of so doing, the slave ran off, whereupon the Defendant called upon her to stop, which being refused, he shot at and wounded her
The word "chastise" here is a euphemism for violent assault. Mann violently attacked this young woman - so violently that a jury of his white peers convicted him.
His honor Judge DANIEL charged the Jury, that if they believed the punishment inflicted by the Defendant was cruel and unwarrantable, and disproportionate to the offence committed by the slave, that in law the Defendant was guilty
So the jury of white men found that, even by the standards of this slave state, Mann's behavior was "cruel and unwarrantable". The Supreme Court of North Carolina reversed the Jury verdict and acquitted Mr. Mann. The passage below from the decision is a little long but it's worth reading in full, because it so lucidly and clearly lays out exactly what equality under the law meant to the Founders generation. Judge Ruffin, whose opinions are still studied in US law schools as models of legal reasoning, notes that under the law some people in subordinate positions, like apprentices and students, are protected against disproportionate violence but this principle emphatically does not apply to slaves.
The difference is that which exists between freedom and slavery--and a greater cannot be imagined. In the one, the end in view is the happiness of the youth, born to equal rights with that governor, on whom the duty devolves of training the young to usefulness, in a station which he is afterwards to assume among freemen. To such an end, and with such a subject, moral and intellectual instruction seem the natural means; and for the most part, they are found to suffice. Moderate force is superadded, only to make the others effectual. If that fail, it is better to leave the party to his own headstrong passions, and the ultimate correction of the law, than to allow it to be immoderately inflicted by a private person.
So for someone "born to equal rights" the law limits the use of force by their "master". But unlike Mr. Greenwald, Judge Ruffin is unsparingly honest. Let me call the victim of the crime "Lydia Doe" because it seems disrespectful to just use the first name of this brave woman and she was a victim of a crime and her family name is unknown. Judge Ruffin explains that Lydia Doe cannot be protected by law because only unrestrained, savage, unlimited, violence can keep a person in bondage. Unlike an apprentice who can be convinced that his temporary subordinate status is for his own good, slaves remain slaves only by terror.
With slavery it is far otherwise. The end is the profit of the master, his security and the public safety; the subject, one doomed in his own person, and his posterity, to live without knowledge, and without the capacity to make any thing his own, and to toil that another may reap the fruits. What moral considerations shall be addressed to such a being, to convince him what, it is impossible but that the most stupid must feel and know can never be true--that he is thus to labour upon a principle of natural duty, or for the sake of his own personal happiness, such services can only be expected from one who has no will of his own; who surrenders his will in implicit obedience to that of another. Such obedience is the consequence only of uncontrolled authority over the body. There is nothing else which can operate to produce the effect. The power of the master must be absolute, to render the submission of the slave perfect
The "vigorous embrace of the principle of equality before law" is so inspiring. Here's Mr. Greenwald again:
And the most significant episodes of progress over the next two centuries—the emancipation of slaves, the ending of Jim Crow, the enfranchisement and liberation of women, vastly improved treatment for Native Americans and gay Americans—were animated by this ideal. That happened because “blind justice”—equality before law—was orthodoxy in American political culture. The principle was sacrosanct even when it was imperfectly applied.
Right. This was blind justice at the beginning of the Constitutional Era.
Get your government hands off medicare
Greenwald claims that the unquestioned American principle of equal justice under the law ran along happily for nearly 200 years and was only fatally compromised when Gerald Ford pardoned Richard Nixon.
The Ford pardon of Nixon changed that, radically and permanently.
Let me spell this out: Ford pardoning Nixon "radically and permanently" destroyed equality under the law, but Judge Ruffin deciding that Lydia Doe could be beaten without mercy and shot down like a dog did not destroy equality under the law. The Fugitive Slave act that said free black men and women and children kidnapped by armed thugs could not appeal to a court for protection left America animated by the ideal of blind justice but Nixon's pardon killed the idea. The post civil war Slaughterhouse decisions of the Supreme Court, the mass incarceration of Japanese-Americans, the Trail of Tears, police attacks on gay men and women, the second class legal status of women, the whole dismal history of injustice, legalized murder, slaving and genocide were all no barrier to "the country’s vigorous embrace of the principle of equality before law" but Nixon's pardon was? What can Greenwald possibly mean? Unfortunately what he means is also apparent.
The implicit, but not particularly well hidden premise of Greenwald's line of reasoning is that what happened to Lydia Doe doesn't matter. It's just some "imperfect application" of a resoundingly affirmed grand principle. What matters is what happens at the elite level - to white men, to powerful people, to the system of laws that governs the elite. Lydia Doe doesn't matter in some way that unpunished NSA spying or other infraction of concern to Greenwald does matter. The important actions of government and justice, according to this theory, are ones that affect privileged white men, the rest are just some imperfections, regrettable no doubt, but details in the grand scheme of things.
Well, call me an unprincipled Obot, an apologist, whatever you want, but I don't agree. I don't care about Greenwald's narcissistic "morality" or his bogus history or the self-assessed moral purity of his fan base. I don´t care about their grand principles that mean nothing or their fraudulent rule of law or the whole dishonest story.