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Excerpted From: Brandon Hasbrouck, The Antiracist Constitution, 102 Boston University Law Review 87 (February, 2022) (505 Footnotes) (Full Document)


BrandonHasbrouckIf we want to shape a better America--a country that lives up to its purported ideals, rather than twisting them to cover for white supremacy--we must first understand what America has been. HBO's Watchmen explored both the horrors that comfortable white Americans would rather believe are confined to the past and what a world where government power served antiracist ends could look like. In the show, the most powerful being in the universe, Doctor Manhattan, chooses to experience life without all that power--becoming, in contrast, a Black man in America. The character's own history is explored in the original comics through a series of vignettes, which illustrate his unusual ability to perceive all of time without ordinary human limitations. America has a long history of white supremacy: political compromises that sold out Black rights, slavery, white backlash, suppressing advocates for justice by force of law, twisting the interpretation of the Constitution and laws to excuse systemic racism, and allowing the bigotry of years past to continue through ostensibly neutral laws. The story is too big to take in all at once. So, let us instead imagine how that history would appear if, like Doctor Manhattan, we might see all of time at once.

It is June 28, 1776. The Continental Congress orders that Thomas Jefferson's draft of the Declaration of Independence “lie on the table.” The document will be edited heavily, removing--to appease Georgia and South Carolina accusation that King George III forced slavery upon the colonies. Jefferson, who enslaves hundreds of people, nonetheless includes an assertion that “all men are created equal.”

It is July 16, 1787. The Constitutional Convention has been debating how to determine a state's population when apportioning members of the House of Representatives. After delegates from Southern states propose that their states be allowed to include enslaved persons when calculating their population, the Convention adopts a previously rejected proposal that enslaved persons should count as three-fifths of a person. The Three-Fifths Compromise will entrench disproportionate power for slaveholding states in Congress and in presidential elections.

It is March 3, 1820. The Senate approves the admission of Maine as a free state while simultaneously allowing the admission of Missouri as a slave state. The Missouri Compromise forbids slavery within western territories “north of the thirty-six degrees and thirty minutes north latitude” while simultaneously cementing the notion that the balance between states permitting and forbidding slavery must be maintained to preserve the political power of slaveholding states in the Senate. The territorial restriction feeds the anxiety of the enslavers, inevitably driving their hunger for foreign territory and willingness to resort to violence to uphold their system of oppression.

It is September 18, 1850. Congress passes the Fugitive Slave Act as part of the Compromise of 1850 to settle a series of debates on California statehood and the borders of Texas. The new law requires government officials to assist in capturing persons accused of escaping slavery on nothing more than an affidavit, allowing free Black people to be enslaved without any right to defend themselves in court.

It is March 2, 1877. A divided Congress fiercely contests which electoral certificates to count in the presidential election. After hours of gridlock, a backroom deal allows Rutherford B. Hayes to be declared the winner in exchange for removing federal troops from Southern states, effectively ending Reconstruction. Openly white supremacist state governments will dominate the region under one-party rule for nearly a century.

It is March 3, 1913. The National American Woman Suffrage Association is marching in Washington, D.C., to demand universal suffrage. To ensure the participation of Southern women, Black marchers are instructed to form a separate contingent at the back of the parade rather than march with their state delegations. Ida B. Wells refuses to comply and joins the Illinois delegation as it passes the crowd of spectators. Women will gain the right to vote through the ratification of the Nineteenth Amendment in 1920, but Black women will largely remain disenfranchised until the Voting Rights Act of 1965 (“VRA”) effectively ends segregation at the ballot box.

It is 1508. Juan Ponce de León has established a Spanish settlement in Borikén--later known as Puerto Rico--where native Taíno people are enslaved. As the Taíno dwindle in population from the ravages of colonialism, the Spanish will begin to replace them with enslaved people kidnapped from Africa.

It is August 1619. British privateers have seized a Portuguese slave ship and captured the enslaved people on board. They are brought to Virginia, where they and other African people and their descendants will be subjugated in a racial caste system.

It is June 19, 1865. Major General Gordon Granger issues General Order No. 3 in Galveston, Texas, to enforce the emancipation of all enslaved people in Texas. The order, believed to have been read aloud to the public, proclaims “absolute equality of personal rights and rights of property between former masters and slaves.” The formal end of slavery throughout the United States will occur in six months when the Thirteenth Amendment is ratified.

