Center for the Study of Law and Culture
Nearly one hundred years ago, W.E.B. DuBois predicted that the problem of the 20th century would be the problem of the color line.1 Were he writing today, DuBois might well conclude that in the U.S., the problem of the coming century will be the problem of the color-bind.2 Although Americans arguably remain "the most 'race-conscious' people on earth,"3 our national conversation about "race" now stands at an impasse. Our ways of talking, or refusing to talk, about race increasingly speak past the racialized dilemmas of educational equity, affirmative action, poverty, welfare reform, housing, lending, labor and employment discrimination, health and medical care access, environmental justice, immigration and asylum, or crime, policing and punishment. The current deadlock in U.S. public discourse on racial justice reveals itself not only to the arena of power politics; our predicament can be seen, too, in the creeping "paralysis of perspective" 4that threatens to devitalize serious critical reflection on race and racism at the threshold of the 21st century.
Nonetheless, the broad sweep of our history and our present plight both suggest that "racialization"5 continues to be a central fact of American life. Obviously, the claim that race remains a structuring principle in U.S. institutions and social relations need in no way assume an unbroken, unmodified continuity in the content or meanings of "racial formation in the United States."6 DuBois' time is not our own. We can admit the complex, changing and contested character of contemporary racial formations and still recognize that race will likely figure in U.S. law and policy for many decades to come. Acknowledging the continuing relevance of race, this paper asks whether the governing grammar of contemporary American debates about the content of racial justice will be adequate for the pressing tasks of the new century. Taking my point of reference from the ongoing controversy over the place of "color-blindness" and "race-consciousness" in U.S. constitutional discourse, I shall argue it is not. As I hope to show, however, the reasons behind this state of affairs have less to do with the concept of race than with its specific discursive deployments.
I begin with a short and selective survey of the terminological terrain on which struggles over racial justice have been waged in American constitutional law. I then describe and discuss the limits of the normative vision that underwrites the dominant discourse on racial justice in our constitutional jurisprudence. As we shall see, even in writings whose claimed concerns are much broader, the normative horizons of racial justice are more often than not drawn in and confined to moral terms. I criticize the dominant debate's almost obsessive focus on the morality of race, race-consciousness and racial identification, and sketch an alternative to the language of racial moralism. This competing account finds its conceptual center of gravity in the distinctively political dimensions of racial claimsmaking. Taking an example from the contentious dispute over race, criminal law and Black civic publics, I end by indicating more precisely how a political conception of racial justice can provide a conceptual vocabulary for taking American constitutionalism out of its current color-bind.7
Racial Justice: Moral or Political?,
Nat'l Black L. J.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2173