C. THE EQUAL PROTECTION PROBLEMS OF SHACKLING
Constitutional colorblindness, while often touted a liberal ideal, is unrealistic and unworkable given America's continuing history of racial oppression. Colorblindness, far from a progressive goal, freezes existing social, economic, and political inequities that result from racism ....[and] preserves status quo racial inequity. Only whites benefit from such an approach to equality.
Colorblind constitutionalism is based, in part, on what Cedric M. Powel calls rhetorical neutrality ... the narrative structure of the Court's colorblind jurisprudence. Powell explains that rhetorical neutrality perpetuates socio-cultural and institutional racism by perverting the Fourteenth Amendment's intended goals, narrowing the definition of discrimination, and privileging individualism over anti-racism:
The Court's colorblind constitutionalism is advanced through three central narrative techniques: (i) historically, the mandate of the Reconstruction Amendments is erased and replaced by a literal anti-differentiation principle;(ii) definitionally, discrimination is defined so narrowly that it is virtually impossible to advance a constitutionally cognizable claim of racial discrimination (unless, of course, it is a reverse discrimination claim based on colorblindness); and (iii) rhetorically, a series of colorblind myths are employed to reject the anti-subordination and anti-caste principles of the Fourteenth Amendment thereby preserving liberal individualism as a normative constitutional principle.
When considering the plight of incarcerated Black women shackled in labor, this last element of rhetorical neutrality--a series of colorblind myths ... employed to ... preserve liberal individualism as a normative constitutional principle--is especially important. Powell notes that [i] n the context of individual claims, history is irrelevant. Thus, a central feature of the Court's colorblind race jurisprudence is that it is a historical. The vast implication is that Black women simply cannot be fully grasped in a historical vacuum.
Because of the history of American slavery and the systematic white, male denial of Black women's reproductive autonomy that the law protected, the shackling of Black female inmates in labor poses myriad problems that the shackling of their white counterparts does not. Because colorblind constitutionalism privileges individualism over the substantive claims of historically oppressed groups, and because [i] n the context of individual claims, history is irrelevant, the historical denial of Black women's reproductive autonomy goes unacknowledged, unaddressed, and the victims of shackling are left without an equal protection remedy.
