Slavery, a film narrative and the empty myth of original intent.

29 Oct
October 29, 2013


I’m fresh out of a theater in Santa Monica, California where I’ve watched 12 Years A Slave for the second time, having seen it several days ago on a laptop screen through a dedicated download.  I’ll be honest.  I wanted to write something after absorbing the narrative and the imagery the first time, but I was so wrought that I didn’t trust myself.

Had a film with American participation actually addressed the original sin of our nationhood so bluntly, so honestly?  Was the film really as careful and delicate and dispassionate with the historical reality?  Was the restraint that i felt in the telling really there, or had the punches been carefully loaded as Hollywood is so apt to do?

On first viewing, I was simply startled by how genuinely fair the storytelling had been with the subject matter.  Sadism and soullessness was balanced by moments of regret and conscience on the part of white characters.  Accomodation and supplication on the part of Southern slaves was punctuated by moments of desperate courage and dignity.

On second viewing — with me in a darkened theater with a big screen, looking for the rough seams and filmic dishonesties — I emerged thinking precisely the same about this remarkable work.  This film didn’t cheat our national history.  It didn’t allude to horror, nor did it revel in it.  It marks the first time in history that our entertainment industry, albeit with international creative input, has managed to stare directly at slavery and maintain that gaze.

Everyone who had anything to do with this film getting made —  from the producers, to director Steve McQueen, and the committed, talented cast — should sleep tonight and every night knowing that for once, the escapism, bluster and simple provocation that marks a good 95 percent of our film output has been somehow flanked, and subversively so.  These people have told a hideous and essential story about our nation’s great and longstanding sin with such calm and clarity that if we accept the film on its actual terms, rather than through the cluttered prism of our own racial and political sensibilities, only two kinds of folk will emerge from theaters.

The first will be at last awakened to the actual and grevious horror in which the black experience in America begins.  Efforts to achieve this in the past — The “Roots” miniseries on television, or a few halting and veiled attempts in feature films to imply the desperation of terrorized human chattel — came down the road a piece, but none dared the entire emotional journey.  For ordinary Americans willing to confront our history without equivocation and vague allusion, this film will prove a humanizing and liberating journey. This much truth can grow an honest soul.

And for those still desperate to mitigate our national reality at every possible cost, this film will be an affront.  It is not intelligently assailable by anyone, though the racial divide and resentment that still occupies our national character a century and a half after abolition will prompt certain creatures to pull at threads, hoping against hope.  Mostly, those who want to pretend to another American history will just avoid the film or the discussion that ensues.

The second screening did leave me with one additional thought, something distinctly political that could not fight its way through the more fundamental human reckoning produced by the first viewing.  It’s this:

Anyone who acquires the narrative of 12 Years A Slave and finds it within his shrunken heart to continue any argument for the sanctity and perfection of our Founding Fathers, for the moral wisdom of their compromised document of national ideal that begins the American experience, or for their anachronistic or historically understandable tolerance of slavery — they are arguing from a desolate, amoral corner.

If original intent included the sadism and degradation of human slavery, then original intent is a legal and moral standard that can be consigned to the ash heap of human history.   Hardcore conservatives and libertarians who continue to parse the origins of the Constitutions under the guise of returning to a more perfect American union are on a fool’s journey to decay and dishonor.

There is some considerable wisdom in the American Constitution, and more found within many of the 27 sanctioned efforts to amend and improve the weaknesses and moral lapses that were allowed to co-exist with the adoption of the original template.  There is, at some key points in our history, even more wisdom in some of the liberalizing and rationalizing assessments of the U.S. Supreme Court in adapting the improved morality of a later age to constitutional language and code.  We have journeyed far, and by many metrics, we have acquired a greater claim to our own humanity.

But for anyone to stand in sight of this film and pretend to the infallibility or perfect intellectual or moral grandeur of a Washington, a Jefferson, or a Madison is to invite ignominy from anyone else sensate.  Slavery was abomination, and we, in our birth of liberty, codified it and nurtured it.

It took Lincoln, and a great war, to hijack the American experiment from its original, cold intentions by falsely claiming, a century and a half ago, that the nation was founded on the proposition that all men are created equal.  It was founded on no such thing.  It required blood, a new birth of honor and a continuing battle for civil rights that is still being fought for this nation to be so founded.

In the echo of this film, the continuing call for a strict construction of our national codes and a devotion to the precise, original ideas of the long-dead men who crafted those codes in another human age, rings hollow and sick and shameful.

211 replies
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  1. James Elson says:

    I didn’t think the Academy Awards would take as much notice as they did! I’m still amazed that it actually won for Best Picture. What an achievement.

    • Tom says:

      seriously? it seemed to be a shoe-in with the Academy, as it turned out to be. it would’ve been surprising if it didn’t win. …hence the joke given by the presenter: something like “either it’s best picture or you’re all racists”.

      • James Elson says:

        What proof do you have of this? And what joke are you referring to? Did I miss something? Or are we just going to have to fundamentally disagree?

  2. Alexander Wolf says:

    Well, looks like I’m a little late to the conversation on this one. I just saw your lecture at the Festival of Dangerous Ideas and thought I should check this blog out.

    12 Years a slave was amazing. I don’t know who said it, but a long time ago I heard a critic say that 99% of movies about slavery fail because they don’t trust the black characters to carry the narrative. Movies like Amistad and Glory seem to be be more about the glorification of the white characters participation in the war for the abolishment of slavery, as opposed to giving any kind of meaningful insight into the personal struggle of black people living during that period.

    One of the really brilliant elements of the narrative, and more over the real story of Solomon Northrup, is that we (or at least me, as a white educated male) can empathize with him easier than most black characters at that time. He is a great middle point of humanity. I don’t mean to say that the story of an uneducated black man is any less important, but seeing a man who uses a similar vernacular and social mannerisms, allows people that may harbor unknown or subtle distastes for poverty, access to the character. In Solomon we see ourselves, and for better or for worse, that allows us to empathize so much deeper with him and lets the audience shed racial and class barriers more easily. It’s no more tragic that he was an educated man, be he used the words and sentiments we can easily understand stand to experience that tragedy.

