Katherine Franke | Troubling the Racial State

By Katherine Franke

On June 12, 1967, Chief Justice Earl Warren announced for a unanimous Supreme Court that Virginia’s statute criminalizing marriage between a white person and a colored person violated the Fourteenth Amendment’s Equal Protection clause not only because the law “ma[de] the criminality of an act depend upon the race of the actor,”[i] but because such measures were “designed to maintain White Supremacy.”[ii]

The notion of white supremacy was not argued to the Court in Loving by the parties, though the term was used by the Japanese American Citizens League in their amicus brief and mentioned in oral argument.[iii] One of the Loving’s lawyers did argue to the Court that “this is a slavery law pure and simple.” The Court was no doubt aware, however, that the Commonwealth’s lawyers had defended the anti-miscegenation statute on starkly eugenicist grounds ten years earlier in the Naim case, maintaining that the “legitimate” purposes underlying the law were to “preserve the racial integrity of its citizens,” and to prevent “the corruption of blood,” “a mongrel breed of citizens,” and “the obliteration of racial pride.”[iv]

As we all well know, the Loving decision was the first and only time the U.S. Supreme Court acknowledged that white supremacy played a role in American society, much less served as a justification for invalidating a state law for its role in maintaining the supremacy of white people.  No mention of white supremacy when the Court struck down Jim Crow segregation in Brown v. Board of Education in 1953. Just in Loving.

Why with respect to interracial marriage in 1967? Surely the nasty work of white supremacy can be found in contexts other than interracial marriage, and surely its nomination for condemnation by the Supreme Court in 1967 did not retire its ongoing power to structure American society. Even today.

It’s worth noting that the provision of law that criminalized Mildred and Richard Loving’s marriage was part of a larger nativist-driven legislative effort that gained success in the Virginia legislature in 1924, one that not only tightened up the Commonwealth’s long standing prohibition on marriages by white people to non-white people, but also “required all citizens within the state born after June 14, 1912 to register their racial composition with the Bureau of Vital Statistics,” and defined who exactly qualified as “white.”[v] A companion bill, passed on the same day as the miscegenation law, mandated the sexual sterilization of inmates of State institutions deemed to be “feebleminded,” including the “insane, idiotic, imbecile, or epileptic.”[vi] In this regard Virginia established itself as the successful testing ground for implementation of Harry Laughlin’s “Model Eugenical Sterilization Law”.[vii] While the interracial marriage provisions of the Virginia law were invalidated by the Supreme Court in 1967 in the Loving case, the Court upheld the constitutionality of mandatory sterilization in 1927 in Buck v. Bell – a ruling, it is worth noting, that remains good law today.[viii]

One way to understand the Court’s willingness to acknowledge white supremacy in Loving was that Loving came in what we might call the twilight of de jure Jim Crow. Loving was decided in the late 1960s, at the tail end the second civil rights revolution, more as coda to the end of an era, or clean up operation. The Court’s invocation of “White Supremacy,” capitalizing both works as Robin Lenhardt has noted in her important scholarship on Perez and Loving,[ix] worked as a kind of indexical gesture backwards to a now-repudiated time. As Julie Novkov has noted, “The ruling finalized the United States’ transition to what [David] Goldberg calls the modern raceless state, which situates state-sponsored discrimination as a historically transcended phenomenon, while jealously conserving broad scope for private racial expression and discrimination.”[x] One might ask whether the invocation of white supremacy by the Court in Loving was at bottom an admonishing gesture toward the past that had the felicitous, and intended, effect of exonerating the present. If there’s any truth to this supposition, then it might explain why no member of the Court could, nor would, have used the term in characterizing the structural work done by practices that violated the Equal Protection clause in 1886 in Yick Wo v. Hopkins,[xi] 1896 in Plessy v. Ferguson, 1946 in Shelley v. Kraemer,[xii] or 1950 in Sweatt v. Painter.[xiii]

In this regard, Loving enabled a pivotal transition in the Court’s equal protection jurisprudence, investing longer term in a more benign “anti-classification” rather than “anti-subordination” model of equality.[xiv] It seems that structural power, once acknowledged expressly by the state’s highest court, need never be mentioned again – not because uttering its name had the profound performative effect of destroying it, but rather because it contained its juridical relevance to the past.

