There is a consensus among some constitutional scholars and historians that the federal government of the United States has usurped the rights of the states and pushed through various Bills and amendments to the United States Constitution that are contrary to the designs and desires of the founding fathers.
It is interesting that the treatment of black people in America sheds new light on whether the Constitution is a concrete document which was intended by its framers to act as a solid immovable object with little room for development. Or to resemble the characteristics of living organism; supple and capable of growth according to new challenges, phenomena and interpretations.
The controversy of a strong central government versus an autonomous collection of states goes back to the early debates between Thomas Jefferson and Alexander Hamilton. Jefferson favored a loose confederation of states with all operational power contained therein, while Hamilton was a fierce advocate of a strong national government with the authority to impose its will over the states.
It is no secret that blacks have suffered under both forms of government, whether state or federal, with federal troops being utilized to protect the institution of slavery against slave insurrections and escapes; and the states maintaining a iron hand of bondage and exploitation against blacks along with a desire to expand slavery into new territories which led to the Civil War .And although the South lost the military conflict, the ideological battle continues to the present day.
States rights advocates contend that the 13th and 14th and 15th Amendments to the Constitution (the statutes that sought to end slavery and guarantee blacks citizenship and voting rights) are unconstitutional because they were not lawfully ratified by a majority of the states, but enacted arbitrarily by a despotic federal government in the aftermath of the defeat of the South in the Civil War.
Even before the war, there was a general belief in all areas of government that blacks were not citizens and never intended to be included in the lofty language and principles contained in the Constitution and the Declaration of Independence. Thus, the US Constitution contained "slavery clauses" in Article 4, Sections 2, and 4 and referred to some as only "three fifths persons." And in the infamous Dred Scott Decision of 1857, Supreme Court Justice Taney wrote in his decision pertaining to Constitutional protections of blacks in America, "We think they are not, and they are not included, and were not intended to be included. . . .accordingly a Negro of the African race is an article of property, and held and bought as such." 1
Professor Kevin Gutzman writes, ". . . the Fourteenth Amendment was never constitutionally proposed to the states by Congress and never constitutionally ratified by the states and yet today it stands as the most significant part of the American legal system." 2
The celebrated Supreme Court decisions of the 1950's (Brown V. Board of Education) as well as the Civil Rights Acts of the 1960's, and the United States Codes are also criticized and believed by some historians to have no Constitutional authority.
"The debate over the Civil Rights Act of 1964 concerned the act's constitutionality," according to Professor Gutzman. "After all, the Supreme Court had ruled in the Civil Rights cases of 1883 that the nearly identical Civil Rights Act of 1875 was an unconstitutional attempt by congress to regulate matters reserved exclusively to the states." 3
In direct opposition to this, black advocates like Supreme Court Justice, Thurgood Marshal and renowned writer, speaker and abolitionist Frederick Douglas see in the Constitution a document written with both the intention and the possibility to grow with the conscience of the nation. Although Marshal (unlike Douglas) considered the document flawed and acknowledged that it stipulated support for the institution of slavery; yet he believed that even this was open ended and that there are no final unredeemable clauses in the Constitution to stifle its growth and development to a higher calling of liberty and justice for all regardless of race, class or gender, or as Dr. Martin Luther King Jr put it so eloquently "to live out the true meaning of it's creed."
Marshall explained in a speech delivered in 1967:
"What is striking is the role legal principles have played throughout America's history in determining the condition of Negroes. They were enslaved by law, emancipated by law, disenfranchised by law; and finally, they have begun to win equality by law. Along the way, new constitutional principles have emerged to meet the challenge of a changing society. The progress has been dramatic, and it will continue." 4
Frederick Douglas while realizing that the Constitution had been utilized to buttress slavery nevertheless believed that it was essentially a paper of universal freedom and human rights. For Douglas, it is nonsensical to suppose that the founders did not realize that blacks were full human beings. Slavery was primarily an institution of economic power and convenience, and blacks were targeted because they were more available and accessible for the slavers and because they were skilled artisans, agriculturists, inventors' builders and cultivators of civilization. Thus to Douglas the Constitution as it alludes to blacks or any other race or group is color-blind, and never explicitly condemns blacks to slave status but, includes all people in its noble principles of justice and liberty.
It is well known that many of its framers and signers of the Constitution and the Declaration of Independence (Washington, Jefferson and Franklin are the most prominent) were torn between being financial beneficiaries of slavery, while inwardly detesting it and knowing that it was an offense against man and God. Thus to Douglas, it is just as important what the Constitution did not say about slavery than what it implied. In a powerful essay written in his newspaper, The North Star, Douglas observed:
"Neither in the preamble nor in the body of the Constitution is there a single mention
of the term slave or slave holder, slave master or slave state; neither is there any
reference to the color or the physical particularities of any part of the people of the
United States. Neither is there anything in the Constitution standing alone, which
would imply the existence of slavery in this country." 5
Taking the above interpretations of the Constitution into accord, the document can (and has) been used either to promote bondage and exclusion of blacks on the one hand, or as a catalyst to liberate and empower them with all of the rights contained within on the other hand.
The role played by the states and its record of treatment of its black inhabitants, is far less dubious. History reveals that it was the states and the adherents of states-rights that were also the most vicious and relentless promoters of slavery and black subjugation.
While the federal government (although usually no great benefactor of black and oppressed people) has stepped up in several instances to check the ebb and flow of white vigilante mob violence, the imposition of state sanctioned neo-slavery and the methodical theft and plunder of black owned land and resources. Moreover it as the actions of the federal government, not the states, which allocated land and precepts of law that loosened the shackles of Jim Crow, and provided a foundation for the liberation of America's black inhabitants.
Steven Malik Shelton is a writer and human rights advocate. He can be reached at:email@example.com
 The Dred Scott Decision.
 Kevin R.C. Gutzman, J.D.., Ph.D "The Politically Incorrect Guide to the Constitution, Regenery Pub. (207) p. 133
 Ibid. p. 199
 "Great Speeches by African American," edited by James Daley Dover Pub (2006) p.141
 "Frederick Douglas: Selected Speeches and Writings," edited by Phillip S. Foner, Lawrence Hill Books, (1999) p.353
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