Long Live the Old Flesh: AIDS and the Americans with Disabilities Act at Quarter-Century

This is…this is gastric juices churning, this is enzymes and acids, this is intestinal is what this is, bowel movement and blood-red meat—this stinks, this is politics…the game of being alive. And you think you're… What? Above that? Above alive is what? Dead! In the clouds! You're on earth, goddamnit! Plant a foot, stay a while.

—Roy Cohn, from Angels in America (Kushner 1992, 68)

When the Americans with Disabilities Act passed into law in 1990, it delivered unimpeachable material reparations to the disabled community in the U.S. But as some observers remind us, the Act's pursuit of social justice wasn't strictly material. It also initiated a representational therapeutic in adopting a constructivist definition of the term "disabled," according to which narratives of disablement were to be as constitutive of a disabled subjectivity, legally speaking, as the latter's material dimension.² As of July 26, 1990, "being regarded" as having an impairment would be no less constitutive of disablement than "having" a physical or mental impairment. What the ADA brought online in this sensitivity to the discursive inflection of materiality is in fact largely continuous with the academic conceptions of identity that were being elaborated in the social sciences and humanities at the time of its passage. Just as the Act locates disability at the intersection of material contingency and social discourse, so poststructural theorists locate identity at the crossroads of material or phentoypic contingency, social- or State-based discourses of normalization, and performance. At bottom, neither disability as defined by the ADA nor identity as defined by poststructural theory are essentially determined or exhausted by their material dimension. Given such theoretical commerce with progressive academic concepts, it might surprise us to recall that the ADA was signed into law by a Republican president: George H.W. Bush. Even more confounding, perhaps, is the fact that the ADA Amendments Act (ADAAA) of 2008 signed into law by the second Bush was designed in order to reaffirm precisely the constructivist aspect of the original Act's conception of disability ("Fact Sheet" 2011). Through the 1990s and 2000s a series of Supreme Court decisions established precedents which made remedies more difficult to attain. That is to say, ADA protections were deemed appropriate only for increasingly severe impairments.³ The Amendments Act both rolled back the stringency of these requirements and augmented the original Act's list of "major life activities" that, if limited by an individual's impairment, would qualify her/him for ADA protections. Most saliently among these new activities were "caring for oneself," learning, reading, thinking, and communicating. Through such revisions the Amendments Act ratified the 1990 legislation's convergence with progressive academic imperatives in legitimizing the affective and theoretical dimensions of subjectivity.

The Republican affiliation with the original Act, then, wasn't so aberrant after all, since the next Republican in office doubled down on precisely the most progressive commitments of that earlier legislation. Thus, perhaps there is less explanatory purchase in deploying the ADA(AA) to evidence a right-wing openness to identity politics than there is in leveraging it to underscore the bipartisan investment in such imperatives. After all, the ADA and the ADAAA are about as bipartisan as domestic legislation is likely to ever be in this country. Originally introduced by Democratic Senator Tom Harkin (IA), the Act ultimately cleared the upper chamber by a vote of 91 to 6 and passed in the House 377 to 28, before moving on to Bush's desk ("Actions Overview" 1990). Eighteen years later, the Amendments Act was passed by an even wider margin of 402 to 17 in the House and was approved in the Senate by unanimous consent ("H.R.3195" 2008). Despite opposition from an insignificant cluster of religious and business lobbies, the Act seemed to augur political consensus.⁴ Thus, we might be on safer ground in not glossing the ADA(AA)'s convergence with identity politics as emerging from an isolated evolution of Republican politics, but rather in framing this convergence as...