Racial exhaustion.

• Author: Hutchinson, Darren Lenard

TABLE OF CONTENTS I. INTRODUCTION: TWO LOUISIANA STORIES--RACE, INEQUALITY, AND RHETORIC II. NINETEENTH-CENTURY RACIAL DISCOURSE A. Racial Exhaustion: An American Narrative 1. Narratives and Society 2. Social Narratives on Race 3. Particulars of Racial Exhaustion B. Low Stamina: Racial Exhaustion in the Reconstruction Era 1. From Abolition to Freedom 2. Political Resistance to Racial Equality: Opposition to the Freedmen's Bureau a. Congressional Opposition b. Presidential Opposition 3. Reconstruction-Era Jurisprudence C. The End of Reconstruction D. Judicial Validation of Jim Crow 1. "Getting Over Slavery" 2. Plessy and Racial Exhaustion III. AN ONGOING NARRATIVE OF RACIAL EXHAUSTION: RACIAL DISCOURSE IN THE TWENTIETH CENTURY AND BEYOND A. Twentieth-Century Evolution in Racial Attitudes 1. War and Race 2. Prelude to the Second Reconstruction: State Civil Rights Legislation C. From World War II to the Civil Rights Movement D. A Chronic Fatigue Syndrome: Racial Exhaustion in Contemporary Civil Rights Discourse 1. The End of the Second Reconstruction and Opposition to Affirmative Action 2. Requiring "Discriminatory Intent" 3. Contemporary Civil Rights Legislative Debates and Racial Exhaustion a. Civil Rights Act of 1990 b. Voting Rights Act Reauthorization IV. ADVOCATING RACIAL INEQUALITY IN A RACIALLY EXHAUSTED SOCIETY A. Longevity of Racial Exhaustion 1. Exhaustion Rhetoric Often Raises Legitimate Policy Questions 2. Inter-Group Struggle B. Implications for Social Movement Actors 1. Protracted Resistance 2. From Race to Class: Strategic Racial Exhaustion C. Implications for Equality Doctrine V. CONCLUSION I. INTRODUCTION: TWO LOUISIANA STORIES--RACE, INEQUALITY, AND RHETORIC

The televised images of the plight of Hurricane Katrina survivors sparked a national conversation concerning the salience of race in contemporary United States social policy and group experience. Given the anticipated ferocity of the storm, commentators debated why local and national governmental officials failed adequately to evacuate the city's most vulnerable citizens. (1) The public discourse surrounding Hurricane Katrina exposed a deep perceptual gap regarding the relevance of race among blacks and whites. Opinion data, for example, demonstrate that blacks and whites disagree on whether racial insensitivity impacted President Bush's inadequate response to the plight of the survivors. (2) While blacks attributed the treatment and vulnerability of Katrina victims to their race, whites commonly dismissed racial explanations. (3) This division over the significance of race did not originate with Hurricane Katrina. Instead, an abundance of statistical data consistently demonstrates that persons of color tend to believe that racism remains a substantial barrier to their social and economic advancement, while whites tend to dismiss racial status as a contemporary marker of disadvantage and privilege. (4) These data suggest that whites have, in fact, grown frustrated with ongoing claims of racial injustice. Whites are more likely to believe that the United States has transcended racism, and they often endeavor to explain racially identifiable inequity as a product of nonracial variables such as class inequality, a culture of poverty, or lack of initiative. (5) Persons of color, by contrast, attribute social and economic disparities that correlate with race to past and ongoing injustice. (6)