It is 1832. John Chavis, the first college-educated Black man in the United States and a veteran of the Revolution, is forced out of his work as a teacher and preacher. New laws have been passed to forbid these activities among Black people, whether free or enslaved, in response to Nat Turner's Rebellion.

It is November 10, 1898. Following an openly white supremacist election campaign to oust a biracial alliance that governed Wilmington, North Carolina, a mob organized by prominent citizens attacks Black businesses and homes. The mob begins by burning a prominent Black-owned newspaper. The mob's leaders force the mayor, board of aldermen, and police chief to resign at gunpoint and then install a new city council, which elects the mob's leader as mayor. The instigators of the coup include several future governors, senators, and a Secretary of the Navy.

It is June 1, 1921. In the early hours of the morning, a white mob sets fire to Black-owned businesses in Tulsa, Oklahoma's Greenwood neighborhood. Greenwood--known as the “Black Wall Street”--is one of the wealthiest Black neighborhoods in the country. As dawn breaks, the white mob will rush Greenwood en masse, looting, shooting indiscriminately, and pulling Black residents from their homes to round them up in detention centers. The sheer size of the mob will overwhelm the Black residents defending their neighborhood, many of whom will be forced to flee the city. As the morning drags on, white attackers will destroy over one million dollars of property, and their actions will leave eight to ten thousand people homeless.

It is May 13, 1985. Philadelphia police resolve to bomb a rowhouse where members of MOVE, an anarcho-primitivist Black separatist group, are engaged in a shootout with police. A Philadelphia police lieutenant drops a satchel bomb on the rowhouse, starting a fire that Police Commissioner Gregore J. Sambore and Fire Commissioner William Richmond determine “should ... burn until it neutralize[s] the bunker.” The fire kills six adults and five children inside before spreading and destroying dozens of nearby homes and leaving more than two hundred people homeless. No city officials will face criminal charges for the attack.

It is May 29, 2020. Omar Jimenez and his CNN news crew report on the racial justice protests following George Floyd's murder in Minneapolis. While Jimenez's crew broadcasts live, police order them to move. Jimenez and his crew agree to move and ask where they should go. Rather than answer, the police officers arrest Jimenez and his crew live on national television. In the course of violently suppressing protests during the following month, police around the country will routinely attack journalists.

It is December 1859. Alfred Iverson, a Senator from Georgia, is denouncing his congressional opponents for their refusal to condemn a book, The Impending Crisis of the South: How to Meet It. The book lays out the economic case against slavery as an institution detrimental to both enslaved persons and white farmers and laborers outside of the aristocracy. Senator Iverson calls for all those who support or endorse the book to be hanged as accessories to John Brown's raid. In Southern states, abolitionists are prosecuted for merely circulating a copy of the book.

It is November 1964. Martin Luther King, Jr., is sent an anonymous letter threatening to reveal his sexual affairs to the public if he does not commit suicide before being awarded the Nobel Peace Prize. Dr. King correctly believes that the FBI sent him the letter. The FBI will conduct additional “COINTELPRO” surveillance of civil rights activists for several years before these efforts are exposed to the public.

It is 1994. Dan Baum interviews John Ehrlichman, White House Counsel under President Richard Nixon, who bluntly describes the impetus behind the “War on Drugs.” Ehrlichman says that the public association of drugs with “the antiwar left and [B]lack people,” followed by the heavy criminalization of those drugs, was engineered to target leaders and break up communities that President Nixon saw as his enemies. The War on Drugs is ruthlessly effective at driving the mass incarceration of Black people.

It is July 28, 1868. Secretary of State William Seward certifies that enough states have ratified the Fourteenth Amendment for it to become law. The Amendment's drafters believe it to settle the question of whether the rights enumerated in the Constitution apply against the states through its Privileges or Immunities Clause. In only five years, the Supreme Court will effectively write this Clause out of the Constitution in the Slaughter-House Cases.

