Equal Protection’s Dead End, or the Slave’s Undying Claim

Chapter 3
Equal Protection’s Dead End, or the Slave’s Undying Claim

Sora Han

What is the word for bringing bodies back from water? From a “liquid grave”? […] I do an Internet search for a word or phrase for bringing someone back from underwater that has as precise a meaning as the unearthing contained within the word exhume. I find worlds like resurrect and subaquatic, but not “exaqua.” Does this mean that unlike being interred, once you’re underwater there is no retrieval—that you never “exhumed” from water? The gravestone or tombstone marks the spot of interment, whether of ashes or the body. What marks the spot of subaquatic death?

NourbeSe Philip, Zong!, As told to the author by Setaey Adamu Boateng (2008)

Slavery is still the touchstone for all of our discussions about race in America–as it should be, because race was born out of slavery. It is our nation’s original sin. Through the telling and re-telling of the history of slavery, we judge our own responsibility for the continuing injustices of racial inequality.

Ariela Gross, “When is the Time of Slavery?” (2008)


In Zong!,1 poet and lawyer, NourbeSe Philip, provides a stunning theoretical meditation on the eighteenth-century British decision, Gregson v. Gilbert (1783).2 This famous case adjudicated an insurance claim of a slave cargo ship owner for approximately 150 enslaved Africans he threw overboard when his ship, “Zong,” became lost at sea. According to maritime law, ship owners’ cargo were insured for “loss” except by natural or voluntary causes, and thus the owner’s fate stood in the balance between his judgment as murderer or as beneficiary. Yet, the decision about his wavering future, as perverse as these radically differing legal judgments might appear, depended upon a lost chorus of Black pleas and what that chorus might signify in a chain of legal reasoning charged to draw a line between legitimate commercial activity and criminal dealings in human bodies. The trial required that something be said about those 150 slaves, ordered to jump into the salty depths somewhere between the West Coast of Africa and Jamaica, and long gone to a “liquid grave” to which neither archived testimony nor the hermeneutics of language would allow for any return.

With the question of the slave’s experience of a form of death so beyond the pale of the sociality of death that there is no word for an act that would allow us to return to them, Philip asks us to consider how we can know what happened aboard the Zong, in telling the “not-telling of the story that must be told.” Noting the impossibility of marking a body in water, unlike the gravestone or tombstone or any other terrestrial practice that marks a body in land, she asks in the epigraph, “What marks the spot of subaquatic death?” And thus does this question drive Philip’s literary descent into the opinion to create an unparalleled poetic work of justice from the words of law. In the splayed lyrics wrought from legal reason by Philip’s onto-poetics of the slave ship, the spectral slave glints with every contact made between the sun and the ocean’s infinite ripples.3

Interestingly, and perhaps what we might take as a response to Philip’s question, legal scholar and historian, Ariela Gross, describes slavery as a “touchstone.”4 The Merriam-Webster dictionary provides three definitions of the term. First, a black siliceous stone related to flint and formerly used to test the purity of gold and silver by the streak left on the stone when rubbed by the metal. Second, a test or criterion for determining the quality or genuineness of a thing. And third, a fundamental or quintessential part or feature.

Understanding slavery as a touchstone across these three meanings requires a knowledge of the world of the slave based on a form of law prior to and against which modern legal developments are cast in the spirit of jus gentium in particular, and the natural law tradition more generally. Slavery as touchstone denotes its infinite eventfulness, through which all other times of historicity and violence are experienced and judged. And while Philip’s question suggests that only the ocean itself, and thus planetary life itself, can mark the millions lost during the Middle Passage, and thus, that everywhere and everything demands the telling of the untellable story, Gross by a sort of parallax view of slavery suggests that the unmarkable subaquatic deaths of the Middle Passage are our only path of ethical law and history. The path is the repetition of telling and judgment, a mimesis of narrative and moral failings, the justice of sliding into the “‘improvisational immanence’ that blackness is.”5

These two points of meditation foreground the difficulty of entering into questions of history and justice through the law—a difficulty that becomes clear by the haunting of the present by specters of slavery and the insistent and ultimately unresolvable claims that were made as a result of the slave’s status as both person and thing. And I open with them because what I would like to pursue in this chapter is this same difficulty, though in an apparently different doctrinal context and a different historical period. I stress here the difference between then and now perhaps might not be as different as we might hope because contemporary Equal Protection jurisprudence specifically, and Fourteenth Amendment jurisprudence generally, continue to struggle with how to address the claim of the slave that remains buried by a fundamentally defensive legal discourse.

