America’s Racial Reckoning

AMERICA’S RACIAL RECKONING: SQUARING REALITY WITH FOUNDING ASPIRATIONS

by David Gray Adler

The hundreds of thousands of Americans who poured into city streets across our nation this spring to protest racial injustice and police brutality have brought center stage to a long-overdue and much needed historic focus on a question of surpassing importance for the United States: How to atone for our original sin of slavery and its public and private manifestations for the past four centuries?

The trigger for these nationwide protests was the excruciating video, viewed by millions of Americans, that revealed a Minneapolis police officer nonchalantly grinding his knee into the neck of George Floyd for eight minutes and 46 seconds, well after the last of Mr. Floyd’s dying, desperate pleas—“I can’t breathe”—had been heard. Officer Derek Chauvin’s modern-day lynching of an African- American citizen harked back to the cruel and savage era of slavery and Jim Crow, and reminded a nation, suffused with shock, outrage and grief, of its sweeping history of racial injustice and inequities, replete with countless acts of private, institutional and systemic racism which, for a variety of reasons, were met by generations of Americans with general indifference and tolerance.

The murder of George Floyd – in broad daylight, no less – was a searing moment in our history and public consciousness. It has produced an awakening in white America. A recent Monmouth Poll indicates that 75 percent of the citizenry agrees that race discrimination is a serious problem, and nearly 60 percent believe that Black Americans are more likely to suffer from police violence than other demographic groups. As a consequence, a racial reckoning, centuries overdue, is at hand. That this accounting should occur in the context of a pandemic health care crisis and a deepening economic recession which claim both the lives and jobs of African-Americans at a disproportionate rate that exceeds the losses of white citizens, speaks volumes about the systemic racism in the United States that requires immediate and sustained attention.

America’s incipient national reckoning requires, above all, a searching examination and honest appraisal of our nation’s tragic history of racism, viewed against a backdrop of our national origins and identity. Pulling back the curtain to engage in a rigorous review of the character, indeed, the soul of America, is the necessary first step in achieving resolution and redress of the momentous racial issues that have plagued our country since 1619, when some 12 million slaves were forcibly brought to the colonies. “Not everything that is faced can be changed,” James Baldwin rightly observed in his memoir, Remember This House, “but nothing can be changed until it is faced.” The duties and responsibilities of citizenship, as well as the opportunities afforded citizens in a democracy to both pursue and secure justice, provide the planks and pillars of this grand participatory platform. Confronting racism—past and present—in its many shapes and forms, attesting to its historical harms and future dangers, if not rebuked and repudiated, is all part of what Robert Penn Warren, in All the King’s Men, described as “the awful responsibility of Time.” Our willingness as citizens to bear witness is as indispensable to discerning and exposing the truth of racism as it is to curbing and burying it. In the end, white privilege does not justify white silence.

America’s racial reckoning requires a deep dive into its soul and character. A nation’s character is defined, in part, by the choices – laws, policies and programs – that it makes. Ghandi wisely observed, “A nation’s greatness is measured by how it treats its weakest members.” And so, if we proceed with a measurement of America by its treatment of African-Americans since 1619, what can we say of the laws and policies and programs that denied the humanity of those whom it kidnapped and enslaved, and permitted the rape, torture, abuse and, indeed, the murder of those whom it enslaved? What can be said of the character of a nation, in the wake of the Civil War and passage and ratification of the Reconstruction Amendments, that devised and enforced mechanisms during the long period of Jim Crow, state sanctioned segregation and tolerance, indeed, encouragement, of private acts of racial discrimination? What can be said of the character of America in light of hundreds of years of wealth theft from Black Americans—after the end of slavery—through the systematic practice of redlining, obstruction of home ownership through federal mortgage lending programs and inferior education programs that all but precluded access to gainful employment, when racist machinations didn’t? What can be said of a nation whose policing standards and criminal justice practices that have exhibited institutional racism, whose political institutions for so many years have engaged in the disenfranchisement of Black voters, a career of voter suppression means and methods, and undercut the potential influence on American Democracy? We could continue to add to this laundry list of examples of systemic racism, but the recitation of sordid deeds perpetrated by whites against Blacks, leaves us with an unavoidable question for our time: Can America look at itself in the mirror, in the morning?

