Does the Constitution Protect All Americans?

ConstitutionThis weekend, an appointed committee of ABA members will meet to vote on the Silver Gavel Awards. We’ve written about them here before. The “Oscars of the legal profession,” the Silver Gavel Awards recognize the best work in media and the arts that help foster the American public’s understanding of the legal system. You can see all the finalists here. For this article, I want to talk about the books. As a member of the ABA committee, I read all five of the nominated books. Each book challenged me with the same question: does the United States Constitution protect all Americans? In each book, the answer was, “Not exactly.”

Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck

Imbeciles tells of one of the ugliest Supreme decisions in history, Buck v. Bell (1972). In five short paragraphs, Justice Oliver Wendell Holmes upheld the right of the state of Virginia to sterilize “feebleminded” citizens of the United States. “Three generations of imbeciles,” he wrote, “are enough.”

Read through the book however and you realize the number of issues with sterilizing anyone, notwithstanding the actual issue of sterilization. First, imbeciles were not measured by any accurate intelligence test. Second, no one in Ms. Buck’s family was actually defined as an “imbecile.” And finally, the Supreme Court opinion took place in the middle of a eugenics flurry where many American Protestants of Nordic and British descent believed that eugenics was the solution to the ethnic transformation happening in America. And for a time, it worked.

Between 1907 and 1983, almost 70,000 Americans in 32 states were involuntarily sterilized. We are therefore only a few decades removed from a time when many Americans – including our lawyers, presidents, and the U.S. Supreme Court – thought we should permanently sterilize the “undesirables,” immigrants, minorities, unmarried mothers, homosexuals, Jews, Catholics, disabled persons and, of course, feeble-minded imbeciles, to save America. And unlike many other Supreme Court decisions, Buck v. Bell is still good law. It has never been overturned.

Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s

Twenty-six years after Buck v. Bell, the Supreme Court faced another decision that affected the lives of the “undesirables.” For hundreds of years, poor people (also, again, gays, hippies, minorities, mentally unwell, and unmarried women) were arrested under overarching laws against vagrancy, defined as being someone in any of those categories, and having the bad luck of having the police find you in your driveway, on the street, in your bedroom, by the bus stop, at the lunch counter, or with any type of criminal past at all.

This story, however, has a different ending than Buck v. Bell. In two decades, from the first Supreme Court case in 1953 to the last in 1972, civil rights lawyers got vagrancy laws wiped from the books. How? Due process primarily; vagrancy laws were too vague to be enforced. Now, of course, vagrancy laws have been replaced by more narrowly-defined “street arrest” laws. However as the book demonstrates, the movement to eradicate vagrancy laws united many of the disparate protest groups of the 1960s and 70s, forcing an answer to the question that echoes down from the eugenics movement, “Why is my difference so dangerous to you?”

Blood in the Water: The Attica Prison Uprising of 1971 and Its Legacy

The Pulitzer Prize-winning Blood in the Water introduces us to a famous prison uprising that many are familiar with and then goes beyond that, to discuss the 40 years of legal wrangling that followed the uprising. What happened to the men and wives and hostages and politicians who were involved in that five-day odyssey? It might leave you with more more questions than answers. Riots or uprisings? Prison labor or slave labor? Punishment or torture? Criminal or poor?

Here’s what you might also learn, about the prisoners, the mainly black men who were in Attica, the mainly white men who were their wardens and executioners, and the extensive cover up that took place for decades afterward.

For many, it didn’t matter if the “undesirable” prisoner was a murderer or a kid who had cut open a convertible top. It didn’t matter if he was a rapist or had stolen a bike. During the retaking of Attica, and especially in the months when the prisoners were put back in their jail cells, these men were all sub-humans whose lives did not matter. When they were starved and beaten and isolated and shot and killed and forced to crawl through mud and excrement and constantly, endlessly, called demeaning racist names, the message was the same, “You do not matter.” Yes, the Attica uprising ushered in some prison reforms, but it also heralded a new and still unfolding era of mass incarceration. Has anything really changed since Attica? Will anything change in the next forty years?

