Mobilizing Liberalism in Defense of Racism

The fiftieth anniversary of the US Supreme Court's ruling in Brown v. Board of Education I spawned events nationwide celebrating the ruling and its major role in dismantling Jim Crow, as well as critical analyses of the post-Brown history of the federal courts' struggles with questions of racial discrimination. Anyone who has ever taught constitutional law to undergraduates can testify to the enormous shadow of Brown, commonly understood both as a marker of constitutional principle and as a milestone in the road toward racial equality. It will be interesting, however, to see for how much longer Brown will remain the beginning reference point for race and law. The mapping of Brown as the Court's embrace of liberalism and requirement that the South turn away from an alternative tradition of racism misses the malleability of core liberal concepts. The challenge for the post-post-Brown generation of scholars is to find an alternative to the Hartzian debate over the rise to dominance of liberal ideology in American constitutionalism.

Scholars who came of age during the latter years of the Warren Court and the Burger Court asserted a liberal victory—backlash narrative, valorizing Brown and other progressive Warren Court rulings and reading the Burger Court and Rehnquist Court as regressive. While Gerry Rosenberg's work on the inability of the courts to spearhead liberal change produced some cracks in this edifice, the underlying story in his work was still one of liberal reform, albeit not reform that the courts caused. This story of liberal triumphalism reached its apogee in the writings of Bruce Ackerman with his theory of constitutional moments—a theory in which history ended with the New Deal's reworking of the federal order.

Recently, scholars focusing on law and political development have reinterpreted constitutional history in a less teleological fashion (Kersch, Lovell, McMahon, King & Smith). These reinterpretations have had several important impacts. First, they have complicated substantially a triumphal picture of liberalism locked in titanic struggle with anti-liberal forces. While some scholars (particularly King and Smith) have seen a battle between liberalism and racial hierarchy, they have differed from earlier accounts in seeing liberalism's victories as fragile, temporary, and always in danger. Second, they have retold familiar stories in new ways, forcing the reconsideration of the usual lineup of constitutional heroes and villains (Cushman, Friedman, Graber, Brandwein). Finally, scholars with some connection to Law and Society have brought to bear a more nuanced understanding of how legal institutions work and how group-based litigation has evolved over time, decentering the Supreme Court as the sole agent in the process of constitutional development (Epp, Kersch, Lovell).

This paper touches on all of these agendas in an effort to show how reliance on liberalism has not historically and is unlikely in the future to provide the necessary normative edge for a progressive politics of race. Reading the history of the late nineteenth and twentieth centuries as a progression from an initial rejection of idealized liberal equality to a simple liberal triumph to a final backlash fails to see racialized mobilizations of the process of legal dynamism.

The work of Michael Omi and Howard Winant on the interplay between race and social movements has provided a more textured way of understanding how state processes and development become imbued with race and change over time. This theory, rather than relying purely on the tension between racist and antiracist ideals, views racialization itself as a process in need of analysis on the ground. Considering racialized mobilization as it takes place through legal change likewise helps to understand how changes in racial ideology occur in the legal system. In order to understand the role of liberalism in a racialized process of state development, we must consider how core liberal concepts play out in racial terms. This analysis, especially in historical contexts, detaches liberalism from racial progressivism and highlights its contradictory stance in litigation. Since the passage of the fourteenth amendment, the ideals of equality, neutrality, and color-blindness have often been associated in the federal courts with moments of racial progress, but supporters of racial hierarchies have successfully used these concepts...