Simone Lawson
The United States Constitution has been criticised for its race-based flaws since its inception in 1787. One of the most significant criticisms is its protection of the institution of slavery. Article 1, Section 9, prohibited Congress from banning the importation of slaves until 1808, and Article 5 prevented this from being amended. The Constitution also included the fugitive slave clause, which required that escaped slaves be returned to their owners. These provisions, among others, have been described as the biggest flaw in the Constitution. In addition to protecting slavery, the Constitution has been criticised for its role in perpetuating racial inequalities and segregation, with the Supreme Court ruling in the 1896 Plessey v. Ferguson case, allowing the formation of the Jim Crow segregation system.
| Characteristics | Values |
|---|---|
| Permitting slavery | Article 1, Section 9, prohibits Congress from banning the importation of slaves until 1808, and Article 5 prohibited this from being amended. |
| Counting slaves as 3/5ths of a person for representation in Congress | Article 1, Section 2, provides that, for purposes of representation in Congress, enslaved black people in a state would be counted as three-fifths of the number of white inhabitants of that state. |
| Requiring the return of escaped slaves | Article 4, Section 2, contains the “fugitive slave clause”, which required that an escaped slave be returned to their owner. |
| Lack of democratic premises | The Electoral College allows candidates who lose the popular vote to be elected President of the United States. |
| Lack of representation in the Senate | Every state gets two senators, meaning smaller states are over-represented in the Senate relative to larger states. |
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What You'll Learn
The Constitution protected slavery
The Constitution of the United States, despite its noble ideals, had several provisions that protected the institution of slavery and perpetuated racial inequalities that persist to this day.
Article 1, Section 9, prohibited Congress from banning the importation of slaves until 1808, and Article 5 prevented this provision from being amended. Furthermore, Article 1, Section 2, included the "Three-Fifths Compromise," which stated that for representation in Congress, enslaved black people in a state would be counted as three-fifths of the number of white inhabitants. This compromise gave slaveholding states disproportionate political power. Article 4, Section 2, contained the "Fugitive Slave Clause," which required that escaped slaves be returned to their owners, further entrenching the institution of slavery.
The Constitutional standing of free African Americans was ambiguous and often left them without protection from local and state laws that deprived them of rights. The First US Congress passed a law in 1790 that limited naturalized citizenship to white aliens, and the Second Congress established a militia limited to "free able-bodied white male citizens."
It took a Civil War and the passage of the 13th, 14th, and 15th Amendments to abolish slavery, ensure due process and equal protection under the law, and guarantee voting rights for Black men. However, even after these amendments, individual states, particularly in the South, found ways to circumvent these protections, leading to the need for the 20th-century Civil Rights Movement.
The Constitution's protection of slavery is considered by many, including legal scholars such as Dean Erwin Chemerinsky, to be its "biggest flaw." This flaw highlights the contradiction between the Constitution's ideals of liberty and equality and the reality of slavery and racial discrimination in America's history.
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The Electoral College undermines democracy
The Electoral College is a unique American political institution, but it is also anti-democratic. The Electoral College has allowed candidates who lost the popular vote to become President of the United States, contradicting the basic democratic principle of majority rule. This has happened five times in American history, including in 2000 and 2016. In 2016, Hillary Clinton won the popular vote by almost three million votes, yet Donald Trump was elected. This outcome is undemocratic and has led to widespread calls for reform or abolition of the Electoral College.
Secondly, the "winner-take-all" system in most states can encourage voter fraud. Stealing a few thousand votes in a close election could give all of a state's electoral votes to a particular party. In contrast, a national popular election would require stealing votes in multiple states to impact the total vote count significantly.
Thirdly, the Electoral College dampens voter engagement and turnout. The "winner-take-all" system makes it less likely that voters in states that strongly favour one party will turn out to vote, as their votes are unlikely to make a difference. This system also leads to an excessive focus on swing states and their issues during campaigns, neglecting the concerns of voters in other states.
Finally, the Electoral College is inconsistent with democratic values and undermines voters' rights to equal protection under the law guaranteed by the Fourteenth Amendment. Most constitutional scholars agree that if the Electoral College were not in the Constitution, it would be found unconstitutional.
In summary, the Electoral College undermines democracy by violating majority rule, equal voting power, and equal protection under the law. It encourages voter fraud, depresses voter turnout, and leads to an unequal representation of states. As a result, it is widely seen as an undemocratic relic that needs to be reformed or abolished to align with democratic values.
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The Founding Fathers were racist
The Founding Fathers of the United States were slaveholders and many of them profited from the labour of enslaved people. The Constitution they drafted reflected this, containing several provisions that protected the institution of slavery. Article 1, Section 9, for example, prohibited Congress from banning the importation of slaves until 1808, and Article 5 prevented this provision from being amended. Article 1, Section 2, also known as the "Three-Fifths Compromise", stated that for the purposes of representation in Congress, enslaved black people in a state would be counted as three-fifths of the number of white inhabitants of that state. This gave slaveholding states more power in Congress, as it allowed them to count their enslaved population towards their state's total population, without having to grant those enslaved people any rights. Additionally, Article 4, Section 2, contained the "fugitive slave clause", which required that escaped slaves be returned to their owners.
The Founding Fathers' failure to abolish slavery and their inclusion of these pro-slavery provisions in the Constitution had far-reaching consequences. It took a Civil War and several constitutional amendments to finally abolish slavery and end the legal protection it enjoyed. Even after the abolition of slavery, racial inequalities persisted and continue to this day. The Founding Fathers' refusal to recognise the humanity and equality of all people, regardless of race, and their willingness to enshrine slavery in the Constitution, are a clear indication of their racist beliefs and values.
