by Claire Guthrie Gastañaga, ACLU of Virginia Executive Director
In the summer of 1787, the founders created a remarkable framework for our democracy — but their document was deeply flawed.
Individual liberty was not protected from the power of government in the original Constitution submitted for ratification. The founders had to add a Bill of Rights to reflect a broader vision of freedom.
Even with the Bill of Rights, the Constitution remained flawed — it protected slavery and it denied women basic rights including the right to vote.
The Constitution we celebrate today, a document guaranteeing equality before the law, required a bloody civil war before amendments brought black Americans within the Constitution.
It took more than 175 years after the Constitution was written before civil rights laws outlawed discrimination in employment, housing, and public accommodations. And, it took over 175 years before the Voting Rights Act invalidated Virginia’s constitutionally imposed poll tax and literacy test.
What is true for the struggle for racial equality is also true about the struggle for other liberties.
It was not until 1920 that the 19th amendment gave women the right to vote. This was not due to the wisdom of the founders and the original Constitution, but to the struggle in the streets that followed. In Virginia, a report issued in 1941 concerning the poll tax and other barriers to voting imposed on black voters by Virginia’s 1902 Constitution said that “fear of large numbers of Negro women voters” fueled opposition to the women’s suffrage amendment that was “decisively rejected” by the General Assembly and not officially ratified by our legislature until 1952 – more than three decades after it became part of the Constitution.
If the framers knowingly left out blacks and women, they didn’t even consider the rights of LGBT people, children, students, prisoners, the mentally ill, immigrants and those with physical disabilities. For nearly all of our history, these groups were largely unprotected by the Constitution. But one by one, they and their advocates have fought to have the Constitution and Bill of Rights apply to them.
But what happens when the government violates the Constitution — when it makes a law restricting free speech or religious liberty?
The conventional answer is that the courts will step in. But courts don’t act on their own. They are powerless to fulfill their function unless an aggrieved person challenges the constitutional violation.
In 1910 the NAACP was established, followed in 1920 by the ACLU. They gradually developed the resources to challenge constitutional violations on behalf of people who could not have done it alone: Tennessee school teacher John Scopes would not likely have challenged the law making it a crime to teach evolution without the help of the ACLU and its volunteer attorney, Clarence Darrow.
And it’s not likely that Oliver Brown could have challenged school segregation in 1950 without the Thurgood Marshall and the NAACP.
So when we celebrate our Constitution, we celebrate not only the remarkable document drafted 226 years ago at the Philadelphia Convention, and not just those who first penned rights on to parchment.
We also celebrate the men and women who took that document seriously, who fought to make those rights a reality and expand its protections to those left out — who risked their lives to fight for the constitutional rights of all Americans.
We celebrate Frederick Douglass in the 19th Century and Jackie Robinson, who broke baseball’s “color line” in the 20th Century. We celebrate Oliver Brown, who bravely walked his daughter Linda to their neighborhood school, previously restricted by law to white children.
We celebrate Rosa Parks and Martin Luther King, Jr., Medgar Evers, Viola Liuzzo and the murdered civil rights workers who were dumped in a Mississippi dam in the summer of ’64.
We celebrate Barbara Rose Johns and the students at Moton High School who challenged massive resistance. We celebrate Richard and Mildred Loving who simply wanted the freedom to marry and sought help from lawyers who became the founders of the Virginia ACLU.
And we celebrate those who had the vision to create organizations like the NAACP and the ACLU that make it possible to enforce the Constitution and allow people to assert and defend their constitutional rights, and challenge government abuses.