Thus, my aim in this chapter will be to reveal how the force of this cataclysmic claim remains in Equal Protection jurisprudence, and to zero in on a radical alternative that comes into view with the foreclosed claim of the slave (to be distinguished from the various possible claims to the slave that Philip’s reading of Gregson works against) as a touchstone for how to judge the value of any litigated gains or losses in contemporary Equal Protection jurisprudence. I do this by closely examining how the claim emerges in the most recent case in Equal Protection jurisprudence, Fisher v. University of Texas, Austin.6 I then move into an examination of how the claim emerges within a broader landscape of Fourteenth Amendment jurisprudence, namely, the Supreme Court’s recent decisions on Section 5 of the Fourteenth Amendment and the federalism issues resulting from Congress’s enumerated power to legislatively enforce Section 1, which contains the Equal Protection Clause. This examination makes up the majority of the chapter’s focus, to argue that the foreclosed claim of the slave between both Equal Protection and Section 5 doctrine must be read together to return to the possibility of a radical future for Fourteenth Amendment jurisprudence. It then concludes by revisiting Derrick Bell’s philosophy of racial realism that continues to hold open this invitation.7

In short, this chapter is centrally concerned with the claim of the slave as neither the reproduction of the claimant’s objecthood nor the validation of the claimant’s subjectivity, but rather, with its enduring force against and in excess of the law’s animation of rights through the protocols of judicial review. That is, the remaindered force of the claim of the slave compels us to ask anew: How should we generally understand equal protection jurisprudence in our so-called post-civil rights, post-affirmative action, post-racial moment, particularly given the confused reality of so many identity-based legal campaigns arguing for and against this and that kind of reform to anti-discrimination law? Is the prohibition against discrimination still (if it ever was in the immediate aftermath of slavery’s formal abolition) a meaningful way of understanding social identity, history, structures of power, and the democratic experiment? Can we sunder the seemingly inextricable relation between the law of anti-discrimination and the neoliberal grammar of free market values of individual opportunity, corporate diversity, and personal vindication? What new insights on social justice, legal practice and education, and democratic theory would a general understanding of race and Fourteenth Amendment jurisprudence provide us?

Fisher and the Dead End of the Equal Protection Clause

The most recent Supreme Court decision on the constitutionality of affirmative action policy in higher education, Fisher v. University of Texas, Austin,8 is as good a place to begin tracing the law’s difficulties with encountering a present haunted by the claim of the slave. Specifically, the text of the decision raises quite accurately what Philip and Gross taken together argue about the impossibility and, thus, necessity of staging a reckoning between law and slavery that might open up onto an as-yet unforeseen and unprecedented justice.

We have only to scratch the surface of the decision, which enfolds the colorblind measuredness of Justice Kennedy’s majority opinion and the color-conscious impatience of Justice Thomas’s concurrence. By vacating the Fifth Circuit Court’s ruling that UT Austin’s policy was not in violation of the Equal Protection Clause as elaborated in Grutter v. Bollinger,9 on the reason that the appellate court had not sufficiently reviewed whether UT Austin’s policy was “narrowly tailored,” Justice Kennedy avoided an actual finding on the substance of UT Austin’s policy. Accepting the majority’s judgment of the procedural inadequacy of the appellate court, Justice Thomas nonetheless wrote separately to beat the history of slavery and segregation into a bygone era.

The decision, then, simultaneously waits for the unfolding of a more precise application of Equal Protection doctrine on affirmative action and can’t wait to be done with it altogether. Justice Kennedy is content to believe in the powers of judicial review to find some middle ground for strict scrutiny analysis in racial discrimination cases. At the end of his decision, we are left with this dubious belief when he opines that ideal judicial review would be neither “‘strict in theory, but fatal in fact’” (quoting Adarand Constructors, Inc. v. Peña,10 and Grutter11) nor, adding his own gloss on this famous dictum, “strict in theory, but feeble in fact.”12 We can put our own gloss on Justice Kennedy’s play of dicta here to understand Justice Thomas, who in his turn, is anguished that judicial review of affirmative action policies continues to entertain any compelling interest that recognizes racial difference, including the compromised interest of diversity first affirmed in U.C. Regents v. Bakke13 (1978). Justice Thomas’s impatience, in other words, is with what he perceives to be the fact that judicial review has only ever been “strict in theory, and feeble in fact,” instead of “strict in theory, and fatal in fact.”

