Our Reactionary Constitutionalism

Guest Blogger

For the Balkinization Symposium on Rogers M. Smith and Desmond King, America’s New Racial Battle Lines: Protect versus Repair (University of Chicago Press, 2024).

Evan D. Bernick

Perhaps I should have been less surprised to learn that the Ku Klux Klan’s first organizational document, the Prescript of 1868, declares that the group was formed “to protect and defend the Constitution of the United States.” I learned this from Jared Goldstein’s exhaustive account of the reactionary constitutionalism which Klan members espoused in initiation ceremonies, newspaper interviews, public gatherings, and testimony before Congress. Members of the most notorious criminal conspiracy in the history of the United States asserted that by committing murder, rape, kidnapping, and countless other forms of racial terrorism they were “defending the Constitution of the United States as it was handed down by our forefathers in its original purity.”

In America’s New Racial Battle Lines: Protect Versus Repair, Rogers M. Smith and Desmond King (S&K) offer readers a magisterial map of alliances and conflicts which have emerged only recently. And yet the past weighs like a nightmare on the racial politics of the living. S&K offer a great deal of support to some of the most troubling accounts of U.S. political development on offer, and they contend that racial reactionaries who compose a “Protect” alliance will have the upper hand in U.S. politics for the foreseeable future.

S&K’s book went to print shortly before the November 2024 presidential election. It will take considerable work to ensure that S&K’s pessimistic predictions are not further confirmed in the years to come. In what follows, I’ll reflect upon what the ascendance of the Protect alliance’s reactionary constitutionalism tells us about our constitutional order.

“Reactionary” is a contested concept. I will use it to denote a political commitment to social forms which enact hierarchical relationships between dominant and subordinated groups of people. Thus, racial reactionaries are committed to social forms which enact hierarchical relationships between dominant and subordinated racialized groups. The Protect alliance is reactionary in more ways than one.

Protect is unified (more or less) by the conviction that “the interest and identities of white American and other traditionalist Americans, and the very legitimacy of America itself are under radical attack.” (S&K 71.) Its members seek to “protect” (their understanding of) the United States as a “predominantly white-Christian male-governed nation”(S&K 266) by censoring curricula to remove “what they judge to be false, malignant teachings” (S&K 137) about their country’s racial history, limiting the growth of the country’s non-White population, and even electing politicians who encourage “violence against their enemies” (S&K 299) that armed militias stand prepared to mete out. “Much less powerful” is a competing “Repair” alliance which is committed to “advanc[ing] racial equality and reparations initiatives” and whose members seek to create “a nation and ultimately a world in which all have an equitable opportunity to flourish in the way they choose.” (S&K 218).

These Protect-Repair conflicts are constitutional conflicts. They arise from disagreements about the fundamental character of the United States—what it has been, what it is now, what it ought to be. And they are circumscribed by an old constitutional order.

This constitutional order cannot be read off the parchment under glass at the National Archives. The formal, written Constitution is an essential component of our constitutional order, to be sure. But its text is part of a larger material constitution—a durable assemblage of institutions, ideas, modes of production, and relations of force. I will focus on three components of our material constitution which S&K illuminate: political economy, constitutional veneration, and violent lawmaking.

S&K refer to “structural advantages” (S&K 268) enjoyed by the Protect alliance, which include features of what Sandy Levinson termed the Constitution of Settlement. The Constitution of Settlement is rarely litigated because it is rarely contested; to be committed to the Constitution at all is to agree that it allocates two Senators to each state. S&K describe the contemporary political effects of this ancient settlement, noting that the malapportioned Senate “vastly overrepresents smaller, more rural states” (Id.) which tend conservative and that the Electoral College incorporates that malapportionment into presidential selection. But they do not detail the extent to which these and other features of the formal Constitution were originally designed to protect and perpetuate a racially ordered capitalist political economy.

