Balkinization   |
Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Afrofuturism Blues in an Age of Racial Innocence
|
Monday, December 12, 2022
Afrofuturism Blues in an Age of Racial Innocence
Guest Blogger
For the Balkinization symposium on Tanya K. Hernández, Racial Innocence: Unmasking Latino Anti-Black Bias and the Struggle for Equality (Beacon Press, 2022). Catherine
Powell Tanya
Katerí Hernández’s book,
Racial Innocence: Unmasking Latino Anti-Black Bias and the Struggle for
Equality Racial Innocence, builds beautifully on her previous work. This latest
book provides a trenchant critique of the racial democracy myth prevalent among
Latinos and Latin Americans—that racial mixing will eliminate racism. While
commentators throughout the Americas have pointed to mestizo identity as moving
us toward a post-racial future, Professor Hernández reveals how Black identity continues to be entrenched,
stigmatized, and (treated as) inferior. Let’s face it: Rather than moving us
toward a universalism in which everyone’s humanity is affirmed, the racial
ambiguity of Afro-Latino (and other mixed race) identities enables those with
lighter/whiter features to operate strategically within a framework of white
privilege and Black inferiority. My
work grapples with a related myth concerning the notion of a post-racial future:
we must pierce the mythology of colorblindness
in the virtual world of cyberspace, just as Tanya disrupts racial innocence in
her work. In this post, I’ll use Afrofuturism as a touchstone to connect the
pessimism I suspect Professor Hernández
and I share concerning our ostensible post-racial future. Why
Afrofuturism? From Octavia Butler to the Black
Panther film franchise, Afrofuturism “refram[es] and reimagin[es] the past, present, and future
through a global Black lens [as a] multi-media movement rooted in issues of
social justice and equity, [] center[ing] African and African American
contributions to the advancement of science, technology, and culture [] often
explored through music, art, and literature.” Alondra Nelson explains Afrofuturism “as a way of examining alienation
and the aspirations of Black people for a better future.” Afrofuturism is a
comparative project, in that it allows us to time travel—to look to the past to
understand our present, even as we look to the future we are striving toward to
inform where we are headed in the present moment. In the sequel, Black Panther: Wakanda Forever, we
travel across time and geography—from the mythical Wakanda to Cambridge,
Massachusetts to Haiti, the first Black Republic. Rather than imagining a
post-racial future, Afrofuturism acknowledges the endurance of race, but
imagines a future where each of us are celebrated, regardless of race, gender,
sexual orientation, and other characteristics that make us unique, while part
of shared traditions. Professor
Hernández’s work is
comparative as well—taking us to Latin America and then back to the United
States. In fact, we can draw a direct line through a trilogy of her books,
concerning how law and practice obscure Blackness, even as it remains salient,
here and there. Her first book on Racial Subordination in Latin America helps
us understand the endurance of Blackness as a social construct, even in the
midst of the phenomenon of “blanqueamiento” (or whitening) in Brazil and in
other parts of the Americas. In a subsequent book—Multiracials and Civil
Rights: Mixed Race Stories of Discrimination—Hernández interrogates related themes, making visible
the significant work Blackness performs, informing the discrimination that
people of mixed race face. In
this post, I explore two themes from Professor Hernández’s latest, remarkably well-researched book,
and then use Afrofuturism to tie these themes to my own current work on race in
the digital space. The first theme is ways in which we see—and don’t see—race. I
then turn to a second theme: the role of place and space in marking race and
Blackness. In an
Afrofuturist vein, rather
than imagining a post-racial future, this post imagines a future in which race
is enduring as a social construct, but one in which we are each celebrated,
regardless of race and other protected characteristics. Race
as Both Invisible and Hypervisible First,
Professor Hernández’s book
documents ways we see—and don’t see—race. In several parts of the book, she
explores how race is made visible and invisible within the Latino community.
