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The first
constitution to govern what is now North Carolina, other than the original royal
charter, was written for hire by the political philosopher John Locke, who
served as secretary to the colony’s Lords Proprietors. These rich Englishmen directed their draftsman
to open with a statement of purpose: “that we may avoid erecting a numerous
democracy.” Government of the Carolina
Colony would belong to its owners, not those who merely lived there –
especially not the hereditary serfs and “negro slaves” that Locke’s
constitution excluded from ownership or government.
It was an ironic moment for the
theorist of natural freedom and self-government, who later founded a theory of
human equality on the ways that people are “promiscuously born to all the same
advantages of nature.” It makes the
Lords Proprietors’ hired pen the perfect namesake for Art Pope’s John Locke
Foundation, which also blends the rhetoric of liberty and equality with a
strong commitment to keeping ensuring that those who own the state also rule
it.
Locke’s phrases sometimes swam
through my head at Moral Mondays rallies in 2013 and 2014. There we were, still trying to erect a
numerous democracy. We were promiscuous
in our equality, the kind of proud motley Carolina that generations of white supremacists
feared. But we were also still unequal
among ourselves, marked by lines of wealth and privilege, and subject to laws
that made the state less democratic than before: Locke’s Lords Proprietors
would not have been entirely displeased by Thom Tillis’s North Carolina.
**
You don’t have to be, like me, a
constitutional lawyer and political theorist to think of constitutions at a
Forward Together rally. Constitutional
language is sacred text in the mouth of Reverend William Barber, head of North
Carolina’s NAACP and the visionary of Moral Mondays and the Forward Together
movement. As those who have so much as
dropped in on a rally know, Reverend Barber works with two canons: one
religious, the other and civic. The
Bible resonates everywhere in his speeches.
“Without vision the people will perish,” he quotes from Proverbs, and
you realize that everything you have been hearing is in cadences and phrases
that English speakers are trained to vibrate to, whether we are churched or
unchurched.
But the civic canon really catches
me. When Reverend Barber raised the roof
at 2014’s Netroots Nation, an annual gathering of progressive activists, he
opened with several minutes of provisions from North Carolina’s 1868 constitution. This Reconstruction document established a
principle of equal and universal citizenship to the state for the first time. It outlawed slavery forever in the
state. Its drafters deliberately echoed
the Declaration of Independence, declaring it self-evident that all people are
created equal. They also added “the
enjoyment of the fruits of their own labor” to the people’s inalienable rights,
a potent statement of the anti-slavery principle. The Reconstruction constitution took Thomas
Jefferson’s words, the fine phrases of a slaveholder, and applied them to
everyone – restoring them to their right meaning, or, if you prefer,
dismantling the master’s house with the master’s tools.
Constitutional language is living
tissue in Reverend Barber’s fierce, looping rhetoric. The speeches move in several dimensions at
once. They interpret the history of
Reconstruction, interracial fusion politics, and white reaction, following
time’s arrow in a kind of mythic loop, in which the present becomes the past, a
second Reconstruction in the Civil Rights movement and Barack Obama’s election,
a second Redemption (white supremacists’ favored term for their attack on
Reconstruction) in the Tea Party and North Carolina’s right-wing legislature. The language loops, too, phrases and images
recurring and gathering force with each pass.
These cycles of ever more forceful recitation come to suggest an upward
spiral, in the energy of the repeating words and the historical promise of the
echoing events, until both explode into prophecy, which is not a promise of
help from above but a call to act where you stand. In dark times, the speeches manage to say
that history is on your side, that language itself is on your side.
North Carolina’s Reconstruction
constitution was written with the ashes and blood of the Civil War still present
to the minds of its authors. Some of
those authors were freedmen, recently enslaved people like Abraham Galloway,
one of the Reconstruction constitution’s 15 black authors, who freed himself by
escaping to Canada in 1857, then returned to North Carolina as a Union spy and
abolitionist tactician during the Civil War.
