Americans Without Law: The Racial Boundaries of Citizenship

Conclusion

Conclusion The opinion of the Court in Brown v. Board of Education effectively signaled the end of the juridical-racial tradition in American cultural history. With its reinterpretation of the meaning of the Fourteenth Amendment, the Court established new terms for the civic inclusion of racial minorities in American constitutional law and facilitated a thoroughgoing change in popular racial thought, ferrying the United States to an era that I have described elsewhere as one “after caste.”1 The closing of the juridical-racial tradition had both specific and far-reaching sources. Most immediately, its roots traced to the intellectual transformation of anthropology, whose institutional emergence in the previous century had marked the birth of juridical racialism as a discourse distinct from ethno-legal thought. The establishment of the modern concept of culture as one of the main tenets of the field changed the way human difference was understood and so also the way the relation between race and law could be discussed in public life and implicitly used as a guide in judicial decision-making. The culture concept shattered juridical racialism ’s intellectual structure. In addition, it should be noted, by drawing scholarly attention to symbolic themes running throughout and unifying social experience, the culture concept established the very basis for understanding juridical racialism. The same intellectual change that brought the tradition of juridical racialism to a close also provided the academic perspective and interpretive tools for comprehending and studying its history. This study, accordingly, has explored its subject by highlighting rhetorical homologies between judicial doctrine and the work of anthropologists, revealing photographic cross-sections of patterned ideas, mapping the territory of American civic belonging through a culturalist view of the past. Where the intellectual transformation of anthropology provided the specific mechanism for the passing of the tradition of juridical racialism, 131 its first source lay in the broad historical process the tradition furthered, that of economic and state development. The same trajectory of commercial growth and increased national administrative capacities that was advanced through the juridical-racial vision of citizenship in the late-nineteenth and early-twentieth centuries, and which rested on parallel conceptions and practices of the self, in turn prompted the dismantling of that racial civic vision as the twentieth century rounded its midpoint . This book thus has followed the course of a history in which law, social science, and the self were linked on the field of economic and state modernization. In chapter 1, I suggested how legal decisions animated by a form of juridical-racial vision resonant with evolutionary anthropology restricted American Indian civic membership and, by expanding federal power over native affairs, constitutionally enabled the later mass redistribution of tribal lands. In chapter 2, I explored how judicial opinions whose jurisprudence paralleled the principles of the Teutonic origins thesis of American government limited Puerto Rican and Filipino national belonging and facilitated access to overseas markets by establishing the constitutional doctrine of territorial incorporation. In chapter 3, I considered how legal cases resting on principles of the contracting self central to both eugenicist thought and natural law jurisprudence closed the door on Asian immigration and naturalization by advancing or reasserting federal plenary immigration authority, thereby helping to stabilize domestic labor in the West. And in chapter 4, I examined how a vision of law, culture, and the self paralleling that of the Boasian school of anthropology underlay the logic of Brown v. Board of Education , which expanded the power of American national government over the states and, in consequence, released the economic energies stifled by Jim Crow. This is not to say that ethno-legal principles are never invoked today in public discourse. As Adda Bozeman explained many years ago in The Future of Law in a Multicultural World (1971), the peoples of the globe are divided by fundamentally contrasting visions of the nature of law, with Occidental systems of legality standing in basic, perhaps irreconcilable contrast to those of Oriental, African, and Islamic societies.2 Given these actual jurisprudential differences, it would be surprising if at least some Americans did not continue to describe social groups in terms of their capacity or incapacity for legal behavior, as peoples with or without law (public concerns about the association of black Americans with lawlessness also continue to place limits on their full civic assimilation).3 132 | Conclusion Such depictions of ethno-legal character have assumed a special salience in debates over the exercise of...