In an interview with Laura Ingraham on Fox News last night, the White House chief of staff, John Kelly, said “the lack of an ability to compromise led to the Civil War,” a statement that would shock, among others, the founding fathers. After spirited debates at the 1787 Constitutional Convention, they included Article 1, Section 2, Paragraph 3 in our Constitution, which said each slave, for legislative representation and taxation purposes, counted as three-fifths of a person. That provision is known as the Three-Fifths Compromise, a term that clearly states that Northerners and Southerners were, in fact, quite able to reach weird compromises on slavery.
But our country’s tortured attempt to find some kind of balance on whether it was right to enslave African-Americans wasn’t limited to the Three-Fifths Compromise. To argue that the Civil War came about because Americans couldn’t compromise on whether black slaves were truly people or not would require us to ignore at least six other major compromises on slavery, from the first fugitive slave law in 1793, which said that escaped slaves in any state could be caught, tried and returned to their masters, to the Kansas-Nebraska Act of 1854, which allowed residents of the two territories to vote on whether to allow slavery. Slaveowners and abolitionists compromised on slavery over and over again, throwing black people’s rights onto the bargaining table like betting chips in a casino.
The Civil War ended slavery, but the legacy of all the prewar compromising on black people’s rights sparked new fights: the fleeting freedoms of Reconstruction; the punishing hand of Jim Crow; the limited triumphs of the civil rights movement; the quiet indignities of practices like racially restrictive covenants, which allowed homeowners to place terminology in property deeds to restrict ownership by race; and redlining, which reduced the value of homes in black neighborhoods compared with their white counterparts.
In the 1970s, President Richard M. Nixon opened a new front on the compromising with his war on drugs. One of his top advisers admitted to a reporter in 1994 that they had designed the war to target blacks and hippies, and it resulted in a large spike in the prison population, which took away many black people’s right to remain physically free.
And in 1973, the Supreme Court decided that school financing systems that relied on property taxes and therefore favored wealthy districts over poor ones weren’t unconstitutional. This decision, in San Antonio Independent School District v. Rodriguez, allowed districts to refuse to fix the continuing financial effects of housing segregation.
Just last week, a black criminal defendant in Louisiana was denied his constitutional right to an attorney because the Louisiana Supreme Court ruled six to one that he hadn’t really requested a lawyer when he told police during questioning: “I know I didn’t do it. So why don’t you just give me a lawyer, dawg, ’cause this is not what’s up?” The willfully ignorant justices ruled that the defendant had asked for a “lawyer dog,” not a lawyer, so he had not invoked his right to counsel.
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I practiced law for more than five years, and I remain unaware as to what a “lawyer dog” is, and sad that the Louisiana Supreme Court decided to make up an animal to deny a criminal defendant’s right to counsel. This case is an example of the now common denial of that right. And since criminal defendants are disproportionately black and poor, in part thanks to the war on drugs, redlining and discrimination, they are more likely to need state- appointed counsel.
But back to the Civil War. What if slavery itself was always an untenable compromise? What if, in a country that claimed to stand for freedom and justice for all, the idea that people should be kept in chains and forcibly separated from their families and bought and sold and killed was never going to be an idea that sat right with enormous sectors of the population?
It’s unnatural to ask us to compromise on whether certain types of people are equal to others, and to expect those deemed unequal not to cry out for justice while being punished, tortured and killed. It’s unnatural to treat people unequally. It requires the construction and maintenance of an economically inefficient system intended to oppress certain types of people. And in this country, it requires us to throw out all the honorable principles this country was founded on. Someone should tell John Kelly that our history is based on too much compromise concerning slavery and black lives, not too little.
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