The Strict Scrutiny of Black & BlaQueer Life (original) (raw)
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The Strict Scrutiny of Black and BlaQueer Life
Hastings Constitutional Law Quarterly, 2020
Furtive Blackness: On Blackness and Being (“Furtive Blackness”) and The Strict Scrutiny of Black and BlaQueer Life (“Strict Scrutiny”) take a fresh approach to both criminal law and constitutional law; particularly as they apply to African descended peoples in the United States. This is an intervention as to the description of the terms of Blackness in light of the social order but, also, an exposure of the failures and gaps of law. This is why the categories as we have them are inefficient to account for Black life. The way legal scholars have encountered and understood the language of law has been wholly insufficient to understand how law encounters human life. These articles are about the hermeneutics of law. While I center case history and Black letter law, I am also arguing explicitly that the law has a dynamic life beyond the courtroom, a life of constructing and dissembling Black life. Together, these essays and exercises in legal philosophy are pointing toward a new method of thinking about law, a method that makes central the material reality of the Black in black letter law. They examine the semiotic relationships between race, gender, sexuality, and the law. While Furtive Blackness is primarily concerned with regimes of policing—both by badged officers and deputized citizens—Strict Scrutiny examines how the reconstruction amendments have been deployed and redeployed to strictly scrutinize Black presence and appeals to justice and make them unintelligible, irrelevant claims without justiciable and therefore outside of law the concern of law. Strict Scrutiny is a riff on the phrase of judicial review that is primarily concerned with the Court’s inversion of the term to tightly regulate and foreclose Black access to legal redress, as well as the police practice of strictly scrutinizing Black presence and movement in public and private places. In essence, the ascription of furtivity makes way for strict scrutinization; while the Black interior strategy of furtivity and refusal creates a survival praxis that allows for a reprieve in the wake of these indignities. These articles are an interpretation of the law as a tool of anti-blackness and an exposition of Black thought and deed in response to anti Blackness, both in black letter law and day to day life. Both articles are descriptive, interdisciplinary and rooted in traditional law and accented by Black queer and feminist theory, critical race studies, performance studies and literary analysis. Specifically, Furtive Blackness engages the Fugitive Slave Law, Black (and Slave) Codes, Fourth and Fourteenth Amendments jurisprudence and current cases of racialized and gendered policing to develop an analytic to Fourth Amendment law, criminal procedure, and policing as practiced by officers of the law and deputized white citizens. This analytic seeks to shed light on how Black and BlaQueer (LGBTQ) people—and bodies—have come to exist both in and outside of law; reachable through its policing arm, yet unreachable by many of its fundamental protections. In other words, this work seeks to articulate a framework that maps how American jurisprudence renders Black and BlaQueer people furtive—what I am titling “Furtive Blackness”—and how this furtivity exists as an afterlife of slavery and operates as a social and legal pretext for police encounters. Furtive Blackness is primarily interested in how Black culture, flesh and movement come to operate—well outside the auspices of the Fourth, Thirteenth and Fourteenth Amendment—as bodies of evidence for probable cause, reasonable suspicion and the logics for the deployment of quotidian searches, excessive force and mass incarceration; Strict Scrutiny is primarily concerned with how Black presence appeals to justice are turned aside and viewed skeptically as always, already faulty and often, outside of justiciability. As such, I’m also interested in how this experience with being rendered furtive simultaneously marks Black citizens as outside of the protection of law, yet easily and routinely within its disciplinary reach.
