Becoming Equal Under the Law – Full Video
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Becoming Equal Under the Law – Full Video

February 7, 2020

“All men are created equal,
endowed by their Creator with certain inalienable rights.” I
think that’s one of the most important sentences in
the English language. And then the next sentence of
the Declaration says, “To secure these rights, governments are
instituted among men, deriving their just powers from the
consent of the governed.” Jefferson set up a lofty ideal. All men are created equal. Their rights are
inherent at birth, not given by a government. And government is set up
to protect those rights. The genius of the American
experiment is the notion that the same rules
apply equally to all. But our country immediately fell
short of Jefferson’s ideal as it struggled to replace the
Articles of Confederation which bound the states, only
loosely, together, with a new Constitution. Generations would pass
before that ideal even started to become a reality. The Declaration of Independence
set out our national aspirations, as a
people, as a country. The Constitution is the
mechanism that allows that process to happen. The Constitution of the United
States was a Constitution for mainly white men. I’m Doug Ginsburg, and I’m a
judge on the Federal Court of Appeals in Washington, DC. Of the 55 delegates at the
Convention in Philadelphia, almost half of them owned slaves
at some point in their lives. Although many had moral
qualms about slavery, few freed their slaves. Even the Founder who
declared all men are created equal, never freed a
single slave in his lifetime. Jefferson himself writes in the
Notes in the State of Virginia that he doesn’t believe enslaved
African-Americans to be capable of having art, of having love,
of being equal to whites at all. And so, these beliefs
allowed them – To dehumanize them. Yeah, they dehumanized
them with this institution. The vast majority of members,
even Southern slave owners, recognized that slavery is
incompatible with the values the American Revolution
claims to stand for. It’s a conundrum: They could
write and speak eloquently and with insight about liberty and
equality, but they seemed blind to the fact that their
slaves were just as freedom-loving
as they themselves. They taught them Christianity,
so they understood that their slaves had souls, but they never
treated them as fully human. I don’t think I’ll
ever understand that. In the late 18th century,
you see Jefferson himself grappling with slavery. Jefferson calls it
a moral depravity. In one instance, late in life
around 1824, he writes that slavery is like having a wolf
by the ears, where you see the danger of either
holding or letting him go. Jefferson may have fathered
up to six children with his slave Sally Hemings. Jefferson is so closely
associated with America and American democracy and this
exceptionalist view that many of us have of our country. And that’s why people
study him because you can’t figure him out. He’s always a puzzle. The consensus was A., slavery
was wrong, but B., it was going to die out of its own weight. So the best thing to do, because
they were not going to be able to get the deep southern states
to go along with anything that would threaten slavery, was to
kick the can down the road and let slavery die out on its own. But the Framers
can’t see down the road. In just five years, an
invention will transform the economics of slavery. They don’t foresee
the cotton gin. They don’t foresee
the cotton kingdom. Two things are true. And it’s hard to
put them together. One is that slavery
is the epitome of America’s original sin. And the other is, if the Framers
tried to end it in 1787, the Constitution would
have never passed. The people who were there
thought that failing to reach this compromise and
actually create this union would have been disastrous. There never would have been
a United States of America. After the Framers hash out
their ideas, someone has to put them in writing. Well, the guy who wrote
it is Gouverneur Morris. Gouverneur is his
name, not his title. A thirty-five-year-old
bachelor from Pennsylvania. He’s a tall, peg-legged guy. He spoke more in the Convention
than any other speaker. A hundred and
seventy-three times. When you read the Constitution,
you’re reading Morris. He spoke most ardently,
more often against slavery Morris never used the words “slave” or
“slavery” in the Constitution. So they used euphemisms to
describe slavery, such as persons held to
service, or other persons. By the time of the
Constitutional Convention, Massachusetts had
abolished slavery. The other Northern
states followed. The Southern states
viewed slaves as property. But when it came time to
calculate the size of their Congressional delegations,
