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Excerpted From: Audra L. Savage, The Religion of Race: The Supreme Court as Priests of Racial Politics, 2021 Utah Law Review 569 (2021) (444 Footnotes) (Full Document)


AudraLSavageThe summer of 2020 ushered in a national reckoning on race and racism unparalleled in recent history. The protests and uprisings in the wake of the murder of George Floyd exposed the wounds of a troubled American history that refuses to heal. More than ever before, people are questioning core democratic institutions and traditions as they relate to race. A national conversation about the nature and role of law enforcement, and its history rooted in slavery, began in earnest. There was confusion over which Independence Day to celebrate--Juneteenth or the Fourth of July. Monuments that at one time seemed permanent and immovable came tumbling down, as they were seen as odes to white supremacy and no longer acceptable. As the presidential election loomed large, there was an increased understanding of the history of the Electoral College--also rooted in slavery--and a debate over its continued use, as well as forceful calls to reenact key provisions of the Voting Rights Act of 1965 to protect against voter suppression. At the heart of this questioning, and these (louder) calls for justice is one undeniable fact: racism still exists.

Racism in the United States harks back to the arrival of Africans in colonial America and was integral in the founding of the nation. The Founding Fathers compromised on the issue of slavery in the creation of the Constitution and, by doing so, established the custom and tradition of subordinating Black people in American law and society. Following the end of the Civil War, the Reconstruction Congress focused on ending the “peculiar institution” and instituted constitutional amendments and civil rights acts to end the vestiges of slavery and advance citizenship rights and equal status of Blacks. In this sense, Congress attempted to unwind the original Constitution's racial subordination and promote a new goal of equality.

This Article offers a new descriptive account of America's racial history that can helpfully highlight aspects of that history and contextualize the zeitgeist of racial understanding and politics. It argues that the subordination of Black people instituted by the Founders is more than just a notable consideration or an inquiry into the country's political commitments. Instead, the racism established by the Constitution is an ideology--a set of basic beliefs and values--woven into the very soul of the country by that foundational document. Indeed, the Founding Fathers created a national civil religion based on racism when they compromised on the issue of slavery. This religion, which I call the Religion of Race, is built on a belief system in which whiteness is sacred, and Blackness is profane. The sacred text is the Constitution, and it is interpreted by the Supreme Court who uses the adjudication of cases as a ritual to advance this religion.

This Article argues that the Reconstruction Amendments and attendant Civil Rights Acts can best be understood as an attempt by Congress to end this Religion of Race and remove the boundary between whites and Blacks. However, this attempt was resisted by the Supreme Court in the cases adjudicated immediately following the Reconstruction period--notably The Civil Rights Cases of 1883 and Plessy v. Ferguson of 1896. The Court's decisions introduced a conflict that has shaped American racial politics ever since-- whether the Supreme Court is interpreting the Constitution of Slavery or the Constitution of Reconstruction, and, therefore, whether it will perpetuate or dismantle the Religion of Race.

This Article contributes to the field of Critical Race Theory by looking at the dynamic of power and subordination of Black people through the lens of a constitutionally established national civil religion built on racism. Critical Race Theory is an area of legal scholarship directly examining and assessing the law's subordination of Black bodies and Black rights under the power of white privilege. Developing from the Critical Legal Studies movement around forty years ago, Critical Race Theory questions whether the law is truly neutral and objective, especially as it relates to race. It looks at ways in which race may, in fact, distort legal doctrine and how law and legal traditions impact people of color--not as individuals but as members of a group. By advancing the argument that the racism established by the Founders is a national civil religion, this Article provides a new narrative in the vein of Critical Race Theory about racial subordination and the seemingly inexplicable inability of the law to fully eradicate racism in America.

The concept of a national civil religion describes the American experience of a democratic political community shaped by, and sometimes against, religious commitments and history. First postulated by French philosopher Jean-Jacques Rousseau, it was developed by sociologist Robert Bellah in his seminal work, “Civil Religion in America,” and in later works. Bellah argues that there is a “well-institutionalized civil religion” operating in parallel with the confessional religion of the Christian church. There was never a state religion or a set of dogma for each citizen to follow. Instead, Bellah calls the expression of certain beliefs, symbols, and rituals of the American political reality the “American civil religion.” Furthermore, these beliefs, symbols, and rituals are related to “sacred things” and are “institutionalized in a collectivity.” Although this religion is not Christianity, Bellah argues that it derives from Christianity and the Founding Fathers' belief that the nation was directed by the will of a transcendent God, who held the ultimate sovereignty of the state.

According to Bellah, Americans believe there is a divine superstructure overarching the nation, which has destined the country for greatness. Gary Laderman expands on this idea about the centrality of God in the American civil religion. He explains that the combination of “myths, rituals, morality, God, and meaning” posited by Bellah drives American politics but operates under the public radar. In other words, this divine superstructure is the silent operating system for the nation. Turning the traditional notion of the separation between church and state upside down and inside out, Laderman suggests that the American civil religion “sheds a different light on the relationship between the sacred and the profane in the political arena.”

