The Source of Constitutional Legitimacy

On July 4, Rep. Cori Bush (D-MO) tweeted:” “When they say at the 4th of July is about American freedom, remember this: the freedom they’re referring to is for white people. This land is stolen land and Black people still aren’t free.”

It took guts for Cori Bush to say this amidst the current backlash, but it’s also the case that few more obvious things have ever been stated. Those who created American government were fond of making universal statements like “We hold these truths to be self-evident, that all men are created equal,” but clearly meant white men and could hardly imagine a society in which which white men lived equally with either women or black people.

Author of the “Declaration of Independence” Thomas Jefferson certainly couldn’t.

Ted Cruz with his usual diplomatic tact, “Hateful divisive lies. The Left Hates America.”

But then Cruz gets conventional and justifies the “Founding Fathers” through reference to black authority. Cruz mainly relies on the 19th century abolitionist leader Frederick Douglass:

I responded with the wisdom of the great abolitionist Frederick Douglass: “Frederick Douglass loved America. He rightly denounced the grotesque evil of slavery, which in 1852 was tragically still legal. But, thanks to the heroic leadership of Douglass & other abolitionists—and a bloody Civil War—we ended that abomination. Douglass closed, “I, therefore, leave off where I began, with hope. While drawing encouragement from ‘the Declaration of Independence,’ the great principles it contains, and the genius of American Institutions, my spirit is also cheered by the obvious tendencies of the age.”

The reference to Douglass is common among conservative defenders of the “Founders,” but why is this the case? Certainly, there is an apparent paradox. The Constitution is viewed as the fundamental law of the land and the statement on all men being equal in the Declaration of Independence is viewed as justifying both the Revolution as the primary foundation of the government created after the Revolution. This is one of the “great principles” from which Frederick Douglass draws encouragement in his famous 4th of July speech in 1852.

Cruz is correct in believing Frederick Douglass approved of the Constitution, but why is Frederick Douglass’ approval needed to justify the Constitution in the first place? My argument is that the authors of the Declaration, the original Constitution, and the Bill of Rights no longer have the credibility needed to legitimize the Constitution themselves. The status of Jefferson, Washington, Madison, Monroe, and others as slaveholders combined with Constitutional measures to protect slavery–delaying the outlawing of the slave trade, the 3/5’s clause, and the Fugitive Slave clause–all implicate the Founders in “the grotesque evil of slavery.” By itself, the founding personalities and documents are delegitimized by slavery and needs a supplemental source or sources of credibility in order to have authority.

As a “great abolitionist,” Frederick Douglass has a credibility grounded in his experience of slavery, escape from slavery, and leadership in the abolitionist movement. Having suffered the worst deprivation of rights authorized by the Founding, Douglass now has a unique credibility to justify the Founding 170 years after his classic speech. How does Douglass justify the Declaration and Constitution?–by interpreting them as applying just as much to black people and women (Douglass also supported women’s suffrage) as they did to white men. The Constitution may be the source of legitimacy for American government but Frederick Douglass is a more important source of legitimacy for the Constitution than any of the leading figures of the Founding Generation.

But it’s not just Frederick Douglass. Against Cori Bush, Ted Cruz cites Martin Luther King in support of the Constitution and the nation founded on the Constitution.  “And we should be encouraged by Dr. Martin Luther King, Jr.’s exhortation, “The arc of the moral universe is long, but it bends toward justice.” Like Frederick Douglass, Martin Luther King is a black leader who interprets the Constitution and Founding in a way that broadens the notion of freedom and equality in American society.

Of course, Ted Cruz opposes Black civil rights on every level, but is forced by circumstances to draw on the most black leaders to legitimize American society from the founding to the present.