In the public debates surrounding Hurricane Katrina, two individuals became popular icons of these binary views on the salience of race. Kanye West, a popular music vocalist, advocated a "racial" explanation when, during a televised fundraiser for Hurricane Katrina survivors, he nervously proclaimed that "George Bush doesn't care about black people." (7) Defending her husband and promoting the deracialized viewpoint, Laura Bush dismissed racial explanations for the federal response as "disgusting" and assured the public that President Bush "cares about everyone in our country." (8) Although she discounted race as a variable shaping the vulnerability of Hurricane Katrina survivors, Laura Bush embraced other structural reasons for their condition, including poverty: "I do think ... that poor people were more vulnerable. They live in poor neighborhoods; their neighborhoods were the ones that were more likely to flood.... Their housing was more vulnerable, and that's what we saw and that's what we want to address in our country." (9) Other commentators contributed to both sides of the explosive public discourse. Conservative commentator Bill O'Reilly blamed the people of New Orleans for the situation using racially and class-tinged language. He observed that "if you become addicted, if you live a gangsta-life, you will be poor and powerless just like many of those in New Orleans." (10) Echoing this sentiment, Pat Buchanan decried, "the character and conduct" of Hurricane Katrina survivors, who "waited for the government to come save them" and "screamed into the cameras for help." (11) O'Reilly and Buchanan rejected racial inequality or class vulnerability as possible factors explaining the status of Hurricane Katrina victims and instead asserted that their own pathological behavior created their harm. (12) Antiracists, however, maintained that conjoined racism and poverty made New Orleans's blacks more susceptible to the hurricane and that these factors also shaped the inadequate governmental preparation for and responsiveness to the dire situation. (13)

More than a century before Hurricane Katrina, blacks in Louisiana occupied the center of another destructive storm that similarly captured media attention and provoked a national debate concerning racial justice. The Colfax Massacre occurred in 1873 after heavily contested state and local elections that pitted black and white Republicans against an entirely white and anti-Reconstruction Democratic party. (14) The Colfax Massacre represents an extreme version of the racial terrorism blacks faced as they attempted to exercise newly obtained political rights. After the Republican governor dispatched a "black unit" of the state militia to prevent white Democrats from forcibly taking control of the Colfax local government, a large group of heavily armed whites stormed the town and slaughtered 280 blacks. (15) During the violence, whites chased blacks into the county courthouse, set it afire, and shot those who attempted to escape. (16) Fifty individuals emerged from the building displaying a white flag, and the crowd executed them. (17)

The Justice Department responded to the situation and secured indictments for ninety-seven individuals; only three were convicted. [18] In United States v. Cruikshank, (19) a case that many commentators argue helped solidify the demise of Congress's power over Reconstruction, (20) the Supreme Court reversed the convictions. (21) Although the historical context of the bloodshed and criminal complaint's description of the racial identity of the victims and the assailants clearly demonstrate the operative value of race to the conflict, the Supreme Court nevertheless dismissed several counts against the defendants on multiple grounds, including the fact that the prosecutors failed to explicitly allege that defendants acted out of racial hostility, which the opinion construed as a necessary element of the crime of conspiring to deprive blacks of the right to vote. (22) The Court was unwilling to see race despite the centrality of race in Southern election-related violence during and after Reconstruction, and the factual allegations in the criminal complaint that supported a finding of race-based hostility. (23) Despite this racialized historical setting, the Court held that "it does not appear in these counts that the intent of the defendants was to prevent these parties from exercising their right to vote on account of their race.... We may suspect that race was the cause of the hostility; but it is not so averred." (24) Through "sterile formalism," (25) the Justices obfuscated the salience of race in one of the most graphically racist set of facts ever to reach the Court. (26) As early as Reconstruction, the Court callously denied blacks' racial injuries. This decision, along with a series of rulings from the Court, would severely undermine federal enforcement of political and social equality for emancipated blacks. (27)

Following the demise of Reconstruction, the Court would formalize its disdain for antiracist legislation. In the Civil Rights Cases, (28) which invalidated a Reconstruction-era federal law that prohibited racial discrimination in places of public accommodation, the Court opined that the time had now come for blacks, who had "shaken off" the impact of slavery, to become "mere citizen[s]," rather than "special favorite[s] of the law." (29) Less than two decades after the ratification of the Thirteenth Amendment, when blacks exercised constitutional liberties under the threat of extreme violence, the Court believed that Congress had provided excessive remedies for racial injustice. The Court, echoing popular opinion, had reached a point of racial exhaustion.

This Article examines historical and contemporary race discourse contained in political and juridical sources in order to illustrate how opponents to racial egalitarian measures have frequently contested such policies on the grounds that they are redundant, unnecessary, or too burdensome or taxing. Racial exhaustion rhetoric has operated as a persistent discursive instrument utilized to contest claims of racial injustice and to resist the enactment of racial egalitarian legislation. Racial exhaustion rhetoric has enjoyed particular force during and immediately following periods of mass political mobilization by antiracist social movements and institutional political actors, and it retains potency in contemporary racial discourse. Although this Article conducts a cross-historical analysis of debates...