What ongoing utility as a mode of legal analysis might the notion of white supremacy have today? Afterall, we continue to live in a society that is essentially structured by forms of racial privilege and disadvantage, and we have a Supreme Court that cares more about classification than power, formalism than structure. Indeed, the marvelous Judge Shira Schleidlin did not invoke white supremacy when she described in pain-staking detail how and why the NYPD’s stop and frisk policy violated the equal protection rights of African American New Yorkers.[xv]

At the same time that the Supreme Court has committed itself to a view of the constitution that renders structural power illegible, the federal government has inaugurated a renaissance of public policies resting almost entirely on the explicit desire to fortify, if not at the same time rehabilitate, a range of odious power structures, and perhaps even the notion of caste. Much, though not all, of those structures are racially inflected. Indeed, appeals to racial stereotypes and nativist fears have emerged as the lingua franca of the current administration.

To the extent that you would agree with me that the work done and viewpoints expressed by this video raise serious constitutional questions, would we be best served by characterizing the video as “expressing or maintaining white supremacy”? Put another way, does the reasoning of Loving v. Virginia provide a useful analytic tool for articulating a constitutional objection to policies of the current federal executive?

To metabolize the time we’re in, to what analytic tools should we turn? Franz Fanon’s negritude, Stuart Hall’s notion of “societies structured in dominance”, Etienne Balibar’s notion of “crisis racism,”[xvi] Nitzsche’s “will to power”, Carl Schmitt’s “State of Exception”, or out of desperation Hobbes and his state of nature? After all, force and fraud, for Hobbes, are the resources of survival in the absence of state control – but what are we to say about a state that takes up force and fraud as its primary modes of governance? Comfort and control have been the elixrs of liberal governance – “comfort as a form of control, and social control as the underpinnings of social comfort.”[xvii] But when the liberal state begins to dissolve, not into a state of nature, but into a state that trades almost exclusively in force and fraud, notions of belonging, security, and responsibility begin to dissolve along with it.

Race has become the circuit that renders possible the devolution of a liberal state of comfort and control into one of fraud and force. That racial circuitry isn’t only about the subordination or disenfranchisement of non-white members of the polity, but about the celebration of a kind of racial homogeneity that becomes the horizon for a state that acts in the name of a recuperated “greatness” “for and about us” – the “us” being the citizenry conjured by the video we just watched and the core base of the current administration – a white base. The exercise of public authority for this kind of state is, to be sure, a post-modern, post-liberal form of bio-governance.[xviii] Recall Fanon’s powerful exposition of that moment on the street when a young, white child points at him and says: “Mamam, a Negro. I’m afraid.”[xix] Yet in our current predicament, it is the state that is pointing at a Negro, a Muslim, a Mexican and declaring “we should be afraid.”

The tools of this racial state, to borrow David Goldberg’s term, are not limited to the ordering and management of racialized bodies, such as the work of Virginia’s “Act to Preserve Racial Integrity”. Loving v. Virginia, after all, addressed the constitutionality of a statute that sought to preserve racial purity in the corporal bodies of the citizenry. The constitution, ruled the Court, could not accommodate blatant forms of racialization designed to protect the purity of the white body. Today, it’s not just the purity of white human bodies that the state is concerned about, as it was in the enactment of anti-miscegenation laws. It is the public body, the racialized body of the nation itself that must be defended.

Today, in a way that I don’t think we can say about the era in which Loving was decided, the racial state is fueled by, or at least gains it motivation from, a kind of death drive. Loving’s use of the notion of “white supremacy” was rejuvenating in nature – it had a quality to it that cleansed and redeemed the present, and by implication, the future.   By contrast, today’s racial state is more necrotic in nature, largely because it sees itself less responsible for mature governance, and more responsible for advancing the interests of a racialized nation.

