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excerpted from: Jared A. Goldstein, The Klan's Constitution, 9 Alabama Civil Rights & Civil Liberties Law Review 285 (2018) (471 Footnotes) (Full Document).


Jared A GoldsteinThe Ku Klux Klan is America's oldest and most prominent terrorist organization. For over 150 years, groups calling themselves the Ku Klux Klan have committed uncounted murders, bombings, kidnappings, and assaults, as well as innumerable acts of intimidation and threats, including night riding and cross burning, all in the name of white supremacy and preserving white rule.

What may be surprising, and is certainly less well known, is that throughout its existence the Klan has defined its mission as a defense of the United States Constitution. In the 1870s, when Klan members whipped and murdered thousands of African Americans to sabotage Reconstruction, they said they were acting to defend the Constitution. In the 1920s, when Klan members fought to keep Jews and Catholics out of the country and out of positions of influence, they said they were fighting for the Constitution. In the 1960s, when Klan members bombed churches and murdered civil rights workers, they said they were working to defend the Constitution. Klan members today continue to say they are fighting to restore the Constitution, even as they march arm in arm with neo-Nazis to denounce Jewish control of the government and media.

A large body of scholarship has examined the Klan movement in great detail, but it has not taken seriously the Klan's expressions of devotion to the Constitution. Hundreds of books have documented the Klan's history, violence, and significance--exploring the role of the Klan in different periods, in different states, the role of women in the Klan, the Klan's religious views, resistance to the Klan, and the FBI's fight against the Klan, among many other subjects--but none contains any analysis of what the Constitution has meant to the Klan. To the extent that published histories mention that the Klan has expressed its mission as a defense of the Constitution, these expressions have been dismissed as meaningless rhetoric. Typical is White Terror: The Ku Klux Klan Conspiracy and Southern Reconstruction by Allen Trelease, the most in-depth examination of the early history of the Klan, which dismisses the Klan's constitutional mission by stating that “[i]t would be hard to imagine a greater parody than this on the Ku Klux Klan as it actually operated.”

It is easy to see why Klan expressions of devotion to the Constitution have been so readily dismissed. Although the Constitution protects the rights of all citizens to the equal protection of the law, the Klan has engaged in widespread violence and terrorism outside the constraints of law to deny African Americans and others their right to full participation in American life. As Trelease puts it, the Klan's asserted dedication to the Constitution cannot be taken seriously because the Klan has been “the embodiment of lawlessness and outrage ... and it set at defiance the Constitution and laws of the United States.”

Although Trelease was of course correct that the Klan has long acted to undermine the Constitution, the Klan's dedication to the Constitution is worth examining both for what it says about the Klan and what it reveals about America's constitutional culture. For 150 years, dedication to the Constitution has been central to how the Klan has conceived its mission and how it has justified the widespread violence it has perpetrated. Its expressed devotion to the Constitution has served to recruit hundreds of thousands of Klan members who have been willing to kill and die in the name of the Constitution.

This article provides the first comprehensive examination of the constitutional ideology that has guided the Klan throughout its long and bloody history. As it shows, the Klan has long been devoted to the belief that the United States is fundamentally a white nation, that the nation's founders were dedicated to white rule, and that the Constitution should be understood as the source of white power. That ideology has long served as a powerful justification for violence. From its inception in 1868 until today, the Klan has described the violence it has perpetrated as patriotic in nature, undertaken not out of racial hatred, but as necessary to defend the nation and the true meaning of the Constitution. Declaring that whiteness is a foundational national principle embodied in the Constitution, the Klan has always found adherents who consider racist violence to be acts of the highest patriotism.

The Klan has gained prominence whenever white Americans have feared that their dominant status and power are threatened. Although the threats to white dominance have changed, the Klan has remained steadfast in asserting that, in its original and true meaning, the Constitution protects white rule:

As Part I examines, the Klan was established during the Reconstruction era to fight to preserve white power in the face of emancipation. In declaring that its mission was to “uphold and defend the Constitution of the United States as it was handed down by our forefathers in its original purity,” the Klan expressed its dedication to the antebellum Constitution and its opposition to the Civil War Amendments.

As Part II discusses, the Klan was revived in 1915 to address the new threat to the power of white Protestants posed by the influx of Catholics, Jews, and other immigrants. The revived Klan asserted that only Anglo-Saxons are capable of appreciating the nation's constitutional values, while other people are dangerously ill-suited for self-government under the Constitution.

As Part III shows, the Klan experienced another resurgence in the 1950s and 1960s when the civil rights movement challenged segregation. The Klan argued that the civil rights movement was the pawn of international Communists, who sought to dismantle segregation and thereby destroy the Constitution.

As Part IV discusses, in the wake of the defeat of segregation, some white supremacists in the 1970s and 1980s--both within the Klan and outside the Klan--lost faith in the Constitution as a source of white power and began to argue that whites should seek to create a separate ethnic state. The white supremacist movement today is comprised of two principal factions: reactionary groups that seek to restore white rule within the existing power structure United States, and revolutionary groups that seek to establish a separate white nation. Dedication to the Constitution represents the dividing line between the two factions.