For example, she points to the adoration of, say, Celia Cruz and the
mythification of Black women and folkloric others, and the absolute love for the
art that Black individuals create. But Hernández also notes how this co-exists with the hierarchical
impulse to generally denigrate Blacks as intellectually inferior and socially
dangerous. At
another point, Professor Hernández
notes that despite the mounting evidence that there are distinct social
outcomes within Latino communities based on race—for example in housing,
education, labor market access, and criminal justice outcomes—the unequal
treatment of Afro-Latinos is invisible in our public discourse. Hernández laments, “hidden from
view is the way Latino disregard for Blackness plays a role in the subordinated
status of Afro-Latinos and in turn the exclusion of African Americans.” Racial
Innocence cites to Latino workplace supervisors, Latino homeowners, and Latino
police officers discriminating against Blacks—and even how Latino educators can
belittle Black children. Professor Hernández
goes on to note that most heinous perpetrators of anti-Black bias within the
Latino community are the Latinos who join violent white power organizations.
Yet, she points out, “many Latinos deny the existence of prejudice against
Afro-Latinos and African Americans.” Notably,
Professor Hernández discusses
the ways that anti-Blackness is situated as an ostensibly “culturally foreign
North American construct learned only once in the United States when ‘racially
innocent’ Latinos encounter racist thinking for the first time.” And yet, as
her earlier work helps us understand, because the legacy of slavery touched so
many parts of Latin America, anti-Blackness have been prevalent throughout the
Americas. This mythology of “racially innocent” Latinos encountering racism for
the first time upon arrival in the United States connects to the second theme I
found revelatory in this new book. Space
and Place in Recreating Race This
second theme relates to the ways that Professor Hernández analyzes the role of place and space in
recreating race. From an Afrofuturism standpoint, we can recognize that even as
race travels across time, it travels across space. And space, place, and
belonging do important work in recreating race. I appreciate Hernández’s treatment of this, having previously worked as a NAACP
LDF litigator challenging
school inequities and other forms of discrimination related to residential
segregation. As we all know, many parts of our countries remain racially
segregated, for example, in housing and education, because of both the de jure
Jim Crow in the past and the ongoing de facto realities. Scholars, such Elise Boddie, have theorized about racial
territoriality and the salience of place and space in recreating and
reinforcing race and race inequality. Illuminating
the theme of race and place in Racial Innocence, Professor Hernández notes that Afro-Latinos
are more likely to live in segregated neighborhoods—more so than white Latinos.
She also argues that Latinos attribute “disorder” to predominantly African
American neighborhoods. Further, Hernández
reports that Latinos in Los Angeles have even proposed having block
associations meetings that exclude African American residents. According
to Hernández, the residential
sprawl in Los Angeles and Miami results in Latinos and African Americans being
more spatially segregated than in New York City. By contrast, in the Big Apple,
“the urban density of the built environment has historically contained Puerto
Ricans and African Americans in closer proximity to one another in ways that
have fostered greater interaction and community[.]” Nonetheless, Hernández notes that Dominicans and
African Americans have a high level of residential segregation from one another
in NYC. Along
similar lines, in my Race and Rights
in a Digital Age essay, I explore how we see and don’t see race
online. The adage—“on the internet, nobody knows you’re a dog”—reflects a now
naïve belief in the emancipatory potential of cyberspace. Supposedly, you could
“cross-dress” online and cloak identifying features such as race, gender,
accent, age, etc. However, far from blinding us from race, we now know cyberspace
recreates and even reinforces our attention to race through the datafication of
our identities and amplification of this data through algorithms. While
residential segregation both produces and reinforces racial hierarchy, the
digital universe promised to dissolve such geographic and identity boundaries.
