Constitutions of Violence (essay for the first issue of Scalawag)

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.”  It was an ironic moment for the theorist of natural freedom and self-government, who later founded a theory of human equality based on the idea that people are “promiscuously born to all the same advantages of nature.”

Locke’s Carolina constitution, adopted in March 1669, for a region that included portions of today’s North and South Carolina, may be the strangest fundamental law ever to govern a piece of North America.  It populated the new colony with “signories,” “landgraves,” and “caciques,” and more familiar feudal categories – baronies and manors – under the government of a Palatine and his council of seven Lords Proprietors.  It sets out a hereditary aristocracy, with precise and unalterable proportions between political authority and land ownership.  Ratios of acreage, office, and power interlock and turn back on themselves like an Escher drawing.   Locke’s baroque scheme strikes the modern ear as more Dungeons & Dragons than Constitutional Convention. 

Indeed, no convention produced this constitution, just a board meeting.  In the new colonies, political governance was corporate governance.  Labor 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,” property at the whims of their owners.  Neither leet-men nor slaves were part of the body politic formed by Locke’s constitution.  His charter 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.”

I feel a macabre fascination with John Locke’s constitution.  And, honestly, I find it funny.  It is funny because it is so rococo, 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 as 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 yet to change usually 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.    

***

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 have feared.  But we were also still unequal among ourselves, marked by lines of wealth and privilege, and subject to laws that have made the state less democratic: 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 anyone who has even dropped in on a rally know, Reverend Barber works with two canons: one religious, the other 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 it’s the civic canon that 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 Reconstruction constitution, written in 1868.  This later 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.  His speeches move in several dimensions at once.  They interpret the history of Reconstruction, interracial fusion politics, and white reaction, bending time’s arrow into a mythic loop, in which the present becomes the past, a second Reconstruction arising 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 mimics this movement, 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—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.

Barber would be the first to point out that 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, returning 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.

Like the Christian Word, civic sacred texts carry the memory of blood and wounds.  The idea of equal citizenship took on life and power among slaveholders, and also 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 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 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 strange or alienating, reaching inside you to make you someone else, while claiming not to change but to perfect you.  Yet this is also the language of transubstantiation, 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 holding that all religion is a kind of Word yet to be made Flesh: that its promises of equality, dignity, and harmony express a worldly 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 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 worlds 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.

To my mind, this is true and 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 the highest truth about moments of felt possibility, but also quite inadequate, even false, to the lives where we spend most of our time.

Each of these Carolina constitutions is threefold.  Each is a record of its time’s violence and exclusion: a record of a bloody social settlement, an imposed peace in a long struggle.  Each is also an occlusion, a cloak over violence, and so a record of hypocrisy.  From the open neo-feudalism and slavery of Locke’s constitution through the freemen’s constitution of 1776 and the nominal universalism of 1868 – which proved to be a hospitable framework for Jim Crow – the balance shifts from an open record of violence to a subtler and more tragic record of hypocrisy.  It is partly here, in the gap such hypocrisy produces between words and reality, that the third aspect of these constitutions, the prophetic possibility, emerges. 

***

Locke’s constitution didn’t last long.  By 1700, it had mostly faded from relevance.  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 decades (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 North Carolinians declared in their state constitution that “all political power is vested in and derived from the people only.”  This 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. 

Such early state constitutions formed the template for the Supreme Court’s notorious 1858 decision in Dred Scott v. Sandford, which just before the Civil War declared 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 that 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.  And even this egalitarian vision lasted only thirty years. Then the violent reassertion of white supremacy was constitutionalized in new amendments that created literacy tests for all voters except those who had been eligible to vote in 1867—that is, the white people who had been “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 only the Civil Rights Movement, the Second Reconstruction, would displace.

***

Locke’s colonial constitution – there, it still holds me! – 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.

            This 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.

            This small betrayal of Locke’s celebrated principles may stand for many larger betrayals.  Locke was a theorist of human equality, which nature had 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 sometimes 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.  In that sense, we are technicians of constitutional prophecy, trying to bridge the pregnant gaps between words and the world.

            But this is not just technical, professional craft;. here again, the redemptive idea makes 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 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, between races, and in institutions such as schools and the criminal justice system.  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.  The problem is not just to perfect a flawed democracy, but to decolonize national life.  The constitution that would do that has not been written yet.