Post-racialism

Iowa Law Review

Volumn 94, Issue 5, 2009, Pages 1589-1649

  Cho, Sumi ^a  

^a DEPAUL UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 70349932525     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (441)

1. Lee Cokorinos, The Assault on Diversity: An Organized Challenge to Racial and Gender Justice, at ix, 7-14 (2003).
2. Id. at 129 (arguing that America now needs to "recover its sense of fairness and justice... to turn the tide" toward social justice again).
3. Recall Obama's 2004 Democratic National Convention speech mat catapulted him to the presidential campaign with its post-racial language: There's not a black America and white America and Latino America and Asian America; there's the United States of America. The pundits like to slice-and-dice our country into Red States and Blue States; Red States for Republicans, Blue States for Democrats. But I've got news for them, too. We worship an awesome God in the Blue States, and we don't like federal agents poking around our libraries in the Red States. We coach Litde League in the Blue States and have gay friends in the Red States. There are patriots who opposed the war in Iraq and patriots who supported it We are one people, all of us pledging allegiance to the stars and stripes, all of us defending the United States of America.
4. Barack Obama, Keynote Address at the Democratic National Convention (July 27, 2004), available at http://www.barackobama.com/2004/07/27/keynote-address- at-the-2004-de-php.
5. See Barry Blitt, The Politics of Fear, NEW YORKER, July 21, 2008, at cover. For coverage of The New Yorker's explanation for its cover
6. see Eric Lee, The New Yorker and Old Racism, July 17, 2008, available at http://www.lasentinel.net/The-New-Yorker-and-O1d-Racism.html.
7. This racialized "Hail Mary" strategy prompted McCain friend and congressional colleague, John Lewis, to denounce the McCain campaign for "sowing the seeds of hatred and division" by using toxic language that barkens back to "another destructive period in American history." John Lewis stated:
8. During another period, in the not too distant past, there was a governor of the state of Alabama named George Wallace who also became a presidential candidate. George Wallace never threw a bomb. He never fired a gun, but he created the climate and the conditions that encouraged vicious attacks against innocent Americans who were simply trying to exercise their constitutional rights. Because of this atmosphere of hate, four litde girls were killed on Sunday morning when a church was bombed in Birmingham, Alabama.
9. Rebecca Sinderbrand, Rep. Lewis Clarifies Controversial Remarks About McCain, Patin, CNN. COM, Oct. 12, 2008, http://www.cnn.com/2008/POLITICS/10/12/ mccain. lewis/.
10. See also Lola Adesioye, Palling Around with Racists, GUARDIAN ONLINE, Oct. 14, 2008, http://www.guardian. co. uk/commentisfree/cifamerica/2008/oct/14/ mccain-palin-obama-racism (noting mat the 2008 Republican presidential-campaign rhetoric created "an incendiary, polarizing 'us' versus 'them' position whose only aim seems to be to inflame tensions and push supporters further to the right").
11. For a report on the Obama campaign's post-racial strategy, see Ginger Thompson, Seeking Unity, Obama Feels Pull of Racial Divide, N. Y. TIMES, Feb. 12, 2008, at A1.
12. Throughout this Article I use the term "Black" in a British sense, denoting those who are racialized as minority-outsiders in the United Kingdom.
13. Based on his 1989 essay, Francis Fukuyama authored the 1992 book, The End of History and the Last Man. In it he reinterpreted Hegel's concept of universal history, arguing that the fall of global communism and its revelations represent an "end of history" insofar as mere are no more viable competitors to free-market capitalism and liberal democracy.
14. FRANCIS Fukuyama, The End of History and the Last Man (1992). Post-racialism represents a similar "end of history" type of ideology in that it represents itself as the evolutionary ideal for a society that has transcended the pursuit of racial subordination and remedy by the state.
