The Constitutional Foundations of White Supremacy: Evidence from the States

Abstract The United States federal system reserved most powers regarding race and rights to the states, and the states constructed and maintained the legal foundations of White Supremacy in their constitutions. We propose a conceptual typology of four overlapping types of White Supremacy Constitutionalism: Enslavement provisions protecting the institution of slavery; “Race-Neutral” provisions, which appear colorblind but have racially discriminatory intentions and/or effects; Explicit provisions, that is, text openly reserving rights and power to White men; and Dead Letter provisions, text retained in state constitutions, either through indifference or purpose, after being rendered unconstitutional at the federal level. This article provides the first full account of the insertion and removal of the five types of provisions within the Explicit category, those governing: racial exclusion, apportionment, voting, office-holding, and gun ownership/militia service. We propose an explanation for the temporal and spatial patterning of this Explicit White Supremacy Constitutionalism and present the first full analysis of “Dead Letter” White Supremacy Constitutionalism. We hope to contribute to public discourse on—and urgently encourage scholarly work on—the role of White Supremacy in our nation’s history and politics.