The Challenges of Teaching the Constitution in the Age of Trump
Every January, I write a letter to my incoming law students to get them excited about learning constitutional law. That letter was not easy to write this time.
The past few years have shaken my faith in the Constitution. Like many law professors, I once confidently predicted that the Constitution would never permit a president to ban Muslim travelers or put toddlers in cages. I also thought the document prohibited police officers from inflicting excessive force on Black bodies — despite everything I witnessed to the contrary.
Still, as recently as two months ago, I thought there was consensus around some interpretations — for instance, that nothing in the Constitution permitted anyone to single-handedly overturn the results of a presidential election. The white nationalists who stormed the Capitol to reject that interpretation left me questioning how long the document will survive.
Yet as surprised as I was, I had to share a difficult truth with my students: This has all been a continuation of — not an aberration from — America’s constitutional tradition.
A striking photo from the insurrection depicts a man holding a Confederate flag outside the Senate chamber. Behind him, on permanent display, is a portrait of John C. Calhoun. Calhoun roamed the Capitol shortly after its construction by enslaved workers. He boldly protected the system of racialized violence that oppressed these workers — as did the Constitution.
One of those protections was the method the Constitution prescribed for presidential elections. It allowed Calhoun’s state of South Carolina to count three-fifths of its enslaved residents as if they supported the state’s choice for president. As the Constitution authorized, the legislature itself allocated the state’s electoral votes, sent Calhoun to the Senate and malapportioned its own seats to ensure the political domination of wealthy slaveowners.
Similar protections of racial subordination pervade the Constitution. The taxing clause was structured to prevent the federal taxation of enslaved property. The commerce clause was interpreted to prevent Congress from regulating commerce in enslaved people. The fugitive slave clause authorized agents to raid and deport northern Black people into slave states.
The Civil War brought with it a decade of constitutional renewal. The 13th, 14th and 15th amendments abolished slavery, guaranteed the equal citizenship of Black people and enfranchised Black men. Federal civil rights laws permitted multiracial democracy to exist in this country for the first time.
But the moment was fleeting. Terrorists clad in white hoods and red shirts lynched Black voters. The Supreme Court declared that Congress had no power to stop this violence. The court warned that Congress was “running the slavery argument into the ground” when it passed anti-discrimination laws, and it was time for Black people to “cease to be the special favorite of the laws.” White Americans gleefully responded by inaugurating a system of racial apartheid.