15. While this analysis and definition of post-racialism is based on the current articulation of post-racialism, it is certainly possible that future articulations may have more progressive content and potential. In order for a new articulation to emerge, I maintain that some acknowledgment of what we are "post" must be embedded within the understanding of the term, "post-racialism." Compare, for example, political scientist Luke Charles Harris' conceptualization of the term, "post-apartheid" America, with the "post" marking the normative turn away from apartheid in the 1954 Brown v. Board of Education decision. The descriptive turn away from apanheid, as he notes, is a work-in-progress. Luke Charles Harris, Notes of a Child of Apartheid (2008) (unpublished book proposal on file with author);
16. see also CHRISTOPHER J. Metzler, The Construction and Rearticulation of Race in a "Post-Racial America" (2008) (identifying "post-racial" as a "moniker that represents an articulated vision of race steeped in rigid ideology, constrained by denial of historical realities and undermined by a need to move forward without acknowledging racism, exclusion and oppression as continuing violations that impact all Americans, including whites").
17. I borrow mis term from sociologist Dana Takagi's book on affirmative action and Asian admissions. Dana Y. Takagi, The Retreat from Race: Asian-American Admissions and Racial Politics (1993).
18. Michael Omi and Howard Winant, Racial Formation in the United States: From THE 1960s TO THE 1990s, at 71 (2d ed. 1994) (footnote and emphasis omitted).
19. The term originates in its popular form in a New Yorker article that suggested that any reference to race or racism by the O. J. Simpson defense team would amount to playing the "race card" and improper jury nullification. Jeffrey Toobin, An Incendiary Defense, New YORKER, July 25, 1994, at 56, 59. However, law professor and legal commentator Peter Aranella takes issue with this broadly held view, asserting that race played a very complex role in the case, and should have, given the explicidy racist comments attributable to police officer Mark Fuhrman whom the prosecution unnecessarily tapped to testify. Frondine
20. The O. J. Verdict, Interview: Peter Aranella (Apr. 1, 2005), available at http://www.pbs.org/wgbh/pages/frondine/oj/interviews/arenella.html.
21. For a sampling of the racial-transcendence narrative in mainstream media, see Stu Bykofsky, My First Post-Racial Column: America Is on the Ascent, PHILA. Daily News, Nov. 8, 2008, Local Section, at 7 (disclosing his initial plan for his first column entailed telling the "race merchants" who only see America's warts "to sit down and shut up because a country-this one-that has just elected its first black president cannot fairly be accused of systemic racism");
22. Frank Harris, Election's a Sign of Progress For... Whites, HARTFORD COURANT, Nov. 14, 2008, at A19 (extolling Obama's election as "a glowing sign of white progress in living up the true meaning of this nation's creed");
23. Editorial, Obama and Affirmative Action, BOSTON Globe, Nov. 15, 2008, at A10 (announcing that "the old common sense about race" died with Obama's election, prompting a move away from the "stale notions of affirmative action");
24. Editorial, Obama's Historic Victory Reflects Nation's Dynamism, USA TODAY, June 4, 2008, at A10 (suggesting that "Obama's success is a testament to the remarkable progress in American society since that Jim Crow era");
25. Editorial, Our Moment of Unity: Let's All Relish This Remarkable Progress Together, DALLAS MORNING News, Nov. 6, 2008, at A18 (observing that "it is impossible not to be proud that America has taken a giant leap forward away from our original sin-slavery-and toward redemption");
26. Peter Wallsten and David G. Savage, Obama Win Used Against Rights Laws; Conservatives Say Black Victory Erases Need for Voting Act, CHI. TRIB., Mar. 15, 2009, at C5 (reporting legal briefs filed by conservative legal foundations that argue that "Obama's election heralds the emergence of a colorblind society in which special legal safeguards for minorities are no longer required");
27. Rachel L. Swarns, Vaulting the Racial Divide: Obama Persuaded Americans to Follow, N. Y. TIMES, Nov. 5, 2008, at 7 (reporting on the "immensity of the nation's progress" reflected in Obama's election);
28. Joan Vennochi, Op-Ed., Closing the Door on Victimhood, BOSTON GLOBE, Nov. 6, 2008, at A23 (declaring "that Obama's victory closes the curtain on the old civil rights movement" and shifts the dialogue away from victimhood).
29. But see Editorial, The Myth of PostRacial America, St. LOUIS POST-DISPATCH, Jan. 22, 2009, at C8 (acknowledging Obama's election and inauguration as mileposts in the nation's progress, but maintaining that the declaration of a "post-racial" era "is a bridge too far");
30. DeWayne Wickham, Post-Racial Era? Go Tell Victims of Police Shootings, USA TODAY, Jan. 13, 2009, at All (pointing out the obvious contradiction between a putative post-racial era and one in which a white transit cop executes with a shot to the back an unarmed, twenty-two year old African American man, who was immobilized, lying face down on the ground).
