In July 1990, Red Bank, New Jersey political activist William Davis wrote a letter to the editor of The Register, a daily newspaper published in nearby Shrewsbury, New Jersey. Davis commented on a decision by Howard E. Cook, a Gwinnett County, Georgia judge who ruled that state law banning the wearing of masks intended for purposes of intimidation or criminality (in this instance, the mask worn by Ku Klux Klan members) was an unconstitutional violation of the First Amendment right to freedom of speech. Davis called the decision “resoundingly correct,” an act adhering to “the dictates of the law”—a Constitution that originally held “certain folks to be only a little more than half human.”
My reply, dated August 8, 1990, rebutted Mr. Davis’s argument.
In his justifiable indignation at the Ku Klux Klan, Mr. William Davis of Red Bank has misstated the principle and intentions of the Framers of the United States Constitution.
The Georgia judge who ruled that Klan members have a First Amendment right to wear their ludicrous costumes (including masks to conceal their identities) was not necessarily “following the dictates of the law,” as Mr. Davis supposes. The prohibition, “Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble”—even if this may be applied to legislation drafted by municipal and state lawmakers—does not shield dress-up racists preaching sedition. There are three reasons to question the judge’s reading of the First Amendment, and the regrettable body of legal opinion upon which his decision is based.
First, costuming isn’t speech. Alothough judges who prefer writing laws to interpreting them now chatter about ‘freedom of expression’ and ‘symbolic speech,’ you won’t find those formulas in the writings of the Framers. They said “speech”—not “fashion statements.” To the Framers, clothes most emphatically did not make the man. God and nature do, and reasoned speech is the unmistakable sign of that handiwork.
Second, freedom of speech is a civil liberty; that is, it partakes no only of liberty, but of civility. Freedom isn’t license, as a rather libertarian British educator [A. S. Neill] used to say. All forms of Constitutionally protected speech are civil. Constitutionally unprotected speech, speech fundamentally subversive of civil society, includes terroristic threats, obscenity, disruptions of public meetings, and so on. (It’s too bad that the American Civil Liberties Union exalts liberty while forgetting the civility that makes it possible, and thus mistakes what ‘American’ means.) The Klan’s history of terrorism clearly falls outside the limits of civil society.
Third, as Mr. Davis correctly observes, “the Klan has always regarded” certain ethnic and religious groups, including African-Americans, Jews, and Roman Catholics, “as subhuman beings.” But Davis misses the legal implication of this. Klan bigotry subverts each of the stated purposes of the Constitution: “to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.” Klan bigotry also contradicts the underlying principle of the Constitution set down in the Declaration of Independence: “that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.” The Ku Klux Klan is a subversive organization practicing sedition speech, verbal and ‘symbolic.’ A proper understanding of the Constitution would permit legislators to outlaw such organizations as the Ku Klux Klan. Whether or not to act on such Constitutional permission should be a matter governed by prudential calculation of the likely results, not judicial interference.
Mr. Davis thus fails to see the resources our Constitution provides to Americans who oppose racist politics. Part of the problem is his uncritical acceptance of a polemical thrust made by James Baldwin and others who claim that the Framers regarded the slave (in Davis’ words) as “only a little more than half human” or (as Baldwin put it) as “three-fifths of a man.” Were this true, the Framers would rank only a cut or two above the Klan in overall intelligence and humanity. Fortunately, the interpretation is a falsehood amply refuted by an examination of the Constitution itself. Unfortunately, this falsehood still enjoys currency among people who should know better.
Article I, Section 2 of the Constitution as originally written apportions representatives and direct taxes among the states according to a population formula “determined by adding the whole number of free persons,” including bonded apprentices, excluding “Indians not taxed,” and including “three-fifths of the [population of] all other persons”—i.e., slaves. The formula was written this way because representatives of [predominantly] free states objected to the additional representatives slave state would have acquired, had the full slave population of those states been included. The slaveholders, obviously, wanted their slaves counted as if they were full citizens, as this would have maximized the power of the slaveholding states in Congress.
It is, of course, the lasting shame of the slaveholders that they perpetuated slavery, and the lasting misfortune of the United States that the slaveholders had the power to make their ‘peculiar institution’ last as long as it did. But the sentiments of the majority of the Framers should not be obscured. In his Address at Cooper Union, New York City, on February 27, 1860, Abraham Lincoln showed that only two of the 39 signers of the United States Constitution ever acted to forbid Congressional prohibition of slavery in the federal territories—a prohibition understood by pro-slavery and anti-slavery partisans alike as fatal in the long run to slavery everywhere in the Union. The Framers deliberately left intact the very engine that could dismantle slavery. During the founding period, many of the most prominent slaveholders in the South (e.g., George Washington and Thomas Jefferson) sought feasible ways to put slavery on the road to extinction. Although the slaveholders denied it, the Constitution itself as written (and, most emphatically, not as distorted by the majority of the Supreme Court in its infamous Dred Scott decision) proved the supreme instrument of slavery’s extinction, in the hands of a great statesman guided by the principles of the Declaration, even as the Framers were.
Pro-slavery passions hardened in the 19th century, partly as a reaction to the denunciations of radical abolitionists, partly as a response to slavery’s increased economic benefits to slaveholders after the invention of the cotton gin, and partly in the wake of nationalist and racist ideologies spawned not in American, but in continental Europe. None of these phenomena may fairly be traced to the principles of the American Founders. The commercial-republican regime embodied in the Constitution works toward the abolition of tyranny in all its forms, and under all its masks.
Mr. Davis concludes, “The Klan should wear their masks not as a First Amendment right, but as a sentence.” Agreed. But he should add that this sentence would be Constitutionally sound if preceded by the Klansmen’s arrest, unmasking, and trial by juries supervised by judges who understand Constitutional principles.
2018 Note: Judge Cook’s ruling was reversed later that year by the Georgia Supreme Court in State v. Miller (1990).
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