The Antiracist Constitution

Abstract

Our Constitution, as it is and as it has been interpreted by our courts, serves white supremacy. The twin projects of abolition and reconstruction remain incomplete, derailed first by openly hostile institutions, then by the subtler lie that a colorblind Constitution would bring about the end of racism. Yet, in its debut in Supreme Court jurisprudence, colorblind constitutionalism promised that facially discriminatory laws were unnecessary for the perpetuation of white supremacy. That promise has been fulfilled across nearly every field of law as modern white supremacists adopt insidious, facially neutral laws to ensure the oppression of Black people and other vulnerable populations. However, it need not be this way. The Reconstruction Congress gave us the tools in the Thirteenth, Fourteenth, and Fifteenth Amendments to apply color-conscious remedies to historic inequities and build an abolition democracy. Previous scholarship has typically focused on the failure to achieve this goal within specific fields of law—criminal justice, education, employment discrimination, and more. Rather than simply analyze the symptoms of racist legal structures, this Article will demonstrate that the patterns across various fields of law reveal the presence of the underlying disease of white supremacy. Even those scholars willing to look to these patterns of oppression have tended to take the pessimistic view that the Constitution is hopelessly infested with white supremacist interpretations. This Article will instead argue that Congress and the courts can, and should, apply the Constitution as it was written and intended—to promote an antiracist vision of America—and will explore what an antiracist Constitution would look like in practice. The resulting framework demonstrates the doctrinal puissance of abolition constitutionalism. Where progressive constitutionalism often struggles to justify the rights-affirming results of the Warren Court and Roe v. Wade while excluding the possibility of a return to the Lochner era, abolition constitutionalism provides a robust basis to support civil rights, including reproductive rights, while rejecting the primacy of freedom of contract