Balkinization: The Constitution and Race

The Constitution and Race

Mark Graber

As I noted in a previous post, I have been having an exchange with Professor Michael Klarman over at the American Constitutional Society. My last post seems particularly relevant to some concerns of Balkinization, so as either a public servive or, more likely, pathetic self-promotion, I've reproduced an edited version.

Michael Klarman’s work on the constitutional history of race correctly notes that American racial politics have historically been subject to periods of polarization, and that this polarization has had surprising consequences. Every major burst of civil rights activism in the United States has been preceded by an intense period of polarization, marked by increased militant commitments to the racial status quo in the south. To an extent rarely commented on, the Constitution of the United States may be responsible this polarization and may also bias ordinary politics toward more conservative racial views.

The Constitution of the United States promotes polarization by electing all members of the national legislature in a local election. Members of the House of Representatives are elected in districts entirely within states and senators are elected by each state. Whenever public opinion is divided by section, this constitutional system for staffing the national legislature generates a Congress more polarized than the general public. Consider the structure of elections in 1855. As numerous historians have demonstrated, southerners competed against each other to prove who would most vigorously protect slavery. Northerners competed against each other to determine who would most vigorously condemn the slavepower. Moderates existed in both regions. More than 40% of all southerners in 1856 voted for Millard Fillmore, who opposed making Kansas a slave state. Stephen Douglas enjoyed substantial northern support in 1860. The problem moderates faced was that the sizable minorities of moderates in each state had no constitutional means for joining forces.

A similar phenomenon occurred during the Civil Rights Era. Southern politicians took increasingly reactionary positions on race in part because every southern officeholder, from the governor to members of Congress, faced a local electorate. Running for office in this political environment, former slave state candidates unsurprising concluded that all doubts should be resolved in favor of segregation. Had some southern candidates developed political ambitions required obtaining some northern votes, southern politics during the 1950s and 1960s might have been more moderate.

When not polarizing the national legislature, the constitution provides boons to white supremacists and white citizens. The infamous three-fifths clause of the Constitution sharply increased southern representation before the Civil War. If southern representation in the Electoral College and House of Representatives had not been augmented by human bondage, John Adams would have defeated Thomas Jefferson in the 1800 election, the Kansas-Nebraska Act would not have become law, and other pro-slavery measures might have been defeated. While the 13th Amendment practically repealed the three-fifths clause, studies demonstrate that the constitutional system of representation continues to harm persons of color. Equal representation in the Senate substantially augments the voting strength of white citizens. Persons of color, Hispanics in particular, tend to live in such high population states as New York and California. States such as Wyoming and Idaho, whose population is disproportionately represented in the Senate, are among the least racially diverse jurisdictions in the United States. Frances Lee and Bruce Oppenheimer in Sizing Up the Senate detail how the overwhemingly white citizens of small rural states obtain dramatically disproportionate shares of the federal largess. State equality in the Senate helps explain how such racial conservatives as Clarence Thomas sit on the Supreme Court. If Senators had the same number of votes as the population of their states, the Thomas nomination would have been defeated.

One salutary development in contemporary constitutional thought is a return to thinking about how the structure of constitutional institutions influences constitutional policy making. How the equal protection clause is interpreted depends in part on the opinion of nine Supreme Court justices, but also on the processes by which the Supreme Court and the national government is staffed. Keep public opinion constant, but change the constitutional rules for staffing the national government and the constitutional politics of race will change. Proportional representation in the Senate would sharply decrease disparities between federal funding for white citizens and citizens of color and increase the obstacles racial conservatives face after receiving presidential nominations to federal courts. Increase the number of officials who must campaign nationally, and racial politics are likely to moderate a good deal. Whether such moderation is satisfactory, of course, is an open question. Still, Americans should recognize that the meaning of Brown in years to come will be as much influenced by Article I and Article II as by the equal protection clause of the Fourteenth Amendment.

Posted 4:00 PM by Mark Graber [link]

Comments:

If southern representation in the Electoral College and House of Representatives had not been augmented by human bondage, John Adams would have defeated Thomas Jefferson in the 1800 election, the Kansas-Nebraska Act would not have become law, and other pro-slavery measures might have been defeated.

There's an implicit assumption here, namely that if there had been no 3/5 clause, the alternative would have been representation on a white's only basis. There is, of course, the possibility that slaves would have been counted 5/5, as was argued in the Convention by SC and GA. That would have thrown the election to Jefferson (and every other Southern candidate).

There's also the chance that, with no 3/5 clause, the Senate, like the House, would have been proportional to the white population. In that case, the election of 1800 would have split the EC dead even: 69-69.

I recently read on HNN (I believe -- perhaps Prof. Dudziak can correct me that it was her blog instead) that the latest count of the popular vote for that election shows that Jefferson won handily.*

Southern politicians took increasingly reactionary positions on race in part because every southern officeholder, from the governor to members of Congress, faced a local electorate

This is, in substantial part, the real problem. Racial politics are not spread evenly throughout the nation. They're concentrated in a particular section. This means that Madison's theory in Federalist 10 (that factious politicians would find it hard to work together in a large republic) doesn't work as well as he anticipated. This would be less of a problem if race were less important an issue, but because it is the moderating effects of others can't have as much effect.

*Yes, they're still counting it. They didn't count it back then, so some VERY dedicated people have spent the last 45 years (!) reconstructing it.

# posted by

Mark Field : 4:49 PM

In this regard, I wonder if you could comment on the attempt to provide some measure of racially proportional representation in the House under Sections 2 and 5 of the Voting Rights Act. I have no problem with a proportionally representative Senate, but I have major concerns about vote dilution law. Also, what's your position on the proviso in Article 5 that seems to bar any amendments that would provide for PR in the Senate? Do you think that that could be circumvented by amending Article 5? Some would argue that that in itself would be a violation of Article 5.

# posted by

Asher : 5:14 PM

Had some southern candidates developed political ambitions required obtaining some northern votes, southern politics during the 1950s and 1960s might have been more moderate.

You mean like LBJ or Estes Kefauver or George Corley Wallace?

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