It is in part a peace treaty and document of surrender, abjuring
secession forever and thanking God for the preservation of the Union. It is a victor’s document, but one written to
enshrine the rights of those its own canon – the Declaration and the US
Constitution of 1789 – ignored. Today
it is the civic sacred text of a movement of underdogs, the charter of a dream
deferred.
Civic sacred texts, like the
Christian Word, carry the memory of blood and wounds. The idea of equal citizenship took on life
and power among slaveholders, and among settlers who expelled and slaughtered
Native Americans, confident that both God and history were on their side. Equal citizenship for some came with
excluding others from citizenship altogether, either as enslaved laborers in
the South or as inconvenient savages on the frontier. Yet the lived reality of political equality
among the oppressors that worked the ideal ever deeper into American myth,
imagination, and practice. This reality drenched
the fine phrases of equal citizenship in the blood of lynchings and massacres,
associating them indelibly with what we have learned to call white privilege. But these same phrases are also the civic
catechism of Reverend Barber’s peaceful, democratic, and entirely unfinished
revolution.
**
How can
slaveholders’ words anchor a language of prophecy and redemption? (I am deliberately using redemption, the word that white supremacists used for their attack
on Reconstruction, because it is also the right word for progressive
constitutional prophecy.) How does the
record of hypocrisy and violence call Moral Mondays marchers – as Reverend
Barber put it in his refrain at the mass rally of February, 2014 – to higher
ground? What are we doing when we treat
a constitution as a sort of civic scripture?
A
constitution may do what its name suggests: constitute
– form, make up – not just a system of government but a people. A people, of course, is partly an imagined
thing, a way of thinking and seeing.
When you imagine that you are part of such a people, constitutional
language offers to tell you something about who you are. The Civil Rights movement of the 1960s used
such language to say, “As Americans, you are already committed to
equality. Now it is time to be true to
yourselves.” This is arguably creepy and
too intimate, reaching inside you to make you someone else, while claiming not
to change but to perfect you. But the
other side of that creepiness is transubstantiation. This is the language of redemption, of being
born again into the self you were meant to be, the self you always were, but
secretly or imperfectly.
This
redemptive attitude treats the glittering generalities of constitutional
language, and of the Declaration of Independence, as a Word yet to be made
Flesh.
But it is not just a matter of borrowing religion for
politics. Something is happening in
common between the two.
How do I, a secular marcher behind
Reverend Barber, hear the language of prophecy and redemption? There is a tradition in philosophy that holds
that all religion is a kind of Word yet to be made Flesh: that its promises of
equality, dignity, and harmony among people express human possibility that has
not yet become real. If religion is a
human creation, this tradition says, then it must be explained by human wishes
and human capacities, not supernatural sources.
Seen in this way, constitutional prophecy and redemption are not
displaced forms of religious passion.
Instead, both constitutional and religious prophecy express the human
knowledge that we contain more world than we have yet made and inhabited. They are ways of naming and imagining a world
we know we should make, a world we want, which we have not yet found the way to
create. It is a world of equality and
inalienable rights, where there is no slavery and the fruits of your labor are
your own.
A
constitution, then, is a line of tension connecting the world that exists with
other worlds that might be possible, which we name to try to imagine them, and
imagine to try to bring them nearer, or at least to see more clearly the
distance between their ideals and the unredeemed present. We use
words to form this line of tension, to name the distance between worlds, if not
exactly to measure it.
**
This is all
true. To my mind, it is powerful. But there is a danger in redemptive
imagination that is part of its power: it gathers all history into covenant,
all injustice into reminders of a promise betrayed. It can obscure the waste, suffering, and
horror of past and present, so that its gloss becomes both the highest truth
about moments of felt possibility, but also quite inadequate, even false, to
the lives where we spend most of our time. It also misses the irony and strangeness of a
world that is too bizarre to be part of any redemptive vision of Millennium,
civic or religious. And it misses wrongs
that will never be redeemed, whose nature is immune to redemption.
