BLACKS AND CONSTITUTION ARE THE FOCUS OF A PANEL
By DOUGLAS MARTIN
Published: May 31, 1987
As the nation celebrates the creation of its Constitution, many American blacks are uneasily questioning the extent to which they should honor the Founding Fathers, a number of whom were slaveowners.
''Under the original Constitution, blacks were not people,'' said Judge A. Leon Higginbotham of the United States Court of Appeals for the Third Circuit. If one had to identify a single theme in the discussions leading to the Constitution, he added, ''it was that slaves should be viewed as property, as subhumans.''
Judge Higginbotham was speaking as part of a panel sponsored by the Columbia University Law School and the NAACP Legal Defense and Education Fund. In much the manner of Justice Thurgood Marshall of the United States earlier this month, speakers sharply questioned the original structure of United States government. Changing Status
They also examined subsequent history to illustrate blacks' changing, often precarious, status under a Constitution that originally had no place for them - or for women, Indians or debtors.
They sketched how slaves won emancipation partly on Civil War battlefields, only to lose much of their new freedom to Jim Crow segregation laws. They further described the struggle to the epochal desegration decisions of the 1950's, and the continuing threats to reverse those victories.
''There is a national amnesia about the reality of race,'' said Nathaniel R. Jones, a judge of the United States Court of Appeals for the Sixth Circuit. ''Now there are new storm clouds gathering on the horizon.''
Judge Higginbotham suggested that the framers of the Constitution were less than straightforward in never using the word slavery. Not until December 1865, when the 13th Amendment freeing slaves took effect, did the word find its way into the Constitution. He called the original document ''an exercise in nondisclosure.''
Judge Higginbotham further suggested that even if it were impossible to achieve consensus between North and South on a new government without allowing slavery - as many historians believe - the Founding Fathers could have passed a gradual emancipation law. Self-Interest Depicted
Judge Higginbotham depicted the delegates as having been motivated primarily by self-interest. ''The predominant drive to form the union was a commercial one,'' he said.
The judge quoted John Rutledge, a delegate from South Carolina, to prove his point. Mr. Rutledge said ''religion and humanity'' had nothing to do with the slavery question.
''Interest alone is the governing principle of nations,'' he told the convention.
Still, Judge Higginbotham stopped short of saying the United States, as constituted by the framers, was worse than no government at all. Part of the reason, he said, was that if Southern states had emerged as an independent country they would not have been susceptible to Northern pressures to reform.
A Columbia University historian, Dr. Eric Foner, then described the context of the post-Civil War amendments, which many historians see as the beginning of this nation's modern Constitution. These amendments emancipated slaves, guaranteed equal rights to all Americans and made the Federal Government - not the states - the protector of these rights. Rise of Jim Crow
Dr. Foner said the adoption of these amendments was made easier by the disintegration of slavery, as well as a new perception of black men by Northern whites as a result of blacks' heroism on the battlefield.
Louis H. Pollak, a Federal District judge in Philadelphia, then described the beginning of Jim Crow laws extending segregation even to cemeteries and telephone booths.
In 1896, the Supreme Court demonstrated the fickleness of the Constitution that had liberated slaves by using the same document as the basis for its ruling in the Plessy v. Ferguson case, in which it held that separate facilities for blacks were permissible as long as they were equal to those for whites.
But that goal, even if it was possible, was clearly not achieved. In 1910, the National Association for the Advancement of Colored People was formed and began the long legal fight to use the Constitution as a weapon in the fight for equality. In 1954, it finally won the Brown v. Board of Education of Topeka, Kan., case, effectively reversing the separate but equal doctrine.
Others warned that the fight hardly ended with the landmark decision in 1954. John Minor Wisdom, Senior Judge of the United States Court of Appeals for the Fifth Circuit, suggested that the high court's order then that desegregation proceed ''with all deliberate speed'' gave whites time to flee to suburbs, leading to the resegregation of the nation's major urban cores.
Judge Jones expressed worries about judicial decisions in recent years allowing desegregation to be limited to individual school districts, rather than entire school systems. He suggested these judgments - based on some judges' interpetation of the Constitution - could have the effect of ''nullifying'' the 1954 Brown decision.