The Founding Fathers' racism was not limited to their support for slavery. They also took steps to prevent African Americans from gaining equal rights and citizenship. Under the Constitution, the First US Congress passed a law in 1790 that specifically limited naturalized citizenship to white aliens. The Second Congress, with constitutional sanction, passed legislation establishing a "uniform militia" but limited it to "each and every free able-bodied white male citizen" between the ages of eighteen and forty-five. The Bill of Rights also failed to protect free blacks from local and state laws that deprived them of the rights enumerated in the first ten Constitutional amendments.
The Founding Fathers' actions and the language of the Constitution they drafted make it clear that they did not believe in the fundamental equality of all people, regardless of race. Instead, they saw white people as superior and entitled to rights and privileges that were denied to people of colour. This racist ideology was woven into the fabric of the nation they founded and has had lasting consequences, shaping the development of the United States and contributing to the systemic racism that continues to impact the lives of people of colour in the country today.
While some may argue that the Founding Fathers' actions and beliefs were a product of their time and should not be judged by modern standards, this does not excuse their failure to uphold the ideals of liberty and equality that they claimed to hold dear. Their hypocrisy in professing a belief in freedom while denying it to others based on race is evident and underscores the racist nature of their actions and the institutions they helped establish.
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The 14th Amendment was ineffective
The 14th Amendment, passed by Congress on June 13, 1866, and ratified on July 9, 1868, was ineffective in several ways. Firstly, it failed to protect the rights of Black citizens, despite being intended to guarantee equal civil and legal rights to this demographic. The amendment's first section includes the Citizenship Clause, which grants citizenship to “All persons born or naturalized in the United States”, thereby granting citizenship to formerly enslaved people. However, this clause was interpreted narrowly in the Slaughter-House Cases (1873) as merely preventing states from impeding federal rights, rather than actively protecting the rights of Black citizens.
Secondly, the 14th Amendment was ineffective in addressing racial segregation in education. In the case of Parents Involved in Community Schools v. Seattle School District No. 1, the Court rejected plans that used "racial tiebreakers" to reduce "de facto" racial imbalance in schools, indicating that the 14th Amendment did not effectively address racial segregation in education. Furthermore, the same Congress that ratified the 14th Amendment also segregated schools in the District of Columbia, demonstrating the ineffectiveness of the amendment in preventing segregationist policies.
Thirdly, the 14th Amendment failed to extend the Bill of Rights to the states. For many years, the Supreme Court ruled that the amendment did not require states to abide by the Bill of Rights, and the amendment's language did not explicitly mandate this extension. This meant that the rights and liberties guaranteed in the Bill of Rights were not uniformly applied across the nation, undermining the effectiveness of the 14th Amendment in protecting individual freedoms.
Lastly, the 14th Amendment's Equal Protection Clause, which is meant to ensure that no state denies any person within its jurisdiction equal protection of the laws, has been interpreted in ways that perpetuate racial inequality. For example, in the first Dayton case, the lower courts found constitutional violations that resulted in pupil segregation, but the Supreme Court limited the remedial powers of federal courts to address these violations, hindering efforts to promote racial integration in education. While the 14th Amendment has been invoked in landmark cases addressing racial discrimination, its effectiveness has been limited by judicial interpretations that fall short of ensuring equal protection for all races.
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The 15th Amendment was ineffective
The 15th Amendment to the United States Constitution was ratified on February 3, 1870, as the third and final Reconstruction Amendment. It prohibits the federal government and each state from denying or abridging a citizen's right to vote "on account of race, colour, or previous condition of servitude". The amendment was a remarkable accomplishment, given that slavery was such a dominant institution before the Civil War.
Despite its promise, the 15th Amendment was ineffective in several ways. Firstly, it did not explicitly include sex as a protected category, thereby excluding women from the constitutional right to vote. This reaffirmed the fact that women lacked a constitutional right to vote, and it would not be until the 19th Amendment in 1920 that women gained this right. Secondly, the amendment faced strong opposition during its ratification, with zero Democrats voting in favour of it in the House of Representatives or the Senate. This lack of bipartisan support made the amendment vulnerable to political shifts. Indeed, from 1890 to 1910, the Democratic Party in the Southern United States enacted "Jim Crow" laws that raised barriers to voter registration, resulting in the disenfranchisement of most black voters through poll taxes and literacy tests.
The failure of the 15th Amendment to prevent voting discrimination against African Americans was evident, and it took the Civil Rights Movement of the mid-20th century to begin addressing these injustices. The Voting Rights Act of 1965 provided federal oversight of elections in discriminatory jurisdictions, banned literacy tests, and created legal remedies for people affected by voting discrimination.
In conclusion, while the 15th Amendment was a significant step towards racial equality in voting rights, its effectiveness was limited due to its failure to address gender discrimination and the political opposition that led to the enactment of discriminatory voting laws targeting African Americans.
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Frequently asked questions
The second race-based flaw in the American Constitution was its failure to address racial discrimination and its aftermath of inequity. The Constitution did not explicitly provide for rights to housing, education, and basic economic survival, which are necessary to combat racial discrimination.
The American Constitution was used to protect the institution of slavery and prevent federal interference in the practice. The Constitution also allowed for the segregation of schools and the implementation of "racial tiebreakers" in school assignments, further entrenching racial inequality.
The race-based flaws in the American Constitution have contributed to racial inequalities that persist in the United States today. Despite amendments to the Constitution and the Civil Rights Movement, racial discrimination and its aftermath continue to have negative consequences for many Americans.
