{"id":2885,"date":"2018-01-28T20:45:38","date_gmt":"2018-01-29T01:45:38","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/uprising1313\/?p=2885"},"modified":"2018-01-30T10:21:49","modified_gmt":"2018-01-30T15:21:49","slug":"katherine-franke-troubling-the-racial-state","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/uprising1313\/katherine-franke-troubling-the-racial-state\/","title":{"rendered":"Katherine Franke | Troubling the Racial State"},"content":{"rendered":"

By Katherine Franke<\/strong><\/p>\n

On June 12, 1967, Chief Justice Earl Warren announced for a unanimous Supreme Court that Virginia\u2019s statute criminalizing marriage between a white person and a colored person violated the Fourteenth Amendment\u2019s Equal Protection clause not only because the law \u201cma[de] the criminality of an act depend upon the race of the actor,\u201d[i]<\/a> but because such measures were \u201cdesigned to maintain White Supremacy.\u201d[ii]<\/a><\/p>\n

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]<\/a> One of the Loving\u2019s lawyers did argue to the Court that \u201cthis is a slavery law pure and simple.\u201d The Court was no doubt aware, however, that the Commonwealth\u2019s lawyers had defended the anti-miscegenation statute on starkly eugenicist grounds ten years earlier in the Naim case, maintaining that the \u201clegitimate\u201d purposes underlying the law were to \u201cpreserve the racial integrity of its citizens,\u201d and to prevent \u201cthe corruption of blood,\u201d \u201ca mongrel breed of citizens,\u201d and \u201cthe obliteration of racial pride.\u201d[iv]<\/sup><\/a><\/p>\n

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. \u00a0No mention of white supremacy when the Court struck down Jim Crow segregation in Brown v. Board of Education in 1953. Just in Loving.<\/p>\n

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.<\/p>\n

It\u2019s worth noting that the provision of law that criminalized Mildred and Richard Loving\u2019s 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\u2019s long standing prohibition on marriages by white people to non-white people, but also \u201crequired all citizens within the state born after June 14, 1912 to register their racial composition with the Bureau of Vital Statistics,\u201d and defined who exactly qualified as \u201cwhite.\u201d[v]<\/a> A companion bill, passed on the same day as the miscegenation law, mandated the sexual sterilization of inmates of State institutions deemed to be \u201cfeebleminded,\u201d including the \u201cinsane, idiotic, imbecile, or epileptic.\u201d[vi]<\/a> In this regard Virginia established itself as the successful testing ground for implementation of Harry Laughlin\u2019s \u201cModel Eugenical Sterilization Law\u201d.[vii]<\/a> 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 \u2013 a ruling, it is worth noting, that remains good law today.[viii]<\/a><\/p>\n

One way to understand the Court\u2019s willingness to acknowledge white supremacy in Loving was that Loving came in what we might call the twilight of de jure<\/em> 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\u2019s invocation of \u201cWhite Supremacy,\u201d capitalizing both works as Robin Lenhardt has noted in her important scholarship on Perez and Loving,[ix]<\/a> worked as a kind of indexical gesture backwards to a now-repudiated time. As Julie Novkov has noted, \u201cThe ruling finalized the United States\u2019 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.\u201d[x]<\/a> 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\u2019s 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<\/u>,[xi]<\/a> 1896 in Plessy v. Ferguson<\/u>, 1946 in Shelley v. Kraemer<\/u>,[xii]<\/a> or 1950 in Sweatt v. Painter<\/u>.[xiii]<\/a><\/p>\n

In this regard, Loving enabled a pivotal transition in the Court\u2019s equal protection jurisprudence, investing longer term in a more benign \u201canti-classification\u201d rather than \u201canti-subordination\u201d model of equality.[xiv]<\/a> It seems that structural power, once acknowledged expressly by the state\u2019s highest court, need never be mentioned again \u2013 not because uttering its name had the profound performative effect of destroying it, but rather because it contained its juridical relevance to the past.<\/p>\n

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\u2019s stop and frisk policy violated the equal protection rights of African American New Yorkers.[xv]<\/a><\/p>\n

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.<\/p>\n