Excerpted From: Ruth Colker, The White Supremacist Constitution, 2022 Utah Law Review 651 (2022) (419 Footnotes) (Full Document)

RuthColkerThe United States Constitution is a document that, during every era, has helped further white supremacy. Rather than understand the document as a force for progressive structural change, we should understand it as a barrier to change. Put differently, the U.S. Constitution has been a resounding success at preserving white supremacy. For example, U.S. citizens in the District of Columbia, who are disproportionately racial minorities, are provided no power in the U.S. Senate, while the former slave-holding states of Alabama and Mississippi have as much Senatorial power as California and New York. Further, the Constitution makes it especially difficult to divide existing states into more than one state so that more populous and diverse states, such as California and New York, could have greater power in the Senate to influence judicial nominations. These are only some of the many deliberate design features that structure our so-called democracy in which Black lives are intended not to matter.

One might respond that certain substantive features of the U.S. Constitution, found in the Bill of Rights and the Civil War Amendments, could yet make the Constitution a tool to help overcome white supremacy. While, in theory, that argument may be plausible, this Article will demonstrate the stark failure of the Constitution to live up to that possibility.

Nonetheless, as resistance lawyers, this Article challenges us to find the fragmentary strands of abolitionism within certain minority or dissenting judicial opinions that can be used to help make the Constitution a tool for abolitionism. In particular, this Article asks whether we can re-imagine the Civil War Amendments so that they are a force for abolitionism, rather than a barrier to it.

What are the features of white supremacy? In a 1989 article, Frances Lee Ansley described “white supremacy” as a “political, economic and cultural system in which whites overwhelmingly control power and material resources, conscious and unconscious ideas of white superiority and entitlement are widespread, and relations of white dominance and non-white subordination are daily reenacted across a broad array of institutions and social settings.” Ansley observed that there is both a class and a race model for understanding white supremacy. “The 'class model’ of white supremacy portrays white supremacy as primarily a means to justify and enhance class dominance and thus to strengthen existing relations of economic power.” The “race model” of white supremacy “characterizes white supremacy as an evil standing on its own base .... [T]here is no reason to look beyond the system of racial hierarchy itself to understand its well-springs and strength.” But Ansley also notes that pure models of white supremacy do not exist in the real world. “The themes of race and class refuse to keep their bounds. They constantly interpenetrate, converge, and reflect on each other.” The system is maintained through politics, economics, and culture. I would add the Constitution to her list of systems that help maintain White Supremacy.

Ansley's work continues to be important today as we wrestle with calls for an abolitionist society in which we “transform our built environment and our relationships with one another and the earth.” Today's abolitionist activists “embody a combined concern with democracy and the economy, the ends and processes of grassroots power: to fight criminalization and privatization as we organize for collective self-determination.” In other words, today's abolitionists have accepted Ansley's call to consider both seeds of capitalism and racism to create a more just and democratic society.

In a breathtaking article published in 2020, Michael Klarman describes how U.S. democracy is at risk because the privileged few control our so-called democratic instruments.

To entrench democracy, Democrats would need to overcome simultaneously the disadvantages of partisan gerrymandering and geographic clustering in state legislatures and the House of Representatives, extreme malapportionment in the Senate, the vagaries and malapportionment of the Electoral College, and the flood of unregulated political spending that the Court has unleashed.

In an afterthought, though, he quickly notes: “Even then, Republican Justices might invalidate democracy-entrenching measures.”

While recognizing that “[w]e are trapped in a downward spiral in which growing economic inequality erodes democracy, leading to the enactment of more policies that further exacerbate economic inequality, which then further erodes democracy,” he argues that “democratic reform logically must come first.” But, as Amna Akbar aptly notes: “Electoral reform is unlikely to mobilize a public where only twenty to sixty-five percent of eligible voters cast their ballots in various elections and only twenty percent trust the federal government.” And Akbar does not ask the more frightening question of whether a democratic electorate, if the franchise were exercised universally, would seek to end white supremacy. Would we still need a constitution to protect Black people and others who have been subordinated since our Nation's founding? Other countries have used their constitutions expressly to protect those, such as Native people, who have had their lands stolen from them to build and maintain a privileged ruling class.

Putting aside the question of what kinds of reforms must come first to overturn white supremacy, one might wonder how it could be true that the U.S. Constitution could be used as a tool to invalidate democracy-entrenching measures. The answer to that question is complex (and Klarman devotes 264 pages to discussing many of those impediments), but this Article proposes an explanation that Klarman barely explores. The U.S. has never been willing to allow democracy to flourish because democracy might be a tool to challenge some aspects of white supremacy. To be clear, the creation of genuine democracy will not suddenly end white supremacy. White supremacy preceded the creation of the Constitution and would certainly endure its demise. It is nonetheless important to recognize that the U.S. Constitution is an impediment to the kinds of structural reforms that are needed to lessen the strength of white supremacy.

