Outside of academia, few would know or care that it exists. There is a movement afoot by progressive scholars to create an alternate Constitution Day, one that celebrates not the piece of paper upon which our nation was founded, or the evil rich, white, slaveholding misogynists who wrote it and ratified it, but the dignity of its victims. A symposium was held at the Race and The Law Prof Blog.

Professor Starger in a blogpost for Constitution Day 2015 reiterated this critique and issued a call to celebrate the Constitution on a different date. He argued that

[t]he flawed document of [1787] no longer rules us. We can now proudly celebrate the reconstructed Constitution. In 1987 the great Justice Thurgood Marshall critiqued bicentennial celebrations of the 1787 date, saying: “While the Union survived the civil war, the Constitution did not. In its place arose a new, more promising basis for justice and equality.” When we interpret – or celebrate — today’s praiseworthy Constitution, we should look not only to the nobler commitments of the original Founders, but also to Reconstruction’s promise of a nation that is uncompromisingly respectful of human dignity. (Emphasis in original.)

Or shorter, the original constitution was a document that fixed slavery and oppression of women, and it required a civil war and 650,000 deaths to correct these flaws.

In our paper, we argue that contemporary civil rights jurisprudence remains haunted by a Confederate “oppression narrative” that interprets the Constitution in a manner that too easily defeats claims of federally guaranteed human rights. We oppose this “States’ rights” mode of interpreting the Constitution because we believe it misunderstands the revolutionary nature of the change to our constitutional order wrought by the Civil War and resulting Reconstruction Amendments.

Why this should matter to anyone, aside from progressive scholars, isn’t particular clear until one gets into the nitty-gritty of the Constitution.  To that end Nancy Leong provides some better insight.

Of course there is much to admire in our founding documents. But we cannot ignore the reality that the Constitution was drafted by wealthy white property-owning men who owned and in some instances raped slaves, and who would have thought laughable the notion that many of the contributors to this symposium could own property, vote, and teach in law schools. It should be surprising to no one that these men produced a document whose flaws, more than two centuries later, we continue to work to cure. More surprising is the notion that many people celebrate Constitution Day — the federally-funded holiday in September — so uncritically, or that so many are so willing to gloss over the defects in our founding document.

Gertruding aside, the challenge is to our fetishist adoration of the original Constitution, not to mention the founding fathers, “wealthy white property-owning men who owned and in some instances raped slaves,” rather than a Constitution re-defined by post-Civil War amendments.

Consider, for example, the relationship between the First and the Fourteenth Amendments. The First Amendment was ratified in 1791; the Fourteenth not until 1868, as one of the Reconstruction-era civil rights amendments. Under ordinary principles of interpretation, the First Amendment should be read in tandem with the Fourteenth Amendment, and to the extent the two conflict, the Fourteenth — ratified three-quarters of a century later — should understood to correct the First.

Leong breezes past the crux of an interesting argument under the words, “ordinary principles of interpretation.”  But her choice of the First and Fourteenth as an example is hardly random.

Although such speech undoubtedly inhibits women’s equality by inhibiting access to reproductive health care, the Court made no mention of the effect of speech in perpetuating inequality. The Court’s jurisprudence therefore offers no opportunity to tie these rights to the equality guarantee of the Fourteenth Amendment. Without ever explicitly saying so, the Court has interpreted the First Amendment as though it is unmodified by the Fourteenth.

Most troubling is the hysterical reaction to even the most modest proposed restriction on speech as an “assault on our civil liberties.” Commentators have recognized the Roberts Court as perhaps the most “pro-First Amendment” in history, yet free speech absolutists appear to believe that the very foundations of the First Amendment are perpetually endangered.

Unsurprisingly, Leong characterizes those who refuse to join her in reinterpreting the First Amendment as being subservient to its younger cousin, the Fourteenth, as hysterical absolutists, and her preferred interpretation of the First Amendment as being de facto amended by the promise of equality in the Fourteenth as “modest.”

Rather, it is to say that in a world that took the Reconstruction-era amendments and their equality guarantees seriously, discussion of speech regulation would not be met with hysterical outcry or dire predictions about imminent fascism. We would recognize the value of expression not as an absolute one, but rather as one to be weighed against other interests such as equality, liberty, and dignity. And we would recognize the project of defining our various freedoms as an ongoing attempt to improve the laws that govern our society, just as the Reconstruction-era amendments improved upon the original Bill of Rights. (Emphasis added.)

Or, without the pretty multicolored bow, have all the free speech you want, so long as it doesn’t hurt anyone’s feelings.

Before rejecting the reimagined Constitution, consider that there were provisions, like the three-fifths compromise, that would universally be deemed anathema to society today.  But then, those wealthy white slaveholders and rapists included a means of amending it, recognizing that their ideals and compromises might not hold true forever.

Of course, it isn’t easily accomplished, so that the fundamental rules of society aren’t subject to transient whims or the tyranny of the majority. This is a good thing, as contrary to the progressive Alt-Constitution view, these deeply progressive scholars might well end up on the short end of dignity if it was easily tweakable.

But then, there is a pretentiousness to their calls to interpret the Constitution such that their values prevail.  Even if we ignore the presentism of denigrating the Founding Fathers in light of today’s favored progressive virtues, would we prefer to put our faith in these law professors’ vision of the Constitution? Do they believe themselves to stand taller than those wealthy white slaveholders?

If it was left up to Nancy Leong, would I even be allowed to question her proposition that the First Amendment be subject to a balancing analysis, where the “absolutist” view deprives her of the dignity of silencing others who disagree with her view?

One of the persistent mistaken themes percolating through academia is that “hate speech” is not free speech. Under the Alt-Constitution, this would be a correct interpretation.  If you wonder how it’s possible that so many Americans can be so wrong in their understanding of constitutional rights, it’s because so many in academia are teaching people a concept of rights that they would have created had they been the people who created the Constitution.

Except they weren’t. They’re just playing a fantasy game where they substitute their view for the law, but teach it and preach it as if it was real. But if forced to choose between Madison and Leong, I would still pick Madison. Whatever wrongs he may have committed, he still created a framework that has served us far better than a society based on Nancy Leong’s feelings.