Atonement for four centuries of suppression of African-Americans is unlike any pursuit undertaken in our nation’s history. In 1988, America sought to atone for its tragic internment program of Japanese Americans in World War II with the passage of the Civil Liberties Act of 1988, which provided a reparations payment of $20,000 to each of the 82,219 survivors, accompanied by an apology. Members of Congress had acquainted themselves with West Germany’s reparation payments in 1952 to Israel, in absorbing the settlement of victims of the Holocaust. There is growing support in the United States for restitution to Black Americans, but despite the merits of various proposals, the concept remains controversial. Short of reparations, along the lines of payments to JapaneseAmericans, is there a starting point for American atonement, one perhaps familiar to us as foundational principles that could catch the attention of citizens from Boston to Bismarck to Berkley? The initial step on the road to atonement is to square reality with the founding ideals and aspirations that shaped and formed our nation. America’s creation, it is familiar, was unique. As former Prime Minister Margaret Thatcher observed, “Europe was created by history. America was created by philosophy.” Another, older Brit, the distinguished historian, G.K. Chesterton, captured the intellectual cornerstone of America: it is “the only nation in the world that is founded on a creed.” That creed is that all men are created equal, which means that America has “the soul of a church.”

The soul of America is found in the grandeur of the Declaration of Independence, an iconic document that occupies in our secular history a divine status without rival, not only for its statement of our nation’s political creed, but also for Jefferson’s majestic phrasing: “All Men are created equal, endowed by their Creator with certain unalienable rights, including the rights to Life, Liberty and the Pursuit of Happiness.” The Declaration, what Lincoln called “the sheet anchor of the Republic,” embodies commanding, transcendent principles, linking the founding generation with our own, maintaining across a vista of 250 years a continuity of expectations for the roles and responsibilities of government, a recitation of indelible rights bestowed by the Creator at birth, and lessons of civic duty, lest the citizenry forget its crucial role in holding government accountable.

The problem, at the beginning, lay in the fact that the Declaration, the cornerstone of our political thought, had a crack in its foundation. The entire world knew that Jefferson had not meant that all men are created equal. The Founders did not, after all, conceive of Blacks or Native-Americans or women as equals. The hypocrisy of the language, as early abolitionists pointed out, was conspicuous and could not be avoided. Or could it?

Abraham Lincoln, our Poet President, and as attuned intellectually to the thinking and aims of the Founders – the authors of the Declaration and the Constitution – as any chief executive in our history, with the exception of James Madison, and thus worthy of the title, “The Last of the Founders,” rescued the majestic principle – all men are created equal – from the oblivion of hypocrisy and rendered it timeless. Those who drafted “the immortal emblem of humanity,” Lincoln elegantly observed in 1855, had “simply meant to declare the right, so that the enforcement of it might follow as fast as circumstances would permit it.” Although the Founders had not meant to accord Blacks political and social equality, Lincoln believed, they did not intend that their position in America would remain static. The Founders, Lincoln reasoned, aimed to establish a “standard maxim for a free society, which should be familiar to all, and revered by all, and constantly labored for, even though never perfectly attained, constantly approximated and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.” Ever the lawyer, Lincoln justly stated: “The assertion that ‘all men are created equal’ was of no practical use to our effecting our separation from Great Britain, and it was placed in the Declaration, not for that, but for future use.”

Lincoln’s astute analysis, understood as the Founders’ theory of aspirational rights, was bolstered by his demonstration of the irrelevance to the rebellion against England of the phrase, “all men are created equal,” hit the mark. The Founders were indeed looking to the future, to a time when the country matured socially, politically and culturally, and circumstances permitted equal treatment of Black Americans. Delegates to the Constitutional Convention anticipated the end of slavery in their prohibition in the Constitution of the import of slaves after 1808, which would begin, however slowly, to usher in societal changes, heading toward the day, in Lincoln’s words, when the “declared right” could be enforced because “circumstances would permit it.” And change was coming, perhaps peacefully, but more likely through an inevitable war between the states, as Benjamin Franklin predicted.

Lincoln’s understanding of aspirational rights inherent in the Declaration of Independence raises the question of when those aims might enjoy fulfillment? At what point would the United States become sufficiently mature to embrace equality for all Americans? Viewed from another angle, when will the majestic phrasing in the Declaration, and appeals to the Spirit of ’76, cease to be so much fanciful rhetoric, and assume its status as “the sheet anchor of the Republic,” reliable and steadfast, a monument to principles no longer inert but, indeed, active and suffused with energy? We are entitled to wonder whether America is finally ready, at this moment of racial reckoning, 400 years after the arrival of slaves in Jamestown. Is this our time and, if not now, when?

There emerges in the context of centuries of unfulfilled aspirations, the question of national integrity and sincerity. Do American citizens want their country to be regarded the world over as one that is, and perhaps always will be, guided by racist passions and principles, governed by indifference to racial injustice and inequality that betray the elegance and beauty of Jefferson’s writing? A prospective racial reckoning, theoretically available at any historical juncture, requires a sincere and serious effort to square reality with its founding ideals and aspirations. The construction of the Union in 1787 at the Constitutional Convention, by delegates who gathered in Philadelphia as representatives of the “people,” to write a Constitution which, Chief Justice John Marshall later wrote, was “intended to endure for ages,” was grounded in yet another aspiration, one crisply stated in the Preamble: “We the People Ordain and Establish this Constitution to Create a More Perfect Union.” There was, at that moment, an opportunity for delegates to breathe life into the foundation stone of the Declaration— “all men are created equal”—if they wished to do so. Some members of the Convention pushed for abolition of slavery, and rightly decried its continuation as a “pact with the devil,” but the Convention, to borrow from Lincoln’s words, evidently did not believe that “circumstances would permit” the elevation of Black Americans to the status of freedmen, let alone equals with whites in the areas of civil and political rights. Thus, the Constitution, as every student knows, retained and protected the “peculiar institution” of slavery, America’s “Original Sin.”

