Wednesday, June 20, 2018


excerpted from: Cheryl I. Harris, Whiteness as Property: A Twenty Year Appraisal, 31 Harvard Journal on Racial & Ethnic Justice 148 (Spring, 2015) (25 Footnotes) (Full Document)


CherylIHarrisThe publication of this volume is an honor for which I extend my sincere thanks to the editors, to the contributors and to all who participated in its production. The articles contained here, while invoking Whiteness as Property as inspiration (or perhaps provocation), make unique and important contributions in their own right. Together they reflect the vibrant debates among those who share the commitment to racial justice as essential to human freedom. In this way the diverse views, analytical methods, and modes of inquiry represented here are connected to the intellectual commitments central to Whiteness as Property. When I wrote that essay, I was--as fellow Critical Race Theorists were doing at the time against the ideological ascendance of colorblindness as the dominant way of conceptualizing race and racism in late 20 century law, politics and culture.

While the concept of colorblindness has long circulated in political and legal discourses, it has conveyed different meanings and has aligned with both progressive anti-racist and conservative racial projects. The late twentieth century version gained particular salience as an aspect of the racial retrenchment that characterized the period. Contemporary architects of colorblindness evacuated race of social meaning and entrenched this reading through significant material and symbolic investments. By adopting the model of public interest lawyering associated with earlier social movements, political conservatives successfully waged a campaign under the banner of colorblindness to eviscerate civil rights remedies while retooling anti-discrimination doctrine itself into a mechanism of protecting white dominance. One of their principal strategies involved appropriating the rhetorical register of the classical era of the civil rights movement which challenged the deployment of state power to enforce racial difference as a means of enacting racial subordination. That critique of racism was distorted into a denial of the salience of race under the language of colorblindness. This argument depended on naturalizing the racial status quo, effectively treating the existing racial distribution of rights, property and access as a neutral baseline. While this project was never complete, in this period “civil rights” and anti-discrimination law were crucial sites through which whiteness was afforded legal protection and was buttressed as a repository of racial power.

This was particularly important in an era that was marked by Brown and its progeny where law and the courts occupied an important role in anti-racist struggle. The uneven trajectory of anti-discrimination law in the period that followed represented a contest between structural and individualistic conceptions of racism, and included both significant victories and setbacks. The race jurisprudence of the late 1980s and early 1990s was defined by major legal contests initiated by plaintiffs, many (but not all) of them white, challenging the discriminatory consequences of anti-discriminatory law and policy interventions. Even when these claimants did not secure decisive wins as measured by the ultimate outcomes, they were victorious in framing the debate regarding anti-racist remedies and anti-subordination efforts more generally in racial premises birthed from colorblind ideology. Thus, whether Alan Bakke was admitted to medical school after challenging a public university's affirmative action program, or whether Barbara Grutter was not admitted to a public university's law school, the prevailing framework rested upon the notion that attending to race as part of anti-discrimination remediation risked inflicting a racial injury on whites akin to the harm inflicted on people of color by segregation. As a consequence, both racial inequality and the remedies to address it had to be analyzed under the same level of judicial review. Indeed, in some circumstances anti-racist remedies were themselves reconfigured as white racial injury.

In this way the apparatus of strict scrutiny, crafted ostensibly to uproot racial subordination by demanding that the state justify policies imposing inequality based on race, became the technology through which restorative or redressive efforts were undermined or dismantled. Put another way, because race could only be acknowledged in the most exceptional circumstances and otherwise was presumptively irrelevant, all efforts to address racial inequality had to establish extraordinary proof. Thus, conservatives successfully waged a campaign to eviscerate civil rights remedies while anti-discrimination law was cast as an injury to whites. Hollowing out race facilitated and enabled the claim that racism was not a significant cause of inequality. Accordingly, the unequal racial status quo was pronounced fair and any departure from its entrenched distributions was denounced as a “taking,” or a “preference.” Whiteness as Property was an effort to disrupt those claims and unmask the pernicious ideological reversal upon which they rested.

