The Constitution and Race
Before jumping into housing law specifically, we will look to the Constitution itself. A theme we will return to over the course of the unit is the noxious use of “colorblindness” to mask or attempt to neutralize policy that in fact has clear racial/malicious intent. In his essay, “The Sounds of Silence: How Race Neutrality Preserves White Supremacy,” George Lipsitz writes that, “Many of the key mechanisms of white racial rule in U.S. history achieved determinist racist effects without ever having to declare racial intent.”3 He outlines how slavery and race were indeed written into the Constitution without the actual use of either word. For example, the three-fifths compromise refers to “three fifths of all other persons.” The fugitive slave clause uses the phrase “Person held to Service or Labour in one state, under the Laws thereof, escaping into another,” and the clause protecting the slave trade for a generation states that Congress cannot prohibit the “Migration or Importation of such Persons as any of the States now existing shall think proper to admit.” As Lipsitz writes, these clauses still achieved the intended racial effect without explicitly naming race. Slavery was thus written into the the “supreme law of the land” in an insidious way. The prominence of race was on the surface obscured, while in reality, it was used to secure racial inequality as a fundamental component of the foundation of the United States.
Relevant Classroom Activity 1
Guiding Question: How is race dealt with in the Constitution?
Students will begin the unit with a “Write-Around” or “Silent Discussion.” Sitting in small groups, each student receives a sheet with one of the following questions at the top. There is then spots for three responses below it. The first student answers the question. The second student can then agree and expand or disagree and respond. It then passes to the third student who reads both of the previous responses and does the same. This continues so that all students have the chance to respond to all three questions.
Note: Prior to this activity, prep the students by having them first engage in a vocabulary exercise collectively brainstorming the meanings of both the terms “neutral” and “colorblind” through a word-mapping web. You can then provide students with a given definition if necessary. George Lipsitz’s abovementioned essay can provide a useful introduction to the term “colorblindness” as it relates to a more nuanced understanding of the term and its problematic nature.
- Do you think the law is neutral?
- Do you think the law is colorblind?
- Do you think the law is used to address racism or used to uphold it?
In their article “A transformative pedagogy for a decolonial world,” members of the Transformative Pedagogy Project (TPP) at the University of California Santa Barbara, explain the importance of “students who lead,” the power of building “a trusting environment” and a goal of creating “stronger democratic participation in the classroom.”4 They describe a practice known as an “oracle poem,” which while different in nature and intention in some regards, like the write-around/silent discussion, still relies on communicating in “silence.” They explain that the “process… broke down some of the hierarchies that existed in the room.”5 It is easy in the classroom to fall into the habit of having the same several students always be the ones who participate in a class discussion. I really like to use the write-around/silent discussion strategy to make sure all students feel comfortable participating and get their voices heard. As this unit tries to disrupt the standard narrative of the law, the hope is to also model ways to further democratize the classroom as well.
After the silent discussion opening, students will examine the language of the clauses related to slavery written into the Constitution, as previously discussed. Students will annotate the actual text, highlighting the places where race was intended but not stated and then connect what they read in the text back to the write-around/silent discussion questions.
Students should then also read and work through the 13th, 14th and 15th amendments. My students have already studied these Reconstruction amendments in depth in the other history/civics class that I concurrently teach with Constitutional Law. Depending upon your students’ prior knowledge, however, you can either do a review/analysis work with these amendments as I do, or go more in depth if needed. Particular attention should be paid to the loophole of the 13th amendment and the consequent history of convict leasing and connections to modern day mass incarceration. Ava DuVernay’s documentary 13th is a useful resource, as is Michelle Alexander’s The New Jim Crow.