I don’t
intend any criticism of the Forward Together movement here. I just mean to reflect on what happens to me
when my inner dark echoes so fully to civic pieties that I forget the rest.
John
Locke’s Carolina constitution, adopted in March of 1669, may be the strangest fundamental
law ever to govern a piece of North America. It proposed to populate the new colony with “signories,”
“landgraves,” and “caciques,” and more familiar feudal categories such as baronies
and manors, under the government of a palatine and his council of seven Lords Proprietors. It is a plan for hereditary aristocracy, with
precise and unalterable proportions between political authority and land
ownership. Ratios of acreage, office,
and power interlock and turning back on themselves like an Escher drawing. Locke’s baroque scheme strikes the modern ear
as more Dungeons & Dragons than Constitutional Convention.
Indeed, there was no convention,
just a board meeting. Political
governance was corporate governance in the new colonies. The labor in Carolina was to be done by a
hereditary class of serfs called leet-men, who lived under the direct
governance of their landed lords (who would administer law to the lower orders
in “leet-courts”). Below them were
“negro slaves,” who were not just legal subordinates, but property, at the
whims of their owners. None of these
classes of laborers were part of the body politic formed by the Fundamental
Constitutions, which opened, “We, the lords and proprietors … have agreed to
this … form of government.” That is
quite a contrast to “We the people,” the phrase that famously opened the US
Constitution in 1789. Most of the people
in Locke’s Carolina were not the People, but the help, or just the stuff. This constitution was intended to shut down
all future democracy “in the most binding ways that can be devised.”
How do I feel about it? I feel a macabre fascination, which I suppose
is why I’ve worked this essay back around to it. And, honestly, I find John Locke’s
constitution funny. It is funny because it is so rococo, a form
of racialized exploitation and political tyranny done up in ruffs and lace, a
slave state from the Eastern Lands of Game of Thrones. Daenerys Targaryen would have liberated John
Locke’s Carolina. Or maybe it’s not
funny, but I wish it were. I wish it
were because I wish we could laugh away the absurdities of race, wish that all
undemocratic and arbitrary power were all nakedly preposterous as what Locke
proposed. But of course what he wrote
didn’t seem at all preposterous to him, or, more to the point, to “we the lords
and proprietors.” The world you have to
change always seems obdurate and halfway natural, while the injustices of
faraway times and places feel fundamentally insubstantial: they should disappear
like the Wizard of Oz, with a tug of a curtain.
In the event, Locke’s constitution
didn’t last long. It had mostly faded
from relevance by 1700. That said,
Locke’s constitution was widely printed and circulated in the colony for three
decades, and was fundamental law in those strange and turbulent years (which
spanned a restoration and revolution in the home country). Later Carolina
constitutions are comfortingly familiar.
The phrase “We the people” would not open a North Carolina constitution
until Reconstruction, but already in 1776 the newly independent colonists
declared that “all political power is vested in and derived from the people
only.” That constitution is studded with
personal rights and protections against abuse of power. The trick is that these apply only to
“freemen.” It is a freeman’s
constitution, meaning, mostly, a white man’s covenant. A form of democracy had come, but those who
were left out of it now did not even merit a mention, unlike the leetmen and
slaves that Locke’s constitution had called out by name. Only silence marked their exclusion in 1776,
the unspoken implication that “freemen” had an opposite.
This sort of state constitution
formed the template for the Supreme Court’s notorious1858 decision in Dred Scott v. Sandford, which declared shortly
before the Civil War that the US Constitution should be read to mean “we the
white people,” the Declaration of Independence to declare “all white men are
created equal,” and white supremacy was the implicit, permanent commitment of
American nationhood. This, of course, is
what Reverend Barber’s beloved 1868 constitution was written to destroy. In a sense, it lasted only thirty years,
until the violent reassertion of white supremacy, constitutionalized in
amendments that set up literacy tests for voters – except those who had been
eligible to vote in 1867, that is, white people who were “freemen” under the
old, slavery constitution. Those
amendments brought a poll tax as well.