they wanted to count slaves as part of their population. The Compromise was to
count each slave as three-fifths of a person. The three-fifths clause, which
offends just about everybody, right, because they acted
like we weren’t even people. But that’s not what
they were doing. People interpret it as
saying that slaves were three-fifths of a person. No. The three-fifths clause
might sound like it was meant to diminish the rights of slaves,
but slaves had no rights. It was actually meant to
limit the power of the slave states in the Congress. The Northern states or the
anti-slavery states, they didn’t want any representation
for slaves whatsoever. And the Southern states
wanted full representation for all their slaves. And therefore they would have
had more power in the federal government because of that. We were actually
whittling down on their power. How? By counting only three-fifths
of the total number of slaves, those states would
have fewer votes in the House of Representatives. But the South still enjoyed an
edge: more seats in the House than if slaves weren’t counted
at all, and therefore more votes for President in the
Electoral College. Most of the original presidents
were either from slave-holding states, or they were from
Northern states where the particular president was
sympathetic or at least was not inimical to slavery. Indeed, Southerners hold the
White House for fifty of the first seventy-two
years of the republic. It’s difficult, perhaps
impossible, fully to grasp what it was like to be a slave. To be worked like a mule, to be
a piece of property, perhaps to have your children
sold to another owner. Or to live in constant fear of
violence, with no protection from the law. To live, that is,
outside the Constitution. For almost seventy-five years
after the ratification of the Constitution, the institution
of slavery grew and spread into the new states. Just the opposite of what
the Framers had expected. A court case in the
1850s would bring the problem into sharp focus. My great-great-grandfather
was born on a plantation in Southampton, Virginia. He was born to the Blow family. They eventually
moved to St. Louis. At this point, they had debts. And they had to sell
something to cure those debts. My great-great-grandfather was
purchased by an Army surgeon. The slave is taken into
the Wisconsin Territory, in what is now Minnesota. And he met and
married a young lady. Slaves were prohibited,
actually, to marry, so it’s pretty special that they
actually had a wedding. Brought back to St.
Louis with his family. At that point, he
had something unique. Missouri had a law that
said once free, always free. And Wisconsin Territory is
“free soil” no slavery. If a slaveholder were to take
a slave and live in the North, then that slave
would be liberated. They were no longer a slave. But their owner
refuses to free them. And in 1846, the slaves
enter this courtroom to seek their freedom. At first, it was just about
their family, but ultimately it was about a nation. And my ancestor was Dred Scott. A jury of twelve white men set
Dred and Harriet Scott free. It was a wonderful day,
but it was short-lived. Scott’s owner
appeals the verdict. And then the Supreme Court of
Missouri changed the precedent of Missouri to say uh-uh, it
didn’t free him, and that’s when he brought his federal action. Dred Scott’s case
lands in the U.S. Supreme Court. The Court was
stacked against Scott. Of the nine Justices,
five were from slave states. And a sixth, from Pennsylvania,
also favored slavery. The justices voted
7-2 against Scott. And they did something
the Framers never imagined. They invented a constitutional
right to own slaves. Some of the worst jurisprudence
by our United States. That was the classic example of
the Supreme Court taking upon itself to do what it thought was
right and not adhere to the text of the Constitution
as it was written. In his decision, Chief
Justice Taney writes: “Negroes having
been regarded as beings of inferior order and
altogether unfit to associate with the white
race and the Negro might justly and lawfully be reduced
to slavery for his benefit.” What Dred Scott did was to
say, yes, they said all men are created equal, but
they didn’t mean it. In terms of how it feels
now as I’m saying this to you, it angers me. How can one man tell
another man that he’s benefiting me by enslaving me? I can’t imagine that
anything could be worse. And that blacks could
never be citizens for as long as they lived in America? Because you cannot possibly
be, under any circumstances, a citizen of the United States
if you’re black, and you’re descended from slaves. Taney thought he was going to
resolve the slavery controversy forever by basically
saying, “Stop arguing about this question, it’s settled.”
