Wednesday, May 18, 2022

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 Abstract

Excerpted From: Linda C. McClain, Experimental Meets Intersectional: Visionary Black Feminist Pragmatism and Practicing Constitutional Democracy, 69 Drake Law Review 823 (2021) (411 Footnotes) (Full Document)

 

LindaMcClainThat pragmatism can do--and already is doing--real work to repair and improve constitutional democracy in the United States is a conviction voiced in the academy, in social movements, and in social media. But what does pragmatism mean, as used in these contexts? Sometimes, pragmatism seems to connote simply being practical (rather than idealistic) and focusing on results. But sometimes, commentators are saying more: pragmatism as a distinctive political philosophy has the power to fuel meaningful democratic change. This Article focuses on the creative and productive melding of classical American pragmatism (as exemplified by John Dewey and others) with feminism called, alternatively, “radical Black feminist pragmatism” and “visionary Black feminist pragmatism.”

Pragmatism is a term associated with perhaps the most visible and significant social movement of recent years, the Movement for Black Lives (“M4BL”), started in 2013 by three Black women--“radical Black organizers” Alicia Garza, Patrisse Cullors, and Opal Tometti--in response to the acquittal of George Zimmerman for the murder of Trayvon Martin. M4BL reached new levels of national recognition and support in 2020, during the nationwide #BlackLivesMatter protests initially spurred by the murder of George Floyd by police officer Derek Chauvin on May 25, 2020, but also condemning the police killings of Breonna Taylor, Jacob Blake, Rayshard Brooks, and other BlackAmericans. Political philosopher and Professor Deva Woodly argues that M4BL is based on a “rich and dynamic political philosophy,” which she calls “radical Black feminist pragmatism.” Further, Woodly argues that such pragmatism is “the first political philosophy born and bred in the twenty-first century.”

While this Symposium's theme is re-examining the role of pragmatism in constitutional interpretation, arguably, the civic participation by actors in social movements and in politics are critical to the health of constitutional democracy in the United States--to “make our union 'more perfect,’ as the U.S. Constitution says.” Indeed, in a new book, Reckoning: Black Lives Matter and the Necessity of Democratic Social Movements, Professor Woodly argues that democratic social movements are important institutional structures in U.S. constitutional democracy--an “essential ... Fifth Estate.” Woodly adds that such social movements are a reminder of “a public sphere where politics can and must take place if democracy is to be both authorized by and responsive to the people.” Social movements--“pragmatic politics in process”--are “a potential antidote to the politics of despair,” because “[t]hey allow us to enact citizenship, not only through performing duties, but also by authoring new understandings, priorities, and even governing institutions.” Similarly, in his recent diagnosis of “constitutional rot” in the United States, constitutional theorist Jack Balkin asserts that “transformative social movement[s]” may help to usher in a new constitutional regime and a way out of such rot.

A focus on democracy also seems apt in this Symposium on the revival of pragmatism, given that “democracy is the key organising concept” of the political philosophy of American pragmatist philosopher Dewey. Dewey viewed democracy as not only “the 'political machinery’ of democracy” (such as voting and formal institutions) but also “a mode of associated living” and a method for identifying and solving problems communities face. Further, Dewey's ideal of modern democracy was to transform “the great society,” that is, abstract and impersonal modern industrial society, “into the great community,” in which members could experience “the mutual comprehension and appreciation” similar to smaller, “'face-to-face’ communities.”

As developed below, a focus on Dewey is also apt because Dewey is a key interlocutor in much of the feminist legal theory and philosophy discussed in this Article. For example, credited for developing a “new” or “advanced liberalism,” Dewey--commentators argue--was also “radical” and “visionary.” As discussed below, in articulating “radical” and “visionary” forms of Black feminist pragmatism, both V. Denise James and Deva Woodly engage various tenets of Dewey's political philosophy. Pertinent is that Dewey was “a visionary about the here and now.” rather than utopian. stressing the pursuit of “the positive goals of human emancipation and human happiness,” with “whatever information and intelligence we can acquire.” As democratic theorist Melvin Rogers explains, Dewey's philosophical outlook was antifoundational, experimental, and contextual, emphasizing that “the creative potential of a democratic community is constitutively connected to contestation as the community revises and develops its institutional structures and values.”