The wages of this Original Sin were high and tragically costly to America. Perhaps Civil War was unavoidable, as Franklin, and others, had prophesied but, in any case, the war, inflicted upon the nation by the Confederacy on behalf of white slave owners who wished to preserve their right to own African-Americans, as they owned livestock, resulted in the desire, indeed, the need for the “reconstruction” of the United States.

The Reconstruction Amendments constituted a second American Revolution, given their sweeping aims to elevate Blacks through the 13th Amendment’s abolition of slavery, the 14th Amendment’s guarantee of “equal protection of the law,” and the 15th Amendment’s protection of the right to vote. In Reconstruction, it seemed, moreover, to afford a genuinely historic opportunity to effectuate Lincoln’s assertion that all men are created equal- -the core idea of the Declaration of Independence.

The premise and promise of the 14th Amendment protections appeared, at long last, to satisfy unfulfilled aspirations. After all, “we the people” ratified the Amendment, which granted to Black Americans the status of citizenship, and to Congress broad enforcement powers to superintend actions by states that might undercut the rights of the newly-minted citizens. They also approved the foundation principle of equality through the Equal Protection Clause, which over the next 150 years became the workhorse of lawsuits that aimed to remedy violations of Black Americans’ civil rights. The 14th Amendment contained so much that was necessary to square reality with the nation’s ideals and aspirations.

But it did not, as every student knows. What transpired in the wake of the ratification of the Reconstruction Amendments was the creation of a pervasive racial caste system, built upon racism perpetrated by government and citizens alike. The system of racial apartheid known as Jim Crow, relegated Blacks to the status of second-class citizenship, and essentially denied the benefits of Reconstruction Amendments. The U.S. Supreme Court inflicted heavy, indeed, incalculable harm. In the Civil Rights Cases of 1883, the Court ignored the debates and purposes of the 39th Congress,

which drafted the 14th Amendment, and which sought to prohibit private acts of racial discrimination. The Court provided a crabbed view of the14th Amendment, and held that the Amendment proscribed only “state actions’ that deny equal protection, due process of law and the privileges and immunities of citizenship. Private acts of discrimination were beyond the power of Congress to prohibit. In a brilliant dissenting opinion, Justice John Marshall Harlan pointed out the historical and textual errors committed by the Court and noted, with irony, the historical oddity that, despite the passage of the 14th Amendment, Congress possessed less power to protect Black citizens than it had before the Amendment to harm them.

In 1896, in Plessy v. Ferguson, the Supreme Court introduced the “separate but equal doctrine,” which permitted states to impose segregation across the board, making hash of the protections and guarantees of the 14th Amendment. Apartheid in America was a real thing. It was as if time had stopped and the 14th Amendment never had been introduced and ratified. Apparently, to invoke Lincoln again, the nation was not ready to embrace the principle of equality; the aspirational rights and goals of the Declaration and the 14th Amendment would await another day, another time, when “circumstances would permit” the “enforcement” of equal protection.

The sad, tragic history of governmental and private indifference to the aspirational quest of the Declaration of Independence and the Equal Protection Clause of the 14th Amendment, has left AfricanAmericans to wonder whether any of the nation’s foundational documents mean what they said. Slavery, Jim Crow, Separate-but-Equal, the terror inflicted on Blacks by the KKK, voter suppression and police brutality, are but a few of the many hallmarks of systemic and institutional discrimination that represent a blight on American history. These actions are hallmarks of the failure of the federal and state governments to enforce constitutional and statutory mechanisms passed at the end of the Civil War that were designed to fulfill aspirations articulated in founding documents. They also represent hallmarks of white tolerance of race discrimination, an exercise in white privilege that justifies white silence in the face of outrageous conduct and evil.

And yet, despite 400 years of brutal racism, Black Americans continue to work within the system, challenging discrimination, raising their voices in peaceful demonstrations, standing in very long lines meant to discourage and suppress their right to vote, a critical mechanism to influence the course of the nation. Of course, they march on, always marching for better policies to improve the quality of life for themselves and for Americans everywhere. One wonders about the source of this incredible patience and determination, a magical belief in a system that has rejected Blacks at every turn. Andrea Young, author, Executive Director of the American Civil Liberties Union of Georgia, and daughter of Andrew Young, an Atlanta mayor, United Nations Ambassador and civil rights icon, has observed: “Nobody has believed more in the promise and mythology of America than Blacks. We have believed all people were created equal, fought over generations for the truth of the statement. The fact that I am here means that I m descended from people who, even enslaved, did not give up hope. To do so now would be a betrayal.”