There is a profound agreement here about something tedious and ethically unfulfilling about strict scrutiny’s balancing of ends and means to judge the constitutionality of racial discrimination under the Equal Protection Clause. And so while most if not all waited in anticipation for Fisher’s outcome to deliver the national debate over affirmative action into some sort of relief, the opinion marched on to the same monotonous beat established in Bakke and its sister cases, never to look back at the more fundamental question of whether strict judicial review was the proper standard of judging race-based remedial policies. Seemingly, to wake judicial review from its zombie-like commitment to diversity and its infinite policing of acceptable and unacceptable policies regulating racial difference, Thomas resurrected, true to form, the zombie of all legal zombies with the hopes of scaring judicial review straight.

This ur-zombie is the specter of the slave and her claim that was never given full standing in the wake of slavery’s formal abolition and during the consolidation of a Jim Crow America. Let us look now at how this zombie comes to life. Of course, Justice Thomas is not concerned to actually hear this claim, let alone argue for its standing before the law. Instead, his indignation, again in its true form, insists that affirmative action’s historical tradition is that of the “slaveholders”14 and the “segregationists.”15 He calls to the mind of judicial review the sentimental discourse of slavery that imagined itself as a modern institution of enlightenment for the “‘black race’”16; and also recalls the paternalistic discourse of segregation recorded in legal history by cases such as Briggs v. Elliott (1952)17 and Bolling v. Sharpe (1954).18 Here, he pleads, are our proper negative examples by which to reinvent strict scrutiny doctrine in affirmative action cases, if not all race discrimination cases brought under the Equal Protection Clause.

But the ur-zombie Thomas resurrects is not the slaveholder or the segregationist. It is, rather, a fundamentally problematic being in law, the “black race,” from which such sentimental and paternalistic discourses came to life back then, and are given new life by Thomas now as he recites that discourse as a negative example. That is why as hard as Thomas works in his legal argument to suppress this ur-zombie and her claim without ground, it returns ineluctably. Neither he nor the law can escape it.

I am specifically referencing the arrival in the Fisher opinion, in the strange place of Thomas’s reasoning against affirmative action, of the figure of W.E.B. Du Bois as the towering intellectual figure of modern thought’s fundamental critique of a world built on slavery and capitalism. Here is where Du Bois enters:

A century later, segregationists similarly asserted [as with the slaveholders] that segregation was not only benign, but good for black students. They argued, for example, that separate schools protected black children from racist white students and teachers. See, e.g., Brief for Appellees in Briggs 33–34 (“‘I have repeatedly seen wise and loving colored parents take infinite pains to force their little children into schools where the white children, white teachers, and white parents despised and resented the dark child, made mock of it, neglected or bullied it, and literally rendered its life a living hell. Such parents want their child to “fight” this thing out,—but, dear God, at what a cost! … We shall get a finer, better balance of spirit; an infinitely more capable and rounded personality by putting children in schools where they are wanted, and where they are happy and inspired, than in thrusting them into hells where they are ridiculed and hated.’”) (quoting DuBois, Does the Negro Need Separate Schools? 4 J. of Negro Educ. 328, 330–31 (1935)).19

We can easily reveal the segregationist defendant’s gross use and abuse of Du Bois in Griggs to stand their ground against the kind of national structural changes the Fourteenth Amendment promised as the echo of the slave’s claim to freedom.20 And I find it necessary here to reproduce what is cut from Du Bois in this legal history Thomas continues to write by his citation to Briggs as negative example. As Du Bois foresaw, “I know that this article will forthwith be interpreted by certain illiterate ‘nitwits’ as a plea for segregated Negro schools and colleges.” And to these “nitwits,” like the Briggs defendants and to all, including Kennedy and Thomas, who would fail to understand the fundamental issue underlying the Black struggle for education, he plainly states, “It is not. It is simply calling a spade a spade.”21

