America’s Racial Stain: The Taint Argument and the Limits of Constitutional Law and Rhetoric
American Journal of Law and Equality, Forthcoming.(2022). Georgetown Law Faculty Publications and Other Works. 2449.
25 Pages Posted: 13 May 2022
Date Written: May 11, 2022
How should reformers respond to America’s racial stain? The problem is more complex than many imagine. Political activists usually attempt to promote change by taking advantage of a gap between current reality and a touchstone they use to measure the normative desirability of that reality. But what if the touchstone itself is infected by the reality that activists want to change?
Questions raised by this problem do not lend themselves to definitive answers, and this essay does not offer them. Instead, I suggest a variety of responses that attempt to grapple with the difficulty. I also offer tentative assessments of whether they can do so successfully. Least promising, I argue, are responses grounded in constitutional law understood as judicial parsing of constitutional text and precedent. This social practice is too deeply mired in a pernicious history, set of conventions, and restraints to pull itself out of its own muck.
Political redemption offers more promise. Tactics used outside the courthouse that invoke the vaguer, higher ideals supposedly implicit in constitutional text and that reimagine and reconstruct our history in a more favorable light might provide a foundation for renewal. But the effective use of these tactics requires extraordinary political and rhetorical skill that no one on the current scene has yet demonstrated. Perhaps more importantly, it also requires a willingness of Americans, also yet to be demonstrated, to follow such a leader toward racial reconciliation.
Keywords: race, constitution, wokeness
JEL Classification: K00, K30
Suggested Citation: Suggested Citation