Rights are to law what conscious commitments are to the psyche. —Patricia Williams, The Alchemy of Race and Rights
The Fantasy of Colorblindness
This book is a deconstruction of colorblindness as a founding fantasy of modern American law. It seeks to clarify how the fantasy of colorblindness is essential to maintaining a constitutional split between the social particularities of civil rights and the declaration of universal equality founding American democracy. By detailing the fantasy of colorblindness legal reform writes itself through, this book hopes to offer a new protocol of reading the relation between race and law.1
From the outset, then, I understand fantasy, according to Vicky Lebeau’s conceptualization, as a “‘real event’ . . . a presence, or a pressure, within and on the real”2 that is repeated across the American legal archive. As fantasy, colorblindness defies the telos of racial progress that legal discourse projects.3 The fantasy of colorblindness both confounds and gives language to a national desire to make general assessments about the direction of legal reform and how political mobilizations of bodies, affects, and knowledges might either falsify or validate legal declarations of equality. Lisa Duggan might call the overdetermination of this desire on 1990s left political culture the “twilight of equality.” And this political condition has been theoretically elaborated by Wendy Brown’s critique of identity-based politics that mobilize legal rights in a progressive politics of ressentiment.4
But what if we were to take the law and its various objects, not as some political or cultural barometer of American democracy’s successful or failed negotiations of social differences generally, but as the place where a certain psychical life is staged in the scene of American democracy’s birth from New World slavery? This is the question posed by Patricia Williams’s formulation in the epigraph above, and that drives this book’s reading of the fantasy of colorblindness and the objects of legal language it leaves in its wake. The aim is a more intimate engagement with law as a governing psychic formation through a descent into the particular condensations of law’s writing on racial inequality that I am calling the fantasy of colorblindness.
One of the most significant implications of beginning an analysis of race and law via a question about the fantasmatic nature of colorblindness is the possibility of approaching the plural temporalities of the judicial opinion. The judicial opinion’s unique authority relies on a never-the-same set of citation and precedent, or a recursive legal present that reproduces authority through a textual arrangement in the present of past and future authorities. Past and future are written into a citational present in the service of founding, in each decision presented by the judicial opinion, a new (which is not to say different) manifestation of authority from and against the infinite variations of social circumstance raised by the claim of racial inequality. The fantasy of colorblindness, as an iterative form of psychical foreclosure imposed on the legal text works against this plural temporality, and holds out a more manageable diagnostic understanding of the history of legal reform, whether episodic, cyclical, or progressive.
My emphasis on this recursive legal present always available in the law, to a certain extent, is a rejoinder against critical studies of race and law that continue to periodize the legal history of civil rights reforms in order to argue whether a judicial decision, legislative enactment, or executive order is a sign of racial progress or retrenchment. This attachment to periodization, compulsively expressed today in declarations of the arrival of a “post–civil rights era,” structures any number of contemporary debates about racial inequality and its various intersections with other forms of inequality. Indeed, this periodization reads like the academic cousin of the fantasy of colorblindness in modern American law. Just as the fantasy of colorblindness, as we will see in the following chapters, is symptomatic of modern American law’s self-valorizing transcendence from slavery, the declaratory arrival of a post–civil rights moment today is symptomatic of critical theory’s self-valorizing transcendence from enduring questions about race, democracy, and freedom posed by the black radical tradition.5 My hope in this book is to find a way out of the deadlock this compulsory post–civil rights declaration imposes on complex matters of the law by returning to and dwelling with the words of the judicial opinion on civil rights and racial inequality. So many want to read through and beyond civil rights, which is to say, reduce law to policy, when in fact, the language of those cases exposes the dangerous myopia of such (non)reading.6
The more faithful tracing of the fantasy of colorblindness this book offers will reveal that this symbolic designation of a new period of legal reform is not borne out by legal history or empirical reality. More specifically, the legal devolution staged by the historical demarcation of a “post–civil rights era” assumes the past success (even if incomplete) of an established civil rights regime. However, if the fantasy of colorblindness is approached as a formal element of law’s language, civil rights only ever appear as a recursive structure of reference to a fundamental problem slavery posed, and continues to pose, in the development of modern legal principles, such as freedom, citizenship, due process, equality, and civil rights. Precisely at stake here is the recognition that law’s language itself refuses critical theory’s tendency to use law to construct historical narratives and map political change. Major historical events shaping American modern law—namely, the First and Second Reconstructions, and relatedly, the Civil War and the modern Civil Rights Movement—are not merely misrecognized or erroneously recounted by the law, but are structuring doctrinal events that are always present in law. While the social and political histories of these events are not elaborated in this book, they are a necessary backdrop, and more important, as we will see, are always available in the law’s citational world for return through the fantasy of colorblindness.
