Introduction
In a decision that surprised almost no one, the United States Supreme Court struck down the affirmative action programs at Harvard College and the University of North Carolina. The majority opinion recounted a jurisprudential history that started with the Fourteenth Amendment, jumped to Plessy v. Ferguson, and lingered on the progeny of Brown v. Board of Education. The opinion hailed Brown as the ultimate triumph, the case that spelled the beginning of the end of racism in America. It declared that the purpose of the Equal Protection Clause is to eliminate “all governmentally imposed discrimination based on race.” In his concurrence, right-wing jurist Clarence Thomas proudly boasted: “Today, . . . the Constitution prevails.”
The “prevailing” federal Constitution makes no mention of African Americans. Prior to the Thirteenth Amendment’s ratification, it made no reference to slavery either. However, the Constitution is a document that has exalted white supremacy from its founding to the present. Implicit racism—racism that is derived from the intended interpretation of facially race-neutral language—is a truly American brand of racism. Ian Haney López’s book Dog Whistle Politics dates the origins of coded racism to the 1960s, with George Wallace and Barry Goldwater as the first dog whistlers. Katie R. Eyer has pointed out that facially race-neutral opposition to racial justice and equality existed during the Plessy era and prevailed in the North as well as the South. In truth, however, coded racism has its roots in the nation’s founding document; the federal Constitution itself is a living example of coded racism.
This Article argues that the federal Constitution has substantively, structurally, and interpretively tolerated a baseline level of racism. Substantively and structurally, the Constitution sanctions anti-Black racism without mentioning race. Interpretively, the Supreme Court’s antebellum jurisprudence, particularly the Dred Scott decision, somewhat departs from the Constitution’s racial spirit; it is explicit in its anti-Blackness. However, its postbellum jurisprudence returns to that spirit of colorblind racism, entrenching racial subjugation through race-neutral language. To be clear, overt racial animus featured prominently in American life and law for most of America’s history. However, the Fourteenth Amendment prohibited state governments from treating persons or groups unequally based on race; and even the Supreme Court of the Old Jim Crow Era, bad as it was, mainly stuck to that command. What the Court did instead was provide a racism guidebook for white society to follow. The Court invalidated state-sanctioned racism when it was glaringly obvious, but it also left the white public constitutionally unrestrained, permitted state passivity in face of private anti-Black racism, and sanctioned coded racism at the state level. In sum, the Reconstruction Era birthed the blueprint for constitutional racism, erecting architecture that has endured to this day.
Students for Fair Admissions is the Supreme Court’s most recent homage to America’s legacy of constitutional racism. It purveys racism while pretending not to; it purports to denounce the very thing it promotes. What the Court calls “racial discrimination” translates to any explicit mentions of race. The Court does not mind—and has never minded—state-sponsored racial subjugation insofar as the state does not obviously identify race as the motive for the governmental action in question. By transmogrifying express invocations of race into “racial discrimination,” the Court mirrors the spirit of the Constitution, issuing lofty pronouncements in favor of freedom for all, while implicitly endorsing the continued government-sanctioned oppression of African Americans. This transmogrification also serves a second purpose: because meaningfully addressing the effects of racial subjugation necessarily requires race-conscious remedies, the Court preserves white supremacy by killing those remedies under the guise of eliminating racial discrimination.
A plethora of Articles denouncing the latest affirmative action decision are sure to come. Past affirmative action and other race-related equal protection decisions have generated much legal scholarship defending race-conscious remedial measures and chastising the Court for its obduracy. They point out fallacies in the Court’s logic and dispel the myth of colorblindness. They call out the hypocrisies of originalist judges who abandon any pretenses of originalism when it comes to interpreting the Fourteenth Amendment. They conclude that negative affirmative action decisions were wrongly decided. They argue for and imagine a more robust Equal Protection Clause and jurisprudence that accounts for history and helps the Black struggle for justice. The author fully accepts the racial justice thrust behind these arguments.
Nonetheless, this Article perversely affirms Justice Thomas’ declaration in Students for Fair Admissions that “[t]oday . . . the Constitution prevails.” Far from being a feat worthy of celebration, however, the Constitution prevailed in that it once again sanctioned coded racism while formally blocking efforts to undo oppression. The Constitution prevailed in that it empowered racist politicians across the country to oppose racial justice not only with renewed vigor, but with a vocabulary that allows them to shamelessly cast themselves as proponents of racial equality. The Constitution prevailed, to be blunt, in that it scored yet another victory against a 235-year adversary: racial justice and equity. Race-conscious remedies are unconstitutional because the order of the nation’s founding document has been, remains, and will likely forever be, the preservation of white supremacy.
This Article borrows from Derrick Bell’s theory of racial realism: the idea that full racial equality for African Americans is unattainable in the United States. This Article modifies that theory to call for a “constitutional realism” with respect to racial justice; it calls for recognizing that the federal constitution has always been and will remain the fundamental legal barrier to righting America’s past and present racial wrongs. If racial equity will ever be achieved in America, the Constitution will not be the vehicle by which it happens. This Article is also the next progression from Ruth Colker’s recent piece The White Supremacist Constitution, an Article that accurately casts the nation’s founding document as a proponent of white supremacy. However, this Article is narrower in scope, focusing on African Americans. At the same time, it also offers a more comprehensive examination of the juridical relationship between the Constitution and race, discussing important foundational cases omitted from Colker’s otherwise brilliant exposition.
This Article proceeds in four parts. Part I defines “coded racism,” drawing from the work of Ian Haney López and Eduardo Bonilla-Silva. Part II examines the original federal Constitution, contrasting its fancy vernacular with the intentions behind it. While numerous scholars have recognized the original Constitution’s condonement of chattel slavery, no casting of the Constitution as a dog whistle document exists. Yet, the original constitution is a coded racism template flavored with anti-Blackness. As to African Americans, it features no race-specific language and no references to slavery. Nonetheless, Congress and the Supreme Court understood its intended meaning as a white supremacist document.
Part III explains the components of the constitutional racism blueprint the Supreme Court designed during the Reconstruction Era. It examines the cultivation and maintenance of the architecture of constitutional racism from post-Reconstruction to the present. It explores the blueprint’s modifications as well as its consistency over time across various Court spans. Considering the Constitution’s anti-Black nature, the focus here will be on anti-Black racism; this is particularly appropriate given how the Supreme Court weaponized other racial groups to kill affirmative action.
Part IV situates Students for Fair Admissions into the American history of constitutional racism. The majority opinion follows the framework of the Constitution; its rhetoric is grandiloquent, but it deliberately promotes racial inequality. The longstanding opposition to affirmative action has always struck this same tone. Part IV also examines the responses of the decision’s proponents both before and after the decision; Students for Fair Admissions was barely off the presses before right-wing politicians began weaponizing it against existing racial justice efforts. Finally, Part IV sums up what this decision confirms with a bold assessment: the federal Constitution is the enemy of racial justice, and equity advocates should look elsewhere for solutions.