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Which parts of the US Constitution have aged least well?

In the first post of a series, Jennifer Victor explains two of the biggest mistakes baked into US government from the start: slavery and suffrage.

There has been a fair amount of public discourse lately about democratic reforms. Pundits, bloggers, and editorials have discussed the substance and importance of topics such as the Electoral College, the presidential nomination system, slavery reparations, and the balance of power between the executive and legislative branches. We here at the Mischiefs of Faction have a lot of thoughts about the fundamental building blocks of American politics and government. So today we are rolling out a series of short blog posts offered by a number of writers on our permanent staff and a few guests. The question we will speak to: Which parts of the Constitution have aged least well?

In this series, you can expect to hear from:

  • Jennifer Victor on slavery and suffrage (in the post below)
  • Seth Masket on the national popular vote movement
  • Julia Azari on the presidency and problematic amendments to the Constitution
  • Greg Koger on the malapportionment in the Senate
  • Jonathan Ladd about the problematic elements of the Electoral College and the US Senate, and how they aren’t the same problem
  • Hans Noel on the possible motivations of reformers
  • Richard Skinner on the natural born citizen requirement
  • Zach Elkins (MoF guest) on how US constitutional elements fare relative to other democracies’

I (Jennifer) am going to start off the series by picking on two parts of the US Constitution that have not held up well over time: slavery and suffrage.

The framers of the Constitution famously punted on the question of slavery. During the deliberations at the Constitutional Convention, it became obvious that if the republic was going to stand together as one nation, there would have to be a compromise regarding slavery.

[Failing to abolish slavery in the Constitution] was an immoral and repugnant choice that has scarred the nation permanently.

Representatives from the South were simply not willing to join a nation that outlawed the source of their fortune. Abolitionists decided to choose the republic over the enslaved people and agreed to a compromise that accepted their status as less than full humans. It was an immoral and repugnant choice that has scarred the nation permanently.

By punting on slavery, the framers set the stage for the American Civil War to take place 72 years later. It remains the deadliest war in US history, taking more than 650,000 Americans’ lives, which was around 2.1 percent of the population at the time. That’s what happens when your own citizens are on both sides of a violent four-year war.

There are those who argue that the framers’ punt on slavery was worth it; that the republic known as the United States of America would probably not have been formed if they hadn’t. This is a subjective judgment, and no one knows what the counterfactual universe would be if things had gone differently in the Constitutional Convention, but it’s important to note that such a view is a decidedly white perspective. Those whose ancestors did well under the republic that formed are much more likely to see the slavery trade-off as having been worth it, but if your ancestors were enslaved, or perished in the war, your view of the compromise may be much different.

Either way, slavery remains America’s “original sin,” and we have never fully compensated or shown appropriate contrition for the role the US played in the human calamity that is institutionalized human slavery. Many scholars have shown that the roots of much of our politics today, particularly on matters of race, can be traced back to this original tragedy. The fact that the framers did not outlaw slavery in the Constitution has left a lasting legacy of social strife, violence, racism, and inequality that we have not yet escaped.

When the Constitution was ratified, only 6 percent of the population was eligible to vote

Another part of the Constitution that has not aged well is suffrage. The right to vote is fundamental to a democracy, but the Constitution did not guarantee voting rights for its citizens. Rather, it allowed states to set their own voting rights rules. At the time of ratification, most states only allowed white male landowners the right to vote. By some estimates, this was about only about 6 percent of the population. Through the first half of the 1800s, most states lifted the restriction on land ownership, which expanded suffrage to most white males in most places.

In 1870, the 15th Amendment to the Constitution was ratified, technically expanded the right to vote to formerly enslaved people who were newly freed, but the era of Jim Crow laws in the South, where most African Americans lived (and still live today), prevented much of this population from exercising their suffrage rights.

Wyoming was the first state to grant women the right to vote, which they did first as a territory in 1869 and then as a state in 1890. While some states granted women the right to vote through the end of the 19th and beginning of the 20th centuries, suffrage was not guaranteed to women until the 19th Amendment was ratified in 1920, and when it was ratified, it really only applied to white women.

By 1965, when the Voting Rights Act was signed into law, suffrage finally expanded to disenfranchised African Americans and the right to vote became more fully enshrined and enforced in the US Constitution and law.

The US reached peak democracy between 1965 and 2013

In 2013, the Supreme Court ruled in Shelby County v. Holder(570 US 529) that some parts of the Voting Rights Act were no longer necessary. The Court ruled that parts of the 1965 law were unconstitutional and lifted the restriction on some states that had been required to receive federal approval before making changes in their voting laws. Since then, several Southern states have made changes to their voting laws, and suffrage is again threatened in the American South.

Some scholars define democracy by the proportion of a country’s citizens that have voting rights. It is not unreasonable to argue that the US reached peak democracy between 1965 and 2013.

With regard to slavery and suffrage, it may be more accurate to say that the US Constitution was too silent, rather than wrong, but our modern politics makes it abundantly clear that the Constitution did not provide the best footing on these most fundamental rights in a republican democracy. On these topics, the Constitution has not aged well.

This post is part of Mischiefs of Faction, an independent political science blog featuring reflections on the party system.

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