This was the constitution of Jim Crow and separate but equal, which the
Second Reconstruction displaced.
**
Locke’s constitution – there, I
can’t let go of it! – holds that any ambergris found on the Carolina coast
belongs to the Lords Proprietors of the colony.
Ambergris, for those who don’t recall, is a potent gray mass produced in
the digestive tracts of sperm whales.
Before the magic of chemistry, it was a major raw material for
perfume. A rare ingredient for a luxury
good, it was prized and costly.
It is a
telling little irony. When Locke
described the origins of property in his most influential work, the Second Treatise of Government, he
offered ambergris as proof that the world primordially belonged to everybody
and nobody, but a person could make a part of it his own by taking hold of
it. Isn’t it true, he wrote, that a
walker who finds ambergris on the beach becomes its owner, and demonstrates
this ancient, basic human power to make nature into property? Well, not so much in Carolina.
That small
betrayal of Locke’s own general principles in his Carolina constitution might
stand for many larger betrayals. Locke
was a theorist of human equality, which, as noted, he described nature as
having spread “promiscuously” throughout the species. He argued that anyone who tried to get you in
his absolute power had, in effect, declared war on you, and that you could kill
him in self-defense. Unless, apparently,
you were a “negro slave” in Carolina and he your master. In that case, his absolute power over you was
part of the constitution, which has no more room for promiscuous equality than
for a numerous democracy.
**
These kinds
of inconsistencies capture my imagination partly because, as a constitutional
lawyer, I belong to a strange subculture whose members sometime imagine
principles as Archimedean points: if we could just find their true meaning, we
could shift the world. We are trained to
go after inconsistencies the way acupuncturists go after blocked meridians.
But that is
not all. Here again, the redemptive idea
is making itself felt. If only we could
overcome these betrayals and errors, it suggests, we could make things right,
as they were always meant to be. This is
the implicit idea of the whole tradition of civic preaching that Reverend
Barber echoes, and which goes back to Abraham Lincoln and the abolitionists,
and runs through Martin Luther King, Lyndon Baines Johnson, and others who
portrayed the first Emancipation and the second Reconstruction as redeeming the
country’s original promise. This is an
American story with a Christian template: original sin destroys what should be
perfect harmony; only a sacrifice of blood, faith, and patience can redeem it
and restore the primal design. Those who
like to say this is a Christian country may not realize exactly how right they
are. They should be answered: yes,
conceived in sin and redeemed in blood.
But even
the story of redemption makes it all too neat.
Powerful as it has been as a tool of emancipation, it misses something
else, something the Declaration of Independence and the Reconstruction
constitution conceal, but Locke’s constitution lays bare. The settlements that became the United States
did not begin as an imperfect democracy, struggling to work itself pure. They began as a project of settler
colonialism, building a new world of economic opportunity for free settlers and
the investors at home – the Lords Proprietors of the Carolina Colony. The American Revolution took the home
investors out of the picture and consolidated self-government for free settlers
– but still, and for a very long time, on the backs of enslaved people and the
lands of expelled peoples. The exclusion
and oppressions of American history began not as original sin but as what
conservative constitutional theorists call original meaning. Steps toward equality and genuine democracy
have not have been corrections to a founding mistake, but revolutionary reallocations
of power and privilege. They radicalized
the idea of citizenship that white male settlers claimed for themselves with
their revolution; but in radicalizing it, they transformed it, because
exclusion and oppression were built into it from the start and by design –
albeit over the objections of genuine democrats like the immigrant Thomas Paine
and the free black radical David Walker.
What does
this mean? Well, for one, that an
adequate Reconstruction needs to be just that – a deep engagement with the
roots of continuing inequality in inherited wealth, economic structure, and
institutions such as schools and the criminal justice system. That we are fooling ourselves if we believe
the key is already hidden in our old principles, if we could just get them
right – no matter how potent and attractive this idea is, no matter how much
partial good we can manage with it. That
our problem is not just to perfect our democracy, but to decolonize our
national life. The constitution that would
do that has not been written – yet.