The Framers of the 1787 Constitution made no secret of their goals of protecting private property in general and specifically safeguarding property in people. Their plan of government reflected those goals. The 1787 Constitution erected veto gates which were designed to scuttle redistributive legislation and it prohibited states from coining money or impairing contractual obligations. The Constitution counted enslaved people for representation in Congress; required that freedom-seekers be “delivered up” on the demand of their enslavers; empowered the national government to suppress slave rebellions and insurrections; and prohibited Congress from stopping the African slave trade or the domestic slave trade for at least twenty years. A unidirectionally pro-slavery document it was not. But it created the conditions from which the Slave Power could emerge as a hegemonic constitutional bloc, armed with pro-slavery constructions of underdeterminate text that became increasingly ambitious.

Of course, proslavery hegemony was ultimately disrupted by a mass movement which articulated a competing constitutional vision. The Republican Party which ascended to power in 1860 believed that the South was a land of economic, political, and physical domination, and that the Constitution was designed from the beginning to put an end to racial oligarchy as soon as circumstances permitted. That’s why the amendments which consolidated what might have been a new constitutional order after Appomattox did not merely abolish property in people. They gave a Republican-dominated Congress the tools for realizing a vision of citizenship characterized by economic and political independence.

But the Republicans left much of the formal constitution intact. The Reconstruction Amendments did not alter the formal Constitution’s original veto-gates. Those veto-gates obstructed measures that might have safeguarded emerging abolition democracy against a counterrevolution dedicated to “redeeming” the antebellum constitutional order from new, biracial Reconstruction governments. Thaddeus Steven’s proposal that the estates of planter elites—who successfully enlisted support for their continued political dominance from poor White laborers—be confiscated was among the most notable casualties.

S&K respectfully decline to embrace an analytical frame “now commonly deployed in academic and political discourse” and “ubiquitous … among groups” in the Repair alliance. (S&K 52).  This is “racial capitalism,” most closely associated in popular discourse with the work of Cedric Robinson. Still, S&K notice and indeed emphasize that race-differentiated wealth distribution is a fixture of U.S. capitalism. They describe “continuing major wealth gaps among white and Black Americans.” (S&K 258). The fact that “there are many wealthy individuals and corporations providing massive funding” to the Repair agenda as well as Protect agenda might at first suggest that capital is neutral between competing visions of racial politics. (S&K 257). S&K point out, however, that the dependence of any politically viable vision upon the assent of capital may impose “outer boundaries to change, ensuring that capitalism is not in danger.” (S&K 258). This possibility cannot be rejected on the strength of public opinion data indicating that “among Americans as a whole, beliefs in individualist ‘rages to riches’ ideologies that extol the opportunities provided by capitalism remain widespread.” (Id.). Few if any among the most doctrinaire Marxists would dispute the influence of bourgeois ideology on workers, even against their class interests.

The formal Constitution does not announce itself as an economic document. It nonetheless remains crucial to see how the Constitution was designed to perpetuate racially ordered capitalist social relations and to reflect upon the extent to which it continues to do so. As Joseph Fishkin and William Forbath have shown, the notion that the Constitution does not put its weight behind any particular “economic theory” is late in developing and against the weight of the evidence.

Of course, the formal Constitution could not carry any weight absent widespread belief in its authority. A major plot point in the Protect narrative which S&K unfold is a concerted effort by the “radical New Left” to subvert and ultimately replace the Constitution. (S&K 105-6). Protect advocates share a constitutional faith that has an uncertain relationship with religious faith. These faiths congeal in a vision of a constitutional order in which White Christian men dominate political life. (S&K 18).

This reactionary constitutionalism isn’t new. S&K describe the United States as a “revolutionary white settler colony … that proclaimed commitments to universal human rights and republican self governance even as it practiced enslavement and genocide.” (S&K 61). They stress that “profound contestation” rather than unitary White-supremacist domination “drive[s] much American development.” (Id.) Aziz Rana has urged, however, that such contestation is constrained by a durably anti-democratic framework which has long been sustained by faith in White domination as a constitutional guarantee. From this vantage point, when S&K “agree with conservatives” that “America’s revolutionary republican origins generated transformative egalitarian ideologies that many groups have employed throughout U.S. history[,]” they concede too much. (Id.). Protect advocates regard anything beyond the elimination of de jure segregation as something comparable to blasphemy.