It is May 30, 1942. Fred Korematsu is arrested in San Leandro for remaining there rather than reporting to an assembly center for removal to an internment camp. He will challenge his conviction, arguing in part that it violates the implicit equality component of the Fifth Amendment's Due Process Clause. In upholding Korematsu's conviction, the Court will articulate an exacting standard for evaluating restrictions on the civil rights of a specific racial group while maintaining that the exclusion of persons of Japanese descent satisfies it.

It is September 24, 1957. President Dwight Eisenhower sends the Army's 101st Airborne Division to enforce the desegregation of Little Rock Central High, invoking the Insurrection Act of 1807. The Supreme Court's rejection of the principle of “separate but equal” and its command that desegregation of the nation's public schools proceeds with “all deliberate speed” has seen widespread resistance across the South. Arkansas Governor Orval Faubus's plan to deploy the State's National Guard to prevent enforcement of court-ordered desegregation at the school is foiled when President Eisenhower federalizes the entire Arkansas National Guard. Massive resistance campaigns against school desegregation will continue for another decade.

It is May 1988. Black homeowners in Atlanta have less access to mortgage credit than their lower-paid, white counterparts. This systemic lack of faith in Black borrowers' ability to repay their loans traces back decades, to the Federal Home Owners' Loan Corporation (“HOLC”) and Federal Housing Administration's New Deal-era lending and underwriting practices. HOLC's practice of designating whole neighborhoods as good or poor credit risks based on their racial composition has become known as “redlining.” The prevalence of redlining hinders Black homeownership, while homeownership becomes the predominant means for white families to accumulate wealth.

It is November 22, 1977. Justice Lewis F. Powell, Jr., circulates a draft opinion to his colleagues concluding that affirmative action programs for college admissions must be subjected to the strict scrutiny applied to racially discriminatory laws. He will ultimately cobble together opposing majorities for his views, ruling that such a standard applies, and strike down race-based quotas while enshrining the state's interest in a diverse student body as sufficient to meet the standard with less-restrictive methods. Allan Bakke, a white applicant who was initially denied admission to U.C. Davis School of Medicine, will force the school to admit him as a student.

It is December 31, 2019. Judge Loretta Biggs issues an opinion blocking North Carolina's voter identification law as racially discriminatory. The ruling is a rare victory for voting rights advocates, who have seen a host of such laws passed and upheld around the country--but especially in the South. The wave of facially neutral voting restrictions burst through the floodgates opened by Shelby County v. Holder, in which the Supreme Court severely limited Congress's remedial power under the Fifteenth Amendment by declaring that the systemic inequalities the VRA sought to remedy were confined to the distant past.

It is 1981. Alexander Lamis interviews Lee Atwater, a Reagan Administration official who will go on to run George H.W. Bush's 1988 presidential campaign. Atwater lays bare his strategy of using ever more abstract dog-whistles to reach racist white voters. By shifting from openly attacking Black people to opposing actions taken for their benefit to promoting policies that--in the aggregate--will disproportionately harm them, a politician can appeal to racist white voters while maintaining a patina of respectability.

It is June 27, 2019. Chief Justice John Roberts issues an opinion ruling that partisan gerrymandering is a nonjusticiable political question. While racial gerrymanders may still be struck down under the VRA--ensuring districts in which minority voters can elect the candidate of their choice-- there is no constitutional protection for the political parties those candidates align with. In this way, white supremacist legislatures are given free rein to draw favorable districts for white supremacist political parties, so long as Black and Brown voters have proportional electoral power.

It is July 1, 2021. Justice Samuel Alito issues an opinion ruling that a facially neutral restriction on the time, place, or manner of voting that has a disparate impact on the voting rights of minority voters--even when the impact is twice what it is for white voters be challenged under the VRA if the overall burden is small and in line with traditional burdens of voting. Justice Alito defends a strong state interest in combating the nearly nonexistent threat of voter fraud. With the VRA's preclearance and intent prongs previously neutralized, little remains of one of the premier laws for protecting civil rights.

It is October 31, 1963. John Terry, Richard Chilton, and Carl Katz are stopped on a Cleveland street by a police officer who finds their patterns of walking and talking together suspicious. Terry and Chilton are Black, Katz is white--a fact that Detective McFadden (also a white man will note in his testimony during the initial suppression hearing but that the Supreme Court will pass by silently. Terry's challenge to his arrest for a handgun that Detective McFadden finds in his pocket will lead to the birth of a doctrine granting officers a broad exception from the requirement that searches require probable cause. This, in turn, will become a favorite tool of police to harass Black men on the street.