    That was the genius of MLK. Whenever he would go to churches and address the gathered masses to instruct them in the etiquette of a sit in, he would always say,”Wear your Sunday best.” Because whether we like it or not, when people dress, talk, act and behave differently than we are used to, we create emotional barriers between them. When MLK told people to dress in their good clothes, it allowed people that otherwise didn’t sympathize with the plight of the black community, to see themselves sitting in those chairs when police would storm the building and drag them out the front door.

    I live in the Bay Area, and I always argue that the merit and substance of a story usually doesn’t mean much unless its presentation is honed to a masterful level of presentation. If you have content, but little presentation, you can’t get people to care. It’s a human flaw, maybe more so in the western world, but I don’t know.

    Impactful art needs substance, but it needs shine just as much. 12 Years is a great example of this. Every aspect of the movie, from the meticulous lighting, the amazing casting, the surreal and almost dreamlike cinematography, and the bold directional choices (and you know exactly what shot, or rather what shot, I am referring too) allow a person to be intoxicated by the art of the film, and more lets them be more open to extending emotional patience to endure the brutal story within.

    As for the founding fathers, yeah, they were dicks. The deification of such anachronistic ideas comes from a place of fear and presumptuous nostalgia. But that’s a post for another day.

    I really liked your thoughts on the film. Thanks for posting them.

    • Philip J. Bender says:

      I just read this post. Great effing job. I went into 12 Years with the same trepidation, because historical films are so often Hollywoodized. But I took the chance because I’ve seen Steve McQueen’s other films, which are daring and honest, and he already looked to history once with Hunger. 12 Years is as brutal and undisappointing as you say. Every time someone asked me about it after I saw it, my response was the same: “It’s great, but it’s really hard to watch.” Sometimes the truth hurts. Thanks for saying it in better words than I could.

  3. Carlos Aguilar says:

    Originalism is not intended to divine the mind of dead people. Rather, it’s the simple recognition that words have a certain meaning that is independent of our personal life experiences. Naturally, the road to understand original meaning gets longer with time and is cluttered with bias, but the advantage of originalism is that it forces an outing of the biases and assumptions being made along the way. No such requirement exists for the “living constitutionalists.” The only way to make sense of the limited role of the judiciary in a republican system of government is if the legislated text is interpreted as objectively as possible, with judges looking to the historical record for guidance. The “living constitution” philosophy tells the judge to take the text as inspiration and then look inward for meaning. Taken to its logical conclusion, it places no limit on the power of judges. It is tantamount to substituting the whole constitution with “Judges, do good for the people” and getting rid of Congress.

    The moral standing of the Founders is irrelevant. They could’ve all been vile, racist people and you would still have to explain how it is that a legal philosophy based on introspective, open interpretation of law is compatible with a republican system of government. The wisdom of the Constitution itself is also irrelevant in this debate, unless you are arguing for overthrowing the whole system. As others have pointed out, there is a mechanism to change the Constitution to accomodate the changing values of society. Nothing in originalism says this is a bad thing. Originalism is quite simply the alternative to legal nihilism, the idea that words have no intrinsic meaning.

    • David Simon says:

      Life is easy if all you need to do is assert that your preferred philsophy is “quite simply the alternative to legal nihilism.” But in actual practice, the standard of original intent is neither more consistent, nor any more objective, than any other. And the same justices who have been so quick to savage judicial activism were the very same ones who found a fresh interpretation of the Constitution that fully equated money with free speech, and undermined even the most basic efforts to prevent the American electoral process from being purchased. Just as they were the same ones who found it within a so-called strict construction of the Constitution to effectively allow a court ruling rather than a vote count to decide a national election.

      Further, your use of the term “inward” for what Justices might be asked to access in order to interpret the national code in our time is certainly not of my construct or imagining. I expect them to be looking exactly outward, at the standing of our society, its problems and its current dynamics, and to be balancing the need for societal responsibility and personal liberty with the need to apply the constitution to new situations and dynamics. Are you going to claim that this hasn’t happened throughout our history?

      How then did we get from Plessy to Brown, when both Supreme Court decisions occur with the 13th Amendment intact but no Civil Rights legislation yet on the books in 1954. The same court that argued to its own and society’s satisfaction that separate but equal violated no one’s civil rights then decides, little more than a half century later, that segregation itself is inequality defined, to credit the precise Marshall argument that the Warren court accepted. Explain that variance. I think it owes solely to changing racial mores and changing ideas about what constitutes civil rights in America. In Brown, the Supreme Court — activist in every sense — led the way by interpreting the Constitution more broadly than preceding courts. Why? Because they were reading the letter of the law more carefully? Bullshit. Utter bullshit. The Warren court did what it did because it was time, and because they were displaying courage that the legislative branch and executive branch had not yet approached. Or do you wish to argue that Brown v. Board of Education was the wrong decision? Wrong in what fucking sense? If you wish to argue that, please, be direct.

      The conservative and libertarian fealty to original intent and strict constructionism goes only so far. When it can thwart progressive agendas, it is invoked. When transforming and expanding constitutional doctrine can attain other political goals — money is speech, and let massed capital spend one-man-one-vote into the grave, for example — then activism is suddenly the order of the day for conservative justices.

      Mark you, I accept that if we allow the Supreme Court Justices to interpret the law as per their given lineup, then we will tend toward the politics of a given court. We do so already. I am unafraid of facing that inevitability because it is with us regardless of the fig leaf you wish to drape over the truth. Now, we have a conservative-leaning split on the court. Yet I am still willing to accept the blunt honesty of their bias, rather than the pretend-bullshit of strict constructionism, which even if our justices were truly trying to follow Jefferson or Madison to the letter — a problematic journey even if honestly undertaken — remains a philsophy that merely substitutes the inert and ingrained social, racial, political and economic biases of some long dead agrarian planters and New England lawyers for our own, present-day subjectivity.

