The tumultuous summer of 2020 opened the eyes of many Americans, leading to a general consensus on one issue—racism still exists. This Article offers a new descriptive account of America’s history that can contextualize the zeitgeist of racial politics. It argues that the Founding Fathers created a national civil religion based on racism when they compromised on the issue of slavery in the creation of the Constitution. This religion, called the Religion of Race, is built on a belief system where whiteness is sacred and Blackness is profane. The sacred text is the Constitution, and it is interpreted by the Supreme Court who uses the adjudication of cases as a ritual to advance this religion. This Article argues that the Reconstruction Amendments and attendant Civil Rights Acts can best be understood as an attempt by Congress to end this Religion of Race and put all citizens on a path to equality. The Supreme Court resisted this attempt, however, as evidenced by cases adjudicated immediately following the Reconstruction period. Thus, a contest ensued that has shaped American racial politics ever since—whether the Supreme Court is interpreting the Constitution of Slavery or the Constitution of Reconstruction and, therefore, whether it will perpetuate or dismantle the Religion of Race.
2021 ULR 569 (2021)