“SUBJECTIVITY IS A CITIZEN”: REPRESENTATION, RECOGNITION, AND THE DECONSTRUCTION OF CIVIL RIGHTS

• Published date: 09 April 2003
• Date: 09 April 2003
• DOI: https://doi.org/10.1016/S1059-4337(02)28006-0
• Pages: 139-188
• Author: Jonathan Goldberg-Hiller

“SUBJECTIVITY IS A CITIZEN”:

REPRESENTATION, RECOGNITION,

AND THE DECONSTRUCTION

OF CIVIL RIGHTS

Jonathan Goldberg-Hiller

INTRODUCTION

The progressive limits to rights mobilization have become starkly apparent in

the past two decades. No new suspect classes have been forthcoming from the

Supreme Court since 1977 despite continued demands for legal recognition by

lesbians and gays, indigenous peoples and others interested in expanding civil

rights doctrine. Public tolerance for civil rights measures has likewise dried up.

Since the 1960s, referenda on civil rights have halted affirmativeaction programs,

limited school busing and housing discrimination protections, promoted English-

only laws, limited AIDS policies, and ended the judicial recognition of same-sex

marriage, among other issues. Nearly 80% of these referenda have had outcomes

realizingtheMadisonianfearof“majoritytyranny”1andsignalingtheNietzschean

dread of a politics of resentment (Brown, 1995, p. 214; Connolly, 1991, p. 64).

While frequently inchoate, recent debates over the extension of civil rights

protection to new groups have been framed around a persistent asymmetry.Propo-

nents of civil rights recognition have asked for rights as a hallmark of citizenship

while claiming present laws to be inadequate for their recognition and protection;

their opponents have argued that citizenship is not at stake, that new rights are

Studies in Law, Politics, and Society

Studies in Law, Politics, and Society,Volume 28, 139–188

Copyright © 2003 by Elsevier Science Ltd.

All rights of reproduction in any form reserved

ISSN: 1059-4337/PII: S1059433702280060 139

140 JONATHAN GOLDBERG-HILLER

redundant if not excessive, and consequently,the identities sought to be protected

are artificial or misrepresented (Burlein, 2002; Cooper, 1998; Goldberg-Hiller,

2002; Patton, 1995; Schacter, 1997, p. 684). “Post-civil-rights era”2discourse has

thus been marked both by challenges to the tactics and rhetoric of recognition as

well as the boundaries of political bodies in which citizenship ought now inhere,

propelled as much by language and the social movements which help generate it,

as it is by broader changes in social and economic organization that have fueled

anxieties. This paper explores two recent debates over civil rights in Hawaii– one

over same-sexmarriage and the other over constitutional recognition of indigenous

rights claims – in an effort to deconstruct these newer civil rights discourses and

the way that civil rights law now comes to constitute political subjectivity.

My approach to these debates is inspired by studies of legal mobilization which

have urged us to decenter our attention from the formal character of rights to the

ways in which actors and discourses bring law into social action.3The cases I

study here ask us to also consider the ways in which law is pushed away, rights

argued to be morally and politically inappropriate for social organization. I show

that pushing rights away paradoxically may tend to recenter law through new

ideas about political sovereignty, fashioning post-liberal ideas of citizenship and

assumptions of the self.4These ideas are politically ambivalent. In some forms and

contexts, this discourse of sovereignty – the rhetoric that invokesit, the ontological

ideas that it depends upon (and which depend upon it) – has inhibited progressive

civil rights movements. In other contexts, post-civil-rights sovereignty discourse

works to sustain progressive forms of collective action. My goal in this article is

to open this discourses to criticism, to show the social constructions that underlie

claims to be naturally emergent, in order to advance our understanding of law and

enhance progressive efforts of legal mobilization.

I do this by presenting two case studies. In the case of same-sex marriage, I

show how sovereignty discourse can work to builddemocratic majorities opposed

to civil rights advances by creating stable political identities unavailing of self-

criticism in the very manner in which they resist civil rights appeals. In the case

of indigenous rights struggles, I demonstrate the ability of some proponents to

deconstruct these barriers and question the ontological certainty that surrounds

this discourse. My deconstruction is shadowed by critical international relations

scholarship which has urged that we creatively move beyondsovereignty5and the

works of Emmanual L´

evinas who rejected its ontological premises in his ethical

critique.

Ifirstsketcha theoretical approach to the discourse of sovereigntythatmodulates

these civil rights conflicts.6Sovereignty invites deconstruction, I argue, for the

pervasive assumptions about subjectivity and community that it depends upon,

and the silences that it enforces as a political and legal idiom. After presenting

Subjectivity is a Citizen 141

my two case studies, I explore implications of this deconstruction for alternative

political practice. Throughout this analysis I endeavor to show the scholarly and

practical importance of taking seriously discourses aligned against civil rights.

RECOGNITION AND ORDER

The presumption of liberal civil rights models to protect the “discrete and insular

minority”7– as individual and as faction – from the tyranny of the majority has

its genealogy in a Hobbesian imagery of sovereignty and its construction of social

ordering. Against the frightening image of a state of nature in which life devoid

of political agreement is famously solitary, poor, nasty, brutish and short, Hobbes

arrays an artificial image of the self in which sovereignty is to be alienated.

For by Art is created that great LEVIATHAN called a COMMON-WEALTH, or

STATE ...which is but an Artificiall Man; though of greater stature and strength than the

Naturall, for whose protection and defence it was intended; and in which, the Soveraignty is an

Artificiall Soul, as giving life and motion to the whole body...by which the parts of this Body

Politique were at first made, set together and united, resemble that Fiat,ortheLet us make man,

pronounced by God in the Creation (Hobbes, 1968 [1651], pp. 81–82).

How well this artificial man can salve “the multiplicity of allergic egoisms which

are at war with one another and are thus together” (L´

evinas, 1991, p. 4) depends in

part on what the artificial soul of the sovereign body politic recognizes as its limits.

For one, it matters how this artificial soul problematizes8the Other, for as Shane

Phelannotes, “The trope of the body politic works powerfullytotransform contests

within society into attacks on society” (1999, p. 58). For another, the success of

the sovereign construct turns on how well the artificial languages – such as civil

rights – convey this recognition.

As many criticisms of the Hobbesian project recognize, biases abound in the

very assumptions of political sovereignty,particularly in the privileging of reason,

but also in the philosophical and political alchemy of the body politic into

ideas of identity/difference, self/other, inside/outside, History/contingency and

imminence/transcendence.9In Bryan Turner’s words,

The Hobbesian problem of order was historically based on a unitary concept of the body ....

However, the regime of political society also requires a regimen of bodies and in particular

a government of bodies which are defined by their multiplicity and diversity. The Hobbesian

problem is overtly an analysis of the proper relationship between desire and reason, or more

precisely between sexuality and instrumental rationality. This problem in turn can be restated

as the proper relationship between men as bearers of public reason and women as embodiments

of private emotion (Turner,1984, pp. 113–114).