I. On Language, “Niggas,” and the Black Criminal Litmus Test

I first “dropped the N-bomb” at a Criminal Justice and Race Workshop for the Association of American Law Schools [AALS] during the 1999 Annual Meeting in New Orleans. In the company of sedate legal scholars, I performed an N-word-laden gangsta rap song by Ice Cube titled The Nigga Ya Love to Hate, spitting lines like “kicking shit called street knowledge-why more niggas in the pen than in college?” I told my audience that the baffling silences our professional vocabulary could not fill compelled me to use this profane alternative rather than iterate the voice of speechlessness underneath the rigor, precision, and eloquence of our scholarly marks and noises.

As criminal law professors, our primary professional vocabularies are those of morality and law-the two language games prosecutors and defense lawyers must master and deftly deploy-and thus I have thought a lot about the world of shared meanings these vocabularies create and what limits they impose; what can be done by one who speaks them and what cannot. As the son of a black prison inmate given 22 to 55 years for possession and sale of marijuana, and as a close friend of many black inmates, I would characterize my relationship with the language of blame and punishment inside and outside my law school classrooms over the past twenty years as impossible, for I find the proud but calcified language of both the legal academy and conventional morality-“choice,” “free will,” “personal responsibility,” “subjective culpability,” “malice,” “malignant heart,” “moral agency,” and “mens rea”-not adequate to my needs and purposes, to my sense of myself and my world, requiring me, as it plainly does, to view as wicked and irresponsible my closest friends, family, and the up to 90% of young black men in some inner city neighborhoods who will end up in jail, on probation, or on parole at some point in their lives. For me, any language whose words and logic lock up staggering numbers of truly disadvantaged black men on the ground of their own moral deficiencies is a disabled and disabling device for grappling with meaning in moral and criminal matters, one that ignores or discounts savage inequalities in race and class and sweeps empirically demonstrable anti-black bias under the rug of jury verdicts and “findings of fact” about guilt and innocence. Prevailing legal and moral language organizes and claims a meaning for experience in a way that blocks the access of “wicked” black wrongdoers to the empathy, sympathy, care and concern of ordinary, law-abiding people; such language actively stalls conscience in relation to such wrongdoers' suffering, masking the pity and waste of mass incarceration and draconian punishment. Yet in my scholarly associations and legal journals, I see an entrenched moral and legal vocabulary content to admire its own paralysis, to accept with serenity its estrangement of underprivileged and disadvantaged masses.

As James Boyd White points out, when words lose their meaning, a speaker must make a new language, remake an old one, or radically repurpose old words to serve new ends. In my N-word-laden 1999 AALS performance of Amerikkka's Most Wanted, I radically reconstituted my cultural resources-my possibilities for making and maintaining meaning-to make them adequate to my needs. Specifically, I repurposed “nigger” and “nigga” as terms of art in an oppositional discourse I shall call “nigga-talk.” Nigga-talk uses this “troublesome” word-a word Professor Randall Kennedy rightly calls the “nuclear bomb of racial epithets” in his 2002 book Nigger: The Strange Career of a Troublesome Word its most condemnatory sense for conceptual purposes and in its most compassionate sense for political purposes.

Conceptually, nigga-talk uses the “morally deficient black man” sense of “nigga” to critique the categories, distinctions, and dichotomies of conventional morality and the substantive criminal law.“Nigga” in this sense means precisely what black comedian Chris Rock means in his famous laugh line, “I love black people, but I hate niggas!”, where lovable “black people” means “law-abiding, respectable blacks” and “niggas” means morally deficient and contemptible black criminals. As White points out, jokes, like all texts, are invitations to share the speaker's response to the world which we accept through our laughter, and implicit in Rock's joke is a political invitation to distinguish between a law-abiding and respectable “us” and a morally contemptible “them,” an invitation to niggerize-or niggarize-black wrongdoers, which black audiences in packed auditoriums heartily accepted through peals of laughter and a chorus of “amens,” “uh-huhs,” and “preach!” Part moral mantra, part political slogan, part sneering closing argument refrain, the phrase “I love black people but I hate niggas!” struck a resonant chord with black audiences because many do view black wrongdoers as morally condemnable “niggas.” No utterances in the English language more forcefully drive a political wedge between a worthy “us” and an unworthy “them” than this vile epithet-none more bluntly express and inflame that widely shared and deeply entrenched urge, to put it crudely, to retaliate and avenge, or, to dress it up in loftier language, to “return suffering for moral evil voluntarily done” or to act on “the necessity of purging one's own country from depraved criminals” or to see blameworthy wrongdoers “‘pa[y] one's debt’ to society.” Legal philosopher Meir Dan-Cohen aptly dubs this urge to blame and punish wicked wrongdoers “the retributive urge.” Because millions of Americans of all races share that laughing black audience's contempt for black wrongdoers, so-called “niggas” inflame the retributive urge in millions of all races.

Rock's blunt moral distinction between respectable “black people” and damnable “niggas” parallels the more genteel one asserted by Professor Randall Kennedy between what he calls law-abiding “good Negroes” and criminal “bad Negroes.” Specifically, Kennedy exhorts good law-abiding blacks to “distinguish sharply between ‘good’ and ‘bad’ Negroes” for the sake of safety and racial respectability. His litmus test for “bad Negroes” is identical to Rock's for “niggas”-namely, criminal wrongdoing. In support of his distinguish-and-distance-them-from-us approach, Professor Kennedy cites black civil rights icon Thurgood Marshall. As Kennedy points out, Marshall, working on behalf of the NAACP, initially allowed it to represent only good-“innocent” For example, Marshall refused to represent a sixteen year old black boy sentenced to death for rape and attempted prison escape on grounds that “the youngster was ‘not the type of person to justify our intervention.”’ Recast in Rock's street vernacular, Thurgood Marshall sharply distinguished and distanced the interests of “black people” from those of “niggas.” According to Professor Kennedy, even when Marshall later “loosened his policy” and represented some black defendants he believed to be guilty, Marshall's worries about black people's respectability in the eyes of whites kept Marshall from ever “tak[ing] the position that racism excuses thuggery when perpetrated by blacks.” So the distinguished black scholar, the venerable black Supreme Court Justice, and the iconic urban comedian converge on the Black Criminal Litmus Test of condemnable blacks, differing only in whether they call these morally odious creatures “niggas” or “bad Negroes” or “thugs.” Accordingly, I will use the terms “niggas,” “niggers,” and “bad Negroes” interchangeably and in contradistinction to their loveable and respectable polar opposites-“black people” and “good Negroes.” In sum, at the conceptual level I use these terms in their most morally judgmental and retributive-urge-inflaming sense to first pinpoint, then discredit moral condemnations of black criminals. I discredit them both on reliability grounds, given the pervasiveness of “unconscious bias,” and on legitimacy grounds, given the simple reality of “moral luck.”

The reliance on mens rea in deciding criminal culpability has analogues here. Prosecutors, defense attorneys, judges and jurors routinely debate and weigh the moral blameworthiness of wrongdoers because the substantive criminal law directs them to under the ancient legal maxim, actus non facit reum, nisi mens sit rea-in Blackstone's translation, “an unwarrantable act without a vicious will is no crime at all.” Under this mens rea principle, it is unjust to punish someone who commits an “unwarrantable act”-i.e. a wrongdoer he acted with a “vicious” or wicked will. As the Model Penal Code puts it, “[c]rime does and should mean condemnation.” Thus, under the mens rea principle, if jurors conclude that a wrongdoer killed someone without the requisite subjective wickedness or “vicious will,” they must return a verdict of not guilty. So the criminal law-through its mens rea requirement-routinely directs judges and jurors to morally distinguish between wicked and innocent wrongdoers and to differentiate degrees of wicked criminality for purposes of punishment. Under the law of homicide, for instance, a wrongdoer can suffer different punishments depending on whether he is found wicked in the 1st or 2nd Degree; voluntarily or involuntarily wicked; purposely, knowingly, recklessly or negligently wicked; or wickedly depraved and indifferent. Correspondingly, under the Black Criminal Litmus Test championed by proponents of a politics of respectability in criminal matters like Kennedy and Rock, a jury could find a morally blameworthy black wrongdoer to be a “nigga” in the First or Second Degree, a Voluntary or Involuntary “nigga,” a purposeful, knowing, reckless, or negligent “nigga,” or a “nigga” with a depraved and malignant heart. In fact, most “official niggas” (i.e., blacks formally convicted of a crime) have been found subjectively wicked in one of these ways beyond a reasonable doubt by a jury or other fact finder, so criminal conviction provides assurance-backed by the full faith and credit of the U.S. criminal justice system-that only black wrongdoers who deserve our most corrosive contempt achieve the status of felonious “official niggas.”

Politically, a key insight of the law and literature movement is that the true center of value of a word, text, or performance of language, its most important meaning, is to be found not in any factual information that it conveys-not in what is says-but in what it does, specifically, in the community that it establishes with its audience. “It is here,” says James Boyd White, “that the author offers his reader a place to stand, a place from which he can observe and judge the characters and events of the world . . . .” The place I offer my reader to stand through the many repetitions and juxtapositions and performances of the “N-word”-a place made solid by my substantive, conceptual uses of the term to pinpoint unwarranted moral condemnation one beyond such condemnation, one from which it can be seen that a person's self is a tissue of contingencies whose moral record is determined by the union of fortuity and human frailty rather than mere “free will.” It is a place that prioritizes compassion, concern, and mercy over retribution, retaliation, and revenge. Hence, it is a place from which disproportionately poor black criminals can be understood as tragic social facts for which we as a class and race-driven nation are accountable, rather than as wicked wrongdoers mired in self-destruction for which they alone are to blame. Accordingly, I use the N-word in this essay as a brush stroke in a new political landscape, one in which the very meaning of the word-its substantive content and range of application-is part of a fierce contest over the “us” and “them” of politics, over the formation and transformation of individual and collective black identities.

Allow me to go a step further. Politically conscious black urban poets and N-word virtuosos-The Last Poets, Tupac Shakur, dead prez, Nas, NWA, Ice Cube, Jay Z-vividly illustrate how people use words, sometimes the very same word, to embrace or push away, recognize or deny, others. In the hands of these poets gangsta rap is N-word laden oppositional political discourse; for them “nigga talk” is language smitheryed to challenge conventional characterizations of black criminals with ironies, inversions, and invitations to bond with them. These oppositional black poets provide the inspiration for my metaphoric redescription of mens rea and moral blame in terms of the N-word. After all, as Richard Rorty observes in his philosophical essays on language through the lenses of Wittgenstein, Davidson, and Nietzsche, viewing human history as the history of successive metaphors lets us “see the poet, in the generic sense of the maker of new words, the shaper of new languages, as the vanguard of the species” and of revolutionary science, morality, and legal theory. The common insight animating the word work of these philosophers and “gangsta” poets-Nas and Nietzsche, Davidson and dead prez, Wittgenstein and Ice Cube, Lakoff and The Last Poets-is that “truth” in matters of morality and justice is “a mobile army of metaphors,” a ceaseless struggle over metaphorical re-description, a pitched political battle over the range of application of words and symbols.