Dan Siegel Original Politics

Dan Siegel on Banning the Constitution

As government officials crusade to ban books, we must evaluate what from decisions by the United States Supreme Court must be erased from our history books as well.

By Dan Siegel / Original to ScheerPost

The U.S. is experiencing one of its periodic waves of book banning, with legislators, governors, and even country music singers leading crusades to protect our children from harmful feelings and the discomfort caused by exposure to the written word. Politicians in Tennessee, who seem determined to finally come up with an issue on which they can claim national leadership, are banning the Pulitzer Prize winning graphic novel “Maus” because of its, yes, graphic depictions of the Holocaust. Trigger Warning! The Holocaust was violent, horrible, disgusting, obscene, and upsetting.

But if the book banners in Tennessee, Texas, South Carolina, Missouri, Virginia, Florida, Oklahoma, and Wyoming are serious about terrorizing teachers to keep them from presenting lessons suggesting that racism is an entrenched element of America’s history, they need to worry about more than Toni Morrison’s “The Bluest Eye.” Start with the U.S. Constitution, a big seller since 1787, whose provisions enshrining slavery are likely to cause severe nightmares for our more sensitive children. And while they are at it, there are quite a few decisions by the United States Supreme Court that must be erased from our history books as well.

​Article I, section 2, of the Constitution is careful to cloud its references to slavery in euphemisms:“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” Teachers must be very careful to avoid mentioning who those “other Persons” might be.

They should also avoid being explicit about whom Congress was empowered to suppress as it exercised its authority expressed in section 8 of Article I: “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”

​Section 9 is also problematic, but I am sure Texas officials can utilize their market power over schoolbook publishers to arrange for the deletion of this language regarding those same “Persons:” “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.” On the other hand, the ability to impose a tax on slaves might save section 9 from worry.

​Finally, Article IV, section 2 insured that those same “Persons” did not depart from their owners’ jurisdiction: “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.”

​As much as Florida legislators may look forward to the cancellation of Roe v. Wade, they must be diligent to insure that children’s minds are not disturbed by certain Supreme Court decisions. In 1857 the Supreme Court was dominated, as it is today, by justices loyal to their imagination regarding the “original intent” of the framers of the Constitution. Chief Justice Roger Taney, an owner ofPersons from Maryland, ruled in Dred Scott v. Stanford that an enslaved person brought into a state where slavery was forbidden did not become free, even after living there for five years. Taney ruled that both enslaved and freed Africans “were at that time [when the U.S. was founded] considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.” Taney concluded that neither freed nor enslaved Africans were or could be citizens, could not be allowed to vote, and had no right of access to the courts. The Supreme Court has never overruled the Dred Scott decision, which fortunately was superseded by the passage of the Thirteenth Amendment in 1868.

​The restricted limits of the Thirteenth Amendment were emphasized by the Supreme Court in its 1896 decision in Plessy v. Ferguson. The Court concluded that a Louisiana law that allowed for the criminal prosecution of a light-skinned Black man who insisted on riding in a railway car reserved for whites did not offend the Constitution. It found that the Louisiana legislature had acted within its jurisdiction. “In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the fourteenth amendment than the acts of congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.”

The “separate but equal” principle endorsed in Plessy lasted until it was finally overruled in 1954. In Brown v. Board of Education of Topeka, Kansas, the Supreme Court finally concluded that segregated public schools actually do violate the equal protection clause of the Fourteenth Amendment. That decision must be banned as well, dwelling as it does on the lasting impact of slavery and America’s responsibility to root out its noxious effects “root and branch,” as Thurgood Marshall might say.

Next up for the guardians of decency – the Bible. Perhaps they should schedule a competition to identify all of the chapters that emphasize sex, violence, and other felonies from which our children must be protected.

Dan Siegel
Dan Siegel

Dan Siegel is a civil rights attorney in Oakland.

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