Dorothy Roberts, while a brilliant scholar, was wrong to suggest that the seeds of what she calls “abolition constitutionalism” can be found in the U.S. Constitution. The lesson to be learned from the Black Lives Matter (“BLM”) movement is that change can only occur through political, social action, not through the courts and, especially, not through the Constitution. Monuments that glorify white supremacy, both literally and figuratively, did not come down as a result of legal action. They came down through protests on the streets. The courts will stand in the way rather than facilitate the attainment of many of BLM's list of demands. This Article will recount how the U.S. Constitution has been a barrier to, rather than instrument for, justice.

Part I recounts the historical debate about the role of the Constitution in structural reform among anti-slavery advocates. By the late 1830s, William Lloyd Garrison had taken the position that the Constitution was so profoundly pro-slavery that the only solution was for the free states to secede from the Union. While Frederick Douglass initially agreed with Garrison that the Constitution was inextricably pro-slavery, Douglass eventually abandoned that position and argued that the Constitution could be used as a vehicle for reform. We are in a moment where the Garrison/Douglass debate should be rekindled. Despite the ratification of the Thirteenth, Fourteenth, and Fifteenth amendments, is the Constitution still a profoundly pro-slavery document? Or can it be used as an abolitionist tool?

Part II recounts how the Constitution was written and interpreted to preserve both slavery and white supremacy. Even the Thirteenth Amendment did not completely abolish slavery. The state action doctrine immediately eviscerated the heart of the Fourteenth Amendment by precluding individuals from seeking legal redress against private actors. Qualified immunity protects state actors, like police officers, from responsibility. The public murder of Black people has occurred throughout our nation's history, with capital punishment being the latest state-sanctioned tool to that end. Black people remained incarcerated even as COVID- 19 ravaged the prison system. When Black activists sought to end racially inferior schools, the courts balked at creating effective remedies. In a completely ahistorical interpretation of the Fourteenth Amendment, the Equal Protection Clause soon became a tool to overturn affirmative action out of fear of hurting “innocent whites” whose century of wealth had been built on the back of Black labor. While one might hope that the electoral system could fill in the gaps created by the Constitution through the election of leaders who seek to use their power to overcome the legacy of slavery, the reality is that the Constitution has impeded that possibility. The Constitution, itself, rewards southern states with disproportionate political power to perpetuate white supremacy. When Congress finds the political will to create some statutory protections for Black people, the Supreme Court finds ways to significantly limit those statutes. One must ask: what has the Constitution ever done for Black people? It has precluded all hope of structural reform and allowed Black people to gather the scraps of the remedies still available under the Civil Rights Act of 1964. Part II argues that we should understand the Constitution to be an impediment to racial equality rather than a tool to dismantle white supremacy. Even Brown v. Board of Education has come to further white supremacy.

Part III asks how we should teach the basic course on Constitutional law given the Constitution's role in promoting and preserving white supremacy. This Article argues that we should teach Constitutional law from a critical lens that does not venerate the document. We should use the course to help our students understand how the Constitution is rarely an affirmative tool to dismantle white supremacy; instead, it is often an impediment to the radical reform that seeks to end the legacy of slavery.

Although this Article focuses on the white supremacist ideology that permeates the Constitution, the same claim could be made on behalf of every other disadvantaged group in the United States. The document is also sexist, ableist, xenophobic, colonialist, and homophobic. It is time to stop venerating the Constitution. It is usually just another barrier to change.

But this Article does not end on a nihilistic note. While the dominant story of Constitutional law has been the support for, rather than dismantling of, white supremacy, there have been noted jurists over the centuries who have found seeds of abolitionism within the Constitution. Because Justice Thurgood Marshall offers the most powerful abolitionist voice among jurists, this Article seeks to elevate Marshall's voice to be the controlling understanding of the Constitution. Only then can the U.S. Constitution be one tool, among many, to attain a radical reconstruction.

[. . .]

In this last section of the Article, I am going to switch from the impersonal third person to a more personal perspective.

As a privileged white person, I have grown increasingly uncomfortable teaching the required law school class on the U.S. Constitution. I suspect that many students enter my classroom expecting me to expound on the beauty and wisdom of this foundational document. I have to worry that I contribute to white supremacy by furthering that premise. In the language of my colleague Amna Akbar, how can I teach constitutional law in a way that encourages my students to think broadly and creatively about non-reform reforms?

This Article reflects how I have come to re-understand my role in the classroom when I teach constitutional law. I understand the Constitution as having two critical roles related to the current abolitionist struggle. First, the Constitution is unlikely to be a positive, affirmative tool to dismantle white supremacy. But, as Daniel Farbman has effectively argued, we can still understand today's civil rights lawyers as part of what he calls “resistance lawyering.” These lawyers can use their losses under the Voting Rights Act, for example, as evidence of the need for deep-seeded structural changes in our system of voting. One could argue that such losses helped mobilize the effective grass-roots voting rights work that Stacey Abrams has led in Georgia while also emboldening the political right to pass highly restrictive voting rights laws in Georgia. Civil rights lawyers may unsuccessfully seek to overturn Georgia's new voting rights law, but their efforts may heighten the public critique (which has even been joined by some of corporate America) of Georgia's effort to suppress Black voters. It is remarkable and a sign of changing public sentiment that President Biden was willing to describe the new Georgia law as “'outrageous,’ 'un-American’ and 'Jim Crow in the 21st Century”’ and say we have a “'moral and constitutional obligation to act.”’ Change rarely moves in a straight line; the story of Constitutional law can be a story of change, resistance to change, backlash, and continued struggle. Even if the courts will not use their authority to overturn the Georgia law, the public discourse about what a constitution can mean is influenced by this kind of public discussion.