Evicted: Poverty and Profit in the American City

Which leaves us with the fourth book. I have no words to describe how profound an experience it was reading Evicted: Poverty and Profit in the American City. Another Pulitzer Prize winner about the enormous gulf between the poor and everyone else in America, in this case, Milwaukee.

The book is about how every single American should have access to affordable housing and the reality that many do not. Having almost all of your $600 or $800 monthly income go toward renting a barely habitable apartment. Knowing that the trailer park owner living in his comfortable suburb makes half a million a year renting out squalid trailers to poor white people addicted to opioids and heroin. Growing up in the black ‘hood where your mom might be addicted to crack or might be working triple shifts, but either way can’t spend six hours in housing court to stop from getting evicted. Deciding between calling the police on your abusive boyfriend or living with the abuse because calling the police might get you and your kids evicted. Having to call 90 different landlords as you face eviction before you even get to see one apartment in person, and you’re rejected because you are someone who has been evicted.

Not only is Evicted an excellent book, it also offers actual solutions. We need more lawyers for civil defendants and we need housing vouchers for everyone. Those are two tangible steps to addressing the housing crisis and all that comes with it.

The Farmers’ Coup: The Making of the United States Constitution

So here’s what I found out. If you’re poor or a minority or in another group stamped “undesirable” in this nation’s history, you’re more likely to be sterilized, to suffer in a horrifically run state prison, to be evicted into a cold Milwaukee winter, and to be arrested for simply being. And here’s what else I found out: it also might be the case that the Constitution of the United States of America was written to exclude people exactly like you.

Why do we have a congress? Why an electoral college? Why were state legislatures the only ones who could appoint senators? Why the Supremacy Clause? Why does the winner of the popular vote not become President of the United States? Why does the federal government have so much power? Why lifetime appointments for federal judges? Why are there no term limits in Congress? And why is the Constitution so difficult to amend?

The Framers’ Coup: The Making of the United States Constitution is a very long and detailed explanation of why those decisions were made, and how they affect the life of every American today. Many of those decisions were made almost arbitrarily or based on disputes that lasted a moment. But at their heart, the argument author Michael Klarman makes is that many of these undemocratic decisions were made by the landed and slave-owning elite, specifically to exclude the uneducated populace from participating in their government, to exclude the undesirables.

We shouldn’t idolize and hero worship our Founding Fathers, Klarman argues, but rather we should recognize them for who they were: with their “interests, prejudices and moral blind spots,” they were an elite group who believed in the “natural aristocracy of virtue, talent and education [of] men like themselves” and wanted to hold on to their power to the exclusion of a number of groups. And here’s his conclusion:

“[T]he Framers held certain values that are abhorrent to most Americans today. Most of them accepted that human brings could be held as property, and they believed that African Americans and Native Americans were inferior in various ways to Caucasians. None of them thought that women should enjoy full political or civil rights. Most of them doubted that poor people should be permitted to vote or hold political office … [They] were influenced by the passions and prejudices of their era. How likely is it that persons holding values so radically different from our own would have written a Constitution that perfectly suits our needs today?

Does the Constitution Protect All Americans?

In 2016, for the first time in American history, babies of color were born the majority. By 2060, more than half of all Americans will belong to a minority group. At the same time, 43.1 million Americans live in poverty. 1 in 35 American adults is in the prison system. A third of black men will be imprisoned at some point. Mental health facilitates and drug rehabilitation centers are not nearly enough for the number of people who need it. As we celebrate the 150th Anniversary of the ratification of the 14th Amendment, these books force us to ask whether we live in America that still excludes people deemed undesirable by our Founding Fathers. Read these Silver Gavel books and let me know what you decide.

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Michelle Silverthorn

Michelle Silverthorn

After spending seventeen years living in the Caribbean, Michelle undertook a number of around-the-world detours before ending up at the doorstep of the Commission, including four years as a general litigator in New York and Chicago. She remembers pretty much everyone she’s met in her travels but she would especially like to meet again the passengers on a January 2001 flight from Miami to JFK. At the pilot’s request, they donated enough money for Michelle, who had her wallet stolen, to get back to college safely. She would very much like to tell them all thanks.
Michelle Silverthorn

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