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Affirmative action and inducement and maintenance of school integration exemplify the output of political processes that have become more inclusive and responsive to a diverse electorate. The Court, instead of extending the traditional state-friendly model of federalism so that it facilitates remedial innovation, embraced the premise of all-purpose racial neutrality as an ordination of the federal constitution. A key tool for the effectuation and maintenance of discrimination thus was precluded from functioning as an instrument for undoing its consequences. If weighted toward the states in a manner that broadened the spectrum of opportunity for experimentation and innovation, federalism more likely would align against rather than with racist ideology and implementations. The Court’s investment in constitutional color blindness on a wholesale basis limits the innovative capacity of federalism to work on behalf of higher-level Fourteenth Amendment purposes. Racial neutrality may be the straightest path toward racial irrelevance, but its superiority in this regard is not assured unless it is tested against race-sensitive methodologies. In its initial coupling with the Fourteenth Amendment, federalism was a key enabler of the republic’s breakdown. As carried over to Reconstruction and its aftermath, it facilitated an exclusionary political process and discriminatory outcomes. Within the context of an inclusionary political process, reset to its original calibration, federalism may provide the means for capturing the opportunity that the republic’s processes of founding and reconstruction missed.
By its nature, a hedge position preserves opportunities for redefinition and redirection provided that a specific policy does not depart from the higher-level purpose. By factoring federalism into the Fourteenth Amendment, for better or worse, its architects assumed the possibility that policy could cut in different directions as history unfolded. Interpretation that is not tethered to this premise misses a key indicator of original intent. Especially when the political process has become more inclusive and responsive, constraints upon state innovation reduce the potential for identifying the most effective ways of addressing the nation’s legacy of racial discrimination. There is significant and principled debate over whether reckoning with the nation’s legacy of discrimination should be on a racially conscious or racially neutral basis.