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.