From the introduction:
The election of former President Barack Obama, the country’s first African-American president, temporarily changed the discourse around race in America. Despite America’s sordid racial
history, President Obama’s election was hailed as evidence that race was no longer a salient factor in meting out opportunities—that the country was finally “post-racial.”
Indeed, some even went so far as to suggest that his election signified “the gradual erosion of ‘whiteness’ as the
touchstone of what it means to be American.”
Recent events have upended this “post-racial” narrative. In the wake of the racially charged election of Donald J. Trump and the violent white supremacist rally in Charlottesville, Virginia,
race generally and white supremacy specifically are again taking center stage. For many, the reemergence of the kind of overt manifestations of white supremacy that were unveiled in
Charlottesville was particularly jarring. It forced many people to grapple with the reality that white supremacy, a phenomenon that many believed had been relegated to a historical footnote,
still exists and is stronger than ever.
Yet those such as myself who examine race critically have long been aware that the fissures caused by race generally and white supremacy specifically, never went anywhere,
notwithstanding the election of the country’s first self-identified African-American president. Race generally and white supremacy specifically are embedded into the framework of most
American social institutions. As a result, now more than ever, it is imperative that we critically examine all forms and manifestations of white supremacy.
This paper focuses on a very important part of white supremacy — the legal foundations of white supremacy. The central thesis of this paper is that American law has historically played a vital role in constructing white supremacy. While America has eliminated overt race-conscious laws that favor whites, the law continues to play a critical role in maintaining white supremacy today. Unless and until we commit to understanding the history of the law in constructing white supremacy and the ways in which modern iterations of law continue to perpetuate white
supremacy, white supremacy will remain an enduring feature of American society.
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