Constitution Day panel explores how U.S. institutions, democracy can respond to structural inequities

Written by
Sarah Malone, Program in American Studies
Nov. 12, 2021

What role does the Constitution play in discussions about racial justice and representation ongoing in the United States? How does the Constitution help or hinder efforts for equity and representation? How might democracy be reframed to enable a more equitable America?

On Tuesday, Sept. 14, 2021, for Princeton University’s annual observance of Constitution Day, an interdisciplinary discussion considered these and other questions around the theme of “What kind of republic?”

295 registrants from four continents included first-year Princeton undergraduates and emeritus endowed chairs, members of the local community, and alumni and scholars around the world, representing the humanities, social sciences, engineering and natural sciences.

Ruha Benjamin, professor of African American studies and founding director of the Ida B. Wells Just Data Lab; Amaney A. Jamal, the Edwards S. Sanford Professor of Politics, dean of the Princeton School of Public and International Affairs and professor of politics and international affairs; and Kevin M. Kruse, professor of history and director of the Center for Collaborative History responded to one another and to questions from moderator Aisha Beliso-De Jesús, professor of American studies and director of American studies, Asian American studies and Latino studies.

Programming on the United States Constitution on or around the anniversary of the signing of the Constitution in 1787 is mandated by law for educational institutions receiving federal funding.

What is at stake, what is guaranteed?

Beliso De-Jesús began by asking the panelists what, from their disciplinary perspectives, they see at stake in current discussions about American democracy.

Jamal said that “we have to be mindful” that the Constitution is in many ways the “one source” that can guarantee levels of equality and that “empowers us to think about fairness and equity.” But, she said, it can be the “one structure that can take away those rights as well.”

Jamal said that discussion of the Constitution is often framed in terms of constitutional guarantees, and that criticisms of the Constitution and the structures it defines are often softened by attributing shortcomings to a less just past. But, she said, “In 2017, you had a Muslim ban that was upheld in the Supreme Court.”

“Islamophobia persists under the guise of constitutional protections and normative standing,” Jamal said.

Benjamin said that, “from legal codes to computer codes, social inequality is baked into our founding documents and our digital platforms, and the real power of these default settings stems from the fact that they operate under the guise of neutrality and even beneficence.”

In talk about the framers of the Constitution, Benjamin said, “there’s this dominant story; then there are all the other stories that are omitted and distorted in our collective imagination.”

Such omissions were “hardwired into the Constitution,” Benjamin said, and “continue to shape the present.”

“Every attempt to right those omissions and change these default settings has been met with backlash,” Benjamin said.

Kruse, citing his current research on John Doar, a 1944 Princeton alumnus and head of the federal government’s civil rights division under the Kennedy and Johnson administrations, said that, until the past decade or so, the Voting Rights Act of 1965 had been a topic more of historical study. But now, Kruse said, “the course of this river is changing before us.”

Voting rights, Kruse said, are “really the whole ball game,” to “everything we care about, no matter what issues you at home care about.”

“It’s important to keep thinking of voting rights as an ongoing question that we have to attend to,” Beliso-De Jesús said. “It’s not something already decided.”

Matters of agency

The panelists emphasized that fulfillment of the ideals enunciated in the Constitution depended on the actions of those living under Constitutional authority.

“Those who were held bondage — while these lofty ideals were being constituted in word — and their progeny,” Benjamin said, “have struggled mightily to infuse these ideals with actual meaning and substance, to somehow give them life.”

“If we say that the institutions are in place, the institutions are robust, the institutions are doing what they should be doing,” Jamal said, “we’re failing democracy, as societies.”

“Behind institutions,” Jamal said, “there’s always agency. Agency means individuals.”

Benjamin commended “starting to really practice, and experimenting with participatory forms of social relations, even on a small scale in our classrooms and our families and our neighborhoods, as a way to begin to seed the practice of democracy,” rather than expecting democracy to descend from the top down.

“It’s really about the kind of everyday forms of small-d democracy that move us beyond platitudes and rhetoric,” Benjamin said.

Kruse said that while contemporary consensus has been that every citizen should be able to take part in democracy, “there’s actually very little in the Constitution to protect democracy or even to define or defend its parameters. There are no federal guidelines for elections, but rather provisions that effectively kick [elections] to the states and territories. So, we don’t have one democracy.”

Kruse noted that the Constitution doesn’t set up an affirmative right to vote. “The Constitution is effectively built upon the assumption that the government could, indeed should, limit who has the franchise.”

Kruse traced how amendments gradually broadened the franchise, the 15th forbidding denial of the vote on the basis of race, the 19th forbidding denial on the basis of sex — Native Americans not granted citizenship until the 1924 Snyder Act — the 24th Amendment effectively forbidding denial on the basis of class, and the 26th expanding the franchise in terms of age.

“It’s a steadily expanding electorate,” Kruse said, but “just because the electorate gets broader, it’s still done on this basis that assumes that there’s no universal suffrage, there’s no total participation, but rather that suffrage should be limited. Voting is treated not as an inherent right in this country, one granted automatically to all citizens, but as a prize and a privilege to be won.”