As this history reveals, the Klan's constitutional ideology has always drawn on mainstream American constitutional thought. From before the time of the nation's founding, many Americans considered liberty and self-government to be the unique products of a British heritage that other peoples did not and could not appreciate. In the Dred Scott case, the Supreme Court endorsed the widely held view that the Constitution was written by and for white people, and that belief persisted long after the Civil War, despite the adoption of 14th Amendment and the elevation of racial equality as a constitutional value. In the 1920s, when the Klan campaigned that Jews and Catholics were unfit for the Constitution, a majority of the members of Congress agreed that the maintenance of constitutional government required maintaining the dominance of the nation's white ethnic stock. In the 1950s and 1960s, the Klan was united with mainstream white organizations, which agreed that the Constitution protects white rule.

The history of the Klan illustrates how constitutional rhetoric can be used to advance a narrow conception of American identity. In each era, the Klan has sought to recruit and mobilize members by portraying threats to white power in nationalist terms, not as threats to a racial group but as attacks on the nation itself. That appeal has succeeded because many whites consider themselves prototypically American and experience threats to their status as threats to the nation. Mobilizing to protect this nationalist vision, Klan members have naturally rallied around the Constitution, which Americans have long considered the supreme national symbol and embodiment of national values. To those who think of the United States as a white nation, defending the Constitution means defending whiteness.

. . .

What does it say about the United States that for over 150 years the nation's most prominent hate group has considered its campaign of violence and terrorism to be a defense of the Constitution?

The Klan's declaration of a constitutional mission resonates with a longstanding American belief that the Constitution is the defining text of American national identity. That belief goes back at least to 1850, when Daniel Webster declared that the Constitution is “all that gives us a national character.” The standard model of American nationalism is best characterized as constitutional nationalism because the Constitution is understood to embody the principles that bind the nation together. As Hans Kohn wrote in 1957, in the first book-length examination of the nature of American nationalism: “The American Constitution represents the lifeblood of the American nation, its supreme symbol and manifestation. It is so intimately welded with the national existence itself that the two have become inseparable.”

Constitutional nationalism can provide “a comforting, even inspiring ideal of national identity. It is [sometimes] said to avoid the irrational hatred and bigotry associated with more primitive forms of ethnonationalism.” As President George W. Bush declared in his first inaugural address: “America has never been united by blood or birth or soil. We are bound by ideals that move us beyond our backgrounds, lift us above our interests and teach us what it means to be citizens.” President Obama expressed the same conception of American nationalism in almost the same words, as has every President for the last fifty years, with the possible exception of Donald Trump. Rather than sectarian, tribal, and Old World forms of nationalism--identified by President Bush as nations “united by blood or birth or soil”--constitutional nationalism teaches that being American means being committed to universal ideals like individual liberty and equality.

The history of the Ku Klux Klan reveals that there is another story to tell about what constitutional nationalism has meant in American life--a more disturbing and violent story. Klan members, like many Americans, believe that white racial identity is an essential part of what it means to be American, and the Klan has translated that belief into familiar constitutional terms, declaring that the Constitution itself embodies the nation's white identity.

Just as Klan members believe whiteness is an essential part of American identity, others have believed that being Christian is an essential part of what it means to be American, and the nation's long history of Christian nationalism bears some similarities to the history of the Klan explored here. In the nineteenth century, Christian nationalists feared that the growing population and power of Catholics, Jews, and freethinkers threatened the nation's Protestant identity, and so they launched a campaign to amend the Constitution to add a declaration of the nation's Christian faith. The nation could preserve its Christian identity, proponents of the Christian amendment argued, if the Constitution contained an expression of Christian devotion. In the twentieth century, however, Christian nationalists began to argue that no constitutional amendment is needed after all. Properly understood, they argue, the Constitution has always been Christian and is best interpreted to protect the nation's Christian identity.

American history is littered with political movements that have used constitutional rhetoric to advance narrow conceptions of American identity. In the 1850s, the Know-Nothing Party argued that Catholicism was incompatible with the Constitution because Catholics would always owe allegiance to the Pope and not to the Constitution. When Congress enacted the Chinese Exclusion Act in 1882, it declared that Chinese people were too foreign to abide by the Constitution. In the first decades of the twentieth century, the Immigration Restriction League fought to keep out immigrants from southern and eastern Europe that they deemed unfit to participate in America's constitutional republic. In more recent years, right-wing activists have sought to bar Muslims from immigrating to the United States, by declaring that Islam is incompatible with the Constitution. Rather than embodying national identity, the Constitution provides a neutral, patriotic-sounding rhetoric for expressing disputed conceptions of who is truly American.

As the history of the Klan also shows, constitutional nationalism entails more than just rhetoric. It provides a ready justification for violence. The duty to kill and die for the nation is a central trope in all nationalist discourse, including constitutional nationalism. If commitment to the Constitution defines what it means to be American, those who do not embrace whatever principles are said to have constitutional status can be portrayed as un-American, as enemies of the nation, or as aliens who must be excluded and defeated to protect the nation--by force if necessary.

In fact, many of the nation's most notorious acts of domestic terrorism have been undertaken in the name of the Constitution. This includes the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, in which Timothy McVeigh set off a truck bomb that killed 168 people. McVeigh, a former Klan member, declared that the bombing was justified because the government had exceeded its powers through overzealous enforcement of federal gun laws. “‘I have sworn to uphold and defend the Constitution against all enemies, foreign or domestic, and I will,”’ McVeigh explained, “‘And I will because not only did I swear to, but I believe in what it stands for in every bit of my heart, soul and being.”’ As these and many other stories show, movements that are committed to defending the nation's fundamental constitutional principles can make killing and dying a noble and patriotic cause.

Professor of Law, Roger Williams University School of Law.