June 15, 2012

Happy Juneteenth

By Happy Juneteenth

America has no official holiday to commemorate the end of slavery. This is pretty shocking, when you think about it. Slavery was not only the most brutal violation of American values our nation ever endured—a sustained assault on the principles of equality, liberty, and other rights—but also the source of much of the law under which we live today. The slave power made war on the freedom of speech, the freedom of the press, the freedom to petition the government for a redress of grievances. It even made war on the principle of states’ rights that it claimed to cherish. Leading American political leaders, acting to protect slavery, uttered thoughts that any respectable citizen today blushes to read. Slavery’s proponents at last began a bloody civil war, in which nearly two percent of the entire population died, before slavery was at last abolished. And for another century after that, a social situation prevailed that was in many respects indistinguishable from slavery.

Yet, astonishingly, law students in American law schools hardly ever study slavery law. Many even graduate without even reading Dred Scott, the most important legal decision in the history of the Constitution. And it won’t do to say that that law is no longer relevant. Slavery touched everything in American life, and its fingerprints are everywhere. The statue on the top of the U.S. Capitol Building, for example, wears an absurd crested helmet instead of the soft cap that the sculptor originally designed, because Mississippi Senator Jefferson Davis was offended at the cap—a well-recognized symbol of the liberated slave. Our law of federalism is still governed by Prigg v. Pennsylvania, a case that involved that state’s effort to resist federal slave-catching policy. More importantly, as I explain here, the doctrine of “residual sovereignty”—the notion that, unlike the federal government, state governments may do whatever they like, so long as they don’t violate explicit constitutional provisions—still revolves around poles originally set by legal debates about slavery. And the Fourteenth Amendment was written to renew the nation’s commitment to the classical liberal principles of the Declaration that had been so awfully betrayed by supporters of slavery. Where slavery’s defenders had claimed that freedom is a gift that the government gives to people when it chooses, the Fourteenth Amendment was meant to return American institutions to the correct principle—that freedom is the basic right of all people, and that government may limit freedom only in accordance with certain strict principles. Sadly, legal precedents have drifted from that principle so dramatically that many of the leading intellectuals of our day think once again that freedom is a privilege that government gives us whenever it’s convenient for the state. And perverse readings of the Constitution have flowed from that basic misconception to dominate our lives today.

In the decades before the Civil War, Abolitionists refused to celebrate July 4th because the tolerance of slavery undermined the meaning of that day. They chose instead to celebrate August 1st, the date when Great Britain ended slavery in its West Indian colonies. But this weekend, in many communities across the country, Americans will celebrate Juneteenth, an unofficial holiday that celebrates slavery’s end; the date commemorates the announcement of abolition in Texas in 1865. Look to see whether there’s a celebration in your neighborhood. It’s sad that Juneteenth is generally regarded as a holiday only for black Americans, instead of a day of liberation for all American people. The world, I think, cannot have too many holidays celebrating freedom. This weekend, I hope you’ll take a moment to think about the legacy of slavery and its end—and about the renewal of our constitutional faith in the principles of the Declaration of Independence.

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