The Constitution, Race, and Renewed Relevance of Original Intent: ...

Within this context, racism and discrimination against African Americans, Chinese, Japanese, Latinos, and other nonwhite racial or ethnic minorities thrived. The condition owed to an uncertain redistribution of power from state to federal government and to the convergence of racism and federalism weighted heavily toward state interests. More than two centuries after the nation’s founding, and unlike federal statutory law, the Constitution itself includes no uncoded prohibition against discrimination.

The Fourteenth Amendment established a national interest in civil equality, but, as envisioned and interpreted, reserved a measure of opportunity to differentiate on the basis of race. Both before and after Reconstruction, the dominant racial group’s primacy was perpetuated as a function of public policy. This racial prioritization was reflected in laws that provided for segregation, denied citizenship to nonwhite immigrants, and were lightly or loosely enforced when whites lynched or otherwise perpetrated violence against disfavored minorities. The restructured union, along with the hedged meaning of the Fourteenth Amendment, provided a framework within which racism attached itself to federalism and perpetuated the value of white identity. In declaring segregation of public schools unconstitutional in 1954, and in compelling desegregation, the Court departed from the hedge protocol. Because a state-friendly model of federalism was so intertwined with racism in support of segregation, the Court could not preserve the former without sustaining the latter. By attempting to draw state and local authorities into a cooperative process of remediation in Brown v. Board of Education,² the Court tried to separate a highly state-slanted model of federalism from racism. The balance of power was recalibrated more decisively toward the national government, as the federal courts stepped in to implement what the states in many instances refused to do. This pendulum ultimately swung back toward the states, however, as limiting principles curtailed the desegregation process.

As federalism became less bundled with racism, many states experimented with and introduced methods to undo legacies of discrimination.