During my time working on the National Security Council during the Arab Spring,
many observers viewed the so-called “Twitter Revolution” as illustrating the
possibility of social media as a liberatory space for cross-racial and
cross-national organizing and solidarity. Yet,
the cyber utopian vision quickly proved illusory. Egypt and Syria violently repressed
activists and bloggers, using censorship and surveillance to counter online
organizing. Racial and other forms of hatred crept in from the hidden corners
of bulletin boards to mainstream sites. Cybermobs have beset women and queer
people with online abuse. In fact, far from being colorblind, tech platforms
and aggregators of online data know our identities, our political preferences,
and the intimate details of our lives in excruciating detail. The use of race,
gender, and other protected characteristics spills over from the non-virtual to
the virtual world (and back again). Further, algorithms—which are now widely
used by landlords, advertisers, banks, and law enforcement—makes it possible
for race to be impermissibly used as a basis of decision making in ways that
are hard to detect. Consider
also our personal relationships with each other across race. Professor Hernández points to the preference
within the Latino community for marrying lighter skinned Latinos (in parallel
to blanqueamiento/ whitening in Brazil). In the United States, residential and
other forms of integration (i.e., in education and employment) facilitated a
rise in interracial dating and marriage, as potential mates could more easily
get to know each other in increasing integrated neighborhoods and other shared
spaces on college campuses and in the workplace. In a forthcoming book on
interracial intimacy, family law scholar, Solangel Maldonado, argues that the
rise of online dating has reinforced default assumptions—encouraging users to
rely on search parameters for potential mates from within one’s own racial
group, given that this is what is familiar (and given the practical time constraints
of wading through an infinite number of dating profiles). Building
on these themes, my current work explores how despite the liberatory potential
of technology, cyberspace recreates race in ways that are oftentimes
problematic. On the one
hand, technology offers the freedom to construct and perform identity as well
as build online solidarity within and across communities. But, on the other
hand, race awareness bleeds
through into digital space in ways that perpetuate and even amplify
discrimination through algorithms that embed conscious and unconscious bias. I
draw inspiration from Osagie Obasogie’s book, Blinded by Sight: Seeing Race through the Eyes of the
Blind—which shows that even people who are literally blind perceive
race in the same way as sighted people, despite not being able to see race. Similarly,
even if race is not seen (or included) as an explicit variable in an algorithm,
algorithmic decision making imports proxies and embed many of the biases that
humans have. Further, humans are often “in the loop” in algorithmic governance, the
operation of artificial intelligence (AI), and content
moderation. Cyber
optimists had speculated that new technologies could help usher in a
post-racial future, perhaps not entirely unlike the ways futurist vision that
forecasters claimed intermarriage and “whitening” might inaugurate (as
Professor Hernández explores
in her work). Automated decision-making seemed free of human bias. Yet, instead
of stripping away race identity, these technologies have in fact imported our
attention to race, using a variety of algorithms, markers, and proxies that
predict or reflect our identities. So rather than helping us embrace the
humanity of others, regardless of their race, AI has replicated the
dehumanizing features of racism and racial hierarchy. That machines can now
make such decisions with adverse racial impacts poses a challenge for the idea
of colorblindness. Thus, even as we move into a digital age of
posthumanism and transhumanism, race endures as a construct. While
other scholars have explored how algorithms can be used in discriminatory ways,
I’m making a different point: we must skewer the mythology of colorblindness
not only offline, but also online. Focusing on the role of race in automated
decision-making is significant because of its role in determining housing
access, which school a child may attend, how a credit score is calculated,
whether an individual is offered credit from a bank, whether someone will
receive an interview for a job, whether to allow an individual out of jail on
bail, and where to dedicate police resources (based on predictions about where
crimes will occur and who is likely to commit a crime).
In
sum, whether in Latino communities or in other communities on- and offline, we
must be alert to how we see and don’t see Blackness as well as the role of
space and place in reifying race and race inequality. From an Afrofuturism
perspective, the health of our democracy depends on lifting the blinders to
better redress the role of inequality in our nation’s past and present. Racial
Innocence is an especially vital read for the critical project of building
coalitions—between Black and Brown communities in particular—to advance a range
of urgent social justice goals and needs today.
|
Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |