Discourses of Citizenship in American and Brazilian Affirmative Action Court Decisions

50 Pages Posted: 27 Dec 2016

See all articles by Adilson Moreira

Adilson Moreira

Harvard University; Mackenzie Presbyterian University

Date Written: July 14, 2016

Abstract

American and Brazilian courts are traveling quite different paths regarding the question of racial justice. Race neutrality has become an influential interpretive approach in both jurisdictions, a perspective that articulates a depiction of these nations as culturally homogenous societies with the defense of liberal principles as a necessary requirement for social cohesion. Because of the representation of Brazil and the United States as democracies that facilitate integration of all racial groups, courts in these countries have developed an equal protection approach that combines the rhetoric of assimilation and formal equality. However, while the discourse of race neutrality gains continuous political force in the United States, race consciousness is acquiring increasing persuasive power in Brazil. As the implementation of affirmative action programs has expanded into different sectors, various social actors have questioned their constitutionality. Although state and federal courts in Brazil have condemned affirmative action because it supposedly subverts liberal principles and moral consensus about equal racial treatment, the Brazilian Supreme Court has recently classified race neutrality as a strategy of racial domination. Differently from American affirmative action cases, this decision formulated a notion of citizenship that functions as a counterhegemonic narrative. In articulating progressive constitutional principles and a group-oriented equal protection perspective, the Brazilian Supreme Court has significantly contributed to the deconstruction of the traditional discourse of race transcendence. The Court’s decisions may serve as an interesting point of comparison for the debate about affirmative action in the United States, since Brazilian history shows very clearly how race neutrality allows majoritarian groups to defend racial privilege while advocating formal equality as a way to promote social inclusion.

Keywords: Affirmative Action, Citizenship, Discourse, Brazil, United States

Suggested Citation

Moreira, Adilson, Discourses of Citizenship in American and Brazilian Affirmative Action Court Decisions (July 14, 2016). American Journal of Comparative Law, Vol. 64, No. 2, 2016, Available at SSRN: https://ssrn.com/abstract=2889824 or http://dx.doi.org/10.2139/ssrn.2889824

Adilson Moreira (Contact Author)

Harvard University ( email )

1875 Cambridge Street
Cambridge, MA 02138
United States

Mackenzie Presbyterian University ( email )

Rua da Consolação 920
São Paulo, 010302907
Brazil

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