Letters of the Law: Race and the Fantasy of Colorblindness in American Law - Couverture rigide

Han, Sora Y.

Couverture rigide

ISBN 10 : 0804789118 ISBN 13 : 9780804789110

Editeur : Stanford University Press, 2015

Synopsis

One of the hallmark features of the post–civil rights United States is the reign of colorblindness over national conversations about race and law. But how, precisely, should we understand this notion of colorblindness in the face of enduring racial hierarchy in American society? In Letters of the Law, Sora Y. Han argues that colorblindness is a foundational fantasy of law that not only informs individual and collective ideas of race, but also structures the imaginative capacities of American legal interpretation. Han develops a critique of colorblindness by deconstructing the law's central doctrines on due process, citizenship, equality, punishment and individual liberty, in order to expose how racial slavery and the ongoing struggle for abolition continue to haunt the law's reliance on the fantasy of colorblindness.

Letters of the Law provides highly original readings of iconic Supreme Court cases on racial inequality—spanning Japanese internment to affirmative action, policing to prisoner rights, Jim Crow segregation to sexual freedom. Han's analysis provides readers with new perspectives on many urgent social issues of our time, including mass incarceration, educational segregation, state intrusions on privacy, and neoliberal investments in citizenship. But more importantly, Han compels readers to reconsider how the diverse legacies of civil rights reform archived in American law might be rewritten as a heterogeneous practice of black freedom struggle.

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À propos des auteurs

Sora Y. Han is Assistant Professor of Criminology, Law and Society at the University of California, Irvine.

Sora Y. Han is Assistant Professor of Criminology, Law and Society at the University of California, Irvine.

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Letters of the Law

Race and the Fantasy of Colorblindness in American Law

By Sora Y. Han

STANFORD UNIVERSITY PRESS

Copyright © 2015 Board of Trustees of the Leland Stanford Junior University
All rights reserved.

ISBN: 978-0-8047-8911-0

Contents

Introduction: Letters of the Law, 
1. Decompositional Rights, 
2. Colorblind Judgment, 
3. Racial Profiling, 
4. The Purloined Prisoner, 
Notes, 
Bibliography, 
Index, 

CHAPTER 1

Decompositional Rights

The oscillation between then and now distills the past four hundred years into one definitive moment. And, at the same time, the still-unfolding narrative of captivity and dispossession exceeds the discrete parameters of the event. In itemizing the long list of violations, are we any closer to freedom, or do such litanies only confirm what is feared—history is an injury that has yet to cease happening? —Saidiya Hartman, "The Time of Slavery"

Saidiya Hartman wonders in the epigraph above whether a distinction can be made from "the long list of violations" between "freedom" and "history [as] an injury that has yet to cease happening." This same question can be put to civil rights discourse in American legal history and begs the further question of how, ultimately, we might understand the law's promise of equality given an essentially knotted relation between freedom and captivity? Does the enduring black struggle for civil rights work toward liberation, or does it fatally rehearse the "still-unfolding narrative of captivity and dispossession"? And, how does the time of slavery require a wholesale rethinking of the normative understanding of citizenship as a legal capacity to bear rights (usually civil rights)?

One way to begin an answer to these questions is with a certain latent skepticism toward civil rights that surfaces by the "litanies" of claims to civil rights. At the same time, this skepticism emerges also as a question about what is at stake when civil rights in American legal history are reduced to either a narrative of freedom or dispossession. In particular, the black claim to civil rights—exceeding the organization of the American legal archive into identity-based constituencies or periods of civil rights reforms in the mid-nineteenth and twentieth centuries—suggests that this narrative binary is neither necessary nor adequate to the task of rethinking the relation between race and law. Both post–civil rights critiques and defenses of civil rights bear the mark of this theoretical acquiescence, specifically by continuing to reduce the force of the black claim to the identity of its claimant or its historical impact on the development of civil rights law.

