Let Us Be Done With Totalizing

• Author: E. Nathaniel Gates
• Position: Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University.
• Pages: 189-198

Page 189

Race is not only real, but also illusory. Not only is it common sense, it is common nonsense. Not only does it establish our identity; it also denies us our identity¹

In the preface to his thought-provoking essay collection, Rebels in the Law: Voices in History of Black Women Lawyers, J. Clay Smith Jr. speaks of "[t]he need for a collection of articles that included the voices of black women in the law;"² a need which he believes "is generated and enhanced by the number of books and articles available today by contemporary black, white, and other [sic] women of color on law and social policy, particularly those writing under the broad subjects of feminist jurisprudence and critical race theory."³ Rebels in the Law, he informs us, "is intended not only to introduce new voices to [the] ongoing scholarship on themes by women in the legal academy, but beyond, to social and political scientists who have ignored the voices of black women lawyers."⁴ He suggests that it is ultimately an effort to strengthen emerging critical disciplines and broaden our conception of United States legal history by adding long-neglected "black women's voices, rebellious strident voices in the law."⁵

The oversight which Smith seeks to correct is real enough, although its existence hardly comes as a surprise. Like most social institutions that purport to generate, classify, and disseminate "knowledge," the legal academy functions as a filtering mechanism. It facilitates and bolsters certain forms of social control by enacting selected exclusions. That is to say that it either denies the broader public access to certainPage 190information or, as is more often the case, a consensus amongst its most prominent denizens determines how much weight or value various types of information are to be given.⁶ Thus, to the degree that Rebels in the Law constitutes an effort to diversify and deepen the historical record- thereby redressing the effects of this regrettable partiality-it is a laudable enterprise and one not easily gainsaid.

Unfortunately, like many other collections which purport to embody the views of a significant segment of the nation's African descendant population, Rebels in the Law is premised upon a categorical error. Indeed, at the very crux of its thesis is an essentialized and idealist notion of "blackness" which blandly presupposes the enduring, trans-historical and collective identity of the sub-Saharan African population of the United States.⁷ This misapprehension, which is admittedly a common one, gives rise in its turn to an artificially limited vision of "rebellion," a vision which distorts the entire focus of the volume and is the book's most notable and fatal flaw.

Although frequently invoked, the idea of a generic "black community," upon which "racial" identity confers a single, common sensibility-together with a set of unproblematic group interests-is one that will not bear sustained scrutiny.⁸ As Orlando Patterson and others have

Page 191powerfully argued, such a conception relies upon a symbolically over-determined and stigmatizing vocabulary that is far more inscriptive than descriptive.⁹ While it is indisputably a matter of historical record that, periodically, men and women of African descent have collectively endured (and to a meaningful extent, continue to endure) the consequences of social isolation and political persecution, as a result they did (and do) not constitute a bonded, organic entity that is constitutively different, or fundamentally distinguishable, from surrounding social and cultural formations, or from the formal institutions from which such formations spring.¹⁰

Indeed, much recent scholarship suggests that as a matter of general principle the characterization of socially or culturally defined groups as largely autonomous entities is both inaccurate and reductionist.¹¹ Such cultural formations are neither isolated nor insulated from broader social imperatives. Their self-contained, often seemingly

impermeable,Page 192presentation is largely a projection of presumptions that reflect the enduring ideological force derived from an elision of the concepts of culture, "race," and nature, and from the authoritative trope associated therewith: the notion of "natural" cultural or "racial" groups.¹²

If, however, there are no primordial, "natural" groups that exist, without problems, independent of the warp and woof of shifting social relations, then there are no timeless traditions against which they may be defined.¹³ And, there are no socio-political postures in which their "permanent" interests may be located. Consequently, and consistent with this account, one is at a loss to comprehend how anyone may be designated a "rebel" or have her voice properly styled "rebellious" merely by virtue of her identification with a particular "racial" or cultural community.

In short, if racial and cultural groups do not exist independently of concrete social relations, if they are merely contested domains, sustained and reproduced by ideology and hierarchy, efforts to endow racial and cultural groups with collective characteristics and enduring interests are misguided and obfuscatory. Thus, the contention that "black" women lawyers (or for that matter some larger "black community") constitute(s) a coherent entity, sharing an identifiable viewpoint that leads to either the embrace or rejection of specific social practices or policies, is, ultimately, a mere exercise in reifying fantasy. It is a form of self-delusion that masks the fact that some interest position has therein articulated, or seeks to articulate, a singular version of reality that would preempt all others.

The historical origins of this feat of leger de main are apparent, even though their employ in this context is less readily comprehensible. The evident success of this maneuver relates back to the United States's deliberate and considered reduction of its African-derived population to slavery,¹⁴ and to the subsequent long-term exclusion of these stigmatized peoples from the fabric of the nation's civic life.¹⁵ Over time, these Page 193developments understandably, if not inevitably, gave rise to a defensive, group-conscious orientation that ushered in a general acceptance of "race"-based discourse and of racialized explanations of broader social phenomena.¹⁶A totalistic threat, emanating from a population of European origin enthralled by "white" supremacist dogma, has impinged upon the lives of all persons of African descent, and reflexively bolstered the impetus to craft a monolithic and racialized agenda.¹⁷

With the rise of "national" feeling, this embattled atmosphere created a custodial approach to political engagement which allowed an elite ideology of "racial" uplift to establish itself as the definitive articulation of "negro" interests. From the dusk of Reconstruction to the dawn of the Great Society, this cannily imposed perspective underwent numerous permutations. Gradually, it assumed an overweening character, one that would not admit countervailing viewpoints. At the zenith of its success, it sought to interdict all manner of competition fearing that the emergence of an alternate perspective might unmask its triumph as less a function of inevitable historical forces-or some mythically shared "racial" consciousness-than of the privileged social status that enabled its possessors to establish their own preferences and strategic imperatives as the objective boundaries of political discourse and legitimacy.¹⁸ With time, as the premises and practices of this triumphant ideology became determinant of permissible endeavour, they also demarcated the only admissible mode of collective political action.

Page 194

...