Secondly, and possibly even more unfortunately, the U.S. Constitution should be understood as an impediment to non-reform reforms, be they small or large. Let me first offer one small example. President-elect Biden announced that he would prioritize Covid financial relief to minority-owned businesses. Putting aside the logistical hurdle of whether he could get such a relief package through a Congress which is weighted towards representation of the deep south, the proposed relief faced immediate criticism as a kind of discrimination forbidden by the Constitution. Brit Hume described Biden's plans as “racial discrimination, plain and simple.” Kimberly Klacik declared: “This is actual discrimination. The opposite of what my hero, Dr. Martin Luther King, Jr., fought & died for in America.” Jeremy Frankel said: “This seems like a blatant violation of the civil rights act, if not the fourteenth amendment.”

And, unfortunately, as far as constitutionality is concerned, these critics were right. As discussed in Part II, Congress does not have the authority to target relief at minority communities, because that would be considered a violation of the Constitution's rigid formal equality principles.

The Constitution is also likely to serve as an impediment to broader, more meaningful reform. For example, the House of Representatives boldly introduced the “For the People Act” or H.R. 1 on January 3, 2021. The bill requires states to re-enfranchise all people convicted of felonies who are not currently serving time in a correctional institution, creates a public financing program for congressional candidates, bans challenges to voters' eligibility by non-elected officials, mandates a federal voting holiday, prohibits deceptive practices and voter intimidation, combats voter purging, creates new ethics rules for the Supreme Court, and requires candidates for president and vice president to publicly disclose their tax returns. Even if such a bill can muster the required 60 votes in the Senate to overcome a filibuster, it is likely to face constitutional challenge by conservatives who think states should have unlimited power to set qualifications for voters.

It is important for students of constitutional law to realize how likely it is that the most progressive legislation will be ruled unconstitutional by the courts. But the more important question is what do we learn from that fact?

Some, like voting rights scholar Richard Hasen, argue that progressives should favor a narrower voting rights law that is likely to withstand constitutional scrutiny. The key elements of such a bill are restoring “the preclearance provision” of the 1965 Voting Rights Act, “requir[ing] that states offer ample registration and voting opportunities to voters,” “requir[ing] states to assure election security,” and “end[ing] partisan gerrymandering of congressional districts by requiring states to use bipartisan or nonpartisan commissions to draw the lines.”

But others, like the Leadership Conference on Civil and Human Rights, joined by 200 national organizations, continue to push for the passage of H.R. 1. Taking a page from the history of resistance lawyering, they are not limiting their vision for change to what is readily possible or even constitutional. They recognize the importance of pushing for non-reform reforms even as the political calculation will, at most, permit incremental reform. Notice, for example, that Hasen's list of passable reforms includes increased “election security”--a concession to conservatives who have falsely pushed claims of election fraud. Of course, that concession is understandable in a political atmosphere in which white supremacy amasses great power. What is politically possible is unlikely to be a non-reform reform, even if the courts were not a roadblock to implementation of bold measures to overturn white supremacy.

The important point, I would argue, is that we provide our students with as many tools as possible. They should learn how current constitutional doctrine makes it difficult to use the courts to challenge state action that subordinates and discriminates against Black people. They should also learn how progressive reforms, if they can be passed at the local, state, or national level, are likely to be overturned by the courts. They can then decide if they want to work on narrow reforms, like those proposed by Hasen, which might pass constitutional muster, or whether they want to work on broader reforms like H.R. 1, which face an uncertain political and constitutional future.

Finally, I hope that we seek to elevate the voices of Black scholars and jurists, along with others who are seeking to challenge white supremacy. The most frequently cited or discussed jurist should be Thurgood Marshall. His many dissents, which I have emphasized in this Article, should be studied closely so that we can learn more about the history of white supremacy while also considering how his dissenting opinions might be elevated to controlling authority. Taking a page from Thurgood Marshall's own work as a lawyer and jurist, students should also learn that civil rights lawyers have often sought recourse in the courts not “out of a philosophical belief regarding the optimal role for courts in a democracy” but because, like Marshall, they considered the third branch to be their “last hope.” That recognition should help our students better understand how to be resistance lawyers.

Much work needs to be done at the grassroots level to change our understanding of what it means to live in an equitable society where Black lives matter. We cannot expect the Supreme Court to take the lead in dismantling white supremacy, but the Supreme Court should also not be left off the hook as irrelevant. Its jurisprudence helps empower and further white supremacy. This Article has sought to tell that story.

Ruth Colker. Distinguished University Professor & Heck-Faust Memorial Chair in Constitutional Law, Moritz College of Law, The Ohio State University.