Furtive Blackness: On Blackness and Being
Hastings Constitutional Law Quarterly Hastings Constitutional Law Quarterly, 2020
Furtive Blackness: On Blackness and Being (“Furtive Blackness”) and The Strict Scrutiny of Black and BlaQueer Life (“Strict Scrutiny”) take a fresh approach to both criminal law and constitutional law; particularly as they apply to African descended peoples in the United States. This is an intervention as to the description of the terms of Blackness in light of the social order but, also, an exposure of the failures and gaps of law. This is why the categories as we have them are inefficient to account for Black life. The way legal scholars have encountered and understood the language of law has been wholly insufficient to understand how law encounters human life. These articles are about the hermeneutics of law. While I center case history and Black letter law, I am also arguing explicitly that the law has a dynamic life beyond the courtroom, a life of constructing and dissembling Black life. Together, these essays and exercises in legal philosophy are pointing toward a new method of thinking about law, a method that makes central the material reality of the Black in black letter law. They examine the semiotic relationships between race, gender, sexuality, and the law. While Furtive Blackness is primarily concerned with regimes of policing—both by badged officers and deputized citizens—Strict Scrutiny examines how the reconstruction amendments have been deployed and redeployed to strictly scrutinize Black presence and appeals to justice and make them unintelligible, irrelevant claims without justiciable and therefore outside of law the concern of law. Strict Scrutiny is a riff on the phrase of judicial review that is primarily concerned with the Court’s inversion of the term to tightly regulate and foreclose Black access to legal redress, as well as the police practice of strictly scrutinizing Black presence and movement in public and private places. In essence, the ascription of furtivity makes way for strict scrutinization; while the Black interior strategy of furtivity and refusal creates a survival praxis that allows for a reprieve in the wake of these indignities. These articles are an interpretation of the law as a tool of anti-blackness and an exposition of Black thought and deed in response to anti Blackness, both in black letter law and day to day life. Both articles are descriptive, interdisciplinary and rooted in traditional law and accented by Black queer and feminist theory, critical race studies, performance studies and literary analysis. Specifically, Furtive Blackness engages the Fugitive Slave Law, Black (and Slave) Codes, Fourth and Fourteenth Amendments jurisprudence and current cases of racialized and gendered policing to develop an analytic to Fourth Amendment law, criminal procedure, and policing as practiced by officers of the law and deputized white citizens. This analytic seeks to shed light on how Black and BlaQueer (LGBTQ) people—and bodies—have come to exist both in and outside of law; reachable through its policing arm, yet unreachable by many of its fundamental protections. In other words, this work seeks to articulate a framework that maps how American jurisprudence renders Black and BlaQueer people furtive—what I am titling “Furtive Blackness”—and how this furtivity exists as an afterlife of slavery and operates as a social and legal pretext for police encounters. Furtive Blackness is primarily interested in how Black culture, flesh and movement come to operate—well outside the auspices of the Fourth, Thirteenth and Fourteenth Amendment—as bodies of evidence for probable cause, reasonable suspicion and the logics for the deployment of quotidian searches, excessive force and mass incarceration; Strict Scrutiny is primarily concerned with how Black presence appeals to justice are turned aside and viewed skeptically as always, already faulty and often, outside of justiciability. As such, I’m also interested in how this experience with being rendered furtive simultaneously marks Black citizens as outside of the protection of law, yet easily and routinely within its disciplinary reach.
Race, Theodicy, and the Normative Emancipatory Challenges of Blackness
Drawing on Sylvia Wynter’s insight that the theodicean grammar of racism is also a “biodicy,” this article explores its implications for an understanding of the formation of blackness as a modern phenomenon and its significance for models of rationalization and reason, on the one hand, and conditions of normative practice, on the other.