Over the ensuing two decades, colorblindness has been further consolidated in legal doctrine and political discourse. Law reflected and constituted a consensus that normatively embraced the notion of racial transcendence. Importantly, the ascendancy of colorblindness was accompanied by and intimately related to the rise of neo-liberalism. Neo-liberalism purported to provide solutions to political and economic crises, but in fact neo-liberal policies implementing extreme market deregulation and the privatization of public goods and services generated the very crises it purported to manage. Racism and racial power was central to implementing and justifying radical privatization, but color blindness rendered that connection obscure. Thus, while neo-liberalism deepened and further entrenched racial inequality, the space for articulating that harm is exceedingly constrained under colorblindness. Even epic events like Hurricane Katrina and its tragic aftermath that exposed the lethal consequences of racial neglect and the salience of race only momentarily displaced colorblind frames. Quickly, after the initial shock, public debate and legal discourse reconstituted familiar narratives that indicted any factor other than racial subordination in producing the torrent of Black suffering.

Beyond temporary ruptures in the dominant colorblind account, some things did change, evolve, or perhaps even mutate. As Sumi Cho has argued, under post-racialism the erasure of race and the repudiation of race-sensitive remediation has become the dominant political consensus, available to self-identified political liberals and centrists as well as conservatives. Post-racialism has achieved this position in part by trading on Obama's electoral success in 2008 both as symbol of racial transcendence and as evidence of the utility of effacing race and racial oppression. In a sense, then, the election of a Black president liquidated claims for racial redress and established the tenets of the racial “grand bargain:” Post-racialism required that racial inequality be rendered in racially palatable--which is to say non-racial--terms, such as claims for “fairness” as distinct from racial justice. To do otherwise--to make race salient--is to incite backlash and alienate support. In this way, post-racialism instantiated a politics of the closet with regard to race and proved particularly averse to acknowledging the existence of anti-Black racism. Notably, however, this path of racial avoidance provides no conceptual bridge between the erasure of race in public discourse and the stark prominence of racial inequality. Indeed, racial power has been most effective in protecting white racial privilege through shaping an ideological framework that has untethered racial inequality from racism and that has normalized racial disadvantage as the natural outcome of routine processes. The lack of any sustained critique of the consequences of racism simply endorses and naturalizes the widening racial gap, which is now treated as what equal protection guarantees unless one can demonstrate specific intent. While liberals (and even some self-described progressives) occasionally lament the consequences of this doctrinal stricture, they labor faithfully under and at least partially concur in its premises.

Indeed, whiteness as property has comfortably and firmly been entrenched in the post-racial era. Private and public power now efficiently sort out racially suspect populations to be simultaneously targeted, through policing, incarceration, and direct forms of state violence, and ignored by removing or limiting access to state protection, social goods and resources. Moreover, in the public sphere, even modest anti-racist interventions by the state are limited as a matter of constitutional interpretation to those that can be justified by extraordinary circumstances, while private entities are subject to weakened regulatory constraints, including anti-discrimination provisions, more broadly. Indeed, the material advantages that accrue to whiteness have been largely placed beyond legal intervention. The delineation between public and private power has been a central way of protecting white property.