A racial reckoning is at hand. Several cities across the nation have enacted bans on police utilization of notorious chokeholds, just as they have moved to redirect funding for police departments to make better use of taxpayer dollars under the name “Defund the Police,” a broad umbrella of a term that has collected support principally from supporters who seek police reform rather than elimination of funds for legitimate law enforcement programs and policies. Nationwide protests of racial injustice and inequities in America are persuading cities and states to remove monuments to Confederate generals and politicians that defended slavery in their war against the United States. Thoughtful citizens and organizations are scanning the American landscape for symbols and emblems and other badges and incidences of the terrible legacy of Jim Crow, segregation and acts of racial discrimination, sometimes at the highest levels of our government. Princeton University has removed the name of Woodrow Wilson from its prestigious school of public and international affairs, which he built as President of the university, before he became the 28th President of the United States. Wilson’s racist views, and participation in segregation, were more than his alma mater could tolerate. The State of Mississippi has removed its flag and ordered production of a new design that no longer reflects the racism of the Old South. Significant change is afoot in America.

Americans from coast-to-coast are reading and discussing articles and books that provide insights and instruction on anti-racism. As a nation, America is at a crossroads; citizens want to know how to make swift changes, to move beyond the systemic racism that has haunted our country for four centuries. And so, we confront a momentous question: How does a community atone for the collective, historical evil—laws, programs, policies and private acts of racism, even though many citizens alive today were only passively complicit? The complexity of this issue can be illuminated by recalling Judge Learned Hand’s observation about the origin and life of liberty: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, court can even do much to help it.”

Judge Hand’s insight may help Americans remember that we have a common interest in the preservation and maintenance of liberty. Denials of liberty to serve one’s narrow interests in one instance may well lead to reciprocal denial in another. The human qualities of empathy and fair play, and a commitment to even-handedness, adherence to the rule of law for all people, meritocracy and transparency, so critical to the success of democracy, should enjoy wide currency in an effort to dismantle systemic racism. But let us not be naïve about this; many in our nation, mostly white men, have been for centuries the beneficiaries of racism. What incentive have they to endorse anti-racism? Perhaps we needn’t be cynical about the possibilities of individual transformation. There is, after all, widespread recognition of shared interests and networks of mutual goals and values that have united Americans across the centuries. Those mutual interests and the sense of a shared destiny brought victory in the American Revolution, as it did in World War I and again in World War II.

At all events, the question of the means of atonement will require major reforms in laws, policies and programs that have inflicted the evil of systemic racism on Black Americans. Government has a large role to play in enacting meaningful, substantive change that will make a difference in the lives of African-Americans. Restitution should be considered, although there are important questions to be addressed and resolved in the process of weighing such a historical remedy. Fortunately, officials can look for guidance at the reparations provided to Japanese Americans, and to the means employed by West Germany in reparations to Israel. But there is also an important role for American citizens to play in helping their country overcome a history of suppression as it sets foot on the path of anti-racism. There is wisdom in remembering that Americans do have shared interests, what the Founders characterized as the general welfare of the citizenry, and that community is bound by reciprocal interests, shared values and goals. The ancient Athenians believed that the interest of the community was inseparable from the interest of the citizenry that, as Plato put it, the soul of the individual is happiest when it is aligned with the soul of the community. That is a worthy goal for Americans to emulate in our time. Who among us will sound the trumpet and declare as Ghandi said of the path to peace: there is no path to anti-racism but antiracism.

David Gray Adler is President of The Alturas Institute, a non-profit organization created to promote the Constitution, gender equality, and civic education. A recipient of teaching, writing and civic awards, Adler has lectured nationally and internationally, and published widely, on the Constitution, presidential power and the Bill of Rights. He is the author of six books, including, most recently, The War Power in an Age of Terrorism, as well as more than 100 scholarly articles in the leading journals of his field. Adler’s scholarly writings have been quoted by the U.S. Supreme Court, lower federal courts, the U.S. Attorney General, the White House Counsel, the Legal Adviser to the State Department, by Republicans and Democrats in both houses of Congress, as well as political scientists, historians and law professors. He has consulted with members of Congress from both parties on a variety of constitutional issues, including impeachment, the war power and the termination of treaties. He has delivered more than 700 public lectures throughout Idaho, and writes Op-Ed pieces that run regularly in six newspapers across Idaho, and in papers across the country. David Adler will begin writing a weekly column for North Dakota Newspapers titled “We the People” wherein he will discuss the Constitution, civics, and American Government.