Revealing the fantasmatic production of the developmentalist telos of civil rights, however, is not meant to be a corrective gesture. Fantasy cannot be corrected, as if there are right and wrong fantasies. Fantasy, can, however, be inhabited differently. And this is what I hear as Williams’s invitation to a different inhabitation in law by a different protocol of reading law. What I am after, following Williams, is a possible grammar of civil rights in which the memory of black freedom struggle can take flight, and as this book argues, does take flight both in the life of law’s words and the law’s most faithful critics. For while the fantasy of colorblindness produces the telos of racial progress as a kind of political hallucination, the actual words through which the fantasy of colorblindness materially takes place in the legal text reveals a past-present and future-present of a civil rights to come across the whole of the American legal archive. Racial equality is never given full presence (if it ever was or is possible, anyway), but its negative imprint takes place through various aporetic figurations of civil rights in legal discourse.
Williams’s analogic association, that “rights are to law what conscious commitments are to the psyche,” is less a prescription for how to proceed with a systematic application of psychoanalytic theory to the study of race and law, and more the broaching of a horizon. This horizon is a knowledge of race and law that is both before us and has yet to be thought, a knowledge that makes civil rights struggles both easier and harder to continue, a truth about why legal articulations of racial equality always elude various institutional reforms. At this horizon, law is the interior space of political life where emotions, desires, wishes, and thoughts intermingle with calculation, analytic logic, scientific rationality, and factual predicates usually in highly disciplined ways. The Alchemy of Race and Rights founds a genre of reading and writing law—what I would call “speculative law”—that both challenges and invites us to, as NourbeSe Philip puts it, “‘Break and Enter’ the text to release its anti-meaning.”7 Williams’s words reach for some other way to go to that place where she suggests the law is.8
Yet, there is no royal road that would take us there. For modern American law, like the modern psyche, cannot shake itself of a history, from the ancients to the postmoderns, that concludes that law and reason have only ever had a paradoxical relationship.9 The cultural assumption that this paradox can and should be resolved in a definitive written text and its standardized interpretation, one might say, is law’s profession and is the source of law’s violences, even as formal legal reasoning itself admits its excesses and failures. Brown v. Board of Education (1954) illuminates, as it continues to beguile legal scholars who continue to debate whether the ruling that segregation is unconstitutional is good law, just law, moral law, or not law at all but politics “by other means.” I will discuss Brown in a moment, but for now, I wish to elevate it as the paradigmatic example of this stubborn paradox.
Fantasy, then, fills in the absence of this royal road between law and reason. More specifically, we have rights and conscious commitments, continuing to follow Williams. For Freud, the psyche designated the inner life of the modern subject—its drives, moral beliefs, and identifications. He would organize this interiority according to what he called in The Interpretation of Dreams, a “psychical apparatus” of unconscious desires and conscious thoughts. And his idea of dreamwork would designate how the labor of sleep might render unconscious desires knowable, against the logic of the psychical apparatus that divides sensory dream-wishes from psychical material and censors it from waking ideational life.10
Freud promised that the “picture” of the psyche’s doubled and reversing movements between censorship and knowledge would “repay us for having constructed it.”11 Freud admitted, in fact, that we had seen this picture before. A footnote added to the 1914 publication of The Interpretation of Dreams, fifteen years after its first publication, served to remind us that “Hobbes writes in the Leviathan: ‘In sum, our dreams are the reverse of our waking imaginations, the motion, when we are awake, beginning at one end, and when we dream at another.’”12 Freud’s reminder references a repayment owed to political life, to the civitas securing modernity, for Hobbes is writing here of an “us” that is a metaphor for thinking about the state as an artificial man, and rights its artificial gifts.13
While we don’t have to take Freud’s word on Hobbes, we nonetheless cannot ignore the significance of Freud’s gesture to political thought. We might extend this gesture to Williams, who suggests a repayment on a similar trajectory, but of a radically different order of political life that is consonant with Derrida’s understanding of Freud’s idea of dreamwork as a “scene of writing.” Derrida observes:
