Editor’s Note: In this BC Law Magazine “Vision Project” series, we are engaged in a lengthy discussion with Boston College Law School faculty about where the Covid-19 pandemic and its attendant medical, economic, racial, and political consequences may lead us. As New York Times op-ed columnist Timothy Egan so eloquently put it recently, “Every crisis opens a course to the unknown. In an eye-blink, the impossible becomes possible. History in a sprint can mean a dark, lasting turn for the worse, or a new day of enlightened public policy.” There are warnings and worries in these professors’ views, but there are also farsighted ideas and strategies for crafting a better future, a more just society, and a world in which each and every human being is equal under the law.
PROFESSOR MARY SARAH BILDER
Professor Bilder is the Founders Professor of Law at Boston College Law School. Her most recent book, Madison’s Hand: Revising the Constitutional Convention (2015), received the Bancroft Prize in American History and Diplomacy and was named a finalist for the George Washington Book Prize. She has lectured widely on the framing generation, including at the Library of Congress, the National Archives, the National Constitution Center, and the Museum of the American Revolution. Her book The Lady and George Washington: Female Genius in the Age of the Constitution is forthcoming in 2021.
In historical terms, how do the calamitous events of recent months compare to upheavals in America’s past in their ability to expose the flaws of our democracy and the structures and beliefs that support it? When I teach American legal history, an overarching enduring question we explore is why and how the law has acquired the power—transformative and destructive—that it possesses within American legal culture. History helps us understand our past and the pernicious legacies that continue to burden us today. When we use a concept like “our democracy,” what do we mean by that concept? Who is included in “our” and how do we ensure that “our” is inclusive? What do we mean by “democracy”? How do we ensure that people who live in America participate in and experience true democracy? Since the framing period in the 1780s, the United States has witnessed continual struggles to make “our democracy” inclusive. Repeatedly, for some, law becomes a tool to codify existing inequalities and to consolidate and extend the power of white men; for others, law becomes an instrument by which we can sketch trajectories that promise greater equality and inclusion. Like so many generations before us, we may aspire to a democracy, but in crucial respects many of us live still in a world that feels like a white male aristocracy.
What short- and long-term opportunities do you see arising in this moment for a new understanding of and appreciation for the lessons of legal history? We tend to imagine US history as a straight line from white male aristocracy to democracy for all. Conventional histories tell a story of progressive democratic expansion from the founding period: the fall of restrictions based on property; the fall of restrictions based on race; the fall of restrictions based on gender. It usually goes something like this: in the beginning, only wealthy white men of property were permitted to participate in the constitutional state, but the rise of democracy inserted an inherently evolutionary expansion into the system, from all white men to all men and then to all men and women. This story presumed a starting point in the 1780s, during which there was widespread conscious recognition that women and people of color should not participate in constitutional politics and that white men should participate.
But that starting point is wrong. People of color and women believed they should participate in constitutional politics in the 1780s, just like white men who had been traditionally excluded because of property requirements or religious tests. This is not to deny the reality of an exclusive, white, relatively affluent male group who wrote our founding documents or the ways in which these documents attempted to favor the interests embodied by the founders. But many state constitutions and the federal Constitution did not explicitly bar people of color and women from constitutional participation. Importantly, women and people of color voted in New Jersey in the early national period under the state’s 1776 constitution.
During these years, people of color and women attempted to access education to establish their capacity for political participation. And education for women, and to a lesser extent for people of color, began to expand during these years. But for women and people of color, educational opportunities depended on private efforts. Public support for schools and colleges favored white male education.
In the 1790s, exclusions became increasingly part of new constitutional structures. In 1792, Kentucky’s constitution broadened suffrage for white men and narrowed suffrage for women. It became the first western state to permit men to vote without property or taxpaying requirements—but it did so by describing voters as “free male citizens.” By 1799, Kentucky restricted free blacks from voting. The exclusionary language was explicit: the right to vote belonged to “every free male citizen (negroes, mulattoes, and Indians excepted).” With each of these new pieces of legislation, the constitutional space around women and people of color grew smaller.
Historians debate the causes of the shift from a property-based franchise to an exclusionary franchise based on sex and race. But regardless of the underlying causes, the rise of political parties and national political coalitions—particularly the new two-party system and the Democratic Party under Thomas Jefferson—encouraged, amplified, and legally codified the shift. “Democracy” became synonymous with a white male world of political privilege and power. For reasons that benefited white men as voters and white men as politicians, the white men who were overwhelmingly in power converted the system into one that explicitly excluded women and people of color. Democracy became a world in which white men were represented instead of a world in which the people were represented. Every state admitted to the Union between 1802 and 1876 defined suffrage by constitutional exclusion based on race, sex, or both.
In 1869, Charlotte Rollin, a woman I have been writing about, spoke before a special meeting of the South Carolina legislature. She explained that as a black woman she was a “victim of gross, semi-barbarous legal inequalities.” Criticizing the privileged status of white women, Rollin commented that black women were “not recognized as the gentler sex.” On behalf of black women, all women, and all people, she argued that “until woman has the right of representation, her rights are held by an insecure tenure.” It was a “fundamental and constitutional right” that belonged to “humanity in general” to ensure “consent of the governed.”
A constitutional system that explicitly excluded over half the adult population was not a democracy. It was a white male aristocracy. White men as a group were a privileged class, believed by themselves to be the best qualified and superior, and they inherited this power by virtue of their birth as white men.
Until recent weeks, this description might have felt to some like a story only about the past. But now we can recognize that this story is also about our present. The legacy of white male aristocracy still surrounds us.
What is your vision for the future? What resources can you point to that could guide us toward building and sustaining a stronger and more just society? I challenge readers to reflect on their own interactions with others. In what ways could those interactions resemble aristocracy instead of democracy? Aristocracy is characterized by the belief that some group is superior to others. It assumes hierarchy and deference. It expects some people, simply because they are not white men, to defer to the judgment of white men. It imagines the voices of white men to be more worthy of speaking and more deserving of being listened to.
I challenge readers, particularly those who are white, particularly those who are men, to think about whether they walk through the world expecting deference. Do they carry themselves implicitly as aristocrats? How would it feel to alter this aristocracy? For a start, I challenge readers to ask themselves when they have deferred to a person of color. When have they deferred to a woman of color? When have they deferred to a woman or a non-binary person? When have they tried to occupy a democratic space in their own life—no larger than that occupied by anyone else? When have they practiced in their own minds and actions the behaviors that begin to erode the white male aristocracy that is the terrible living legacy in this country?
Read all faculty Vision Project interviews here.