It is August 2014. Shaniz West returns to her Idaho home to find it surrounded by police looking for her ex-boyfriend. Rather than use the key that West provides them to get into the house, the police summon a SWAT team, which breaks the home's windows and ruins West's belongings with tear gas grenades. The officers will all be granted qualified immunity when the Ninth Circuit determines that West's right not to have her home and belongings rendered unusable was insubstantial after she consented to a search of the house.

It is March 19, 2002. Brian Bartholomew, who became a police informant after being charged with drug possession, enters Afton Callahan's home to purchase methamphetamine. On Bartholomew's signal, police enter without a warrant, arresting Callahan and searching the home. Callahan will attempt to sue the officers for the warrantless search, which the county will argue was justified by his previous consent to allow the police's informant into the home. A unanimous Supreme Court will use the case to remove the procedural requirement that courts first evaluate whether a constitutional right was violated before determining whether that right was clearly established at the time of the violation.

It is March 6, 1857. Chief Justice Roger Taney rules that Dred Scott can have no recourse to seek his freedom in federal court. The ruling turns on the idea that Scott cannot satisfy the diversity of citizenship required to have a state law claim heard in federal court because, as a Black man, he cannot be a citizen of the United States. Chief Justice Taney cherry-picks his sources to conclude that state laws at the time the Constitution was adopted did not treat Black people as citizens. He carries the argument even further, though, and concludes that the states lack any power to make a Black person a U.S. citizen. This line of reasoning will be invalidated by the passage of the Thirteenth and Fourteenth Amendments.

The Supreme Court has in its time produced something of a multidisc boxed set of racist decision hits. Many of them feature in basic constitutional law and criminal procedure casebooks--including, in addition to those I referenced above, the Civil Rights Cases, McCleskey v. Kemp, Village of Arlington Heights v. Metropolitan Housing Development Corp., Milliken v. Bradley, City of Richmond v. J.A. Croson Co., Gratz v. Bollinger, United States v. Armstrong, Whren v. United States, California v. Hodari D., and many more. Many of these decisions date to the past century--and the ones featured in casebooks certainly follow this trend, as most students have more of a need to learn what the law is than what it once was.

In recent years, some of the most egregiously racist cases have involved the Court resting on constitutional colorblindness to establish why it will not attempt to deal in reasoning or remedies focused on race. To advocates of this sort of colorblindness, an ideal society would make no distinction whatsoever on the basis of race, and we should endeavor to reach such a state. At their most extreme, such advocates seek to eliminate racism in society by eliminating racial distinctions in law immediately and entirely. Or perhaps I should say that they claim to seek this--my thesis is less charitable as to their goals.

While some form of colorblindness in American discourse predates Reconstruction, the rhetorical weaponization of colorblindness against remedial consideration of race arose as a theme in the late twentieth century. This modern use of colorblind constitutionalism is not so much a corruption of its legacy in the Supreme Court but a reclamation. As Randall Kennedy observed, Justice Harlan's initial introduction of the concept to Supreme Court jurisprudence affirms white supremacy and squares with the historical Justice Harlan: “After all, he was a former slave owner, initially opposed the Thirteenth Amendment, and tolerated various forms of segregation, notwithstanding his Plessy dissent.” Despite colorblindness's association with antiracist movements, its life as a constitutional doctrine is inextricably bound up with its white supremacist introduction to Supreme Court jurisprudence.

Plenty of attention has been focused on the constitutional failings of jurisprudence in various fields of law. Angela Onwuachi-Willig admirably tackles the gap that Brown v. Board of Education left by failing to discuss the reasons schools were segregated in the first place, as well as how white supremacist reasoning has charged into that gap to challenge affirmative action in education. Devon Carbado delves into how ostensibly neutral criminal procedure decisions allow police violence to escalate unaccountably. Henry Chambers examines the history of racial disenfranchisement and the ineffectiveness of current constitutional protections to prevent it. Alison Brown and Angus Erskine have laid bare courts' hesitancy to consider circumstantial evidence of employment discrimination. Law reviews around the country are full of such analyses highlighting instances of racism in our courts.