Freud doubtless conceives of the dream as a displacement similar to an original form of writing which puts words on stage without becoming subservient to them; and he is thinking here, no doubt, of a model of writing irreducible to speech which would include, like hieroglyphics, pictographic, ideogrammatic and phonetic elements. But he makes of psychical writing so originary a production that writing such as we believe to be designated in the literal sense of the word—a script which is coded and visible “in the world”—would be only its metaphor.14
Williams’s repayment is an approach to the legal text that, as an “original form of writing,” has its own radical structural relation with politics that cannot be comprehensively understood through available theories of political realism or literary criticism. Thus, she writes with and against both schools of critical legal theory and stages the law’s original form of writing as an “immense alchemical fire” by which the United States as a nation was constituted from “the kindling of several generations.”15 This scene of law’s origin as a form of writing is not simply a counterimage to constitutional originalism. It is an argument about a certain primordial law of race and rights that haunts the constitution of American democracy. On this point, Williams’s specific rendering of rights in this scene is crucial:
“[T]he recursive insistence of those rights is also defined by black desire for them [rights]—desire fueled not by the sop of minor enforcement of major statutory schemes like the Civil Rights Act, but by knowledge of, and generations of existing in, a world without any meaningful boundaries—and “without boundary” for blacks has meant not untrammeled vistas of possibility but the crushing weight of total—bodily and spiritual—intrusion.16
Rights here are objects, but ones that retain their unattainability because of a certain knowledge of a world of unremediable violation. This right that Williams speaks of is an aim of desire more than a proper object of desire. Rights as aim, or said another way, the performative of rights, clarifies and critiques both the commonsense and critical theoretical assumption that the legal value of rights is coterminous with their effective or symbolic value. The distinction, then, between rights as aim of desire, and rights as object of desire, allows us to further distinguish in the arena of political life, between desire and demand. While demands for rights can be met either by the benevolence of the state or by a revolution of the people, desire for rights threatens to keep burning by its own inexhaustible drive, an “immense alchemical fire.”
1. My mobilization of Derridean deconstruction and Lacanian psychoanalysis in this book is indebted to Andrea Hurst’s detailed and illuminating reading of these two philosophers in her volume Derrida vis-à-vis Lacan: Interweaving Deconstruction and Psychoanalysis (2008). Her chapter “The Death Drive and the Im-Possibility of Psychoanalysis” (146–82) was particularly important for conceptualizing the key ideas I discuss in this Introduction.
2. These are Vicky Lebeau’s words summarizing Frantz Fanon’s theoretical intervention into Lacanian psychoanalytic theory, where he prioritizes “the pressure of the real world on unconscious fantasy itself.” “Psycho-politics: Frantz Fanon’s Black Skin, White Masks,” 114.
3. Teresa Brennan, History after Lacan, 4–7.
4. See, generally, Wendy Brown, States of Injury: Power and Freedom in Late Modernity (1995) and Politics out of History (2001).
5. Works on and in this tradition are too numerous to recount here, and are engaged and referenced through this book. The paradigmatic text is of course Cedric Robinson’s Black Marxism: The Making of the Black Radical Tradition.
6. Against what they call “policy scholarship,” Jeanne Schroeder and David Gray Carlson’s “Psychoanalysis as the Jurisprudence of Freedom” offers a compelling polemical argument for doctrinal and theoretical approaches to law, which are both more speculative and more practical. Ultimately, however, my reading of racial jurisprudence in this book is a jurisprudence of freedom beyond (their jurisprudence of) freedom.
7. M. NourbeSe Philip, Zong!, 200 (quoting the criminal code of Canada).
8. The oceanic scene of slavery curated between Philip’s and Williams’s words in and against the law is that other place, that is no place because there are no words, and as such “semantic mayhem” (ibid., 193) and “weird combinations” (Patricia J. Williams, The Alchemy of Race and Rights, 14) overflow the page.
9. Pierre Schlag’s The Enchantment of Reason is a particularly entertaining polemic against legal reason.
10. Sigmund Freud, Interpretation of Dreams, 535–50. This division between consciousness and the unconscious and censorship of the unconscious is the mechanism that he calls “regression.”
11. Ibid., 545.
12. Ibid., 544.
13. Thomas Hobbes, “Introduction,” in Leviathan, 9–12. See also Carl Schmitt, The Leviathan in the State Theory of Thomas Hobbes: Meaning and Failure of a Political Symbol.
14. Jacques Derrida, “Freud and the Scene of Writing,” 88–89.
15. Williams, The Alchemy of Race and Rights, 163. Wilderson also draws a metaphor between kindling and slavery, pointing to the fact of an always remaindered desire, the “nigger in the woodpile,” as he puts it. Frank B. Wilderson, Red, White & Black: Cinema and the Structure of U.S. Antagonisms, 85.
16. Williams, The Alchemy of Race and Rights, 164.
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