The nation’s initial system of racial management, slavery, was grounded in a bifurcated system of governance. Although assigned a stronger role than it had under the Articles of Confederation, the federal government was established as an institution of limited power. States retained the regulatory powers they possessed prior to the Constitution. The resulting political structure centered upon federalism. Like separation of powers, federalism is not specifically enumerated by the Constitution but is a key incident. Conceptually, it is the sum of several elements including the separation of federal and state power, the union of sovereign states, their authority within respective domains, and federal supremacy when powers are in conflict. Insofar as these factors may clash, the boundaries of federalism are imprecise and mutable. This elasticity creates a doctrinal environment in which ideas and agendas compete to define policy and outcomes. At its best, federalism provides a context in which decision-making is informed by experience. Because it provides space for experimentation with and diversity of policy, federalism invites innovation which is a particular national strength and potential source of best practices in governance and regulation. Like any other doctrine or principle, federalism can provide cover for rationalization or conflict avoidance. This dynamic was evident in the decision of the nation’s founders to bypass the issue of slavery and leave it to each state to resolve.
Consistent with principles of federalism, slavery was an issue for each state to decide and toward which the federal government was to be neutral. This outcome represented the original constitutional hedge on race. The veil of federal neutrality was pierced, however, by territorial conflict pursuant to western expansion, by the national economic benefits of free labor, and by constitutional decisions that consistently accommodated slave-owner interests. As the political system became increasingly gridlocked over slavery, competition to have the Constitution speak in a single voice intensified. A uniform policy on slavery emerged pursuant to the Civil War and the Thirteenth Amendment, which prohibited the institution. The Fourteenth and Fifteenth Amendments secured civil and political rights for the new freedmen. Even pursuant to Reconstruction, however, constitutional principles relevant to race continued to reflect a hedge position.