What, then, is the spade Du Bois is calling a spade? It is the false choice of segregated or integrated schools determining and protracting the possible development of a knowledge based on “the fact that American Negroes have, because of their history, group experiences and memories, a distinct entity, whose spirit and reactions demand a certain type of education for its development.”22 Defending this “certain type of education” that he argues is more possible in committing to Black schools than in litigating school integration, he specifies, “In history and the social sciences the Negro school and college has an unusual opportunity and role. It does not consist simply in trying to parallel the history of white folk with similar boasting about Black and brown folk, but rather an honest evaluation of human effort and accomplishment, without color blindness, and without transforming history into a record of dynasties and prodigies.”23

Ultimately, it is the possibility of “Sympathy, Knowledge, and the Truth” that Black schools promise, where “children are treated like human beings, trained by teachers of their own race, who know what it means to be Black in the year of salvation 1935.”24 And the political ramifications of developing this form of education, he explains, are clear and urgent, both domestically and abroad:

Here, we have in America, a working class which in our day has achieved physical freedom, and mental clarity. An economic battle has just begun. It can be studied and guided; it can teach consumers’ cooperation, democracy, and socialism, and be made not simply a record and pattern for the Negro race, but a guide for the rise of the working classes throughout the world … [Knowledge of] modern civilization would not only help them [Negroes] find their place in the industrial scene for their own organization, but also enable them to help Abyssinia, India, China, and the colored world, to maintain their racial integrity, and their economic independence. It could easily be the mission and duty of the American Negroes to master this scientific basis of modern invention, and give it to all mankind.25

I have tried to provide a basic sense of Du Bois’s radical political recommendations in the context of the legal struggle for equal education that is cropped by his necessarily partial appearance in Fisher. The least we can do after reading Fisher is to echo Du Bois’s own insistence against the “nitwits” of history. But, ultimately, I am after perhaps a more difficult task, which is to understand what about Du Bois’s radical critique requires the segregationist and the neoconservative to reference Du Bois at all—just as we might ask why Thomas does not (not just in Fisher, but any other opinion he has written on the issue of racial discrimination) simply leave slavery and segregation to the dustbins of history and argue as a matter of doctrine why the diversity rationale does not qualify as a compelling interest under the Equal Protection Clause? What about the conservative course of doctrinal development in Equal Protection litigation is not enough to rest one’s arguments in, and, instead, compels the recitation of the history of slavery and segregation and a radical knowledge embedded therein?

For now, I would like only to offer these questions, as there is not space here to fully elaborate on them. I note, however, that part of my argument here is that perhaps something is lost in developing a fuller knowledge of race and law when the primary focus of critical race theory has been to shift towards generating empirical studies of racial inequality that can help expand liberal legal reform strategies; and away from amplifying how the only way to think ourselves out of the dead end of both liberal and conservative legal development is to insist, as did Du Bois, on the claim of the slave that is always there, even in the most unlikely places, like in Thomas’s opinion in Fisher.

That is, perhaps Thomas’s resurrection of the slave and her claim (for sure, only to degrade it) tacitly avows its truth as the law’s foundational challenge. Thomas’s recalcitrance toward the claim of the slave is a rejection that ultimately requires a latent recognition of it. In Fisher, this takes the form of Thomas’s curious citation to a text in which Du Bois is faithfully asserting this claim unburdened by the limitations of the legal and political context of his day. “I am no fool,”26 he warns, and by this warning echoes a historical reality in which the slave’s claim rings true by every partial and failed address made to it. The slave as the undying legal personality of modern American law by virtue of its foreclosed claim to freedom, the ur-zombie as I characterized it earlier, is not simply an image that might potentially wake the law from its belief in multicultural diversity, as Thomas’s wishes. We might instead approach this legal personality as a legal fact to the extent that it tends always to return in law, and carries with it the whole of freedom struggle that Du Bois has the penchant to perform in his political analysis, knowing full well the various political resistances to this performance.

I have tried to demonstrate how the claim of the slave surfaces today still, in perhaps the most pessimistic doctrinal arena, Equal Protection jurisprudence, where legal efforts to promote racial equality have historically taken place since the ratification of the Fourteenth Amendment. At the dead end of Equal Protection jurisprudence is, in fact, an alternative route of escape illuminated by this claim. For if the claim of the slave in Fisher makes clear that Equal Protection jurisprudence stagnates in a cesspool of strict judicial review, then it begs the question of how this would come to be by a constitutional amendment enacted at the wake of the Civil War so that no form of governance, no matter its jurisdictional authority, its function within a federal democracy, or history of political leadership, could undo the nation’s decision to reconstitute itself in the image of a universal equality lifted from its social foundation in slavery?