Taking a step back from these debates, we might ask instead: What is this claim on civil rights that forever gives the lie to the law's history of equality? What is this claim that in its repetition at once drags down the ideal of democratic citizenship and resurrects it in an always already colorblind vision of political community? Contrary to Hannah Arendt's argument that "the nation-state cannot exist once its principle of equality for the law has broken down," Hartman's sense of history suggests that the nation-state exists precisely because the principle of equality has always been broken. The United States as a nation-state is constituted by a permanent condition of inequality between blacks as the descendants of slaves and an always-plural community of citizens. Within this scene, the black claim to civil rights compels us to ask how such broken equality becomes constitutional, as well as how such constitution is escaped.

I offer some provisional answers to these questions in this chapter by tracing the force of what I call a decompositional right, which upon its pleading decays the assurances of equality and civil rights proffered by legal rationality. It is a form of right that recursively un-writes the various types of rights the law has developed to define citizenship. And it surfaces in legal reason by what Derrida calls a "degenerescence" of the presumed effective relationship between civil rights and citizenship. "Degenerescence" is one of the names Derrida gives to what he calls "an essential disruption" of law "within the heart of the law itself" (whatever type of law—in his particular piece, the laws governing genres).

Accordingly, I examine how the law maintains a taxonomy of rights in the face of the black claim to civil rights. This taxonomy orders categories of civil, social, and political rights, assigns various levels of legal protection for and enforcement of them, and becomes a theoretical matrix by which rights-based claims are adjudicated. I am interested specifically in how the black claim splays this generic taxonomy of rights from which the classic rights of citizenship are engendered. In what follows, we enter into the degenerescence of this taxonomy through perhaps the most exhausted topic of racial jurisprudence: affirmative action in higher education. There we find that the decomposition of the law's principle of equality into what the Supreme Court tepidly reaffirmed in 2013 as the "educational benefits of diversity" is merely an elapsed half-life of the law's inverted image of black citizenship. By exploring the foundational cases adjudicating the issue of black citizenship—Plessy v. Ferguson (1896), the Civil Rights Case of 1883, and Dred Scott v. Sandford (1857)—we find not a legal personality to be incorporated into universal citizenship, but instead, one who must be endlessly demoted from citizenship. Ultimately, what we will find by tracing the decompositional right through these cases is a form of noncitizenship that I call "dispossessive citizenship."

The Colorblindness of Multiracial Citizenship

The question of citizenship and race appears in contemporary racial jurisprudence obliquely. Outside of the de jure and de facto racial politics of naturalization and immigration law that many have recently criticized for excluding foreign nationals and regulating their kinship networks, racial jurisprudence and its focus on discrimination engages issues of citizenship through constructions of a colorblind national history. This fantasmatically establishes the origin of American citizenship not in racial exclusion, but in a racial inclusion that citizenship professes to have always strived for. And in the spirit of racial inclusion, affirmative action in higher education remains an important area of racial jurisprudence where that origin story of an inclusive multiracial citizenship lives on.

Consider the Supreme Court decision, Grutter v. Bollinger (2003), decided in the wake of three decades of right-wing assaults on race-based affirmative action policies, particularly in higher education. This case confirmed the persistence and persuasiveness of the origin story of American multiracial citizenship in what affirmative action jurisprudence calls the "diversity rationale." This justification, which validates race-based affirmative action policies with the goal of creating a diverse learning environment, arises from the Court's recognition of the university's First Amendment right to academic freedom. Reiterating this rationale to the exclusion of other possible justifications advanced by proponents of affirmative action, Justice O'Connor reasoned,

[The] benefits [of diversity] are not theoretical but real, as major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.... What is more, high-ranking retired officers and civilian leaders of the United States military assert that, "based on [their] decades of experience," a "highly qualified, racially diverse officer corps ... is essential to the military's ability to fulfill its principle mission to provide national security."

As telling as this discussion is of the law's increasingly neoliberal investments in diversity, Grutter simply clarifies the effect of the landmark decision, UC Regents v. Bakke (1978), where the diversity rationale was first established. In this case, Allan Bakke alleged that the university's affirmative action policy discriminated against him as a white medical school applicant. What is more interesting than the political power Bakke successfully mobilized by asserting a civil rights claim based on his white identity is how the decision fantasmatically reconstructs an inclusive multiracial history of citizenship to arrive at its ruling on affirmative action. That is, of the four compelling interests the university presented in Bakke to defend its affirmative action policies, all but the diversity rationale were rejected. Reducing under-representation of minorities, ameliorating the effects of "societal discrimination" against certain minority groups, and improving delivery of public services to underserved minority communities were all rejected as compelling reasons for affirmative action. And because of this, any discussion of affirmative action in education has since, as demonstrated in Grutter, been ruthlessly constrained by Bakke's historical delusion, both about the law's capacity to remedy racial injustices of the past and to recognize the historical specificity of slavery and its vestiges.