This relationship is part of what Amanda Werner's essay, “Corporations are (White) People,” productively explores. While the public debate over corporate personhood has generated a robust critique of the Supreme Court's decision in Citizens United allowing unlimited campaign contributions by corporations, Werner perceptively exposes how the corporation, a critical form of organized capital, is racially embodied. She traces the expansion of corporate privilege--the asset protection accorded corporate actors--and its interrelationship with legal segregation to contemporary corporate doctrines and practices. She unpacks the evolution of the corporation from a state licensed entity obliged to consider public welfare to a form of private property entitled to legal protection from state regulation. Moreover, corporations played a critical role in privatization, limiting the state's regulatory power and hardening the public/private distinction. The core tenet of neo-liberal reforms is the presumption that the market largely is a race neutral mechanism operating in the private sphere, distorted only by the occasional biases of misguided individuals. In fact, as Werner illustrates, the operation of the market depends upon state structures and processes that reinforce and reify white dominance. Indeed, the corporate form itself concentrates historical racial inequality in property ownership and control. Citizens United's expansion of corporate privilege and deference to corporate personhood occurred in tandem with the Court's colorblind constriction of civil rights remedies. In this way, she explains how “white supremacy [continues to function] to entrench a system of corporate supremacy” and legitimates white racial preference.

White racial preference is further revealed in Erin Kerrison's empirical analysis of the racial difference in how drug addiction is framed by and for white substance abusers as illness as distinct from the criminally deviant behavior assigned to Blacks. In this regard, Kerrison's article provides a contemporary illustration of what Dubois called “the public and psychological wages of whiteness.” While DuBois' analysis focused on the white working class, Kerrison's analysis makes clear that even among those engaged in socially censured conduct, race makes a difference in who “may resist accountability narratives and are instead granted access to victimhood, sick roles and less stigmatizing labels.” Trends towards medicalizing drug addiction, in contrast to criminalization of the same conduct have been driven in part by the evolving picture of who is addicted, and the shift from “the depraved, incorrigible, and inherently pathological [Black addict]” to the more sympathetic middle or upper class “chronic pharmaceutical [middle class white] substance [abuser].” As Kerrison demonstrates, this evolving public image of drug addiction--and the racial privilege inherent in it-- originate in the racial power upholding white supremacy that was codified and reinforced in the War on Drugs and the mass incarceration of Black and Brown bodies that resulted from it. Racial discrimination in the treatment of addicts, and the differential access to frameworks of deservedness and the medicalization of addiction is a consequence of that underlying asymmetry. Thus, even among white and Black abusers of prescription opiods--a class whose entry to addiction was through legally prescribed drugs, there is a measurable racial difference in who is or feels required to adopt narratives of personal responsibility and free will--discursive strategies that can in fact undermine treatment--versus who is seen as “sick” or “ill” and whose conduct is then not properly subject to criminal sanction. Even among social outcasts, whiteness confers measurable privilege. Yet, the continued material and psychological wages of whiteness that DuBois marked is precisely the value of whiteness that colorblind ideology and its correlate post-racialism occludes.

The origins of whiteness and racial domination that are foundational to the material advantages that DuBois identified lies in the rules of property and the rules of race. Through this doctrinal apparatus, American law regulated, facilitated and managed chattel slavery and the seizure of indigenous land and the subordination of native nations. The rights of exclusion inherent in both the neo-liberal concept of property and in the concept of whiteness were central to the exercise and reification of racial power. Slavery, empire, and settler colonialism have intrinsic links which have been and continue to be manifest. Natsu Saito's essay, “Race and Decolonization: Whiteness as Property in the American Settler Colonial Project,” deepens our understanding of the ongoing legacy of this history by critically examining the way that equality claims under U.S. constitutional law both obscure structural racism and importantly, fail to mobilize meaningful intervention against the colonization of American Indian nations. As she points out, the central problem is that the traditional equality-based approach offers no meaningful challenge to assertions of federal plenary power as “it is a legal framework that presumes legitimacy of occupation and colonization.” The acceptance of these premises confounds the quest for meaningful equality, as justice is defined in relationship to the rights of Whites. Since these “rights” rest upon and occlude their genesis in a settler colonial project, Saito contends that the foundational impediment to more liberatory possibilities is never confronted. Saito's admonition helps explain how the law accommodates the ongoing violence against people of color as well as the persistence of inequality. As she explains, while there are different mechanisms and technologies of subordination at play, interrelation ship between slavery and colonization and conquest means that resistance requires recognition of the mutual stake each community holds in the other's liberation. In arguing for an alternative analysis grounded in settler colonialism, she offers a framework that connects the struggles of indigenous and non-indigenous people of color rather than allocating their issues to inherently separate spheres of sovereignty or race.

