It is idle to say that a man is free who cannot go and come at pleasure, who
cannot buy and sell, who cannot enforce his rights.
–Senator Lyman Trumbull, author of the Civil Rights Act of 1866
Whiteness is invisible in American law. The U.S. Constitution never explicitly
mentions white people.
On one level this absence is remarkable. After all, the
Constitution was written exclusively by white people, to reflect the interests of
white people, to protect the rights of white people, and to create a government
run by white people.
Against the backdrop of its drafting, however, the absence of whiteness in the
Constitution is entirely unsurprising. A document created at a time of uninter-
rupted white supremacy did not need to explicitly mention white people.
Framers of the Constitution believed it self-evident that only white people were
entitled to the rights and privileges laid out in America’s founding documents.
The superior status of white people was seen as so obvious, natural, and correct
that the Framers did not need to recognize it explicitly.
1. CONG. GLOBE, 39th Cong., 1st Sess. 43 (1865) (statement of Sen. Trumbull).
2. See generally U.S. CONST.
3. By white people, I actually mean white men, given that women of all races were, at the time,
profoundly subordinated to men and lacked basic civil rights such as the ability to vote. Although this
Article focuses on race, gender is also relatively unexamined in the original U.S. Constitution and early
4. Throughout this Article, I use legal scholar Frances Lee Ansley’s definition of white supremacy:
“[A] political, economic and cultural system in which whites overwhelmingly control power and
material resources,” and in which “white dominance and non-white subordination are daily reenacted
across a broad array of institutions and social settings.” Frances Lee Ansley, Stirring the Ashes: Race,
Class and the Future of Civil Rights Scholarship, 74 CORNELL L. REV. 993, 1024 n.129 (1989). As legal
scholar Erika K. Wilson has emphasized, “this definition of white supremacy focuses primarily on the
institutional arrangements that underlie white supremacy and only secondarily on individual race-based
animus.” Erika K. Wilson, The Legal Foundations of White Supremacy, 11 DEPAUL J. FOR SOC. JUST. 1,
3 (2018). Although for some the phrase white supremacy may conjure images of pointed white hoods
and shouted epithets, this Article focuses instead on structural conditions that advantage white people as
a group. And although white supremacy has both individual and structural manifestations, this Article
urges greater attention to systemic aspects of racial inequality rather than a view of white supremacy as a
set of individual, overt acts.
5. See, e.g., RICHARD D. BROWN, SELF-EVIDENT TRUTHS: CONTESTING EQUAL RIGHTS FROM THE
REVOLUTION TO THE CIVIL WAR 123–38 (2017) (examining white supremacy at the time of the
6. See, e.g., HENRY WIENCEK, MASTER OF THE MOUNTAIN: THOMAS JEFFERSON AND HIS SLAVES
(2012) (cataloging evidence of Jefferson’s white supremacist views); Michael J. Klarman, Brown,
Originalism, and Constitutional Theory: A Response to Professor McConnell, 81 VA. L. REV. 1881,
1895 (1995) (“The best ‘scientific’ evidence of the mid-nineteenth century held that racial differences
were natural, the supremacy of the white race was self-evident, and racial segregation an imperative for
the survival of both races.”); Samuel Marcosson, Colorizing the Constitution of Originalism: Clarence
Thomas at the Rubicon, 16 LAW & INEQUALITY 429, 429–30 (1998) (imagining the dilemma that Justice
Thomas would have faced had he been on the Court when Loving v. Virginia, was decided, given that
“the Framers of the Fourteenth Amendment neither believed nor intended that their handiwork would
invalidate State anti-miscegenation laws”).
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