      I would prefer that we take the constant judicial review and consideration of the constitution — and by extension, the responsibility of self-governance — in our own hands, conservative and liberal alike. I would prefer that we, all of us, argue now and continuously about what we now think the Constitution should mean and why. Would this be an inevitable and essential course for our republic if, say, the legislative component of our nation were not utterly broken, or if the founders had bestowed upon us a path to constitutional amendment that wasn’t extreme in its resistance to even the most one-sided and mutually agreeable public campaigns? Maybe not. But progress is not likely to be achieved by Article V in this day and age, not with capital arrayed against anything other than continued, maximized profit. Nor is Congress, purchased as it is, capable of finding its own ass with even one hand. An annual budget and paying the nation’s already committed debt is even beyond that dystopic institution.

      So I’m willing to hear our future actually argued in the court — and I will regard the outcome, whether under a conservative or liberal court — to be no more or less subjective than this jive-ass game of what-would-Jefferson-say. The founders said a lot of stuff. Much of it rightful, some of it shameful. But at this late date, their understanding of our present society has great gaps. I would prefer to free the best minds — conservative and liberal — to argue like hell now, with our base of knowledge and history, about how to best interpret the national template as it rubs against new issues. Self-governance is hard work. And it is eternal. The argument never ends, nor should it. And you can’t pass the buck backward to long-dead men who no longer can help us beyond the basic template itself, which again — to return to my original essay — was certainly not without flaw in some very basic respects. It is time for us to govern ourselves because democracy at its best, when it is working, is unending argument, and nothing gets better if that argument is mitigated by everyone throwing up their hands and saying, well, Jefferson was worried that….Jesus, God. Jefferson didn’t have indoor plumbing at Monticello, much less an understanding of metadata algorhythms and weapons of mass destruction when he was arguing about how far the 4th Amendment should extend over something called the internet.

      You can argue either side of this debate, Mr. Aguilar. It is a legitimate argument to have. But you can’t begin to look at how opinion on the high court has come 180 degrees on any number of issues — Plessy v. Brown is only one, example — and pretend, with any legitimacy, that strict constructionism offers “quite simply” the alternative to legal nilhism. First of all, what I wrote above is anything but nilhistic. I believe in our capacity to govern ourselves, in our time, to argue our differences utilizing both the existing constitutional template and our great base of knowledge about our society and our problems. That isn’t legal nihlism, or political nihlism, or nihlistic in any regard. And your implied claim that original intent or strict constructionism aren’t standards that are as subjective as any is belied by the Supreme Court’s long, tangled history of dealing with, and failing to deal with new issues in national governance and law. Even the Supreme Court’s history of declining to grant cert in controversial social-issue cases until the national consensus points their way to a decision is indicative of just how much the “letter of the law” is subject to fresh interpretation when American life requires it. Witness this court backing into gay rights now that the popular will has made itself utterly clear. By the time they find a consitutional right to let sentient adults fuck whoever they want to fuck without the government having a say in the matter, they will be affirming for liberty at the tail end of a populist revolution. Leading from the ass-end, as it were.

      Tell the truth: There isn’t a strict constructionist who won’t shape the template to fit a conservative story when the chips are down. And there isn’t a judicial activist who won’t obliterate a founder’s original desires if he thinks the outcome warrants it. Two sides of the same coin. And in calling one nihlist and defending the other with sanctimony, you’re pretending to a purity that has never actually existed on either side of the argument.

      So fuck arguing about what Jefferson meant, or what the template meant to the men who wrote it, or to the now-gone world they wrote it for. The Constitution is indeed the national template, and we — today — are the nation governed by such. If it can bend in the wind of constant change, it might survive as our national template, as buildings that sway can stand in a quake when those that stand rigid are sure to fall. Now, today, how should the Constitution govern us? What is right and what is wrong? Have the argument. What would pull too hard at our individual guarantees of liberty? What is necessary for society to achieve the goals necessary for communal responsibility and survival? And where those two essential values conflict, what is to be done to mitigate the conflict? Are we politically mature? Or are we Pharisees, reading the letter of the law and understanding nothing of its moral potential or ultimate purpose? We might get stuff wrong, sure. We always have. Dred Scott. Plessy. Citizens United. I’m still willing to trust in the argument and the eventual tolerant utilitarianism that usually wins out in American life over time, if the people’s voice is finally heard. Certainly, I’m more willing to trust in that than the limited insight of some Eighteenth Century gentlemen who couldn’t imagine their women-folk voting or black men fighting and dying for their republic. I keep saying so, and folks such as you keep writing in to claim that I must not understand how pure and simple and viable original intent is, or why it includes the tortured process of Article V and amendment, or even as ridiculously, how walking away from original intent as a predominant standard can justify a claim that I am trashing the Constitution, or in your case, that I am consigning words to meaninglessness. I understand perfectly well. I am not buying that shit, however. Haven’t been for some time now.

      The movie affirms me in this. But of course so does any careful history of the Supreme Court.

      • Carlos Aguilar says:

        Mr. Simon, thank you for the thoughtful reply. I think we agree on several points. The movie is inspiring. The constitutional template should change if inadequately attuned to a changing society. Debate should be open, vigorous and with all things on the table. Appealing to the beliefs of the Founders to justify any constitutional provision is an ad verecundiam fallacy. I agree that revisionism notwithstanding, originalism is not necessarily behind Supreme Court decisions that today are almost universally lauded. I’d go farther than that and say that had it been applied in some of the cases you mention and others, the immediate social outcome would’ve been worse.