How does Bakke reason away the historical impetus for Fourteenth Amendment Equal Protection jurisprudence, the spirit of which the university's affirmative action policies were argued to embody? Justice Powell, writing for the majority, made a decisive analytical move by conflating the history of slavery and racial segregation with the history of new immigration; in Powell's analysis, the latter history wins pride of place. It is, in his view, the more persuasive and, as the story runs, demographically accurate account. Justifying the Court's departure from the original intent of the Reconstruction Amendments, which was to provide the recently emancipated slaves with the rights of citizenship, Powell writes:

It was no longer possible to peg the guarantees of the Fourteenth Amendment to the struggle for equality of one racial minority [because] the United States had become a Nation of minorities. Each had to struggle ... to overcome the prejudices not of a monolithic majority, but of a "majority" composed of various minority groups ... that shared a characteristic ... willingness to disadvantage other groups. As the Nation filled with the stock of many lands, the reach of the Clause was gradually extended to all ethnic groups seeking protection from official discrimination.

Note the double slippage here: first, from "newly freed Negro slaves," a restricted and singular definition implied in the above passage as "one racial minority," to "minorities," a category that is malleable and expansive; and, second, from the social phenomena of slavery and segregation in particular to the amorphous term "discrimination." Just as Bakke would become emblematic of the reverse-discrimination claim, so too would a vision of American citizenship in a multiracial national history become a never-ending source of slippage from slavery. As this chapter progresses, we will see how the reasoning in Plessy, the Civil Rights Cases of 1883, and Scott had already laid precedent for this historical slippage. But for now, we should note that the multiracialization of a general national history away from the specific history of slavery and segregation is the basis for Bakke's invention of multiracial diversity as the only constitutionally valid reason for affirmative action.

More important, the multiracial diversity rationale appears during the upswing of American diversification prompted by immigration policy shifts of the mid-1960s, and it echoes a fantasmatic history of transnationality. This history recasts the originary aporia of slavery with the glow of America as a "Nation of minorities," concealing the internal racial limit of the Constitution and its first and second Reconstruction Amendments. As if recoiling from the historical stink of the centuries-long flows of transatlantic human cargo, what Bakke does doctrinally with the diversity rationale figures into the Court's fantasmatic history of a progressively transnational United States.

The temporality of Powell's progressive narrative about the multiracial demographics of the United States—"As the Nation filled with the stock of many lands"—not only provides a type of harmony between the ideas of America as the "Land of Opportunity" and a "nation of immigrants." It also poses another type of harmony between transnationality and diversity that is found in their etymological meanings. "Trans" in Latin means "across," "through," or "beyond"; and in conjunction with "nation," it signifies a crossing through and beyond difference that unifies a Nation from/of "many lands." "Diversity" in its Latin origin, diversus, is the past participle of divertere, meaning "divert." What we have with the harmony of transnationality and diversity, then, is a history of multiracial nation building that, in Powell's rendering, diverts history away from the problem of slavery and segregation as the context for the Reconstruction Amendments.

Specifically, Powell goes on to list a host of cases identifying this "stock of many lands": Irish, Chinese, Austrian, Japanese, and Mexican American. Diverting the history of the Fourteenth Amendment through the legal precedent of the New Immigrant, there is an absolute silence as to the "land" from which the black minority migrates. References to a black minority in this opinion are not connected to any origin whatsoever: not a foreign nation, a distant land from whence they came, or a distinct historical culture to which they belong. African Americans are Negroes, former slaves, the slave race, or blacks. Bakke's fantasy of colorblindness obtains in a multiracial citizenship that casts the time of slavery outside history, including histories written by and into law.

To be clear, my point is that Bakke, and then Grutter and Fisher's affirmations of Bakke's diversity rationale, require a progressive history of a multiracial transnational citizenship that fixes slavery's pastness to the exclusion of slavery's ever-presentness. Affirmative action jurisprudence exemplifies the cultural reality of slavery Hartman describes as an "oscillation between then and now." Indeed, Hortense Spillers argues that "every generation of systematic readers is compelled not only to reinvent 'slavery' in its elaborate and peculiar institutional ways and means but also, in such play of replication, its prominent discursive features." She goes on:

This field of enunciative possibilities—its horizon, its limits, its enabling postulates, and its placement in perspective with other fields of signification—constitutes the discourse of slavery, and as concretely material as the "institution" was, as a natural historical sequence and as a scene of pulverization and murder, "slavery," for all that, remains one of the most textualized and discursive fields of practice that we could posit as a structure for attention.

What Spillers is pointing to here is the possibility of thinking about the racial significance of historical diversion the diversity rationale produces. The diversity rationale is precisely the law's reinvention of slavery as an event always lost to history through a "play of replication" and "placement in perspective with other fields of signification"—namely, multiracial nation-building. The absolute past tense of slavery in the law's historiographic narrative of citizenship is so far passed that it does not qualify as a memorializable event in contemporary national multiracial history. Instead, it appears as the stage for the commencement of history, and specifically, a history of multiracial citizenship. In "post–civil rights" affirmative action cases, the discrepancy between the time of citizenship and the time of slavery is there, in the letter of the law, but is remarkably overlooked as the break in historical progress that it is. Instead, the temporal discrepancy recedes from view as the law's colorblind promise of equality is repeated through a fantasmatic history that depicts a transnationally forged multiracial citizenship as the assumed path out of slavery.

However, the law's narration of national historical progress in affirmative action jurisprudence through multiracial citizenship, which reduces slavery to a barely mentioned detail of the past, is not merely an issue of historical interpretation. It is symptomatic of a structural limit within legal rationality where black citizenship appears as a terrifying oxymoron, and subsequently, the perfection of the universal promise of equality becomes a permanent preoccupation of law in the first instance.

Thus, should we be tempted to write off Powell's multiracial citizenship simply as a historical gloss on a controversial legal issue, we must remember that Powell's sense of historical possibility had been explicitly considered by one of the towering intellectuals of modern American democracy. Returning to Alexis de Tocqueville's nineteenth-century commentary on democracy and slavery in the United States, Democracy in America reads like a founding text of this fantasmatic multiracial history that defends the law from the profound difficulty of incorporating the time of slavery into history.

In the particular section "The Principle of the Sovereignty of the People," Tocqueville writes tellingly about the fictitiousness of citizenship. He characterizes the uniqueness of citizenship under American democracy as that which is "unencumbered" by previous fictions of citizenship "thrown over," or veiling, European forms of monarchy or oligarchy. The fiction of citizenship Tocqueville speaks of is an ineffective citizenship, one that fails to translate popular will into meaningful political representation, whether due to arbitrary and uneven distribution of political power, coercion and despotism, or "uncivilized" social conditions antithetical to Enlightenment ideals. Here, Tocqueville's image of a true democratic institution of citizenship emerges against the failures of European sovereignties.

American democracy is distinguishable from its European counterpart because it grants "universal suffrage." This is, of course, at the time of his thinking, less a reality and more his aspiration for democracy. Tocqueville's design of democracy through the developing United States is ficto figura veritatis: fiction that takes on the veneer of truth. Citizenship in American democracy, by Tocqueville's own account, is underwritten by an implicit fiction we continue to refer to as American democracy.

(Continues...)

Excerpted from Letters of the Law by Sora Y. Han. Copyright © 2015 Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of STANFORD UNIVERSITY PRESS.
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Détails de l'édition

• Éditeur: Stanford University Press
• Date d'édition: 2015
• Langue: anglais
• ISBN 10: 0804789118
• ISBN 13: 9780804789110
• Reliure: Relié
• Nombre de pages: 165
• Coordonnées du fabricant: non disponible
• Personne responsable: Mare Nostrum Group B.V.; gpsr@mare-nostrum.co.uk; ; Doelen 72; Breda; 4831 GR; Pays-Bas