The United States Constitution protects rights and liberties, but its own language undermines the promise of equality it proclaims. Its gendered and racist words stand in the way of true reconciliation in this divided country and have no place in any modern society. It is time to update the Constitution to reflect America’s modern values of equality and inclusion.
Consider the 14th Amendment. No part of the Constitution speaks more powerfully to the power of law to transform social relations. It guarantees that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” And yet the Constitution still today counts a slave as “three-fifths” of a person. Or consider the 13th Amendment. It abolishes slavery, but the Fugitive Slave Clause — which requires escaped slaves to be returned to their masters — remains in the Constitution as a painful reminder of America’s original sin.
The Constitution’s outdated language extends also to gender. It tells us that men alone can be president, referring only to “he” or “his” when referring to the presidency. Of course, this did not prevent Hillary Clinton from becoming the first woman, in 2016, to lead a major party into the general election. Nor does it stop other women from vying for the nomination now. But when Jeannette Rankin became the first woman elected to the House of Representatives, some argued that the Constitution’s use of the masculine pronoun disqualified her.
Some will say that the Constitution’s racist and gendered language should not matter because women can run for office and Black persons are full citizens of the United States. But imagine how schoolchildren must feel when they read the Constitution in their basic civics course. Some will be made to feel less than welcome in their own country. Others may wonder why some of their classmates are singled out for unjust treatment. But all will internalize that the highest law of the land creates a hierarchy of citizenship.
It is no accident of history that the Constitution does not delete obsolete texts. The First Congress debated whether a constitutional amendment should entail changes to the original text but ultimately chose to record changes in the higher law as sequential amendments to the end of the document.
This question of constitutional form did not arise in the abstract. It was forced upon Congress by an amendment proposal to insert new words before “We the People,” the preambular battle cry that opens the doors to the Constitution. Roger Sherman, one of a select few to sign all three of America’s constitutive texts — the Declaration of Independence, the Articles of Confederation, and the U.S. Constitution — argued that changing the founders’ original words would threaten the integrity of the Constitution and even risk its ruin.
But James Madison saw things differently. He argued that changes should be integrated into the original text, not appended at the end. Rather than leaving the mistakes of the past visible to the world, it was better to erase those texts that time had overrun or that present exigencies suggested should be removed. Had Madison won this battle generations ago, the Constitution would have an altogether different appearance today. No longer would it speak in racist and gendered terms. It would celebrate equality and inclusion, and give Americans a text proudly to call their own — one in which they would see themselves and their hopes reflected.
Some countries have learned this lesson. When the Norwegian Constitution was adopted in 1814, it declared in its text that “Jesuits and Monastic orders shall not be tolerated” and “Jews are furthermore excluded from the Kingdom.” Today, there is no hint of this hateful language that once appeared in Norway’s higher law. Its constitution has justly been updated to reflect modern values.
But not so in the United States. At least not yet. The Constitution is replete with obsolete and outdated language that weakens rather than enhances the feeling of belonging that a constitution should generate among a country’s citizens. It is time to update the words of the Constitution to make good on its promise of equality and inclusion.
Richard Albert is a constitutional law professor at The University of Texas at Austin. He is the author of “Constitutional Amendments: Making, Breaking, and Changing Constitutions.”
A version of this op-ed appeared in The Hill.