And yet, the possibility that these disparate fields of law converge on anti-Black jurisprudence because the Court itself is anti-Black often evades scholarly review. An ancient parable from the Indian subcontinent tells the story of a group of blind men seeking to understand what an elephant is by feeling it. Each touches a part of the elephant--its trunk, its ear, its leg--and compares the elephant to some other object. The blind men disagree as to the nature of an elephant because all of them lack the context to observe the whole creature. The parable is meant to counsel against claiming a monopoly on truth, instead teaching to remain open to other perspectives so as to gain a more complete understanding.

In the context of legal academia, we all too often specialize; I have had the pleasure of meeting and learning from experts in a variety of specialties. All of them challenge unjust legal institutions and doctrines in their scholarship, and each of these challenges is important and necessary. I do not think for a moment that any of them believes that the law is fundamentally just, with only a handful of problems in need of redress.

This Article will take a different approach. Rather than focusing on the details of a single issue, I aim to explore their connections through their common patterns. The law once tolerated overt racial discrimination but later rejected the appearances of bigotry. In their place, (slightly) subtler systems emerged, relying on facial neutrality and procedural barriers to enforce white supremacy instead. As Justice Harlan said, white supremacy need do little more than rely on established constitutional principles to perpetuate itself. Justice Harlan's vision of white supremacy--that white people could retain their position of privilege, wealth, and authority indefinitely without the intervention of law not the white supremacy of the snarling, tiki-torch fascist. Instead, it relies on claims of colorblindness and meritocracy, hoping to avoid scrutiny of the question of just who determines what constitutes merit. White people's cultural dominance, established by centuries of physical and economic violence, ensures that they retain the power to define what abilities and traits are considered meritorious. So long as that remains true, purportedly neutral, colorblind constitutional principles will ensure white people's continued success.

Our constitutional history need not be our fate. While established principles sufficiently maintain the status quo, they are not the only principles possible. Many of the drafters of the Reconstruction Amendments believed that the new order they created must necessarily account for race. Black public understandings of the new amendments were inclined to see them as an effort to remake the American social order as an antiracist one. The only thing stopping the Supreme Court from adopting such an understanding is the Court's own engrained white supremacy. Our Constitution contains tools sufficient to accomplish a sweeping, antiracist reimagining of the law but requires a Court that believes in that possibility.

Part I will address the Court's history of anti-Black jurisprudence. I will begin with an examination of the Court's openly anti-Black decisions, with a focus on the nineteenth century. This basal layer of anti-Black decisions can inform our understanding of what follows. Beginning with Plessy v. Ferguson, I will then explore the Court's use of constitutional colorblindness, particularly in its modern incarnation, as a bludgeon against remedial measures. In this, at least, the Court's modern advocates for a colorblind Constitution are fitting inheritors of Justice Harlan's legacy. In constructing a Constitution that is purportedly colorblind, the Court has essentially rendered the Constitution an anti-Black document.

Next, Part II will examine the consequences of an anti-Black interpretation of the Constitution. As Justice Harlan predicted, simply by purporting to remove race as a factor in constitutional decision-making, white supremacy can be perpetuated where it already exists. The myriad consequences are often the result of the Court's fondness for erecting procedural barriers to the success of any challenge to systemic racism. Blackness, by essentially colonial mechanisms, is criminalized; police become an occupying force. Public discrimination is allowed to persist through the adoption of ostensibly neutral standards that lack regard for the history of oppression that created racial disparities along the lines of those same criteria. Private discrimination is tolerated so long as it can be done without outward displays of bigotry. Purposefully antiracist legislation is limited in its scope, often through the very constitutional tools meant to authorize it. The long years of slavery and Jim Crow laws ensured that--without remedial measures to reshape society--Black people would continue to face an uneven playing field in this country. To achieve any measure of success, we would have to be twice as good as our white counterparts. Constitutional colorblindness ignores this history and modern social realities with catastrophically anti-Black consequences.

Finally, Part III will present the alternative: the antiracist potential of a color-conscious Constitution. While the benefits of an antiracist society should be obvious, the Constitution's potential as a tool for achieving that goal has invited some skepticism. To that end, Part III will begin with a Section addressing historical antiracist understandings of the Constitution. I will primarily compare the legislative histories of the Reconstruction Amendments and their radical heritage to contemporaneous Black reactions to the Amendments and early legislation under them. These understandings form a critical--and too often disregarded--component of the Amendments' original public meaning.