But he was wrong. You don’t settle a controversy
like that simply by saying, “I’m right, you’re wrong.” Within three months
of the Dred Scott decision, they did
get their freedom. And they did not get it through
the courts, but they got it from the hand of the children
of their original owners. Dred and Harriett
were simple people. The fact that they were born in
slavery did not deny them their humanity nor any human desires
as anyone else would have. Their greatest
desire was freedom. The laws still weren’t
living up to that ideal. In fact, the Dred Scott
case was a big step backwards. Most Northern states were
content to let the Southern states be the Southern states. And they weren’t prepared
to do anything about slavery in the South. Until the Dred Scott decision. And that led to a grave
perception of a threat. The North finally cared
about slavery in a way they hadn’t before. And then we know what
happened after that. Between December 1860 and the
following June, eleven states secede from the Union and ignite
the worst constitutional crisis in American history. The war will settle two
great constitutional questions: secession and slavery. But not until 620,000
Americans slaughter each other. My children don’t understand,
I have Millennials, why on New Year’s Eve we go to what’s
called a Watch Night service. In black churches all over the
South, you go to church, and you sing songs and
pray and sing hymns. What we’re doing is waiting
for January 1st to come because Lincoln’s order said
January 1st, you will be free. That order springs from
this fertile landscape. Still the deadliest day in
American history. The Union army stops
an invasion by General Robert E. Lee. President Lincoln exploits Lee’s
retreat to change the course of history and of the war. As Commander in Chief of the
Army and the Navy, that’s in Article II of the Constitution,
Lincoln issued an executive order declaring that three
million slaves shall be free. We know that order as the
Emancipation Proclamation. It caused a great deal of
dissension in the Federal ranks because most of the men
joined up to preserve the Union. And so they had to stop and
think about whether they wanted to continue on when the purpose
of the war began to change. And there was a lot of
debate in the camps. Eventually, they
stayed on and persevered. I think it’s probably the
most important war this country ever fought. I think it made us a nation. That’s what I think. Yet slavery remained
the law of the land. Lincoln’s proclamation freed
slaves only on rebel soil. There absolutely was the concern
that when the Southern states got back into Congress, that
they would be able to operate as they had before and protect
slavery because that which had abolished slavery before was
purely an executive order issued by the commander-in-chief
as a war measure and now the war is over. The Thirteenth Amendment
abolishes slavery forever. It’s quickly followed by
the Fourteenth and Fifteenth Amendments, to guarantee equal
rights to all Americans, and the right of black men to vote. The Bill of Rights forbade
the Congress to abridge our liberty but not the states. The Fourteenth Amendment
safeguards the liberty of every American with a single phrase:
“No state shall deny to any person within its jurisdiction
the equal protection of the laws.” It is the very first time
that we have a general, express guarantee of equality
in our Constitution. The Fourteenth Amendment
applies to everybody: male, female, all different races. But it took time to get there. The very Americans for whom the
Fourteenth Amendment was passed, were stripped of its guarantees. The Fourteenth Amendment created
a federal power to protect individuals from having
their rights violated by their own states. As a result of that,
there was pushback by at least two separate groups. One are people in the South who
wanted to restore some semblance of slavery as much
as they could get. And the other were people in the
North who valued the sovereignty of their states to
do what they wished. And the result of this
convergence of forces, essentially the Reconstruction
Amendments were gutted. The Civil War and the
constitutional amendments that followed ended the institution
of slavery, but they did not make the enslaved people or
their descendants truly free. Southern state legislatures
nullified the rights of freedmen with a sweeping set of
laws known as Black Codes. Former slaves are barred
from so many occupations. Slavery endures in all but name. In many ways, nothing changed. The Black Codes really
represented a South that was defeated but unrepentant. It was really their way of
trying to reinstitute slavery. The horrible history of racially
discriminatory laws included disarming the newly freed,
formerly enslaved individuals. That was a very profound way of
undermining their equal status and, indeed, endangering
their very lives. Stripped of their Second
Amendment rights, freedmen are at the mercy of vigilantes. Segregation becomes
the law of the land. Freedmen lose their
hard-won freedoms, including the right to vote. And as a result, the racial
subordination of blacks in this country went on for
another 100 years. Freedom needs more than
celebrating; it needs defending and that takes guts. My great-grandfather’s
first cousin was a shoemaker. He challenged the Separate Car
Act of Louisiana, which mandated separate accommodations for
people of different races. The railroad was partner in
this attempt to change the law. It cost them a lot of money to
change cars when it was easier to just let all passengers
ride in the same car. He was selected because of his
complexion, and he would appear to be someone of the white race. There was this thing
called a one-drop rule. If you had one drop of
African blood in you, you were mixed race. He boarded the train car. And the conductor, as well as
the arresting officer, were all in on this plan to fight the
segregation laws of Louisiana. So the conductor approached
him and asked him was he a person of color. And he responded yes. I’m a person of color, I
purchased my first-class ticket, and I’m going to go to
Covington on this train. Upon his arrest, he was
removed from that train and brought to criminal court. My name is Keith Plessy. And my great grandfather’s
cousin’s name was Homer Plessy. In 1896, the landmark case of
Plessy v. Ferguson reaches the Supreme Court. Plessy’s lawyers argued that
the state law violated the equal protection of the laws guaranteed by
the Fourteenth Amendment to the Constitution,
which had been ratified twenty-five years earlier. “No state shall make or enforce
any law which shall abridge the privileges or immunities of
citizens of the United States, nor deny any person within
its jurisdiction the equal protection of the laws.” The Supreme Court said
the Constitution must be interpreted to reflect
“the customs and traditions of the people.”
