The Constitution: A tool for liberation

A handmade democracy placard at the ‘Mobilization for Democracy rally’ on Jan. 6, 2022. (Josie Gonsalves for Public Square Amplified)

This story was produced as part of the Democracy Day journalism collaborative, a nationwide effort to shine a light on the threats and opportunities facing American democracy. Read more at usdemocracyday.org.

In the spirit of Democracy Day, Public Square Amplified asked our colleagues Linda McDonald Carter, a community-based attorney and former professor and director of Paralegal Studies at Essex County College, and Gloria J. Browne Marshall, a Pulitzer Center grantee and Professor of Constitutional Law at John Jay College, to explore the themes of American Democracy and our Constitution. Both brought their experience as intellectuals, journalists, activists and women of color to the conversation. They weaved their way through American democracy’s relationship to war and civil rights, social institutions, the press, and the bubbling undercurrent of crisis in our democracy—as well as democracy as a tool of liberation.

Linda Carter: Please define and explain what democracy is generally and whether it’s the same as American democracy because we know that other countries around the world contend that they, too, have democratic governments.

Gloria J. Browne Marshall: The U.S. Constitution was drafted in 1787 and ratified in 1789. A provision indicates that this country will have a republican form of government. Republican means it is a representative government. We are a democratic form of government because we vote for those representatives, who are then supposed to represent the issues and concerns of the constituents in the communities around the country. That's the broadest form of a definition—voting for your leader.

Is American democracy for everybody? Is American democracy for the working class, poor people, and middle-class people? Is it the same for the elite, those who have considerable influence over policies, decisions, and laws in our country?

The American democracy includes everybody. However, access to voting excludes some people. That democratic principle of being able to vote and having access to the ballots to have the vote counted is undermining that democracy. Unfortunately, as much as the United States puts itself forward as a ‘shining light on the hill’ of democracy, that shiny light has been dimmed for generations due to the laws and violence that beset those who have a right to vote and yet are blocked from the voting booth.

In one vein, it seems like there are efforts to make sure that this is a constant, that this is a democracy, and that we're fulfilling our responsibilities based on history. Are we headed toward a crisis in democracy? Is our democracy in crisis? What do you think?

We've been in a crisis in our democracy since the Constitution was written with the idea that it will be a government based on democratic principles. It was formed, excluding people within the Constitution as three-fifths of a person under Article One, excluding Native Americans, and excluding women. Once you begin a country based on excluding people, then how is it that we're in a constitutional crisis now, when there was a constitutional crisis upon the signing of the last signature of the Constitution in 1787?

The reason why the word slave is not in the Constitution is because there were progressives in the room as well. And those progressive voices need to be heard, and it needs to be known that they existed. 

The crisis of the Constitution was the need for political expediency to get it ratified, there were compromises made because the Constitution itself is a compromise document. And those compromises were made with the idea of kicking the can down the road to deal with things like slavery, to deal with things like Native Americans.

Now we're in the 21st century, still dealing with the vestiges that have been a part of this Constitution from its inception. Are we in a Constitutional crisis? The question could be, when have we not been in a Constitutional crisis? Sometimes it bubbles up and is more evident than in other times. But yes, we are in a Constitutional crisis.

For the 50 years around the civil rights movement, there were also conflicts around the world that the United States was involved in, like World War II, the Korean War and Vietnam. The United States gave the public the impression that they were taking democracy around the world. Do you think the conflicts in the background helped use the Constitution as a tool of liberation?

Well, it's called propaganda.

There's always been this hypocrisy around the call to other countries to be a democracy like ours. But in a real-life situation, we fall short, whether it's how the United States treated people in other countries or how it treats people in its own country. Still, the brand itself is exceptional, and then to turn around and not only do the same things other countries have done but do worse than others—it's a level of hypocrisy that is mind-boggling. And therefore, the ideals within the Constitution are rare.

As stated earlier, this was a crisis from the beginning. We have the longest-standing written Constitution. The ideals are there. They say we're trying to make them a more perfect democracy, meaning it is not perfect, and we're still working toward it. But this is far from 'not perfect.' And the carrot held out there is that one day the oppressed people will receive constitutional rights based on the ideals in the document. That's what everybody is holding their breath for, and we also understand if one holds their breath too long, they can pass out.

What do you mean when you say something is a tool of liberation, particularly regarding the United States Constitution?

The tool of liberation is the flip side of the weapon of oppression.

 The Civil War ended in 1865, slavery ended with the 13th Amendment, except for punishment for a crime. And the 14th Amendment gave rights to the Africans that they should have had all along. Those rights of citizenship, equal protection, and due process, and then Black men received the right to vote. With that, people of African descent and those challenges under civil rights put the conscience into the Constitution.

Because there was this weapon of oppression—under law, tradition, and violence against people of color—there needed to be some legal weapon levied against that weapon. And the tool used as the weapon for liberation then becomes those constitutional clauses and those constitutional amendments.

Then by 1896, we have Plessy vs. Ferguson, and the Supreme Court once again became this weapon of oppression that required the trigger of the tool for liberation, taking that same Constitution and fighting it with advocates like Charles Hamilton, Thurgood Marshall, Pauli Murray, and so many others—in which that Constitution is this battleground, where one person is, or the Supreme Court, might be using the Constitution to oppress citizens. Other people are taking provisions from the Constitution and using those provisions of the Constitution on the 13th, 14th and 15th amendments, and then later with the 24th Amendment to create liberation.

Do you think the United States Constitution has a path to social democracy?