        Yet all of this does not make me a believer in the living constitution and here’s why: because the living constitution gives too much power to a small group of people who among the empowered have the least incentive to accommodate popular will. Whatever beneficial outcomes we get from applying this philosophy is outweighed by the cost of having a less democratic, less balanced and therefore more unstable form of government.

        I am all for having the arguments but where would you rather have them, in a body composed of nine geezers appointed for life by a couple of presidents, or in a congress of representatives elected by the people every four years? The Justices have no phones to melt. These people are the least equipped to look “outward, at the standing of our society, its problems and its current dynamics”, as you put it.

        And, bottom line, if you are logically consistent with the living constitution, the Supreme Court trumps everything. Ever since Marbury v. Madison, we are a few immodest appointments away from being ruled by a black-robed junta. Isn’t this what FDR sought in lieu of the “emergency powers” of your average Third World strongman? This is not how a democratic system of checks and balances is supposed to work. I get your point that “conservative” justices have fallen into the activist category when it suits their ideology, but then your problem is not with originalism but with its uneven application. If I get pissed that my wife cheated on me, I shouldn’t blame monogamy. This is not about putting a “fig leaf” (as you put it) on the inevitable infusion of bias. It’s about upholding a valuable principle even if it’s imperfectly applied. Perhaps monogamy is not the best analogy, but if we agree on the value of a certain ideal, then we should strive for it and not throw it away just because history shows us it’s exceptional.

        One final word about the U.S. Constitution. You can tell it’s good because it has lasted, with only a few amendments. The country has done comparatively well under it, while Venezuela, for instance, has done poorly under 26 different constitutions. Whatever their views on race, steeped as they were in centuries of prejudice, the Founders deserve some credit for the bulk of their work still functioning without offending our modern sensibilities after all these years. It should not be overlooked that while the framework they established allowed for the abolition of slavery (after all, no new constitution was drafted), abolition is by no means an inevitable product of the times as slavery remains to this day in places like Mauritania and the Ivory Coast, where the ideas of the Enlightenment have yet to be ensconced.

        • David Simon says:

          Yes, we will disagree — and agree at certain intersections of thought.

          With regard to the above, I am certainly in favor of constitutional republicanism as the least worst, or most optimal, form of government. Nothing in the original essay, I will say again, argues otherwise. But again, I think you give strict constructionism and original intent too much credit for the utility of our template; in fact, at key moments, our judiciary has leaned forward, and not backward, for insight. You have not, for example, addressed how original intent gets the Warren court to Brown. And if it does not do so — at that essential moment in our history, when Jim Crow has endured for nearly a century after the 13th Amendment and major civil rights legislation is still an impossibility in our national legislature (we would require, in tandem, a martyred young president and a legislative master as vice president to manage that miracle a decade later), then how is original intent, unamended by the changing mores of American society, viable? What do you say to the millions in 1954 whose future and human potential depended on a step foward that our governing structure was unable to take absent some judicial activism?

          I also disagree with your characterization of nine old geezers isolated from the populace. First of all, they tend to be appointed by more than a couple presidents — reflecting, overall, a more legnthy and centrist span of political sentiment. Secondly, I believe the Supreme Court can be the right kind of isolated from outside influence. It is, indeed, the legislative branch — and the House, worst of all — that is directly attuned to not only to election cycles, but to money. That is the part of our government that is now utterly broken and incapable. Of anything. And, as I said, given the impracticalities of mounting a modern campaign of referendum for constitutional amendments under Article V beyond Congressional action, the chances that the 21st Century is going to be an American one are slim at this point.

          I think the highest rung of our judiciary is actually in a unique position to assess the society and interpret constitutional issues with an eye toward utilitarian result. Would that the Court had contemplated the whorish money-fest that now passes for an American election when gutting all campaign finance laws, for example. But if you admire and understand Brown or Miranda, then you have to accept the inevitability of a Citizens United or a Dred Scott. Two steps up, one step back. The point is that real leadership and societal insight will always be left to subjective forces. But 535 legislators, all of them looking to the next election cycle and to their campaign war chests are no less subjective than nine justices, who know that their legacy is not only the preservation of our legal template, but also that template’s relevance as a just arbiter of human affairs in our time. They know, or should know, that history will judge their tenure not merely on whether the constitution is interpreted literally, but whether that document proves itself a relevant and honorable template for a society that remains tethered to personal liberty and communal responsibility. The Warren Court, for example, did not run away from the Constitution; it brought the ideals of the document into the fight for essential racial progress. And this court, for example, though I am no fan, did not run all the way back to original intent in leaving the ACA standing; it wrote its majority decision with an awareness that we live in a world where social services and national social programming has indeed become part of government’s role.

          An argument can be made that a functional court is attuned to the society for which it rules, and insulated enough to progress the constitution without affronting the core values of the template. And by that same argument, a less functional court will lean backwards, ignoring the society for which it rules, and interpret the constitution to the legal letter.

          But back to the essential question for you? Are you happy that Brown happened when it did? If not, say so. If happy, then credit judicial activism.

          • Carlos Aguilar says:

            Mr. Simon, the short answer is I don’t like the Brown decision. The Court’s argument was shoddy work, transparently eschewing precedent and legal reasoning to produce a desired social outcome. Desegregation was a morally noble goal achieved, in this instance, through illicit means.

            It has been speculated that had the court followed along the lines of Justice Harlan’s dissent in Plessy, which was strict constructionist, and argued based on the original intent of the 14th Amendment, they could’ve gotten rid not just of desegregation but also of Jim Crow laws, which would go on for a decade longer. I understand this is in the realm of speculation and you disagree. We can’t possibly know when desegregation would’ve ended had it not been for judicial activism, but at least we agree that it was judicial activism.