The other two Sections of Part III will deal with the potential scope of the Reconstruction Amendments' application. This Article advances a novel structural understanding of the Reconstruction Amendments, illuminating their abolitionist potential as a system unto themselves. First, I will explore the unrealized potential of the Thirteenth Amendment for further liberation from the badges and incidents of slavery. While I have previously explored the Amendment's potential use as a tool of police abolition, the conceivable scope of the Amendment is substantially broader. Our entire carceral system has been bent to replicate many of the abuses of slavery, despite the supposed end of convict leasing during the New Deal era. Modern legislation to restrict reproductive choices--which disproportionately impacts Black women the use of forced reproduction at the hands of enslavers. If we were to finish the work of abolition, we would do well to remember the Thirteenth Amendment's potential as a foundation for that work.

The final Section of Part III will address the various tools of the Fourteenth and Fifteenth Amendments for building an abolition democracy. While most of these tools have seen at least limited use from Congress or the Court to support race-conscious remedies, their potential is much greater. I will explore each of these tools as a possible vehicle for such remedies. The Constitution, interpreted to truly entitle Black people to the equal protection of the law, due process, the privileges and immunities of citizenship, and equal voting rights, would be radically different than it is today--all without changing a word. This radical interpretation, though, is wholly consistent with contemporaneous understandings of the Reconstruction Amendments. The Court--its role in systemic racism shielded by its fundamentally antidemocratic nature-- has chosen a different interpretation so far. But if we want to live to see the last stains of white supremacy scrubbed from our constitutional system, we must first envision a better framework.

[. . .]

Nine wise, blind elephants, after arguing for a while about what men are like, decided to settle the matter by observing one directly. The first wise, blind elephant felt the man and declared, “men are flat.” The other eight wise, blind elephants felt the man and agreed.

Colorblind jurisprudence was developed by men who had never experienced racism. They applied the standard, observed that the law no longer discriminated against people on the basis of race, and agreed with each other that this was so. But in the process, they very much crushed people. For some, this was surely as knowing as Justice Harlan's vision of white supremacy; for others, it may well have been a well-meaning error. Regardless of the motives of individual Justices, the Constitution will continue to protect white supremacy so long as it is deprived of the means to see the problem of racial injustice. The Supreme Court has the power either to act as the custodian of our democracy against the steady creep of oligarchy or to match antidemocratic ends to its antidemocratic structure. And when the Court seeks to understand the shape of our society, it will inevitably be a society already exposed to its methods of questioning.

The constitutional principles that the Court applies today will never be sufficient to achieve a state of racial justice in America. We could pessimistically assume that these principles will persist as a necessary consequence of American history. Or, we could take a lesson from the arts, specifically from the traditions of fantasy and science fiction. Despite its typical setting in the future, science fiction is about the present. Despite its typical setting in imaginary times and places, fantasy is about the real world. Those genres are often derided as escapist or power fantasies. But the whole point of power fantasies--and especially superhero power fantasies--is imagining how great it would be to have the power to help other people.

When I was imagining what it would be like to see the world as Doctor Manhattan does, I also speculated as to what I would do with all that power. Who would I help? How? What would I do to improve the world? It got me going, and the proposals in this piece are all part of the better world I would want to shape.

But I'm not powerless; I'm a lawyer. The law, in its way, is a kind of magic. Not the kind with wands and spells, of course, but (along with art and computer programming) it's one of the ways we, as humans, can use language to change the world. We're limited by rules, like those contained in the Constitution, and some practical considerations, of course, but also by our own imaginations. So, I invite you--all of you--to exercise your imaginations as to what this world and this time can become. Envision a better world, because if we do not begin there, we will never succeed in making it a reality.

The Constitution has been wielded for centuries as a tool of white supremacy, but it also contains the tools of abolition democracy. We can reclaim them, through decades of advocacy and organizing, and change the way our laws are understood. But first, we must believe.

Assistant Professor, Washington and Lee University School of Law. J.D., Washington and Lee University School of Law.

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