Anyone with a basic knowledge of American history should know that the original American patriots who framed the U.S. Constitution allowed the institution of slavery to be enshrined in the very documents that provided a charter for universal human freedoms and rights.
It is also widely known, or should be, that the court system in this country, very much including the U.S. Supreme Court, has permitted and even perpetrated some shocking injustices to the descendents of the slaves whose liberties were denied in this nation’s founding documents.
However, not many of us have done the gritty, tedious work with the primary source material to understand just how the slavery deal was cut by the founding fathers and how justice for African Americans was perverted in the courts.
Lawrence Goldstone has done this hard homework for us, in two books whose titles speak eloquently for themselves: Dark Bargain: Slavery, Profits and the Struggle for the Constitution (Walker & Company, 2005) and Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court, 1865-1903 (Walker & Company, 2011). Both books belong in the hands of anyone seeking to understand the historical facts behind unequal opportunity under the law in the U.S. from a racial perspective.
The St. Louis American spoke to Goldstone about what he learned in researching and writing these important books – and what people can do today to protect and further what rights for equal opportunity we do possess.
The St. Louis American: Were there any revelations to you in researching and writing these books?
Lawrence Goldstone: In one of my other lives, I worked for a Wall Street trading company filled with the sharkiest of the sharks. When I read about the constitutional debates, it occurred to me what I was reading was more similar to meetings at a Wall Street trading company than generally accepted notions of what went on in that room in Philadelphia. They were not a bunch of latter-day Athenians debating philosophy. They were a bunch of people just like us with social and economic interests that they were there to protect.
The St. Louis American: These are much-discussed historical subjects. What made you think you had something new to contribute?
Lawrence Goldstone: Most historians don’t really want to get into the guts of the legal system and deal with cases, whereas most constitutional law scholars only want to deal with cases. When you take a multi-disciplinary view, you see these events in a different way, in a way that makes sense of these historical figures as people we can recognize.
As for Inherently Unequal, there is now a whole school of justices and legal scholars who believe they know the one and only true meaning of the Constitution. But much of the Constitution was written so as to be intentionally vague. It was written not to give specific powers but to give broad powers to their party, the Federalist Party, so they could run the country and do what they needed.
John Marshall Harlan’s dissent on those classic civil rights cases conform to the notion of fundamental justice we have today. But Harlan would be considered an activist, which for the Tea Party is just this side of a Communist. And the justices who ruled in favor of the disenfranchisement of African Americans would be called strict constructionists.
What we had in the 19th century, which I describe in Inherently Unequal, was a group of white justices who took the 14th Amendment and the 15th Amendment, both of which were written to benefit and protect newly freed slaves and African Americans in general, and in a series of decisions they rendered them completely useless for enforcing civil rights. Then they turned around and took those rights meant for black Americans and applied them to corporations.
So even a constitutional amendment is only words unless it is treated within the spirit with which it was written, and that only happens if people fight to make it happen. So African Americans cannot ever take refuge behind a law or the election of a black president or an appointment to the Supreme Court. You have to fight for liberty and equal rights. It’s constant.
The St. Louis American: Reading Dark Bargain, I’m left feeling there weren’t any good guys at the Constitutional Convention. Maybe when you look that close at history, there are no heroes. Are there any good guys in Inherently Unequal?
Lawrence Goldstone: John Marshall Harland from Kentucky. His father was a slave-owner, he was a slave-owner. He was appointed to the bench by Rutherford B. Hayes as a payoff for bringing Kentucky to the Republican Party in the 1876 election. Not much was expected from him. And he turned into being an enormous champion of individual rights. He was the only dissenter in Plessy v. Ferguson and Williams v. Mississippi. He was the one who coined the famous phrase, “The constitution is color-blind.” That was not what was expected of him.
To me, heroes are people who are capable of growth. Harlan changed, he learned, he grew. He was a hero. The irony is, Harlan’s dissent was hailed as two of the great expositions of American liberty, but constitutional law professors call him sentimental. The very values he expressed are the opposite kinds of things we hear from Justices Roberts, Scalia, Thomas and Alito, the right wing of the court. They find it abhorrent. John McCain cried out about legislating from the bench. Harlan was legislating from the bench! He tried to legislate equality and justice from the bench – and he failed.
Because the Constitution was ratified and became our key legal document, people who were opposed to the Constitution because they thought bad things would happen as a result of it have been lost to history, but many of the things they said were right. There was a guy from New York who wrote under the name Brutus (no one knows who he was) who said the court system would not guard people’s rights, that it really would be a force for conservatism. He was right. Throughout history, only from 1958 to the mid-1980s was the court a liberal body. For most of history, the Supreme Court protected corporate interests and white interests. That guy Brutus, who wrote a series of essays about the court’s potential for despotism, nobody reads. Alexander Hamilton, everybody reads, but he turns out to be completely wrong!
The St. Louis American: The things you write about happened long ago. How does any of it inform who and where we are today?
Lawrence Goldstone: Dark Bargain got a very bad review from Gordon Wood in The New York Review of Books. He said I didn’t understand that it was a different period. I say it is absolutely clear from reading history that people in the late 1700s and mid-1800s knew slavery was wrong. The notion that it was a different time is wrong. It’s hooey.
The way we know they knew it was wrong is all the convoluted ways they tried to explain it away. They went to scripture, they went to sociology. But people knew slavery was wrong, and what we see is people trying to explain away something they knew was wrong because it’s in their own self-interest.
It’s very important to understand our history never changed. People work in their own self-interest, and we should be surprised if they don’t. In order to balance that out, people who don’t have as much power have to harness their power. For example, with the exception of the Obama presidential election, blacks in America tend to vote at about the lowest level of all groups in country. You can’t do that. Change won’t come because others are doing it because they think it’s the right thing to do. Change comes because people make change.