I think they are tertiary rights. When I say tertiary rights, I mean the rights surrounding the legal rights. So, we're talking about social rights, and we're talking about libraries and the classroom. We're talking about social interactions.

One thing that Plessy vs. Ferguson did was speak specifically to social interaction. When Justice Brown wrote the decision, he said this doesn't touch on political rights, which was a lie. Remember, the case was about people of color sitting in the white car of a railroad train—that sitting together is social interaction. Under the Constitution, the segregation meant that socially, people would be separated, and the U.S. Supreme Court said there could be social segregation. Back then, it was segregating people based on race in the classrooms, cemeteries, hospitals and playgrounds. All these places have social interaction and public accommodations. So, when we're talking about social empowerment, we're talking about social democracy.

Here we're talking about if people are allowed to come together, I have seen an increase, and that's one of the positives. When I look around at college campuses, and I see friends interacting socially, never knowing that there was a time when they could not do this—that is the use of the Constitution as a tool of liberation.

That's why it's so important to have social justice advocates who will take cases to the U.S. Supreme Court and challenge how social interaction is limited based on race, based on income because that's another social interaction.

Think about the lack of interaction based on economics. It says that people must be treated equally and have due process, and equality has allowed for social interaction. Still, there's nothing in the Constitution that speaks to addressing directly social interaction. How often do you see the poor interacting with anyone who's middle class or have means?

What is the role of the media considering many major media outlets are owned by people who are investors in hedge funds and things of that sort?

You know, they say that the newspaper writes the first draft of history, and it's the fourth estate, the idea that it has such power. It has the power to enlighten, but it also has the power to diminish curiosity. The media has a duty even under these grave circumstances in which it's been pillared in many ways. But at the same time, the media's power falls under the Constitution. The framers wanted us to have a free press and put it in the Constitution.

There's a lot that could be said about how the press can be used and has been used to maintain white supremacy. And so, the constitutional part of that is, yes, they have their power in the Constitution, but are members of the press reporting on how the Constitution and constitutional rights are being diminished when they're being diminished in real-time, as opposed to looking at the Constitution as a history book and looking back. What is the press doing in real-time right now in the present day to make sure that we understand when our constitutional rights are being diminished?

Is our type of democracy separate from capitalism or neoliberalism?

This is a capitalist country. Wall Street has been in place since the 1600s. Wall Street used to be a real wall, separating the Dutch from the Native Americans to protect themselves against attacks by Native Americans, when the corner of the island of Manhattan was a trading post. And so that's why it's been a financial district from the very beginning. I don't think it's possible to separate capitalism from anything, from religion to the press to anything else in this country. People come here for freedom and the freedom to make money.

I think the nexus between capitalism and our press has rendered us at a disadvantage because we're not informed and without being informed, we're not empowered. We don't have power and cannot make the best choices. And that's the importance of the press being able to hold people in positions of power accountable and, at the same time, inform us regular people about what's going on in our world and the globe.

I'm not sure we are sounding the alarm because based on our conversation, this is our normal. If anything, it's about informing people that this is our normal and how to gain power to shape the normal the way our society may want it to be.

Here's the thing. This is normal for African Americans. This is the normal for many other people of color. This is not the normal for white America. And that's why many people in white America see this in an alarmist way: they're treated like the oppressed. I think the alarm is for the media to understand that the privileges and mechanisms set up to maintain those privileges are being raffled off. And as the feeling of the raffling takes place, I think white America sees that they're losing things and that they're not being treated the way they should in their own country, but they're being treated the way so many millions of other people have been treated for generations. In many ways, it's like welcome to my world of inequality and injustice and the lack of democracy in real life but printed on paper.

As we're going through this, people must understand, particularly white people must recognize that it's not the fault of oppressed people of color, that they are in the position that they're in.

I just want to add this very quickly. And that is, perhaps the privileges and the rights of previous generations were not supposed to be there in the first place. When there was racism, discrimination and violence, and legal segregation, it undermined the rights and opportunities of many people of color.

As we come to even the slightest bit of equilibrium, certain things come down, and others come up. The rise in social interaction, social democracy, the ability to have more choices and opportunities among people of color may also mean that there is going to be a diminishment of those privileges that had not been fairly gained in the first place.

The privileges passed down generation after generation were not earned. They were privileges that came because of the discrimination and the violence that was beset on people of color to keep them in a lowered position.

As people of color start to throw off some of the shackles of that violence and those segregationist laws and other unfairness and discrimination, they will naturally rise. And those privileges that were gained from that subjugation will naturally begin to fall away. And that is the equilibrium that we'll see under the law. Unfortunately, we have a rogue U.S. Supreme Court element that wants to maintain those privileges. They'll probably do that by using the Constitution to construct a structure of white privilege.

It's always going to take the courage of the individuals and a vision of a freedom that they see well beyond anything that's before them.

They must envision freedom beyond what it is they've been given. We want people to have a true sense of freedom that will be their gift, the inheritance for generations to come, the same way we've inherited a sense of freedom that they may not have experienced in past generations but worked for us to experience.

People reading this today need to understand that the Constitution was interpreted to give a sense of freedom beyond what the Constitution wanted to give and beyond what the framers wanted to give or maybe even the U.S. Supreme Court wanted to give.

But advocates said, I want more freedom than the freedom you're giving me, and therefore I'm going to challenge the laws. I'm going to challenge society. I'm going to challenge the traditions. I'm going to challenge the vestiges or remnants left over from another time, and I'm going to push forward to greater freedom, a greater sense of justice and a greater sense of equality.

Guest Editor, Ande Richards.