STATES OF CONTINUITY OR STATE OF EXCEPTION? RACE, LAW AND POLITICS IN THE AGE OF TRUMP.

AuthorCarbado, Devon W.
PositionSymposium: The Constitution in the Age of Trump

This Essay introduces the concept of "states of continuity" to caution against an uncritical framing of constitutional law and political developments in the age of Trump/Trumpism as a "state of exception." (1) I invoke the expression state of exception to stand in for the argument on the left that the Trump era will produce a set of constitutional and political arrangements that materially depart from the constitutional and political frameworks that preceded it. Students of Agamben will note one difficulty with this claim: As a general matter, proponents of Trumpism do not justify their policy initiatives solely on the ground that we exist in a state of exception. They frame those initiatives, instead, as part of a broader project to "Make America Great Again." (2) To put all of this another way, whereas Agamben conceived of the state of exception as a moment in which the sovereign naturalizes extraordinary measures that subsequently become ordinary features of governance, (3) political actors in the Trump era achieve their social and political goals often (though certainly not always) through a disavowal of the exceptionality of their measures. (4) The end result is that while in the world Agamben describes the state of exception is legitimized through recourses to a discourse of exigency, in the world of Trump/Trumpism the interventions are legitimized through recourses to discourses of ordinariness and return.

Though it might be fair to say that Agamben's account of the "state of exception" obscures the degree to which there are always already people for whom the state of exception is an "ordinary" feature of social life, it strikes me as both important and productive to conceptualize and articulate Trump/Trumpism through the prism of exceptionalism. (5) At the same time, I worry that the exceptionalism frame has the potential to effectuate too sharp a rupture between a "then"--the political and constitutional moment before Donald J. Trump became President of the United States--and a "now"--the current Trump/Trumpism moment in which we find ourselves. This Essay elaborates on what I mean, drawing on the concept of "states of continuity" to do so.

My starting point is to note that a state of exception understanding of Trump/Trumpism can easily elide the various conservative projects, and centrist ideological commitments, that created conditions of possibility for Trump/Trumpism. Indeed, to some extent, Trump/Trumpism is the conservative and middle-of-the-road liberal chicken coming home to roost. This is certainly true with respect to what one might broadly call the constitutional law of race.

Critical Race Theorists in particular have long demonstrated the multiple ways in which the Supreme Court has, for some time, effectively constitutionalized racial inequality. (6) That things could get worse--and a lot worse--under Trump/Trumpism should not obscure the edifice of constitutional law that preceded the Trump regime. This body of law all but ensures the continued marginalization of people of color. I am thinking here about everything from employment discrimination, (7) to voting rights, (8) to policing, (9) to the war on terrorism, (10) to access to the courts, (11) to immigration regulation and enforcement, (12) to affirmative action, (13) to mass incarceration and the death penalty. (14) Across the foregoing domains of constitutional law, the Supreme Court has narrowed the scope of constitutional rights, increased the barriers to litigating those rights, and diminished the penalties and remedies when government officials violate them. (15) Thus, even were the Supreme Court never to decide another case, the scales of constitutional law are already tipped heavily in favor of maintaining and entrenching rather than ameliorating and disrupting racial inequality. Am I suggesting, therefore, that nothing is at stake in this moment? No. I am simply urging that we ought to take care to note what I will call '"states of continuity."

By "states of continuity" I mean instances in which systems and technologies of power--ideologies, discursive frames, and practices--are continuous across, for example, different historical periods, different national and geographic boundaries, different public and private spaces, different legal and political contexts, different political parties, and different social categories. (16) When Michelle Alexander speaks of the "New Jim Crow," something akin to states of continuity (vis-a-vis the "Old Jim Crow") is plausibly implicated. (17) Douglas Blackmon's account of how slavery functioned "by another name" after the formal abolition of the institution is arguably an example of states of continuity. (18) Cheryl Harris's contention that whiteness has functioned "as property" across different doctrinal regimes in the United States could be framed as a story about states of continuity. (19) States of continuity might also be at play in Edward Said's conception of Orientalism, a phenomenon that according to Said travels across different articulations and instantiations of the "European Western Experience." (20) Malcolm X's suggestion that "racism is like a Cadillac, they bring out a new model every year" (21) is simpatico with what I am calling states of continuity. Similarly, Achille Mbembe's observation that the violence and death of Nazism was "the extension to the 'civilized' peoples of Europe methods previously reserved for 'savages'" (22) could be understood as a claim about states of continuity. When Kimberle Crenshaw asserts that a reform/retrenchment dialectic has marked the trajectory of black civil rights, (23) she is arguably foregrounding an example of states of continuity. Finally, K-Sue Park's argument that the United States has long been a "self-deportation" nation in which the government has employed "one common logic" to facilitate a range of self-deportation strategies to control and discipline "the migration of undesired populations" reflects precisely the kind of engagements and contestations--within and across the boundaries of history, legal frameworks, political parties, and social categories--that enables one to see the various mechanisms through and on which states of continuity are potentially effectuated. (24)

To describe states of continuity in the way that I have is to suggest neither the precise and inevitable reproduction of that which has come before nor the exact manifestation of particular systems or technologies of power across two or more domains. (25) I am not speaking here of uniformity or something analogous to "perfect continuity." Context--in its most capacious sense--will always matter and shape where and how power travels and expresses itself. Accordingly, I should be clear to note that the concept of states of continuity I have in mind presupposes moments of rupture and divergence, or what we might think of as "states of discontinuity."

Nor am I arguing that there is a totalizing way in which states of continutity function. The kinds of continuities one might analyze across political party affiliation, social categories, and geography will not necessarily map onto the kinds of continuities one might analyze across time and institutions. Undoubtedly, there are (and will always be) important differences with respect to how states of continuity operate, the precise contours of which cannot be expressed through the level of abstraction at which I have introduced the theory. (26) At bottom, I am trying to engender a sensiblity--a way of thinking and seeing--that presses up against and resists acquiescing to the boundaries of various forms of compartmentalism--the public/private; the past/present; the Republican/Democrat; the national/global, and so on. Finally, I should stress again my view that the theory of states of continuity I am propounding is not a wholesale repudiation of the theory of the state of exception Agamben seemed to have in mind. (27) I offer states of continuity as a provisional concept to put into sharp relief what claims about the state of exception sometimes elide--the continuous nature of regimes and technologies of power. In at least one sense, the elision of this dynamic of continuity in arguments about the state of exception is curious: Agamben's articulation of the state of exception is itself an example of states of continuity--that is to say, an example of the degree to which across time, national boundaries, political parties, and ideological commitments the availability and mobilization of the state of exception has functioned as a crucial technology of power through which people are reduced to "bare life."

To return more specifically to Trump/Trumpism: To say that there are continuous dimensions to Trump/Trumpism is not to turn a blind eye to the exceptional features of this political moment. One might reasonably argue that the expansive view of the Executive under Trump/Trumpism, the warehousing of children in cages in detention centers, and the proliferation of tent camps along the border are salient markers of the state of exception at work. I do...

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