            And judicial activism I have a problem with for the reasons I stated previously. It usurpes sovereign will and ruptures the constitutional order (if not in the letter, in the spirit.) As you have noted, as a legal philosophy of short-circuiting the template, in the short term, at times, it will give you reasons to smile and, at others, to frown. In the long term, however, I fear it eats away at the rule of law and our republican institutions, which in the long arc of history tend to be exceptional, fragile states of civilization. Segregation in education was odious and harmful but when I zoom out I see worse things still, most of which are characterized by lawlessness and excessively empowering a small group of people.

            • David Simon says:

              Ok then. We shall disagree, fundamentally.

              You are certainly attentive to process. I am, too. It is what brought me down in a different places than most liberals on the NSA stuff. But I just believe that our judiciary has never been completely insulated from populist sentiment and the Constitution is as fundamental to American life and as enduring because it has been proven somewhat malleable.

    • Georgie says:

      Mr Aguilar,

      I issue you, and all that you caucus with, a very solemn warning, quite void of histrionics (and especially nihilism): Your SYSTEM is dying. And it is not that I in any way wish to see it die. It is dying from moral decay. And it is not necessarily the moral decay of the ordinary citizenry–although that is a part of it. It is a simple moral decay of the system itself. A system that was fundamentally created, in such a way, as to make moral decay simply inevitable. Why? Because it is a system constructed on the single, astronomically destructive and premeditated lie of “whiteness”. And the “superiority of whiteness” being a, supposedly, foundational aspect of “the natural order of life”. Even though, the science of biology itself has contradicted the lie at every conceivable turn. And because, as a result of THAT lie, it’s a system borne of layer upon layer of near endless further lying, cheating and stealing, in order to support the original lie. Lying, cheating and stealing to insure that white, Protestant, (seemingly) heterosexual males are always in control of the social order. “By any means necessary!!!”

      Mr Aguilar that is moral decadence of the highest humanly conceivable order! When you mix in the inarguable results of this policy, on people of color, over the next 250 years especially, the picture becomes inarguable. However, to those drunk with maintaining power (and especially insuring future power) this picture apparently can somehow still be quite distorted, to say the least. Mr Aguilar, my solemn recommendation is that you (and all that would politically identify with you) put the fiddle down, and take a REAL look at the very quiet, but growing, fires (of “no longer hidden” TRUTH) that are burning all around you.

      I somewhat use the nation of South Africa as the example for what I am conjecturing here. A viable nation can continue to be sustained only as long as the waters of immorality (that those who govern live their existence in) stay below a certain level. But once that level is exceeded, only heaven itself can hold back the coming flood. Mr Aguilar, my simple contention is that, after 300 years, we are fast approaching that moral flood stage. And once the flooding starts, debates about originalism, and the like, will very quickly be rendered moot. Because such discussions are rooted in a subconscious assumption that “things are going to stay, pretty much like they are, for a long,long time to come”. And they almost assuredly are not! Again, my appeal to you, and all like you, is “to turn your stiff necks”, before it’s too late, and the flooding begins. After 300 years of Native American genocide, chattel slavery, internment camps, forced sterilizations, involuntary medical testing,etc., the waters have just about risen to their peak!

      Now how does all this tie in with debates about orginalism and such, in the first place? For the most part, it doesn’t. In fact, if anything, it’s an appeal for you to stop debating, get out of the law library, and look at what’s REALLY going on out in the streets. Because, ultimately long after debates about the significance of even having legislative, judicial, and executive branches have faded into the very dustbins of human history, issues of fundamental morality will still be No. 1 on the charts! And for 350 years we’ve consistently failed pretty miserably at that morality thing (at least as far as people of color are concerned).

      Again, in somewhat simplistic form; my appeal is that WE ALL finally acknowledge, before it’s too late, that WE are all but bit players in something of a huge cosmic morality play. And for 300-plus years we’ve been making an absolute mockery of that morality. So maybe we oughta try to clean up some of the hideous mess, before it’s too late. Before we get the hook, and are replaced by more morally focused actors.

      Also in a very much related vein: By referring back to the very template that was used to shield and protect the lie of “the preeminence of whiteness”, in the first place, as the same foundational blueprint for cleaning up the mess… …well… …it may or may not ultimately prove to be the “psychologically healthiest” of solutions for our long term survival. Because on it’s best days it’s been schizophrenic. But on it’s worst days it’s been full-on psychopathic!!!

  4. Ruedeclase says:

    I’m not trying to put words in your mouth, David, and I am trying to be fair minded. I think your article is very clear and everything else you wrote solidifies it. Your opponent seems to take issue with your conclusion. I went through your post very carefully as well as your opponent’s. Forgive me if I seem obtuse, but you did not answer one of my questions and one of his, that I believe are at the crux of a possible misunderstanding. Would you be kind enough to indulge me?

    You wrote that original intent and strict constructionism are bankrupt philosophies. You wrote that “all of what has been characterized as untenable and debased is the notion that blind observance to the doctrines of original intent and strict constructionism”

    Here is a simple definition and I just want to make sure that this is what you mean so we are all talking about the same thing. “Strict construction requires a judge to apply the text only as it is spoken. Once the court has a clear meaning of the text, no further investigation is required.”

    Is that what you mean? Yes or no?

    I assume it is, so forgive me if that is not what you mean. So I listed a clause where the strict constructionist argument is not only clear but as clear as super duper crystal clear can be, but you say that this method of interpretation is a bankrupt philosophy. How is it bankrupt to interpret “No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen” according to constructionist principles? I sure don’t see any other way to interpret it! Do you?

    Then to Meyers’s question which I think is interesting. If you think original intent is a bankrupt way to interpret the constitution, then what method is not bankrupt? He unfairly assumes that this means you support the exact opposite, which means a judge can apply any standard they darn well choose. Is that what you support? If not, what method do you support?

    Thanks for indulging me.

