NMSU should critique, not celebrate on 'Constitution Day'

Constitution Day should be abolished as a celebration. Instead, Sept. 17, the date on which the document was signed in 1787, should be a yearly occasion for Americans — scholars, politicians, lawyers, students, and the public-at large — to fairly but ruthlessly scrutinize the Constitution with an utter lack of sentimentality. New Mexico State University should be a thought leader in this essential critiquing enterprise. NMSU is, after all, an apex higher education institution in a state powerfully inflected for centuries by the Constitution, for good and for ill.

You might ask, why? After all, the Constitution has provided a framework that enabled the US to rise to the zenith of global economic, military, diplomatic and cultural power. What’s not to love? What about the Bill of Rights and the Fourteenth Amendment, sometimes referred to as “the Second Bill of Rights?” To which I would reply, the Constitution is of course not lacking in virtues.

Indeed, the First Amendment’s near-total guarantees of the freedom of speech, religion, the press, assembly and the right to petition are, in this historian’s considered opinion, the practical embodiment of the American dream, ideals, promise and advancement of human dignity that had been poetically offered up in the Declaration of Independence a decade earlier. The First Amendment has provided inspiration, hope and a guide to action at home and abroad.

That said, blasphemous though it may sound, the Constitution of the United States of America has in many ways proven over time to be nothing less than a disaster. It has either been silent on many of America’s most destructive domestic and international policies, practices and catastrophes, or it has actively and effectively served as a justification for, and engine of, these transgressions. Moreover, it has proven to be far less prescient, durable and successful at maintaining the vaunted balance of powers, and far more vulnerable to being subverted, than the founders expected it to be and generations of Americans have been taught to believe.

Constitution Day was conceived and is executed around the US primarily as a celebration. In fact, since 2007 public education institutions, including colleges and universities, have been required to participate in the festivities. Especially at this fraught moment in American history there is little to celebrate, and much to criticize. Whether examining the document through the lens of the past or of the present, the Constitution reveals profound structural flaws, fragility and a related capacity to be manipulated by illiberal (in the nonpartisan meaning of the word) actors.

Most basically, the framers were fundamentally mistaken on the core structural issue of the separation and balance of federal powers, which they assumed would be grounded in the branches jealously protecting their institutional prerogatives. This exercise in wishful thinking was quickly exposed as erroneous as political parties coalesced and became the key variable in whether the branches balanced each other. The only times this system performed more or less as intended was when the executive and legislative branches were controlled by different parties.

Otherwise, as we see currently, the two branches tend to march in lockstep under unified political control; and when the legislative branch is divided as it is now, as long as the president’s party controls the Senate, the executive branch maintains a decisive upper hand, since the Senate controls approval of presidential appointments — including of course to the US Supreme Court — and all foreign treaties.

Related, the separation of powers has not prevented the executive branch from gaining ever-greater powers in the all-important realm of US defense policy and engagement in combat, due to both Congress’s feckless general unwillingness to fight hammer-and-tongs to preserve its constitutional prerogatives, as well as the judiciary branch’s posture of granting wide latitude to the president concerning an expansively defined national security — thus making both Congress and the Supreme Court complicit in making and maintaining what historian Arthur Schlesinger termed the “imperial presidency.”

The Constitution gave a federal legal imprimatur to slavery — notoriously but not only via the infamous 3/5ths Clause — and race-based discrimination, including concerning immigration criteria — the 1790 Naturalization Act specified whiteness as a requirement for citizenship. Flowing from the Constitution’s codifying the status of slaves as property, devoid of rights, of even human wholeness, white supremacist supreme courts were able to justify the outrageous discriminatory logic of the 1857 Dred Scott and 1896 Plessy v. Ferguson decisions.

Dred Scott resulted in the utter failure to end slavery or even shepherd “the peculiar institution” toward an eventual peaceful end, which resulted in the bloodbath of the Civil War serving as the decisive arbiter of the issue. Plessy v. Ferguson willfully ignored the clear intent of the 14th Amendment’s Equal Protection Clause as it provided the legal underpinning for comprehensive segregation for two-thirds of the 20th century — including a full decade-plus following the overturning of Plessy by Brown v. Board of Education in 1954, which primarily by the strenuous efforts of the Civil Rights movement’s activists finally gained for African Americans a major portion of the rights allegedly bound up in those post-Civil War amendments. Indeed, the legal underpinnings of unapologetic white supremacy were only fully eliminated in 1967, with the felicitously named Loving v. Virginia decision that finally overturned anti-miscegenation laws.

Similarly, via Buck v. Bell‘s 8-1 majority vote in 1927, the Constitution upheld the explicitly eugenics-motivated involuntary sterilization of an expansively defined “unfit” population — in this case an impoverished young woman who had given birth to a child outside of wedlock. As Justice Oliver Wendell Holmes put it in his opinion, “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes …. Three generations of imbeciles are enough.” While by the mid-1970s the many states that established involuntary sterilization laws in the wake of the 1927 ruling had eliminated them locally, Buck v. Bell has never been overturned by the Supreme Court — it remains on the books to this day, with the perpetual potential for malevolent political actors to attempt to utilize it at some future point, and to point to the Constitution as the legal basis for doing so.

