Is the Constitution of 1787 a White Supremacist Document? Against Essentialism in Constitutional Interpretation

33 Pages Posted: 23 Mar 2024

See all articles by David S. Schwartz

David S. Schwartz

University of Wisconsin Law School

Date Written: March 22, 2024

Abstract

A curious convergence is emerging in legal academia around the conclusion that the 1787 Constitution is a white supremacist document. Although most originalists would deny that contention, their methodology strongly favors, if it does not compel, an agreement with progressive, "neo-Garrisonian" scholars that the Constitution of 1787 is indeed a white supremacist document. Both the neo-Garrisonian and originalist elements of this implicit convergence stem from their "essentialism" in Constitutional interpretation: the idea that the Constitution or its terms or provisions carry a uniquely and objectively correct meaning, invariant over time, and independent of our evolving normative commitments. This essay argues that essentialism is a mistaken approach to constitutional interpretation. Contrasting Chief Justice Roger Taney's lead opinion in Dred Scott, holding that Black people cannot be "citizens" of the United States, with Frederick Douglass's Glasgow Speech, arguing that the Constitution is not a pro-slavery document, this essay argues that these two texts embody not simply a clash of conclusions, but also a clash of approaches to understanding what the Constitution is. Taney's opinion is archetypally originalist and essentialist; Douglass's speech, widely misunderstood as an essentialist, textualist argument, is in fact a powerful anti-essentialist argument that the Constitution of 1787 was an invitation to struggle over the questions of slavery and white supremacy. The essay further disputes the widely accepted neo-Garrisonian claim that originalism and living constitutionalism both fail the Dred Scott "test." While living constitutionalism, with its embrace of evolving moral values, would today reject Dred Scott, Taney's originalist opinion adheres to the tenets of the intentionalist and public meaning strands of originalism and meets present-day professional standards of originalist scholarship. Thus, while living constitutionalism can, originalism cannot disown Dred Scott.

Keywords: Dred Scott, Frederick Douglass, Roger Taney, neo-Garrisonian, originalism, essentialism, living constitution, white supremacy, 1787 Constitution, Reconstruction Amendments, citizen, citizenship, equal protection, racism

JEL Classification: K40

Suggested Citation

Schwartz, David S., Is the Constitution of 1787 a White Supremacist Document? Against Essentialism in Constitutional Interpretation (March 22, 2024). Univ. of Wisconsin Legal Studies Research Paper No. 1800, William & Mary Bill of Rights Journal, Vol. 33, 2024, Available at SSRN: https://ssrn.com/abstract=4769560

David S. Schwartz (Contact Author)

University of Wisconsin Law School ( email )

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Madison, WI 53706
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