This Article examines the work that the terms “pragmatism” or “pragmatic” are doing in the identification of pragmatism as a generative force for advancing constitutional democracy. In turn, it asks how the terms “progressive,” “radical Black feminist,” or “visionary Black feminist” modify and shape “pragmatism” and the form it takes. And what do these various forms of pragmatism suggest about its vitality? My title refers, in part, to pragmatism as a method: doing what works, or taking “an incremental, experimental, and evidence-based approach to finding solutions.” Dewey, as noted above, came to call his philosophy “experimentalism”--rather than “pragmatism” or “instrumentalism”--to capture the relevance of experience for assessing the truth of belief or action. But pragmatism also has normative principles, or substantive dimensions, such as a commitment to problem solving “in pursuit of a common good,” and to the crucial role of “intelligent action” in such problem solving. Further, at least in Deweyian pragmatism, there is a rejection of the idea that governance rests only with experts and the elite; instead, Dewey embraced participatory democracy as an “ethical ideal” that called on “men and women to build communities in which the necessary opportunities and resources are available for every individual to realize fully his or her particular capacities and powers through participation in political, social, and cultural life.” These ideas about developing human capacities and access to resources, wedded to a “politics of care,” are also central, as elaborated in Part IV, to radical Black feminist pragmatism.

In pairing experimentalism with intersectionality, my title also alludes to the question posed by pioneering Black feminist scholar Patricia Hill Collins: “how might intersectionality and American pragmatism as knowledge projects inform each other?” feminist philosopher V. Denise James similarly explores points of convergence--such as situated knowledge--between Black feminist theorizing and classical American pragmatist exemplars like Dewey and William James.

Both Collins and V. Denise James describe Black feminist pragmatism as “visionary pragmatism,” using a term first introduced by Stanlie James and Abena Busia nearly 30 years ago. That earlier formulation paired pragmatism's simultaneous focus on the incremental and on the broader vision of a more just society: “Black feminists are simultaneously envisioning incremental changes and radical transformations not only within Black communities but throughout the broader society as well.” Finally, Woodly uses the term “radical Black feminist pragmatism” to explain the political philosophy that guides M4BL and explains each term: “radical is a mode of questioning, Black feminism is an ethical system, and pragmatism is a mode of judgment that guides action.” That political philosophy uses a “pragmatic imagination” that shows “the path from the world as it is to the desired one that might be” and “an intersectional lens” and the “margin-to-center ethic.”

Although this Article's focus is on these efforts to meld classical American pragmatism and intersectional feminism, it is worth observing that the term “pragmatism,” used to connote the combined focus on incremental change and a broader vision of justice, also features in characterizations of the efficacious efforts of Black women as democratic actors. For example, as seen in the tweet by journalist Errin Haines quoted above, Black women's pragmatism received well-deserved credit for bringing then-former Vice President Joe Biden and then-Senator Kamala Harris over the finish line in the 2020 presidential election. Prominent among those pragmatic Black women is Stacey Abrams (a self-described pragmatist), who made crucial efforts to promote free, fair, and secure elections through Fair Fight and other organizations. Further, the New Georgia Project, founded by Abrams in 2014 and led by Nsé Ufot, helped to register over 400,000 voters and to turn out the vote in Georgia not only in the November 2020 election but also in the two Senate races in Georgia in January 2021. The result of those races was the historic election of Senators Jon Ossoff (the first Jewish person elected Senator in Georgia) and Reverend Raphael Warnock (Georgia's first Black Senator). This consequential result also gave Democrats control (50-50) of the Senate. When President Biden announced his historic choice of Vice President Harris, a Black and South Asian woman, as his running mate, Ufot published “A Love Letter to Black Women, Who Have Always Labored for Our Democracy.” Further, press reports described Vice President Harris as a “pragmatic progressive.” Vice President Harris has repeatedly said she “stand[s] on the shoulders of Shirley Chisholm, often described as a pragmatist during her years in Congress. To honor Representative Chisholm's efforts on behalf of the U.S. people, Vice President Harris chose the same colors for her own campaign for President--red and yellow--that Chisholm used nearly four decades earlier in her historic campaign for the Democratic nomination.

