African Americans and the Living Constitution.

John Hope Franklin and Genna Ree McNeil. African Americans and the Living Constitution. Washington, DC: Smithsonian Institution P. 1995. 364 pp. $45.00.

The Constitution of the United States was adopted in 1787 and became effective in 1789. In 1987, numerous symposia, speeches, and other celebrations were held, commemorating the bicentennial of the Constitution, which formed the bedrock of the government--with the democracy and the freedoms that American citizens now enjoy. This government was created and sustained primarily to protect property rights--and slaves were property. So, when it was adopted, "the Constitution was essentially a proslavery document." Through the Civil War amendments the Constitution became a very different document. Still, for many African Americans the two hundredth anniversary of the original document was little cause for celebration.

African Americans and the Living Constitution is a collection of essays and articles by prominent lawyers, judges, and legal scholars on the African American experience and how it got that way. They bring varying perspectives to some aspect or another of the African American role in the Constitution's progression from its proslavery beginnings to the document it has become today. It is a book largely, though not exclusively, for and about lawyers, and likely of interest mostly to lawyers and scholars. It would be well-suited as a scholastic aid in a seminar or law school class about constitutional law, race, and the Constitution, or race and political and social policy.

The book is roughly chronological. It starts with the founding fathers in the article "Slavery, the Constitution, and the Founding Fathers: The African American Vision" by Mary Frances Berry. Berry describes the early treatment of blacks--for example, the framers' intentional exclusion of Negro slaves from the Constitution's protections. Under the Constitution, Negro slaves were partial persons with no rights a white person was bound to respect. The Living Constitution traces the struggle for equality through the decades. It ends with an eye toward the future in "Afterword: Racial Equality and Full Citizenship, The Unfinished Agenda" by Julius L. Chambers. The Chambers essay looks to the next stages toward the goal of racial equality and full citizenship.

From beginning to end, African Americans and the Living Constitution includes assorted essays presenting the historical and ongoing struggle by various foot soldiers in the battle for equal rights. There is an essay about the branches of government, and how they helped or hindered in the struggle. There is even an imaginary conversation written by Judge Leon Higgenbotham of the United States Court of Appeals for the Third Circuit. The conversation takes place in heaven between Thomas Jefferson, who wrote much of the Constitution, and Martin Luther King, Jr., who helped the Constitution live up to its meaning.

The key idea in the book, as well as to the Constitution itself, is summed up in one word in the title, Living. In Springer v. Philippine Islands, 277 U.S. 189, 209-210 (1928), Oliver Wendell Holmes said, "The interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints." The "play in its joints" has been the Constitution's breath of life. To read these articles and essays is to experience the anger at the system which made the "play in its joints" that was the civil rights struggle necessary. "The ultimate test of whether the promise of the 14th and 15th Amendments can ever be made a reality has always been Mississippi." The message that the Constitution was a hypocritical, flawed document in its inception and in its application comes through loud and clear.

John Hope Franklin is a highly esteemed African American historian. That he, along with Genna Rae McNeil, edited this work makes it a worthy volume. But the distance that African Americans have traveled in two centuries under the Constitution, as it unfolds through these essays, makes this volume extraordinary. The introduction points to four events that converged to bring this volume into being: the bicentennial of the original Constitution of the United States in 1987, a symposium in 1988 on African Americans and the Constitution, the bicentennial of the Bill of Rights, and the retirement of Justice Thurgood Marshall from the United States Supreme Court in 1991, followed by his death in 1993.

These essays graphically show that the Constitution is more a process than a single document. The 200-year-old document was a starting point, though an imperfect one, to be sure. "We the people" excluded over half the people. It excluded women. It excluded Negro slaves. As Justice Thurgood Marshall pointed out in a short essay," `We the People' no longer enslave, but the credit does not belong to the framers.' In large measure, it belongs to many of the black lawyers who struggled for equal rights in the 1930s through the 1950s.

In "Black Lawyers and the Twentieth-Century Struggle for Constitutional Change," historian Darlene Clark Hines describes the lawyers' efforts in successfully attacking the separate-but-equal doctrine and in forming their own organizations, such as the National Bar Association, to band together in the struggle. Hines acknowledges that their story could not be told without telling of Charles Hamilton Houston. To African Americans, Houston was more founding father than anyone who framed the Constitution. He was a Harvard-educated lawyer who taught at the Howard University School of Law in the 1920s. Houston trained Thurgood Marshall and Spotswood Robinson, and his brilliance and foresight led to the landmark Supreme Court cases on which Brown v. Board of Education was to later rely.

Other attorneys in the trenches included Wiley Branton and George Crockett, both of whom contributed to this anthology. In "Race, the Courts and Constitutional Change," Branton discusses the role of the courts in the struggle for equal rights before the law, for the protections in the Constitution. There have been equal rights cases in voting, housing, interstate travel, jury service, and many other aspects of life. Branton also speaks to the second-generation issues in the school desegregation cases, such as labeling multitudes of black children as retarded or developmentally delayed, and placing them in the slower classes, while placing the white children in gifted classes. The form the second-generation cases take will make them much more difficult to attack, yet creative methods for such an attack must be found.

Another foot soldier, George W. Crockett, describes how the attorneys and others looked out for each other in the South, the treacherous terrain that was the battleground for the civil rights struggle. The range of the snapshots of the various aspects of the struggle for equality under the Constitution is also noteworthy. For example, we see the perspective of young Black people in Baltimore as they united in their struggle for racial justice in 1931-41 through The CityWide Young People's Forum. This was a huge, youth-oriented civil rights organization that worked with the NAACP to get jobs and to work on equalizing salaries.

The speakers for the Forum's weekly lecture series formed a who's who of the black intelligentsia at that time. Between 600 and 2,000 individuals attended the lectures. At one point, those young people successfully employed a "buy where you can work" campaign. They attacked the Jim Crow laws in Maryland in the 1930s, resulting in the local A & P supermarket's hiring black people for the first time.

From the late United States Supreme Court Justice Marshall, we get some perspective from the bench. From law professor Derrick Bell's "Real Costs of Racial Discrimination," we get the economic perspective. Throughout this nation's history, black rights have been sacrificed to further white economic interests. Through it all, the breadth of what has been accomplished, largely in the name of the Constitution, is phenomenal. Through it al!, we also see just how very much more there is to be done. "Racial discrimination lives!" Derrick Bell declares. Wiley Branton also points out that "racial discrimination still exists in many areas of American life." But because of what has gone before, the Constitution is a much more effective tool in the struggle. And because of that struggle, others in American society, such as women, gays, and Asian Americans, have better tools to wage their particular struggles.