77 Pages Posted: 19 May 2008 Last revised: 19 Sep 2015
Contemporary political and legal discourse on questions of race unveils a tremendous perceptual gap among persons of color and whites. Opinion polls consistently demonstrate that persons of color commonly view race and racial discrimination as important factors shaping their opportunities for economic and social advancement. Whites, on the other hand, often discount race as a pertinent factor in contemporary United States society. Consequently, polling data show that whites typically reject racial explanations for acute disparities in important socio-economic indicators, such as education, criminal justice, employment, wealth, and health care. Echoing this public sentiment, social movement actors, politicians, and the Supreme Court have all taken a skeptical stance towards claims of racial injustice by persons of color and have resisted demands for tougher civil rights laws and race-based remedies. They have viewed these policies as: (1) unnecessary, given the eradication of racism and the prior implementation of formal equality measures; (2) excessive in terms of substance or duration; (3) futile because the law cannot alter racial inequality; (4) misguided because nonracial factors explain racial disparities; and (5) unfair to whites and a special benefit for persons of color. Adhering to these beliefs, a majority of the public has reached a point of racial exhaustion.
This Article argues that the public's racial exhaustion did not recently emerge, and it is a product of a hard-fought and successful battle against racial subjugation. Instead, throughout history, opponents of racial justice measures have invoked this discourse to contest equality measures and to portray the United States as a post-racist society, even when efforts to combat racial hierarchy were in an embryonic state and persons of color lived in extremely vulnerable political, social and economic conditions. To elaborate this claim, this Article examines political resistance to civil rights legislation and remedies immediately following the Civil War and during Reconstruction, after World War II and through the Cold War era, and in contemporary political and legal discourse in order to demonstrate the persistence of racial exhaustion rhetoric. This Article then considers how social movement actors, civil rights lawyers and theorists, and scholars interested in the interaction of law and rhetoric could respond to the persistent portrayal of racial egalitarianism as redundant and unfair by dissecting the premise of these claims, placing them in an historical context, and, if necessary, by strategically modifying their arguments to focus on class and other structural barriers that correlate or intersect with racial inequality. Despite the presumptive constitutionality of class-based remedies, political opposition to social welfare policies and the depiction of these programs as handouts to undeserving individuals - including persons of color - might limit the efficacy of economic approaches to racial inequality. Moreover, the intersection of race and poverty suggests that class-based remedies alone might not adequately address racially identifiable material inequity.
Keywords: Constitutional Law, Race Relations, Critical Race Theory, Law and Society, Law and Politics, Social Movements
Suggested Citation: Suggested Citation