Saito's invocation of colonialism and her insistence on its centrality to the formation of the American nation is thematically connected to questions of global justice, and the interaction between questions of race and sovereignty in contexts outside the United States. Noura Erakat's thoughtful essay considers how the construction of nation and nationality can be--and, in the case of Israel/Palestine, in fact is--invested with racialized premises. She argues that the construction of Jewish nationality was a complex process in which a particular Jewish identity-- constructed as European--was privileged over the identity of Middle Eastern Jews. This was connected to the elevation of Jewish identity over Arab identity and simultaneously erased the connection of Palestinians to land, nationhood, and social citizenship. While Enlightenment logic supplanted notions of divinely ordained human hierarchy with concepts of rationality and science, science served to justify subordination as a natural, biological imperative of superior (white) types over inferior (non-white) others. These rationales undergirded both anti-Semitism and racism, but ironically, the notion of intrinsic and inherent difference was imbricated in the construction of nationality in the Jewish state. This formation, Erakat contends, rendered the “Arab-Jew” an impossible subject against the bifurcation between Jewish, European and the “West” on the one hand, and Arab, Middle Easterners and Islam on the other. Middle Eastern Jews were eligible for a civilizing project that required their repudiation of Arab heritage and identity, while Palestinians were precluded from full membership in the state. This central problem then is not a primordial conflict of religious beliefs, worldviews or cultures, but a matter of structural dispossession. Erakat's questions are both deeply material and epistemological, challenging us to think through the difficult ways in which foundational issues insist upon recognition.

The foundational question of belonging is at the heart of Charles Lawrence's elegant and moving essay, “Passing and Trespassing in the Academy.” His account of the struggle over the mural at the University of Hawai'i to contest the erasure of the violent seizure of Native Hawaiian land upon which the University as a state institution rests is connected brilliantly to quest of the students of color at Harvard to break silence around the myriad forms of racial marginalization routinely enacted as part of everyday life and to the emerging Black Lives Matter movement. These locations, seemingly disparate and far apart, are connected through the articulation and transgression of racial boundaries and organized efforts to decolonize space. The site of the academy--the very geography of knowledge--is land taken by force, maintained by erasure. Lawrence's call is to name the cost of silence--the price extracted by post-racialism: To say that race has no meaning is to employ a discourse of passing, to accommodate the rhetorical denial of racism and anti-Blackness, and “[to] rationalize[] the property of white privilege.”

There are other voices now, as Lawrence reminds us, coming from many quarters. Black Lives Matter, first articulated through the work of queer women of color, has become an organized force through which acts of civil disobedience and disruption have challenged ongoing police violence against Black people and the systemic practices of surveillance, detention and incarceration that enable and legitimate it. In invoking and reproducing the image of surrender, the dying declarations, and “die-ins”--public mass representations of dead Black bodies--movement participants rendered visible the death and violence occluded by post-racial colorblind fantasies. Students from all over the country, lawyers, academics, nurses, workers of all kinds have lain in the street, on the sidewalk, in the corridors. The rejection of the invitation to pass and the engagement in what Lawrence invokes as “open and notorious trespass on white property” is at the core of how we must proceed.

At the end of the day, it is as simple and hard and as beautiful as this--as Khaled Beydoun's open letter reminds his Muslim American community--Ferguson is our issue. By this I am reminded that in the project of human liberation, we each have a stake in each other's lives. This stake is not ownership, nor is it a claim to property. Rather, I mean to say that we are vital to each other. I am forever grateful to the authors in this volume for that critical and sustaining message.

Rosalinde and Arthur Gilbert Foundation Chair in Civil Rights and Civil Liberties, UCLA School of Law.

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