This Symposium's conveners have also related their investigation of pragmatism to an earlier exploration from the early 1990s of the “renaissance of pragmatism in American legal thought.” For that reason, this Article will revisit that moment, examining analyses by Professors Margaret Radin, Mari Matsuda, and Katharine Bartlett of the relationship between feminism and pragmatism. This reexamination proves a fruitful preface to considering radical or visionary Black feminist pragmatism, since a common concern is the problem of domination and oppression and the possibility of liberation. So too, a shared methodology is valuing and prioritizing the experiences and perspectives of the oppressed and excluded.

Professor Radin characterized her influential article The Pragmatist and the Feminist as offering “interlinked short essays” in which she believed she was “'doing’ both pragmatism and feminism” as well as exploring “a broader theoretical connection between” the two. Unlike Radin, I make no claim to be “doing” pragmatism. However, I follow Radin's structure by offering distinct forays into the possible connections between pragmatism and feminism: (1) revisiting efforts by Radin, Matsuda, Bartlett, and other feminist legal theorists to constructively engage pragmatism and feminism; and (2) exploring forms of radical or visionary Black feminist pragmatism, as elaborated in the work of political philosophers and theorists and in their explication of the political philosophy of the M4BL. After these forays, this Article will draw some tentative conclusions about methodological and normative commitments in these forms of pragmatism, pointing to some common themes as well as to some significant differences. In concluding, I will consider the relevance of these forms of feminist pragmatism for democracy and constitutionalism.

[. . .]

There are some commonalities in the feminist legal theory and radical/visionary Black feminist pragmatism explored in this Article. These include recognizing problems of domination and oppression, aiming for justice and liberation, valuing situated knowledge and experience, a margin-to-center ethic, expanding which voices are included, disrupting the status quo, and the dual commitment to making incremental progress on the way to realizing a vision of more radical transformation. There are also some significant differences, not the least of which is the historical context and the focus of theorizing. In the early 1990s, when Professor Margaret Radin explored “doing” feminism and pragmatism, she identified the dilemma of the “double bind” arising from feminist legal theorists attempting to prescribe law and policy under oppressive social conditions. Framing this as the tension between nonideal and ideal justice, Radin's pragmatism recognized the need to seek the best resolution under current conditions while trying “to make progress ... toward our vision of the good world,” including creating a “new vision” of gender. That so many other feminist legal theorists found resonant Radin's notion of the double bind suggests the difficulty of making such incremental progress amidst conditions of domination while also doing that visionary work. Radin herself insightfully recognized that “the primary problem of politics is how to get from here ... to there.”

Feminist legal theorists found value in pragmatism's experimentalism and incrementalism, its antifoundational and contextual approach, and its conviction (as Professor Bartlett recognized) that the reconstructive vision of a better world may change in light of new experience and knowledge and engagement with community. Even so, as Professor Mari Matsuda engaged with and “modified” pragmatism, while humility requires treating truth as provisional, pragmatism did not demand relativism as to a core commitment to justice and to dismantling structures of subordination. As part of realizing a normative vision of justice, Matsuda also asserted that pragmatism was compatible with the method of retrieving and giving priority to “subordinated voices.”

While visionary and radical Black feminist pragmatism also draw on some of these pragmatic methods and normative commitments, they center the problem of “how to get from here ... to there.” As Woodly persuasively argues, “Radical Black feminist pragmatism gives us conceptual tools and practical strategies to both imagine and make the way.” M4BL has shown that protest spurred by social movements is one powerful tool for making the way. The concept of “futurity” well captures the distinctive contribution in these various strands of radical and visionary Black feminist pragmatism. To return to Stanlie James's account from the early 1990s, “Black feminists are simultaneously envisioning incremental changes and radical transformations not only within Black communities but throughout the broader society as well.” V. Denise James articulates this dual focus in terms of how the “social hope” characteristic of visionary Black feminist pragmatism finds expression in a “working program of action.” The simultaneous focus on the incremental and radical, or visionary, is evident in the “purposive pragmatism” in RBFP and social movements like M4BL, which do not “pantomime a Utopia,” but instead seek to “build a bridge from current conditions to ones that offer us all more safety, more freedom, more pleasure, and more capacity to develop ourselves and determine the world we share.” This vision--and the politics of care that it entails--has much to offer those concerned with ending anti-Black racism and renewing constitutional democracy.


Robert Kent Professor of Law, Boston University School of Law.


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