31. For a thicker description of the racial redemption of whiteness, see Sumi Cho, Redeeming Whiteness in the Shadow of Internment: Earl Warren, Brown, and a Theory of Racial Redemption, 40 B. C. L. Rev. 73, 119-66 (1998) (defining racial redemption as "the process by which whiteness can be restored to its full material value by removing the encumbrances that the legacy of racism has placed upon it").
32. For a sampling of the "new Black leadership" literature in mainstream culture, see Gwen Ifill, The Breakthrough: Politics and Race in the age of Obama 238-39 (2000) (analyzing the "Obama generation" of Black leaders who are Ivy-league educated, cater to white voters, and "establish!] a respectful, but arm's-length, distance from the traditional civil rights movement");
33. Matt Bai, Post-Race, N. YTIMES, Aug. 10, 2008, (Magazine), at 34 (arguing that with the new Black leadership that sees the world through post-civil-rights eyes, "black politics might now be disappearing into American politics in the same way mat the Irish and Italian machines long ago joined the political mainstream");
34. Kelly Brewington, A New Type of African-American Politician, BALT. SUN, Feb. 3, 2008, at A24 (reporting on younger African American politicians who like Obama, "have won elections on race-neutral campaigns that emphasized bridging political and ideological divides rather man the social justice activism of the past generation");
35. Katherine Kersten, New Black Leaders Replacing Tired Old Guard and Its Legacy of Failure, STAR TrIB. (Minneapolis), July 30, 2008, at B1 (simultaneously criticizing local Black politicians who represent "an Old Guard that has adopted a permanent posture of grievance" and an outdated 1960s-style civil-rights philosophy and complimenting new Black leaders who do not view affirmative action and diversity hiring and training as the solution to the problems of African Americans);
36. Tom Moran, Tossing Out the Race Card, STAR-LEDCER (Newark), Jan. 11, 2008, at 1 (observing that there is a "new generation of politicians like Obama, the senator from Illinois, and Booker, the mayor of Newark" who "steer clear of ideological fights and confrontations" and instead "focus on solving problems");
37. Laura Washington, Obama Leaves Traditional Black Pols Behind, CHI. SUN-TIMES, Feb. 25, 2008, at 25 (deriding traditional Black politicians like Al Sharpton and Representative Sheila Lee as "America's Crabs in a Barrel Society" and extolling the pragmatism of new Black leaders like Cory Booker and Deval Patrick who "know you don't get a chance to govern unless you organize");
38. Editorial, What a Black President Will Mean for Race Relations, USA TODAY, Nov. 8, 2008, at A18 (predicting that some "old-school black politicians" will find Obama's election frustrating insofar as they base their careers on the "polarizing politics of racial grievance" and "President Obama undermines their ability to blame discrimination for all the woes afflicting their community");
39. Joseph Williams, Changing of the Guard: New Generation Replaces Past Civil Rights Leaders, BOSTON GLOBE, Aug. 28, 2008, at Al (commenting on the generational shift evident at the 2008 Democratic National Convention in which "black political leaders who fought for equal rights on the street and in the courtroom will yield to a generation mat grew up well-educated and middle-class, enjoying the fruits of that struggle for equality").
40. Glen Loury, Losing the Narrative, http://tpmcafe.talkingpointsmemo.com/ 2008/03/31/losing-the-narrative/ (Mar. 31, 2009, 10:52 EST).
41. See Keith Osajima, Asian Americans as the Model Minority: An Analysis of the Popular Press Image in the 1960s and 1980s, in REFLECTIONS ON SHATTERED WINDOWS: PROMISES AND PROSPECTS FOR ASIAN AMERICAN STUDIES 165 (Gary Y. Okihiro et al. eds., 1988) (discussing how representations of Asian Americans as a model minority worked a disadvantage on the group).
42. I thank Devon Carbado and Kimberlé Crenshaw for pushing me to elaborate the relationship between post-racialism and colorblindness and to consider how it maps onto the political spectrum.