So much for equal protection. The Supreme Court, after all, is
a reflection of society, and so when our society was deeply
racist, so was the Court. Whatever you want to do to carry
on the vestiges of slavery, we’re going to say that’s okay
for you to do, and we’re going to actually give
you cover, right? One Justice dissented:
John Marshall Harlan. He stated, “Our
Constitution is colorblind. All citizens are
equal before the law. The humblest is the peer
of the most powerful.” Justice John Marshall Harlan got it right. When the Supreme Court speaks,
people can sort of put its pronouncements, its decision,
next to the actual Constitution as it’s written say, wait
a minute, you guys and gals made that up. The suffering that
resulted from that case was a national disaster. It reached out into
every facet of life. The first time I came to
Washington, I saw in the station separate fountains,
water fountains, for whites and for coloreds. I was really shocked. That was in 1967,
more than a hundred years since the Civil War. That was the legacy of
Plessy v. Ferguson. Growing up in New Orleans, we
knew what we couldn’t do, and we knew what the white people
could do because we lived in the neighborhood with them. They could go anywhere. Sometimes in restaurants, we
could buy food, but we had to go to a back window that said:
“For Colored Only.” My mother loved the
opera, but we had to walk up 103
steps to sit in the crow’s nest. My sister and I counted
them every time. And the movie theatres that we
could go to were segregated, and the white people sat downstairs,
and we sat upstairs. Living under segregation did
something to your self-esteem because I remember as a child
saying well, “I want to go on the roller coaster at the
beach.” And my parents said, “No, we can’t go on that.” So
you grew up with that pall over you that you were not as good
as we are, you can’t do this. But my parents always said one
day it’s going to be different. So there was that hope. Women now outnumber
men at the polls. It took an amendment to ensure
a woman’s right to vote, a right that once seemed implied. “No government shall deny any
person the equal protection of the laws.” Surely it’s
reasonable to interpret that as meaning that states may not
deny women, who are indisputably persons, a very important
equal right, namely, the right to vote. And not only were they not
allowed to vote, they were actually prosecuted
and convicted for the crime of illegal voting. War makes Americans
think differently about liberty and equality. And Woodrow Wilson said
we should make the world safe for democracy. Women suffragists said, yeah,
make America safe for democracy. Give us the vote. And in the wake of World War I,
finally they won the argument. And in 1920, you get
the Nineteenth Amendment. What do you think is the
most important change, the most important amendment
over the years? The right to vote, giving
women the right to vote? Half the population
was affected by it. Absolutely. I voted! So by 1920, half of the
population, women, who had not been treated equally under the
law, finally gained the right to vote and to participate in
electing our government. I knew a man, an
African-American man, who was born here in Baltimore in 1908,
in the days of segregation. He grew up on this street. Played in this neighborhood. His father was a porter on
a train, and his mother was a schoolteacher. When he graduated from high
school, his parents scraped to put him through college
and scraped again to put him through law school. He wanted to go to the
University of Maryland Law School, but he knew
they wouldn’t admit him because of his race. So he went to Howard University
Law School in Washington, D.C., and was graduated
first in his class. Two years later, he turned
around and sued the University of Maryland Law School
for discrimination and won. And his client became
their first black student. For the next few decades, he
spent a lot of time in court. He became America’s
leading civil rights lawyer. He represented and defended men
accused of rape and murder in the Deep South, risking
his life to save theirs. While trying to save two men
from being lynched, he was almost lynched himself. He was the bravest
man I’ve ever known. In 1954, he argued a landmark
case before the Supreme Court that challenged the legacy
of Plessy v. Ferguson. Widely known as Brown
v. Board of Education. That man who was a victim of
