The United States Constitution has been a document that, during every era, has helped further white supremacy. White supremacy constitutes 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.”** Rather than understand the Constitution as a force for progressive structural change, we should understand it as a barrier to change.
From its inception, the Constitution enshrined slavery and the degradation of Black people by considering them to be property rather than equal members of the community. The Civil War Amendments did not truly abolish slavery and only prohibited a limited band of state action. Radical Reconstruction was short-lived as white supremacy quickly eviscerated any political gains that Black voters had achieved.
The Supreme Court has interpreted the Civil War Amendments consistently with their white supremacy roots. Rather than serve as an effective instrument to help eradicate the badges, incidents and vestiges of slavery, the Constitution has become a tool both to ban voluntary race-affirmative measures at the federal, state and local government level while also precluding Congress from enacting strong abolitionist measures. The Court has enshrined the views of Andrew Johnson, a fierce proponent of white supremacy, into its basic structure.
This Article challenges us to imagine how resistance lawyers might seek to use the Constitution to help eliminate white supremacy while also generally recognizing the limitations of the use of the judicial system, including the specific limitations of the U.S. Constitution, for that purpose. Only then might we achieve a truly radical reconstruction.
** Frances Lee Ansley, Stirring the Ashes: Race, Class and the Future of Civil Rights Scholarship, 74 Cornell L. Rev. 993, 1024 n. 129 (1989)