43. For a sampling of the critical-legal scholarship on colorblindness, see generally Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, in CRITICAL Race THEORY: The KEY WRITINGS THAT FORMED THE MOVEMENT 29 (Kimberle Crenshaw et al. eds., 1995) (distinguishing between victim and perpetrator perspectives in race-relations law);
44. Devon W. Carbado and Cheryl I. Harris, The New Racial Preferences, 96 Cal. L. Rev. 1139 (2008) (discussing the effects and implications of antiaffirmative action statues in light of the personal statement in university applications);
45. Henry Chambers, Colorblindness, Race Neutrality, and Voting Rights, 51 EMORY L. J. 1397 (2002) (suggesting a more prominent role for the Fifteenth Amendment's interest in substantive equality-fighting the idea of colorblindness-instead of the more common Fourteenth Amendment's interest in procedural equality);
46. Guy-Uriel E. Charles, Affirmative Action and Colorblindness from the Original Position, 78 TUL. L. Rev. 2009 (2004) (advocating in favor of the Court's rejection of colorblind constitutionalism in Grutter);
47. Kimberle W. Crenshaw, Framing Affirmative Action, 105 MICH. L. REV. FIRST IMPRESSIONS 123 (2007), http://www.michiganlawreview.org/firstimpressions/ vol105/crenshaw.pdf (suggesting a restructuring of the argument supporting affirmative action, as a response to anti-affirmative action proponents who have framed "affirmative action" as a term signifying discrimination and resentment);
48. Jerome Mccristal Culp, Jr., Colorblind Remedies and the Intersectionality of Oppression: Policy Arguments Masquerading as Moral Claims, 69 N. Y. U. L. REV. 162 (1994) (asserting that colorblindness is a policy-based argument, more than a moral imperative, that allows the legal infrastructure to retain and preserve its bias against racial minorities);
49. Barbara J. Flagg, "Was Blind, But Now I See": White Race Consciousness and the Requirement of Discriminatory Intent, 91 MICH. L. REV. 953 (1993) (arguing for the social utility of white consciousness, a white person's awareness of the white race, in relation to law in general but tailored to the discriminatoryintent requirement in the Equal Protection clause);
50. Neil Gotanda, A Critique of "Our Constitution Is Color-Blind," 44 Stan. L. Rev. 1 (1991) (analyzing a series of Supreme Court cases that are typical of modern constitutional colorblindness and showing how those conceptions further discriminatory bias rather than remedy the problem);
51. Ian F. Haney López, "A Nation of Minorities": Race, Ethnicity, and Reactionary Colorblindness, 59 STAN. L. Rev. 985 (2007) (tracing the history of colorblindness from Reconstruction to the modern age as something legal scholars and judges have used to argue that race-conscious legislation is unconstitutional in both prejudiced and remedial forms);
52. Darren Lenard Hutchinson, Progressive Race Blindness?: Individual Identity, Group Politics, and Reform, 49 UCLA L. REV. 1455 (2002) (criticizing the nascent scholarship from left-leaning advocates of progressive race-blindness and arguing for the utility of race-based self-identification);
53. Matthew J. Lindsay, How Antidiscrimination Law Learned to Live with Racial Inequality, 75 U. CIN. L., REV. 87 (2006) (demonstrating how the Supreme Court, especially the Burger and Rehnquist Courts, used the concept of colorblindness to pervert the original goals of racial proportionality in antidiscrimination law);
54. Gary Peller, Race Consciousness, 1990 DUKE L. J. 758 (focusing on the history of race consciousness, especially the ways white integrationist philosophy pitted itself against Black nationalist philosophy and then suggesting a more beneficial model of discourse based in general race consciousness);
55. Cedric Merlin Powell, Blinded by Color. The New Equal Protection, the Second Deconstruction, and Affirmative Inaction, 51 U. Miami L. Rev. 191 (1997) (contesting the Supreme Court's recent arguments that the Fourteenth Amendment does not allow for positive law aimed at remedying racial injustice);
56. Reva B. Siegel, Discrimination in the Eyes of the Law: How "Color Blindness" Discourse Disrupts and Rationalizes Social Stratification, 88 Cal. L. Rev. 77 (2000) (arguing that a sociohistorical perspective to analysis of colorblind discourse, while not dispositive on all points, serves to illustrate the way colorblind discourse can deconstruct antidiscrimination law).