Whether it is Betsy deVos’s efforts to dismantle the very idea of public schools – what they call “government schools,” [religious exemption], or the underpinnings of the newly passed tax bill, this government is officially committed to the idea of a withering state in the name of protecting a strong nation. Both of which are saliently racialized. The state, as framed by the current ruling ideology, is a tool that serves “them” and needs to be dismantled – them being DACA beneficiaries, people receiving public benefits, and black welfare recipients – recall that Trump thought all people on welfare were black. Yet, and here enlies its necropolitical impulse, the state as we know it today is fully in the hands of white supremacists. “They” control all three branches of government. So while the state is conjured as something that serves the interests of the colored, disadvantaged masses, in reality it quite clearly has become a site of capital extraction for the white super wealthy micro minority. By contrast, the nation, imagined as hard-working white Americans, is threatened or burdened by the idea of a colored state. The social identity of the state and the nation are distinctly racialized – the state as “of color” and the nation as “white” – no coincidence, we might note, after the first Black president.

What’s incredible for most of us to watch is the fact that all of this is taking place explicitly in the open, yet its obviousness seems not to provide even the slightest impetus for its destruction. Quite the contrary.

So perhaps this is what white supremacy look like in the era of Trump: the supremacy of a great (white) nation over a degenerate (colored) state. It is a condition in which the state becomes the tool by which a white minority can pull off the ordering of a racialized national character. Chief Justice Warren in Loving v. Virginia invoked the evil of white supremacy as an act that simultaneously disavowed the past and redeemed the present. Calling out a white supremacist structure that was affirmatively maintained by forms of state power such as anti-miscegenation laws was possible because of its location in the rear view window of history. But in a period such as the one we are living through today, where the racial state is gaining, rather than losing, momentum, the Supreme Court is less likely to label state policies as white supremacist in nature, because to do so would be to interject itself in a war of wills with another branch of government that has far more tools at its disposal to bring into being a world it has promised to its base.

Perhaps Loving v. Virginia teaches us how the Supreme Court can be most bold when the stakes are particularly low. Where, if not to the Supreme Court, should we look at a time like the present, when we need a powerful counterforce to an illiberal state? Loving demonstrates how the best check on force and fraud may likely be the people, not an essentially tradition-bound institution such as the Supreme Court.

Notes

[i] Loving v. Virginia, 388 U.S. 1, 1 (1967) (Justice Stewart, concurring in the judgment).

[ii] Id., at 12.

[iii] “I believe the thrust of that argument sir is that to expose this law for exactly what it is.

It is a White Supremacy Law.”Argument of William M. Marutani for amicus Japanese American Citizens League in Loving v. Virginia, available at https://www.oyez.org/cases/1966/395?page=16&order=title_1&sort=asc#!.

[iv] Naim v. Naim, 87 S.E.2d 749, 756 (Va. 1955).

[v] An Act to Preserve Racial Integrity § 5.

[vi] SB 281, “An ACT to provide for the sexual sterilization of inmates of State institutions in certain cases”.

[vii] Harry H. Laughlin, Eugenical Sterilization in the United States, Chapter XV (1922).

[viii] 274 U.S. 200 (1927).

[ix] R.A. Lenhardt, Beyond Analogy: Perez v. Sharp, Antimiscegenation Law, and the Fight for Same-Sex Marriage, 96 Cal. L. Rev. 839, 900 (2008).

[x] Julie Novkov, The Miscegenation/same-Sex Marriage Analogy: What Can We Learn from Legal History?, 33 Law & Soc. Inquiry 345, 357 (2008), citing David Theo Goldberg, The Racial State 223-33 (2002).

[xi] Yick Wo v. Hopkins, 118 U.S. 356 (1886).

[xii] Shelley v. Kraemer, 334 U.S. 1 (1948).

[xiii] Sweatt v. Painter, 339 U.S. 629 (1950).

[xiv] See e.g. Reva Siegel, Equality Talk: Anti-subordination and Anti-classification Values in Constitutional Struggles over Brown, 117 Harvard Law Review 1470 (2004).

[xv] Floyd v. City of New York

[xvi] “Racism and Crisis”, in Race, Nation, Class: 219; Lowe 1996: 174; Agamben 2000: 36-44.

[xvii] Goldberg (2002) p. 240.

[xviii] Goldberg p. 240.

[xix] Franz Fanon, Black Skin, White Masks.

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