The Doctrinal Landscape of Section 5 Anti-Discrimination Cases

Tellingly, the Fourteenth Amendment recognizes Congress’s exceptional role in the nation’s reconstitution by the language of Section 5, which declares that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article,”27 including then, the Equal Protection Clause. Thus, to underscore the relevance of turning to Section 5 jurisprudence as a way to understand the dead end of Equal Protection jurisprudence, we should note a stark division in federal authority over the development of the various areas of Fourteenth Amendment law, in contrast to the general enforcement power specifically bestowed to Congress. Upon initial reading, the Fourteenth Amendment does not assign authority over Equal Protection issues as they arise as individual constitutional injury to the judiciary, and Equal Protection issues as they arise as the social effects of governance to Congress. But this is decidedly how federal authority has been divided. As we will see in this section, a deeper question about what kind of power-sharing between the federal branches—in the context of the Fourteenth Amendment, between the judiciary and legislative branches—was and is imagined to be possible is the broader doctrinal landscape in which Equal Protection jurisprudence must be understood.

And so while the move from examining the Supreme Court’s decisions on equal protection claims in affirmative action to its decisions on federal anti-discrimination legislation seems abrupt, the point of making this leap is precisely to question why such a gap exists in Fourteenth Amendment doctrine at all. I do this not to ultimately argue that a proper interpretation of Section 5 would give Congress more authority to regulate private Equal Protection violations, though I certainly believe it is an important historical fact that Congress did attempt such legislation with the Civil Rights Act of 1875,28 and that Congress argued for this particular interpretation of Section 5 at the close of the First Reconstruction. Again, as in the previous section, I am more interested in the judicial language that seals our current interpretation of Section 5 as the commonsense of Fourteenth Amendment law. For in the language, we can trace the success of this common sense not simply in the virtual legal impossibility of enacting today something like Congress’s 1875 Acts, but in the foreclosed and returning claim of the slave.

Let us now turn to Section 5 jurisprudence. Robert Post and Reva Siegel provide an excellent roadmap for navigating the doctrinal landscape of recent Section 5 antidiscrimination cases. In “Equal Protection by Law: Federal Anti-Discrimination Legislation After Morrison and Kimel29 they argue that these two recent decisions’ restricted interpretations of Congress’s Section 5 legislative power signal a bleak future for federal anti-discrimination law more generally. They note, raising very reasonable if not urgent concerns in my mind, that these two decisions represent “the first time since Reconstruction that the Court has declared that Congress lacked power to enact legislation prohibiting discrimination.”30 They further argue that the Court’s justification for such restricted interpretations of Section 5 powers, namely that Section 5 must be interpreted within a federalism framework balancing separation of powers, should determine Section 5’s future and must be challenged by asserting that the proper framework is a recommitment to the general principle of equality the Fourteenth Amendment undeniably stands for.

I cannot offer a better historical account than Post and Siegel, and so recommend that readers consult their article in its entirety. For my purposes, however, I want to focus on their observation of a certain silence or ambiguity the Court bequeathed to the development of Fourteenth Amendment antidiscrimination law at the height of the Civil Rights Movement:

The history of federal anti-discrimination law in the twentieth century features two momentous events. The first is Brown v. Board of Education, when the Supreme Court breathed new life into Section 1 of the Fourteenth Amendment. The second is the passage of the Civil Rights Act of 1964, the first major federal anti-discrimination legislation enacted since 1875. In debating and drafting the 1964 Act, Congress invoked its power under both the Commerce Clause and Section 5 of the Fourteenth Amendment. But when the Supreme Court came to determine the Act’s constitutionality in Heart of Atlanta Motel v. United States, it shied away from a confrontation with its own Section 5 precedents, which dated from the first Reconstruction, and chose instead to build on the case law of the New Deal settlement, which ceded very broad powers to Congress to legislate under the Commerce Clause. It translated the question of congressional authority into the relatively simple issue of whether “Congress had a rational basis for finding that racial discrimination … affected commerce.”31

Section 5’s silence in Heart of Atlanta Motel v. United States (1964),32

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