The Constitution failed to provide the clear basis for a federal anti-lynching law, which was never enacted even as 4,000 African Americans and others faced unspeakable torture and death at the hands of white mobs from the 1870s to the 1940s (and beyond). The Constitution did not stand athwart the discriminatory application of the New Deal, the GI Bill, small business loans, and home purchase loans and neighborhood redlining (which was baked into the FHA loan program) — in short, the Constitution did not stop African Americans from being largely shut out of the supportive benefits and wealth creation of the single greatest economic boom in US history.

The Constitution has offered no bulwark against racially and ethnically discriminatory immigration restrictions since the 19th century nor concerning making sure that the US offers safe harbor to refugees. (Ironically, the formal name of the yearly celebration is “Constitutional Day and Citizenship Day,” which, oddly, the NMSU web page that describes the celebration fails to mention or even hint at.) Even the parameters of the 14th Amendment’s birthright citizenship guarantee are perpetually vulnerable to being fundamentally changed by a hostile Supreme Court, as it is only the 1898 Wong Kim Ark v. US decision that underpins the extant constitutional interpretation.

The Constitution provided no brake on the dispossession and genocide of Native Americans and the corralling of much of the remnant population on reservations that were functionally concentration camps in the original meaning of the term; nor did it stand in the way of the US waging two foreign wars (including the one that resulted in New Mexico becoming a US territory) purely predicated on conquest and subjugation; nor did it stop the Filipinos’ desperate attempt to gain their independence from being mercilessly crushed by the occupying US military force.

The Constitution did not protect subject peoples from being denied the full panoply of civil rights — e.g. Puerto Ricans were only granted citizenship two decades after the end of the Spanish-American War, and Puerto Rico still lacks representation in Congress and plays no direct role in presidential elections, with the catastrophic effects of this systemic disfranchisement on grim display in the aftermath of Hurricane Maria.

Until 2003 the Constitution denied LGBTQ Americans the right to intimate privacy in their own homes, and until 2013 the right to marry — and the Supreme Court’s personnel changes raise the distinct possibility that the Lawrence and Windsor decisions may not go unchallenged (along with Roe v. Wade, by the way). And of course, the Constitution did not prevent the US government from imprisoning tens of thousands of Japanese Americans in textbook concentration camps during World War II.

Again, this is not to say that the Constitution is without merit (and if anyone wants to sing the praises of the Second Amendment, go right ahead — just don’t imagine that it unites Americans or inspires peoples around the world as the First does, or that it codifies a God-given rather than civil right). But the Constitution’s manifold and profound flaws demand that the academy in general and NMSU in particular be a venue for coolly examining the document and its effects, baleful in many ways, on the development of the United States over the course of the past two-plus centuries.

If this seems a touch (or more than a touch) outré, it might be helpful to think about how one should approach Columbus Day and Thanksgiving if one has an historical rather than uncritically nostalgic perspective on the ramifications of the events celebrated on those holidays. Would it be appropriate at this point to celebrate Columbus Day or leverage it for recruitment and other forms of implicitly approving outreach in New Mexico? The governor and Legislature clearly don’t think so, as earlier this year New Mexico replaced Columbus Day with “Indigenous Peoples’ Day.”

The answer is the same for the Constitution when we look from the perspective of the millions of African Americans whose forebears suffered over almost four centuries under legalized slavery and segregation, Asian Americans who were discriminated against and barred for six decades from immigrating to the US, much less from gaining citizenship, Mexican Americans who were slurred, disdained as a “mongrel people” of “inferior racial stock,” murdered in cold blood by the Texas Rangers and not infrequently treated as aliens and banished to an involuntary exile, and other oppressed segments of the population with their own painful experiences of a Constitution that provided no succor and no protection, but instead served as a formidable tool of state oppression of vulnerable segments of the population.

Going forward, NMSU should mark Sept. 17 not with uncritical celebration, but with critical scrutiny, without which a complacent America will have no knowledge of the Constitution’s grave flaws in design and implementation, and hence no will or desire to repair them. This sort of fearless scrutiny has been done before at our university — for example in 2007, when the departments of government, history and journalism convened a symposium, in the midst of the twin US conflicts in Iraq and Afghanistan, on various Constitutional controversies that was notable for its thoughtfulness and subtlety.

It can — it must — be done again at NMSU, and this time not simply by a few plucky departments banding together in an ad hoc manner to hold a minimally publicized event. These yearly symposia should be high-profile, sponsored and supported by the university’s senior leadership and the logistical, funding and communications organs they control. They should serve as a model of critical engagement with the Constitution, its few but towering strengths in the midst of many weaknesses great and small, for other higher education institutions in New Mexico and around the region and country.

This intensive, supportive engagement will certainly burnish NMSU’s reputation and raise its institutional profile. Not insignificantly, it will also contribute to preserving and strengthening the last best hope of earth.

Neal M. Rosendorf is an associate professor of US international history at New Mexico State University’s Department of Government. The opinions presented in this article are the author’s alone and do not purport to represent the views of the Department of Government or any other member of the department’s faculty.

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