A central feature of the civil religion is to serve as a tool of social solidarity. Laderman argues the following:

[Civil religion] invigorates the social bonds uniting individual citizens into a common social group and providing them with a shared sense of purpose and meaning in the midst of historical experience and cultural diversity. These are two key functions of American civil religion: to unite and to orient.

For Bellah, American society is unified by citizens who agree to subordinate the nation to a set of ethical principles that transcend the nation itself.

This Article argues that beyond the idea of a transcendent G/god as the core of the American civil religion, race is the central, unifying, and orienting factor. Bellah believes that the civil religion exerts pressure on the populace to find a solution to the treatment of Black Americans, what he terms as “our greatest domestic problem.” This Article advances a theory contrary to this assertion. The historical treatment of Blacks is not a problem or issue. Instead, it is the core of American life and American law. The Founding Fathers positioned the American political structure along the axis of race--institutionalizing the ability of one group of people to dominate another group and use that other group to create wealth.

When defining a national civil religion, both Robert Bellah and Gary Laderman draw upon the foundational work of Émile Durkheim, a French sociologist and leading founder of the field of sociology of religion. Durkheim's contributions to the concept of American civil religion are threefold. First, “[h]e too was concerned with social structures and the question of collective coherence in modernity and modern nations. Like Rousseau, Durkheim understood religion as an integral ingredient for social solidarity. His definition of religion emphasized social realities over theological beliefs.” Second, Durkheim posited that the definition of religion contains two elements--the sacred and the profane. Further, and most importantly, Durkheim transitioned the idea of religion as something experienced by an individual as part of the collective into something experienced by the group. Durkheim's construct is a useful analytical tool to describe the racial subordination of Blacks in the law, and this Article focuses on the core concepts of this construct.

Part I describes the original Constitution as a proslavery compact by detailing the debate over slavery in the Constitutional Convention and the compromises made by the Founding Fathers, namely, the Three-Fifths Compromise, the Slave Importation Clause, and the Fugitive Slave Clause. It then details key considerations during the ratification process related to the status of Black people. I will call the Constitution that was produced by the Founding Fathers, the Constitution of Slavery.

Using the construct of religion provided by Durkheim, Part II argues that the Founding Fathers established a national civil religion I call the Religion of Race. Each element of the Religion is described, including the authority (Constitution and Supreme Court), beliefs (whiteness as sacred, Blackness as profane), and ritual (adjudication of law). The section then illustrates the development of the Religion of Race by examining case law in the period after the Constitution was created and before the Civil War, including Grove, Prigg, Van Zandt, and Dred Scott.

Part III presents the Reconstruction Amendments and Civil Rights Acts as shining a new light on the equality of Blacks contrary to the previous dogma of the original Constitution. This new light I call the Constitution of Reconstruction. The section then argues that the Supreme Court incorrectly narrowed the Reconstruction Amendments and Acts and limited their application, leading to the unfulfilled promise of equality for Blacks by creating the doctrine of “separate but equal.”

Part IV describes the promise of a new civil religion engendered by the Constitution of Reconstruction and how the Court and Congress denied that promise. The section then details the transition of the Religion of Race from a civil religion to a dis/civil religion by the Supreme Court when it adopted the doctrine of state action and sanctioned private discrimination.

[. . .]

This Article attempts to offer a framework to better understand the confusion and anger felt by many regarding the persistent nature of racism in America. Despite numerous laws and a robust regime for antidiscrimination, white supremacy persists. This Article tells the story of the nation's foundational documents and ends with a discussion of the rocky start of the amended foundation provided by the Reconstruction Amendments. In future work, I will continue to explore the extent to which the Religion of Race is established in our law and society. This work will include a discussion on whether the Religion of Race can be disestablished and, if so, the mechanisms and institutions (especially those beyond the Supreme Court) required for that to happen.

In his dissent in Plessy, Justice Harlan proffered the idea that the Constitution is colorblind. At first, this idea sounds laudable, as it was a counterargument against the doctrine of separate but equal. Upon further thought, however, the idea that our Constitution does not recognize color or race is problematic. The colorblind approach itself maintains the boundary between sacred and profane, as its application means there is never a chance to apply equity--programs specifically aimed at addressing the disparity between white and Black by privileging Blacks. The past few years have demonstrated that equality is not enough. Under the rubric of equality, the Court has been able to use colorblindness to perpetuate the subordination of Blacks. Having the same rights on paper does not equate to fair and affordable housing, access to healthcare, a criminal justice system that does not target Black people, and lasting wealth.

Whiteness is sacred because whiteness means freedom. The Religion of Race is the national civil religion that subordinates Black bodies, Black minds, and Black souls to whites and white privilege. In a country that is becoming more diverse, and where nonwhites will become the majority in a few short decades, the central question is whether the Supreme Court will absolutely embrace the ideals and redemptive power of the Reconstruction Congress and firmly reject the racism established by the Founding Fathers. One hopes that the Supreme Court will seize the opportunity one day soon to fully dismantle this Religion of Race and successfully fulfill their duty as interpreters of that most sacred text--the United States Constitution.

Audra L. Savage, SJD is an incoming Assistant Professor at Wake Forest University School of Law, and a judicial clerk for the Honorable James Wynn, Jr. of the U.S. Court of Appeals for the Fourth Circuit.

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