On Tuesday, September 17th, we celebrate the 226th birthday of our Constitution. But what precisely should we celebrate?
The founders of this country created a remarkable document. It is the legal and political framework for our democracy. But it was a deeply flawed document.
Because strict legal limits on the power of government are needed in a majoritarian democracy, principles protecting individual liberty were codified in a Bill of Rights, which was not part of the Constitution as it was drafted on September 17, 1787, nor was it part of the Constitution submitted to the 13 states for ratification.
So when we celebrate the Constitution, we celebrate not only those who created the Constitution during the summer of 1787, but also those who had a broader vision of liberty and fought to improve it.
But even with the Bill of Rights added, the Constitution was deeply flawed – it protected the institution of slavery. Certainly, that is not that Constitution we celebrate.
The Constitution we celebrate today -- a document guaranteeing equality before the law -- required a bloody civil war before additional amendments were added to bring blacks within the Constitution and to apply the Bill of Rights to state and local governments.
But it would take another century before black people began even minimally to redeem the promise of the Civil War amendments. During that time, racial violence was common and race discrimination became deeply imbedded in our laws, our political institutions and our culture. And until 1954, the United States Supreme Court legitimized it.
It was more than 175 years after the Constitution was written before civil rights laws outlawed discrimination in employment, housing, public accommodations, and voting.
What we celebrate today is not only the paper on which our rights were written, but also the struggles of those who fought, and died, to make those rights a reality. They deserve our praise, not just those who first conceived of those rights and wrote them down.
We celebrate Frederick Douglass in the 19th Century and Jackie Robinson, who broke the “color bar” to our “national pastime" in 1947. We celebrate Oliver Brown, who bravely walked his daughter Linda to their neighborhood school, which was by law limited to white children.
We celebrate Rosa Parks and Martin Luther King, Jr., the students at Little Rock’s Central High School, Medgar Evers, Viola Liuzzo and three murdered civil rights workers whose bodies were dumped in a Mississippi dam in the summer of '64.
And what is true about the struggle for racial equality is also true about the struggle for other liberties.
The Constitution whose birthday we celebrate today tolerated the subjugation of women. It was not until 1920, 133 years after the Constitution was drafted, that the 19th amendment gave women the right to vote. This achievement was not due to the wisdom or courage of the founders, but to the struggle that followed.
If the Constitution knowingly left out blacks and women, it didn't even think about others: gays, children, students, prisoners, the mentally ill, and the disabled. For nearly all of our history, these groups were largely unprotected by the Constitution. But one by one, they went into the streets and to the courts and legislatures, seeking to have the Constitution and Bill of Rights apply to them. And slowly, partially, grudgingly, it did -- but only after much struggle.
But what happens when the government violates the Constitution? When government makes a law restricting free speech or religious liberty?
The conventional answer is that if a government agency or official exceeded constitutional limits, the courts would step in. But courts don’t act on their own. They are powerless to fulfill their function unless an aggrieved person files a lawsuit.
But because the people whose rights were most often violated were precisely those least able to hire a lawyer and access the machinery of the courts, the most common violations of rights went without a remedy.
Then in 1910 the NAACP was established, followed in 1920 by the ACLU. These organizations gradually developed the resources to challenge constitutional violations in behalf of people who never could have done it themselves: school teacher John Scopes would not likely have challenged the Tennessee law making it a crime to teach evolution without assistance from the ACLU including getting Clarence Darrow to serve as a volunteer ACLU attorney.
Similarly, it is not likely that Oliver Brown could have challenged school segregation in 1950 without the assistance of the NAACP.
In 1920, more than 130 years after the Bill of Rights was adopted citizens sat in jail for holding anti-war views. A man was sentenced to prison for reading the Declaration of Independence in public, and a minister was sentenced to 15 years for saying that World War I was un-Christian.
Racial segregation was the law of the land, and racial violence against blacks was common. Sex discrimination was firmly institutionalized. Until 1920, when the 19th Amendment was finally ratified, women did not even have the right to vote. Constitutional rights for gays, the poor, children, prisoners, mental patients, native Americans or the physically handicapped were not yet conceived.
Then all that began slowly to change. Driven by the NAACP and the ACLU, courts began to be presented with constitutional violations for the first time in a systematic way. In the Warren Court, these organizations found a receptive Supreme Court. Without the NAACP and the ACLU, people whose rights were violated rarely got into court, and the function of the independent judiciary as the enforcement mechanism for the Bill of Rights was almost never fulfilled.
The ACLU and the NAACP, and similar organizations, were the missing ingredient that made our constitutional system finally work. They were the key that ignited the independent judiciary that is the guardian of the Constitution.
So when we celebrate our constitutional rights, we do not only celebrate the remarkable document drafted 226 years ago by the delegates to the Philadelphia Convention. We celebrate the men and women who took that document seriously, who fought to expand its protections to those who were left out, and who risked their lives to fight against violations of rights, even when the fight seemed hopeless.
And we celebrate those who had the vision to begin organizations like the ACLU and the NAACP at a time when the idea of enforcing the Bill of Rights seemed hopeless -- a time when the Bill of Rights was mostly just a piece of paper. We celebrate those who built these organizations to make it possible for individuals to stand up against government abuses and assert their constitutional rights.
Note: Versions of this piece appeared in newspapers across the state of Florida for Constitution Day 2013.