Rana goes further. On his account, racial reactionaries are right to perceive the necessity to choose between the Constitution and truly egalitarian democracy. He finds throughout U.S. history a steady drumbeat of democratic criticism of the Constitution and focuses particular attention on W.E.B. Du Bois’s lament about the limits of Reconstruction Republicanism. Du Bois argues that Republicans failed to complete a democratic revolution because of their “fetichism” of the antebellum Constitution’s framework; a racialized political economy which made Reconstruction dependent upon White industrial-capitalist support and tempted White laborers to abandon what ought to have been their Black comrades for “the public and psychological wages of whiteness”; and organized White-supremacist violence in which White capital and labor participated. Many of the failures identified by Du Bois were not the byproduct of exogenous shocks to our constitutional system. They were effects of that system. Yes—even the violence which was carried out “in open defiance of the clear letter of the law.”

S&K detail a phenomenon which at first seems counterintuitive, given the Protect alliance’s rhetoric of “law and order.” (S&K 115). This is the support of Protect advocates for violent crime against their political enemies, including racial-justice protestors, Democratic officeholders and Capitol police. But it is our intuitions which fail us here. What seems like a flat contradiction of one political principle—the rejection of violence in favor of law—is in fact the realization of a different one—the control of violence by a racially constructed class of privileged citizens.

S&K call Protect’s advocacy of violence “lawless” and refer to Trump’s “disregard of the Constitution.” Farah Peterson reminds us, however, that the Capitol rioters, like Trump himself, “assert[ed] a set of legal claims” and details how “violent claims that have been ratified by elites or through community consensus … have become part of the fabric of our formal law.” Even the most brutal episodes of racial violence in the nation’s history have been committed in the name of the Constitution. Not all of them “create[ed] a new order that conform[ed] to their demands.” But many of them did, and still more have produced effects which have lingered long after the judicial decisions which legitimated them have been branded anticanonical. To call the Capital riot “lawless” “disregard of the Constitution” risks occluding a long history of reactionary constitutionalism.  

That’s why I began with the Jared Goldstein’s account of the KKK’s constitutionalism. Against early histories which dismissed the importance of the Klan’s constitutional rhetoric, Goldstein urges that “[f]rom its inception in 1868 until today, the Klan has described the violence it has perpetrated as patriotic in nature … as necessary to defend the nation and the true meaning of the Constitution.” The sum and substance of that “true meaning”: The Constitution guarantees White rule. And Peterson observes that the savage means by which the Klan pursued this vision “defined the scope of the Reconstruction Amendments more than its framers’ intentions did, a scope formalized after the fact in Plessy v. Ferguson.” Lawlessness became part of our law.

The U.S. constitutional order is contested terrain, a site of struggle. And Smith and King are right to discourage any sort of determinism that would deny the agency and constitutional power of marginalized peoples, who (as Du Bois recognized) have transformed that terrain in spite of the formal and material Constitution. Their account of Repair’s unsung reform successes, particularly at the municipal level, is usefully compared and contrasted with Jocelyn Simonson’s vital account of movement lawmaking by anticarceral activists who seek not to reform but dismantle what they regard as inherently oppressive systems. But whether we seek reform or revolution, we must be clear-eyed about the work ahead. Reactionary constitutionalism remains a force to be reckoned with, and it enjoys built-in advantages which liberatory movements in the United States must overcome, time and again. In this respect, American’s New Racial Battle Lines tells an old story.

Evan Bernick is an Associate Professor of Law at Northern Illinois University College of Law. You can reach him by email at ebernick@niu.edu.