Peculiar Institutions: anti‐Blackness, instituent praxis and Black extitutions
Institution: Critical Histories of Law. Edited by Francis Cooper and Daniel Gottlieb, 2023
Peculiar institutions: anti-Blackness, instituent praxis and Black extitutions norman ajari Where are we with the theorization of the Black condition and experience? Contemporary Black thought is structured by the urging question of Black disposability. While the history of African subjugation and anti-Blackness is intertwined with the very trajectory of modern Europe and its colonies, recent events have conditioned a necessary reframing of these centuries-old questions in terms of life, death and survival. Mass incarceration, police brutality and homicidal vigilantism, combined with rampant economic and social inequalities, have induced a militant and theoretical diagnosis of Black overexposure to the risk of death and dying. This conjuncture has led to converging theorizations from authors with otherwise different theoretical backgrounds. Famously, in her 2007 book Golden Gulag, Ruth Wilson Gilmore defined racism as 'the state-sanctioned or extralegal production and exploitation of group-differentiated vulnerability to premature death'. 1 The recent research of Leonard Harris tends to corroborate Gilmore's orientation: 'Racism is always a function of the undue loss of life and health. … The probability of death defines racism: who dies, who
Readings Flesh The law blak black humanity120191111 87145 uj9rnt
This list emerged from a live event as part of the Critical Mass program at Melbourne Fringe Festival 2019. I interviewed two leading Aboriginal women writers, Claire G. Coleman and Timmah Ball who discussed the colonial state, the futurism (and past/present) in their work. The session aimed to bring together an assemblage of texts to establish the point that Black and brown bodies were 'outlawed' from the very definition of 'human'. Used to demarcate the bottom margins of what is human and inhuman. That black and brown flesh in coloniality-then and now-exist outside of Western frames and not solely in relation to whiteness. Colonality constructed black and brown female bodies as even less that human, representing the category 'woman' itself as a quality of whiteness...and womanhood a possession only white women can have. What if we placed the unlawful genocidal and ecocidal colonial force of oppressors at the bottom, to demarcate the margins of what is human and not. It is flesh bodies that speak, create, carve political space to shatter extant political constructions of the identities scripted onto their bodies. Flesh is what occupies those bodies in abjection-but also scribe possibilities of freedom, of life that exists before, during, after, outside, beyond. To see the technologies that force their existence, ways to overcome those forces, we need to see and imagine beyond concepts of resistance and agency alone-but read and recognize them through the flesh. How might we better 'read' the flesh-the agency, intellect, literature, art and bodies of First Peoples and raced/gendered others in the settler colony? Nilmini Fernando
Stand Your Ground: Black Bodies and the Justice of God (book review)
Black Theology: An International Journal, 2016
Kelly Brown Douglas has never shied away from engaging the intersections of womanist thought and Black bodies as significant source materials for theological reflection. This was evident in her groundbreaking text, Sexuality and the Black Church (1999) 1 and the more recent Black Bodies and the Black Church: A Blues Slant (2012). 2 Stand Your Ground: Black Bodies and the Justice of God provides a theological interpretation of Black bodies and Black religious faith within the context of American "social-cultural narratives and religious canopies" that cultivate what Douglas coins as "stand-your-ground" culture (xiii). Douglas's central argument is that racialized anti-Black violence is premised upon an insidious interplay of larger metanarratives regarding the supremacy of Whiteness and White bodies that diminish and devalue Black life. These narratives serve to legitimate the deaths of Black men and womena grim effect that is compounded when one also considers the rise of an increasingly violent, gun-centric culture and militaristic police force. The book is divided into two parts. The first analyzes and interprets stand-your-ground culture as responsible for the tragedy surrounding the death of Trayvon Martin. The second part of the book addresses the meaning of God within stand-your-ground culture.
DAL LJ, 2023
This article takes as a starting point the claim that anti-Black racism permeates Canadian society and finds expression in our institutions, most notably the criminal justice system. Indeed, anti-Black racism in criminal justice and its impact on Black lives are not credibly in dispute. Thus, what should concern legal scholars is the staying power or permanence of racism. In other words, should Canadian legal scholars ‘get real’ about the intractability of race? Or can anti-Black racism be effectively confronted by developing legal and evidentiary tools designed to fix, rather than dismantle, the current system? Put another way, this article aims to move from describing a well-known phenomenon—the existence of anti-Black racism in the criminal justice system—to identifying radical approaches to confront and subvert it. In that vein, this article will explore a critical question: how can we make the leap from CRT to CRT-inspired, lifeline criminal jurisprudence?