The Constitution’s Woke Parts.

To start, let’s define what we mean by woke. While it is a term that originated (see Woke: Origins and usage) quite some time back and has had a variety of meanings, I will be focusing on the term as relating to diversity and justice. So let’s give that a definition.

1. (Justice.) Woke means the recognition of inherent and unjustified violence and errors of judgment in the efforts to handle criminality in society.
2. (Diversity.) Woke means the recognition of harms caused by ignoring minority voices and the value of hearing them.

Diversity.

There are a number of clauses of the supreme law of the land that push for diversity in governance.

Foremost, the composure of both Houses of Congress are by the several states. And the Senate, particularly, is composed of equal representation of states without regard to population. There are also requirements (which extend to the presidency and vice presidency) of age and citizenship, including residency, which serve to ensure the legislature is diverse but with people who live and have lived in the country. (The age requirement can be seen as an extension of the residency requirement, as well as seeking a certain maturity of age.)

The Constitution as originally produced was not quite woke enough with respect to the Senate, so in 1912 they amended it to make the election of senators the job of the whole people of a state, not the state legislators.

Also with respect to elections, the electoral college members must cast one of their votes (either for president or vice president) for someone from another state, again in an effort to increase the diversity of the election.

There are also requirements of the Senate and of amending the Constitution that require sufficient numbers beyond a majority. These are diversity touches that mean to give voice to as many corners as possible, not to limit the people with a say to some bland majority.

In the amendments, we see diversity come up as well. The First Amendment’s bar against preference of religion, and its protection of speech, press, and assembly are all pro-diversity. They prevent the government from curtailing liberty for any minority in favor of hearing only from a majority.

In the wake of the Civil War, the 14th Amendment improved the apportionment and was meant to ensure broad voting rights for a more diverse electorate. (Unfortunately, it has not been properly enforced.)

And then we have the more direct voting amendments, which are the 15th (for race), 19th (for sex), 23rd (giving the District of Columbia a say in the presidency), 24th (against poll taxes), and 26th (making the voting age 18). Over the years there was recognized the need for ensuring the diversity of elections, and these amendments were the result.

Broadly, our Constitution seeks diversity. It calls for it in the federal legislatures and among the electors of those offices. Diversity is essential to good decisions, for if only a few voices are heard, it is not long before the mistakes are apparent. It would be like writing a computer program without sufficiently broad testing. You would quickly run into cases where your inputs would not yield good results.

Justice.

While there are the modest diversity efforts in the Constitution, it is much fuller with examples of being woke with respect to justice issues.

There is the limitation of Congress in impeachments to only remove and disqualify from office, leaving criminal justice to the traditional routes. There is a limitation on arresting Senators and Representatives, with exceptions, to ensure against tampering with Congress. There are clauses against suspension of Habeas Corpus, against bills of attainder and ex post facto laws. There are also the powers of pardon and reprieve, clemency powers, granted to the president to right any overreach done by the law.

The Constitution requires jury trials for criminal accusations. It limits the accusations of treason, both in what constitutes it, and in how it may be proved.

But then we get to the amendments. The Fourth Amendment limits search and seizure powers, the Fifth Amendment requires grand juries for severe crimes outside of military jurisdictions, it precludes double jeopardy, grants the right of refusal to self-incriminate through testimony, and enshrines that only through proper legal manners may people be deprived of life, liberty, or property.

The Sixth Amendment calls for speedy and public trials, of juries and at courts where the alleged crime occurred. It grants the right to hear the charges, to confront witnesses, to legal representation, and to participate in one’s own defense.

The Eighth Amendment restricts punishments and fines to within the realm of reason.

The 13th Amendment limited involuntary servitude except as punishment for crime.

If the Bill of Rights has one goal in mind above others, it is the improvement of protections against injustice done in the name of justice. It is against police and jailer doing brutality to persons under the guise of justice. It is against the overreach of prosecutions, against the invasion of the homes and properties of the people. There is an indelible cry of the Constitution that police were a problem in the 18th century, and they told their children by law to guard against that. What could be more woke?

The Constitution, for its flaws and prejudices, was surely a woke document when ratified, and it remains woke both to those of us who think diversity and justice are important and to those of us who think they aren’t.