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Excerpted From: William J. Aceves, Amending a Racist Constitution, 170 University of Pennsylvania Law Review Online 1 (2021) (77 Footnotes) (Full Document)

WilliamJAcevesOurs is a racist Constitution. Despite its soaring language, it was founded on slavery and a commitment to racial inequality. This vision is etched in the constitutional text, from the notorious Three-Fifths Clause to the equally repugnant Fugitive Slave Clause. And despite the Civil War and the Reconstruction Amendments, the Constitution retains these vestiges of slavery in its fabric. This is the document we reference as lawyers and celebrate as Americans. It is the document we share as inspiration with other countries. After 230 years, it is time to remove these troubling provisions from the Constitution.

This Essay offers a radical departure from prior constitutional practice. Instead of appending yet another amendment that would simply require readers to ignore the offending language, this Essay proposes a constitutional amendment that excises these words from the text. While this amendment would not abridge, enlarge, or modify any substantive or procedural rights, it would generate a document that further distances the United States from its racist past and better reflects its journey to form a more perfect Union.

The U.S. Constitution reflects compromise. It represents a middle ground between the Federalists and Anti-Federalists. It offers concessions between large and small states. It conveys agreement between anti-slavery and pro-slavery factions. While compromise can be celebrated, it can also “mean[] to accept less than some ideal.” In the Constitution, that ideal was the principle of racial equality and human dignity.

While the Constitution never uses the words “slave” or “slavery,” the shadows of these malignant words inhabit its text. Four constitutional provisions reflect a legal architecture that treats Black people as property. Two of these provisions are substantive, and two are procedural.

Article I, Section 2, Clause 3 is the notorious Three-Fifths Clause. This provision is used to determine the number of congressional representatives apportioned to a state as well as its corresponding tax obligations. Free persons, including those bound to service for a term of years, were included in the calculation of state populations. In contrast, slaves would be calculated as three-fifths of a person. Native Americans who were not taxed would not be included in these calculations. While the Three-Fifths Clause did not directly affect the rights of slaves, it served as clear evidence of their inequality. The Clause also had a profound impact on the power structure in Congress by providing slave states disproportionate political influence in the House for decades. Because of this, the slave states were even less inclined to end slavery.

Article IV, Section 2, Clause 3 represents the Fugitive Slave Clause. It provides that any person who escapes from servitude and flees to another state may not gain their freedom. Instead, that person must be returned to the custody of their owner. This clause was used on countless occasions to perpetuate slavery. Individuals who had escaped from bondage by crossing state lines were subject to capture and returned to slavery. Those who aided such efforts were subject to civil or even criminal liability. While there was some resistance to its application, this pernicious clause made anti-slavery states and the federal government complicit in slavery. This complicity even extended to the Supreme Court.

Article I, Section 9, Clause 1 limited the ability of Congress to adopt legislation prohibiting the migration or importation of slaves until 1808. Congress drafted around this restriction in 1803, when it adopted An Act to Prevent the Importation of Certain Persons into Certain States, Where, by the Laws Thereof, Their Admission is Prohibited. This statute was adopted at the request of the slave states, which were concerned with the rise of free people of color in the United States and viewed the successful slave rebellion in Haiti with trepidation. Four years later, Congress took a more significant step with the Act to Prohibit the Importation of Slaves Into Any Port or Place Within the Jurisdiction of the United States. While the statute was drafted to end the slave trade in the United States, the practice of slavery remained legal.

Finally, Article V addresses the process for constitutional amendments. These amendments can be proposed for state ratification by a two-thirds vote in both Houses. Alternatively, amendments can be proposed through a constitutional convention called by a two-thirds vote of the states. Either process then requires approval by three-fourths of the states. Reflecting one of the central compromises to the Constitution, Article V prohibited any amendment to Article I, Section 9, Clause 1 until 1808. Working in tandem, these provisions ensured that the slave trade would remain legal in the United States for at least twenty years.

Following the Civil War, the Reconstruction Amendments were adopted. The Thirteenth Amendment was adopted to affirm the military victory at war's end by abolishing slavery and involuntary servitude in the United States. It also ended the relevance of the Fugitive Slave Clause. The Fourteenth and Fifteenth Amendments ended the significance of the Three- Fifths Clause. However, the Reconstruction Amendments did not remove either clause from the constitutional text. Accordingly, these provisions remain part of the Constitution even though they have been drained of their legal meaning.

While slavery and segregation have ended, the Black community continues to struggle against oppression as it confronts structural racism. Other people of color share a similar fate. The regime of structural racism--where public and private norms, rules, and institutions reinforce and perpetuate racial inequality--survived the civil rights battles of the 1960s and has continued into this century. Unlike its predecessors, which lived openly in law, structural racism is pernicious because it hides in plain sight, even within the pillars of the legal system. It does not require animus. Yet, it still bestows privilege to whiteness and burden to color. Structural racism traces its origins to a racist Constitution.</p

[. . .]

Since 1789, there has been a moral reckoning on the horizon of history. Each step in America's journey to racial equality and human dignity reflects this moral reckoning. And yet, the horizon of history still beckons. Unlike the removal of Confederate monuments and symbols, the Twenty-Ninth Amendment does not represent damnation memoriae--it is not a condemnation of memory. The original language of the Constitution will always exist in our history. The Twenty-Ninth Amendment represents nova creatio ex memoria--the creation of new memory.

It is often said that slavery is America's original sin. But if America was born in original sin, its current citizens need not suffer from the crimes of their founding fathers. The Twenty-Ninth Amendment--which would remove the racial ink stains written into the constitutional text--offers a deeply meaningful and symbolic step toward modernity.

Dean Steven R. Smith Professor of Law at California Western School of Law.

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