segregation, who was a lawyer for the NAACP, who
argued Brown v. Board, that was Thurgood Marshall. In 1967, he became the first
African-American Justice ever to serve on the United
States Supreme Court. And I had the honor of serving
as one of his law clerks there. Marshall understood the
benefit of having a written Constitution: Laws can change
with “the whims of the people,” he said, but the Constitution
“does not change when mores and customs change.” In Plessy, the
Supreme Court tragically bent to the customs of the day. That created the legal problem
the Warren Court faced in Brown. When Chief Justice Warren writes
Brown, he realizes that it’s going to be monumental. It’s probably the most
iconic case in all of our legal history. It’s almost a moral decision. It is good when those
decisions are unanimous. So Warren lobbies his brethren,
and he eventually convinces all of them to come aboard, even the
ones who were a bit skeptical about whether this
was a good idea or not. Brown says separating
the races, just to separate them, is not equal. I think separate but equal
is a different form of being afraid of other people. You can’t have something
separate be equal. The Court said the mere fact
of racial separation creates inequality because it is
the government creating a second-class citizenship. It’s a badge of inferiority. It’s a stigma. In the next decade, a series
of landmark laws and lawsuits outlaws segregation in places of
public accommodation, from buses and trains to
restaurants and hotels. Brown v. Board of Education
absolutely changed my life. I went to Cornell University
when Cornell University decided that it was time for Cornell
not to be basically all rich white people. I would have gone to a small
women’s college or a small black college, and I just
wouldn’t be who I am. Affirmative Action is so
difficult because it calls into question two different
visions of equality. And the Constitution doesn’t
provide us a clear answer. Say you have a job to fill,
or someone has a job to fill. Yeah. Is it appropriate for them to
take into account the skin color of the applicants? It’s a complicated question. I think that people should
hire the best person qualified. What is the right balance
between rectifying the sins of the past and focusing
more specifically on individuals in the present? Affirmative Action provides
opportunities to people who otherwise wouldn’t be able to
afford those opportunities. It shouldn’t matter what sex you
are, what color of your skin; it shouldn’t matter anything,
can you do the job. Cause you know, a purist would
say we shouldn’t have any kind of race discrimination, and a
non-purist would say, yeah, except after 200 years of
slavery and then 100 years of Jim Crow, we have a
national stain on our honor. Will Affirmative Action
be here for the ages? Probably not. When Justice Sandra Day O’Connor
cast the deciding vote upholding a state university’s Affirmative
Action program, she wrote: “We expect that 25 years from now,
the use of racial preferences will no longer be necessary.”
That was in 2003. In not very many more
years, we’ll know whether she was correct. There have been other changes to
expand equality under the law. The Supreme Court only recently
ruled that the Constitution protects those who want to
enter into a same-sex marriage. And it all comes down
to that keyword liberty. Justice Kennedy
writes the opinion. Justice Kennedy loves liberty. He said if the Framers had had
specific concepts of liberty, they would have said so. I think, in fact, the stronger
argument is one of equality. Gay people are equal citizens
of the United States, and they should have an equal right
to marry people they love. The genius of the American
experiment is the notion that the same rules
apply equally to all. “All men are created equal,
endowed by their Creator with certain inalienable rights.” I
think that’s one of the most important sentences in
the English language. Equality under the law
does not mean that we’re all exactly the same. We’re all different. We’re individuals. Equality under the law does
mean no group can be treated differently nor deprived of
life, liberty, or property without the due process of law. Our constitutional system has
allowed us to change the laws over the years, to match more
closely the ideals set forth in the Declaration of Independence.

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