    And where am I claiming that only a perfect document can accomplish the task? No, I am saying the Constitution was not a perfect template and neither were the men who wrote it. Neither are we. But looking backwards and seeking a strict construction of the document in anachronistic ignorance of human progress is no intelligent answer.

    • David Simon says:

      Have said it repeatedly, ad nauseum at this point. We must interpret our national template as we can, in our time, with our knowledge and our understanding of our era. I have no interest in a fundamentalist desire to know what was in Mr. Jefferson’s mind in Mr. Madison’s.

      If you think saying so is astonishing, then I would refer you to an intellectual consistency with regard to theological issues. A fundamentalist of my faith would read Leviticus and declare it abomination to be homosexual, eat lobster, and allow women to socialize with the rest of the tribe when they are menstruating. I don’t care what the priestly caste of some five thousand year old Bedouins believed when they codified such things. Two-hundred-year dead colonial planters are also circumspect when it comes to questions o slavery, gun control, women’s rights and non-representational composition of an upper legislative house.

      No one can supplant the hard job that we ourselves must do to govern ourselves now, in our time, with our problems and potentials. The world we inhabit is not entirely conceivable to even the wisest Eighteenth Century thinkers.

      That is what the original essay argues. For it to emerge from Mr. Meyer’s brain as being a trashing of the constitution is embarrassing. For you to see that as reasoned or see his response under that claim as a legitimate or honest query is, I’m sorry, equally embarrassing.

      • David Simon says:

        But let me ask you a question back. If you wish to pretend that there is a singular way to interpret the legal text — be it the Constitution or Leviticus or whatever — how is it in our history that two Supreme Courts, each operating with an extant 13th Amendment, each without the benefit of any of the Civil Rights legislation of the 1960s, came to the following decisions: Plessy and Brown.

        In the first case, a Supreme Court interpreted the post-Civil War world to be manageable under separate-but-equal, meaning that segregation could be the law of the land. Meaning that the court heaped ignominy on itself and our nation for another half century. Meaning that the second court, looking at the same Constitution, with the same laws intact, decided that segregation itself was a defining moment of human equality — adopting Marshall’s basic argument before the court.

        How does that happen?

        Because both courts are prisoners of their time, their existing knowledge and their understanding of their society’s moral readiness to change. That is judicial review that can serve a modern society undergoing geometric moral, social and economic transformation. Strict constructionism and original intent mean jack shit in comparison.

        And your binary either-or, yes-or-no questions are designed to ignore the journey from Plessy to Brown under the same template and statute. Sorry, I couldn’t explain this in detail last night. I was pressed for time.

  5. RueDeClase says:

    Just came across this.

    He does make one point if you cut through the fog and I do not think it is semantic. If X% of the Founders owned slaves does that mean that X% of the constitution is immoral? If I grab a random piece of the constitution, like “3/3: No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.” How is interpreting this super-clear text according to what the Founders intended immoral???? If you don’t interpret that way, then how do you interpret it? Make it up depending on who is in power??? Please explain. Thank you/.

    • David Simon says:

      This just gets sillier and sillier. Eventually, he’ll make an argument so ridiculous even he can no longer lift it.

      Who is suggesting that we should judge our national template on the basis of the percentage of slaveholders who authored it? Who but a moron would suggest such an absurdity? Who is claiming that anything other than slavery itself is immoral? Has the Constitution as a whole been so characterized in my original essay, or in any subsequent comments? No. Have the founders been so characterized? No. The only one playing an ad hominem game with the founders is Mr. Meyers. I’m not characterizing them. I’m characterizing the outcome of their authorship, our national code, and the methodology by which we interpret that code in our day.

      Get it? All of what has been characterized as untenable and debased is the notion that blind observance to the doctrines of original intent and strict constructionism. I am saying what I am saying. Exactly, no more and no less. I believe the way to build a just and viable society is to do the hard work of evaluating our national template in light of our time, our world and ourselves. Wisdom is in no greater supply than it was in the late Eighteenth Century, but knowledge has increased at a geometric rate to the point where the relevance and purpose of certain portions of the national code should not be considered in the construct of the era of the founders, but in our own.

      This nonsense on Brietbart, stunning in its infantile construct, makes not a dent in any of the above.

      Do you realize what you’ve attempted to do here? You’ve ignored what I actually wrote and instead embraced a corrupted and ignorant construct of what no sentient soul would argue, and then admired someone’s ability to wrestle that nonsense to the ground. Congrats. It will travel far in the echo-chamber that is Breitbart. Here, it is a non-starter.

    • Steven says:

      This post is even lamer than his original “rebuttal.” He is still arguing against claims DS never made. The constitution is a flawed document written by flawed men. I believe the founders understood this and thus inserted a mechanism for amending.
      As to your query, for me it’s simple, legalizing slavery = bad, requiring someone to be 30 and a citizen to be a senator = not bad. The fact that both things occur in the same document = the crazy yin and yang that is the USA.

      Oh, and this guy Meyers has the conservative, victimhood butthurt bit down pat. David Simon a bully? The man wouldn’t even snatch the cronut he was promised as payment for a gig a few columns back.

      • David Simon says:

        Bourdain made me a punk for that cronut. Your bringing it up reduces me to a state of victimhood that Mr. Meyers would scarcely recognize.

        • Steven says:

          Sorry to make you relive that painful episode. I had to put that “liberal bully” meme to rest though. It was getting tired.

          • Steven says:

            As for the film, I work at a large, art institution on the east coast and we screened the film a couple of weeks before it opened. I was able to view the piece twice in one day, once for the tech, again for the show.
            No adjective adequately describes the emotions I felt after the viewing. Speechless. Most chilling for me was the fact that free blacks, couldn’t take that freedom for granted, no matter where they lived. Sort of like today, where a black teen can’t go to the store and back home without worrying about the twitchy paranoid with a gun. That’s the infinite through line in our history.
            Have you read “We as Freemen” by Keith Medley? An excellent history of Plessy v Ferguson.