Kruse noted that the Voting Rights Act of 1965 is, in its official title, an act to enforce the 15th Amendment. “We have to realize that there are tools in the Constitution, as negatively as it’s framed, to reclaim and empower voting rights. It’s there, we just have to understand and have the will to reach out to do it.”

Rights taken away

Beliso-De Jesús asked if the panelists saw the Constitution as hindering equity and representation, or as removed from current conversations around them. “In the social media age that we’re in, there’s a loss of a kind of historical memory.”

Kruse cited the filibuster as the key current obstacle. “The filibuster is not in the Constitution. The filibuster goes against the spirit of the Constitution. The founders wanted the Senate to operate on a simple majority basis.”

Benjamin said that digital tools are helping to erode constitutional rights. She detailed as a key example the effect on rights set up by the due process clause and its assurance of the accuracy and individualization of every defendant’s sentence, and of procedural due process to ensure fairness.

“In courts throughout the country, judges are now using risk assessment algorithms to decide the fate of defendants at sentencing,” she said. “Defendants can't challenge the accuracy or the relevancy of the information that's being black boxed inside the algorithm. As a defendant, you won’t know what the information is, the inputs, how it’s being weighed to compute risk scores, or even what your score is in the first place, and yet your fate is being shaped by it.”

Jamal said that the cases that Benjamin and Kruse described illustrated how devices external to the Constitution have been used in efforts to rationalize denial of constitutionally guaranteed freedoms.

Jamal detailed how media coverage has put forth racialized tropes of a “civilizational genetic makeup” that makes Muslims “prone to violence.” She cited a 2017 Georgia State University study that found, controlling for target type, fatalities, and type of attack, that incidents by Muslim perpetrators received, on average, 357% more coverage than other attacks, and that a Muslim accused of a terrorism plot will receive seven and a half times more media coverage than someone not perceived to be Muslim.

Perceptions propagated by such coverage have then been used to accuse Muslim Americans of being in sympathy with or of being terrorists. Jamal showed how U.S. Representative Ilhan Omar of Minnesota — for “serving her country and trying to do the constitutional duty of service” — has received such attacks from fellow members of Congress.

Such efforts to discredit, delegitimize and to deny “equal footing at the table” to the “people who are trying to access the institution,” Jamal said, “that’s what we have to worry about when we talk about constitutional protections alongside racialization projects.”

Ways forward

Responding to Beliso De-Jesús’s invitation to follow up on points raised thus far and to think of ways forward, Benjamin encouraged the audience to read Catherine MacKinnon and Kimberlé Crenshaw’s 2019 Yale Law Journal article, “Reconstituting the Future: An Equality Amendment,” a “powerful proposal,” Benjamin said, “that revisions constitutional equality from the ground up” by rectifying the founding omissions of race and sex.

Benjamin noted that Crenshaw and MacKinnon start by quoting the Iroquois Law of Peace, “Unto the seventh generation,” and that the Iroquois Confederacy inspired the framers’ vision of federalism.

The phrase is “a call for us to look and listen for the welfare of the whole people and have always in view not only the present but also coming generations,” Benjamin said. She added that while “we need to work pragmatically in the present, we also need long-term vision, not just changing laws.”

And, “seeding more just social relations,” Benjamin said, is “something that we each have the power to do, no matter where and what we do.”

Kruse said that “ideally I’d like to see a constitutional amendment that has an affirmative right to vote named in it. I think that would that would solve a lot of the problems that we have to kind of backfill to undo that kind of original sin in the Constitution.”

Absent such an amendment, Kruse said, legislation could achieve the same effect, and the only obstacles to such legislation are public will “and the commitment of some politicians to the filibuster, which goes against the spirit and the letter of the Constitution in every possible way.”

Kruse said that casting off “the undemocratic trappings we've built up over the years” and returning to the closest that the United States has “ever been to a true democracy, about a 50 year window between 1965 and 2013,” is “a fairly modest goal, but I think, a very important one that we have to fight for.”

Jamal said that “in this global world where social media has put us in connection to one another, we have to worry about how we project our democratic norms to the world.”

“For most of the world outside the United States, democracy is synonymous with social justice and dignity,” Jamal said. “If we’re not consistently asking and demanding for a democracy that is kind and respectful and preaches dignity and respect to all humans, then we’re failing democracy.”

Jamal spoke of talking about social justice with her students as dean of School of Public and International Affairs. “We didn't talk about social justice 10 years ago and we certainly didn't talk about social justice 20 years ago. When we talk about social justice today, my students light up. They become excited.”

“This, for me, gives me hope and makes me proud to be leading a school where my students are committed and dedicated to the causes that matter for the future,” Jamal said. “I’m proud of you and I’m really looking forward to working with you and moving the conversation forward.”

The free and open to the public conversation was held via Zoom webinar and, with no registration necessary, by live stream, from 4:30 to 6 p.m. Eastern Daylight Time on Sept. 14, 2021, organized by the Program in American Studies and supported by the Office of the Provost.