On Juneteenth and Uncritical Race Theory

Steve Russell
5 min readJun 21, 2021
Graphic from Pixabay

It was December 18, 1865, when the 13th Amendment — which banned most slavery in all of the nation became part of the U.S. Constitution.

Lincoln, the film, was realistic enough to show that a lot of what was done to get it passed was not pretty. Ratification was even worse. The ratification of the 13th Amendment, the 14th Amendment (promising equal protection of the law), and the 15th Amendment (guaranteeing the right to vote) or legislation of equal import was made to be a condition of readmission to the Union.

This demand was extra-constitutional and, from the time Chief Justice Marshall arrogated the power to strike down acts of Congress in Marbury v. Madison, extra-constitutional had been synonymous in the minds of many people with unconstitutional. Bruce Ackerman claims that recasting of our constitutional understandings dehors the process in Article Five was not merely some usurpation but what he termed a “constitutional moment” that nobody contemplated at the drafting but had been accepted by all stakeholders or all those with any power.

“Constitutional moment” is a theory put forward by Ackerman and which he professed at the Yale Law School directed to explaining cases that might — without some method of explanation — leave a reincarnated delegate to the constitutional convention in a state of mind to which the most able attorneys refer as “gobsmacked.”

That term was coined in the Con-Con one day when one of the earliest experiments in sending mail through an artificial tear in the space-time continuum brought a copy of Griswold v. Connecticut into the hall in a cloud of pixie dust shrouded in used Whataburger wrappers. James Madison was presiding and so had the prerogative of reading whichever opinion interested him first. Naturally, Mr. Madison picked up the opinion by Mr. Justice William O. Douglas — -since Douglas had carried the day — -and undertook to read it aloud.

The first recorded use of “gobsmacked” was in a bystander’s description of the sound Madison produced when his attempt to ape the vocal artistry of Cicero degenerated into the sound of those Whataburger wrappers being emptied.

Steve Russell

Enrolled Cherokee, 9th grade dropout, retired judge, associate professor emeritus, and (so far) cancer survivor. Memoir: Lighting the Fire (Miniver Press 2020)