  6. Carnell Johnson says:

    First, let me say thanks! Your voice is important and I appreciate such a thoughtful essay. I doubt many of the people who attacked your arguments have read some of the slave narratives. The story of slavery is inseparable from the American history.

  7. Kevin says:

    Mr Simon:

    Reading those who challenge your essay–whether it is that guy who wrote a “rebuttal” or those here on the comments section–it seems (I emphasize SEEMS) as if they are expressing themselves with a certain moral or intellectual authority. One would think if such an authority existed from which they can draw upon, that there wouldn’t be any need to mischaracterize your argument nor its obvious intent. Now the last thing we would want to do is mischaracterize others or pretend to know with certainty someone’s motives for, the lack of a better word, attacking you and your well established integrity. But generally speaking, why is our culture (or certain parts of it) one where in the face of an honest but tough debate, the tools of mischaracterization and flat out lying are used to not win the debate but to bring it down? Are we more interested in winning an argument than finding or–in this case–accepting a solution? Or do those ugly tools of mischaracterization come out in the debates for which one or both sides find it too difficult to accept facts and how those facts pertain to them, where not losing the debate (be it by muddling the discussion with nonsense or otherwise) means staying in power in some fashion or degree? Whether it is the mischaracterization that Howard Kurtz threw at you up to this current “rebuttal”, your insight to those questions would be highly appreciated.

    By the way, aren’t we glad this isn’t 1800s where discussions like this could end with a dual? I guess that fact alone proves your point Aaron Burr…err, I mean David Simon LOL. But it’s better I guess to live in a time where the modus operandi for silencing opposition (or at least trying to) isn’t being assassinated or falsely imprisoned but rather dirty media tricks and blatant lying and mischaracterization.

  8. Fail Burton says:

    Thank you for that well thought out response Mr. Simon. Having said all that, I think we agree. Issues of semantics aside, which I dismiss as nitpicking our basic agreement, I think the main issue is one of context, and pulling it out and adding it in. For example, the American Constitution compared to what? You have added plenty more context in comments.

    I am adding more. Of course I am mitigating. But it is based on real circumstances and events. Anti-slavers can’t take it on the chin for not being more successful anti-slavers and therefore seen as slavers. You know that. And “that phrase” is not hypocrisy, since it deals with the god-given authority of kings, not equality among men who don’t have that authority.

    “Original intent and strict constructionism” may be the argument but then you say “slavery nonetheless existed and was codified in our original conception of the United States.” I am saying there is no “our” there and so that is not true unless you ignore context. There were two sides that disagreed so intently it eventually resulted in war. Compromise in the face of disunion and its attendant negative realities is not the same simply saying “codified,” which suggests there was agreement and no good guys. You can’t simply whitewash out a culture of 1787 that eventually grew into a Yankee army by calling compromise approval. And: we won! Where is that?

    I am not a fan of people who say America was built on slavery. Minnesota is in America, never had slaves, had anti-Jim Crow laws that predate 1900 and had a regiment ripped to shreds at Gettysburg. Put that baby back in the bath. The reality is that 20 million Americans went to war against 5 million Americans and slavery was ended. The only reason there wasn’t war earlier was because of a fear of losing it, not a lack of will to end slavery; a will that was a direct outgrowth of 1787. That reality, those numbers, provides its own mitigation. That event was a direct outgrowth of codifying slavery willy-nilly? No. In this sense, “de facto” is not the same as “want to.” My mitigation suggests the obvious outcome that actually and really happened: the Civil War. That Civil War was an outgrowth and intensification of a battle that existed all along, but minus the compromise, obviously.

    The original Constitution in all it’s stipulations is obviously flawed and I do not wish to return to it, nor squeezing bird’s blood onto my leg for the gout. But let’s emphasize separating good people from bad rather than using logic that suggests a guy in Ariz. in 1919 went from being for liquor to against it in one day, and then back again in one day in 1933. Our system is a continuous compromise, and no one should be seen as approving of it simply because they exist in it, or failed to win their points.

    • Georgie says:

      Your final sentence there grabs the greatest of my attention!

      In a “reasonable” society the standard of compromise that you suggest may be, to a very great extent, applicable. But when the actions of a given society deteriorate to the level of literal “crimes against humanity”, I would contend that the standards by which we are collectively judged “should” change rather dramatically! And in that particular vein, the moment when we transitioned from “multiracial” indentured servitude to full on chattel slavery was when we went from a “reasonable” nation of compromise to a nation of inhuman criminals and both “knowing and unknowing” accessories to kidnapping, rape and mass-murder! And similar to cases where the driver of a getaway car is charged with full-on murder, even though others actually physically committed the crime, I strongly contend that the same type of “moral” codification is quite reasonable here! Compromise implies reasonable and rational people. And the level of absolute criminality inherently required to consciously decide for such a hideously dehumanizing and destructive (and especially open-ended) endeavor clearly negates any claim to reasonable exercise, other than on an utterly superficial level. Quite simply, if we will begin to be truly honest, and acknowledge that the magnitude of these crimes puts us (along with all the other “civilized” nations and institutions of Europe, who colluded in this atrocity) much more in the moral ballpark of Pol Pot, the Khymer Rouge and Stalin than we would ever care to admit. And not nearly the timeless bastion of righteousness–allied against such “godless” brutality–that we have historically portrayed.

      Are these rantings of condemnation? Ala Jeremiah Wright? Calling down “fire and brimstone” in final judgement of “America the beautiful”? Far from it! Lo and behold, it is, in fact, a call to “reasonableness and compromise”! It is a call to live by the words of the founding fathers. Even if, by their actions (toward their own slaves, especially), so many of them betrayed virtually every syllable of what they themselves had written. It does not completely negate that the document itself was clearly superior to most of the men wrote it (in principle, at least). It does not negate that the principles of “reasonableness and compromise”, that it espouses, can be reached. Quite the contrary. If we will look back and cast a truly unflinching eye on what these “beloved” men truly were, I believe therein lies the seeds of finally learning “what we truly DON’T want to be”, as a nation! And by extension, for the first time, “what we truly DO want to be”! And once we aim “reasonableness and compromise” at THAT target, then we will have a genuine opportunity to be that “bastion of righteousness” that I talked about earlier.

      We’ve clearly cast that unflinching eye at the truth of what the conditions of slavery were like, for the first time, with this film. I’m simply suggesting that we take the next logical step, and shine that same light in the opposite direction.

      What do we have to lose if we don’t???

    • David Simon says:

      America was built in part on slavery, to be sure. And there is very much an “our” when we are speaking of our national ideals, our national ethos, our national narrative.

      And it is easy and accurate enough to parse things so that you mitigate for whichever Minnesotans were neutral to slavery, or to credit those who were abolitionist or who fought for union and abolition. But that doesn’t speak even remotely to the actual mercantile value of slavery and the value to the nation as a whole that was gleaned from that crime against humanity. Slavery as a macroeconomic system serviced the northern textile mills, and western Americans benefitted as well from not having to import the resulting products from England or elsewhere. The country as a whole fed on the fuel that was forced labor.

      And your desire to remove slavery from a central place in the American narrative is beginning to be a little disturbing. The Holocaust is a racial genocide regardless of the fact that there were insufficient numbers of German resisters, or that their were complicit Jewish sonderkommandos in the camps, or because there were others who were victimized along with the Jews. Do you want to begin deconstructing the Holocaust and its anti-Semitic component because of the German equvalent of Minnesotans who died at Gettysburg? Why and to what serious purpose? Why are you so intent on mitigating what the original essay says, wandering far afield to points that are non sequitur to the essay?

      Can I ask? Have you seen the film? Do you intend to see the film?

      • katie says:

        Thanks for addressing that MN statement.

        I could very rightly claim that since my forebearers didn’t immigrate to the US until the 1900s, I have no responsibility to help be a part of the solution to the ugly legacy of slavery. After all, they never personally had slaves, so I have no ancestral sins for which to atone?

        Technically, that’s accurate, I guess, and it certainly helps me feel better about myself. But it ignores the fact that we are all a part of a society and that I am conferred certain benefits just by being born white in America.

        • David Simon says:

          The “it wasn’t my fault” singularity, running in harness with “it’s not my responsibility,” underpins much libertarianism in this country. I find it small and uncompelling.

          I am a part of my society. I take great pride in its glories — such as that aircraft carrier showing up quickly off the Phillipines today — and I am shamed by its failures — an inability to provide basic health care to all citizens, for example. And historically, though having had no ancestor in the U.S. at the time, I am as proud walking Little Round Top at Gettysburg as I am shamed standing at Royal and Port Streets in New Orleans and contemplating Homer Plessy, getting on a segregated streetcar. Balkanizing the American experience so that we can’t even discuss our collective performance as a society and as a governing experiment is not only a useless exercise, it is, I believe, an attempt to deconstruct any serious consideration of that performance and its future implications.

          In this case, I feel it is becoming a transparent attempt to avoid talking about the actual crimes of slavery, their incorporation in our national template, and what that means for the bankrupt philosophy of original intent and strict constructionism.

  9. Fail Burton says:

    I agree with almost everything you say. Where I part ways is in the “shameful at every instant thereafter.” Doesn’t the Civil War itself prove otherwise? The danger and fear of Balkanization was ever present and so therefore was the compromise that went with it right up to the Civil War and even continued during the Civil War. It is shameful, but not in the sense of moral turpitude you suggest. Reality is what it is and must be dealt with. If I see 12 armed men robbing someone and I am alone and unarmed, probably live to fight another day is what will happen, rather than a brave and useless sacrifice few would actually indulge in. That is not passing the buck, but harsh reality. The fact some states were created before the Civil War that did not permit slavery shows something beside pure shame was happening. It was a fight, and one without an easy solution. That is why the Civil War happened. Violence became its own solution to intransigence by the South. I have no blind worship of either Jefferson or the Constitution, but neither do I feel I am better than either. Criticize Western codes of law all you want, the truth is that without a fundamental moral core, both MLK and Gandhi would’ve simply been executed. And into that mix, lets throw in who ended slavery in parts of the Middle East and Africa, and when, and who had slavery right up to the mid-20th century there.

    We all like to think we would’ve deserted Cortes and saved Tenochtitlan, that we would’ve assassinated Custer, etc. The reality is perhaps far different.

    • David Simon says:

      Abolitionist endeavor throughout American history grants honor to those who fought that battle at all points, obviously. But we are speaking of the whole of the United States and its birth, are we not? And this is not about judging the founders in their time, from our time. No one is making that mistake, except for the nonsense over at Breitbart, where they have leapt onto that hook because they want to be that fish.

      This is an argument about how to view our template document now, in the present, and in the future.

      There is much to commend in the founders, and the founding document contains great insight into human governance. But it is also of its time in many respects, and a retrospective worship of the intent of the late Eighteenth Century men who created it at that historical moment — this is not a perfect blueprint for how to build a just and viable society in our time. We, in this moment, with our knowledge and our understanding of the human condition and societal concerns of our era, must do that hard work in our own historical context. That is all the essay says.

      “Criticize Western codes of law all you want…”

      Who is suggesting that I want to found a nation on anything other than a code of law that emphasizes both human liberty and collective responsibility of citizens? And where am I claiming that only a perfect document can accomplish the task? No, I am saying the Constitution was not a perfect template and neither were the men who wrote it. Neither are we. But looking backwards and seeking a strict construction of the document in anachronistic ignorance of human progress is no intelligent answer.


Trackbacks & Pingbacks

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