57. For a sample of conservative journalists and commentators expressing their skepticism at the term, "post-racial," see Jonah Goldberg, Obama, the Postmodernist; In the Illinois Senators World, Words Have No Fixed Meaning, and Truth Is Often Just a Matter of Perspective, USA Today, Aug. 5, 2008, at All (suggesting that "[p]ost-racial is just another convenient term used to advance a left-wing agenda under the guise of some highfalutin buzzwords");
58. Mark Steyn, Post'Post-Racial Candidate,' Nat'L Rev. ONLINE, Mar. 23, 2008, available at http://article.national review.com/?q= MjExNzMwYzMyMjk0MDY4YzlhOTlwM2YzYWYzNGIyNjU= (deriding Obama standing as a post-racial candidate based on his alleged "racist" stereotypes in his "A More Perfect Union" speech).
59. Darren Lenard Hutchinson, Racial Exhaustion, 86 Wash. U. L. R. 917 (2009) (describing how opponents of racial equality "have depicted demands for civil rights remedies as vexatious and injurious to whites").
60. Richard Cohen, President Needs to Move Court into a Post-Racial Era, TIMES HERALDRECORD ONLINE (Middletown, N. Y.). May 6, 2009, http://vnvw. recordonline.com/apps/pbcs. dll/article?AID=/20090506/OPINION/905060381/-l/ OPINION0103.
61. Critical-race theorist Derrick Bell forwarded the interest-convergence theory that civilrights gains in the United States only occur when they also benefit or converge with the interests of powerful whites. Derrick A. Bell Jr., Brown v. Board of Education and The Interest Convergence Dilemma, 93 HARV. L. REV. 518 (1980). He cited the dominant white interest in prevailing in Cold War propaganda as the motivating imperative behind school desegregation.
62. Id. at 524.
63. See supra note 13 and accompanying text.
64. Barack Obama, Democratic Presidential Candidate, Speech at the Constitution Center in Philadelphia: A More Perfect Union (Mar. 18, 2008) [hereinafter, Obama, A More Perfect Union].
65. John a. powell, Post-Racialism or Targeted UniversalismT, 86 Denv. U. L. Rev. 785, 789-98 (2009).
66. Id. at 794-98.
67. See generally IRA KATZNELSON, WHEN AFFIRMATIVE ACTION WAS WHITE: An Untold History of Racial Inequality in Twentieth-Century America (2005) (describing how the G. I. Bill, welfare, and social security were reforms that were hardly universal and contained race, gender, and class exclusions).
68. John a. powell, supra note 26, at 791.
69. See e.g., antonia Darder and Rodolfo D. Torres, After Race: Racism After MULTICULTURALISM 15 (2004) (questioning why so many scholars and politicians speak of race while class analysis and challenges to capitalism do not receive the same level of treatment and regard as race).
70. See David Roediger, The Retreat from Race and Class, 58 MONTHLY REV., July-Aug. 2006, at 40, 47 (describing the "raceless liberalism" of William Julius Wilson's increasing-salience-ofclass/decreasing-salience-of-race analysis that "is about as distant from Marxism as is possible").
71. See e.g., Richard Thompson Ford, The Race Card: How Bluffing About Bias Makes Race Relations Worse 339 (2008) [hereinafter Ford, The Race Card] (warning that fake charges of racism may erode the antiracist goodwill to a pervasive attitude of cynical indifference).
72. Michael Kinsley, Racial Profiting at the Airport: Discrimination We're Afraid to Be Against, SLATE, Sept 28, 2001, available at http://www.slate.com/? icM 16347 ("Racial profiling and affirmative action are analytically the same thing. When the cops stop black drivers or companies make extra efforts to hire black employees, they are both giving certain individuals special treatment based on racial generalizations.").
73. See infra Part III (discussing legal, political, and intellectual post-racialisms).
74. Id.
75. Mary Mitchell, Both Hurt When Obama Turns His Back on Wright; in Trying to Transcend Race, Candidate Shuns Black Leaders, CHI. Trib., May 4, 2008, at A12 (observing the bitter irony evident in Obama's renunciation of his former Reverend Jeremiah Wright, that in order "to transcend race, Obama has had to keep his distance from the same black leaders who fought the battles that made it possible for him to be where he is today");
76. Williams, supra note 15 (describing the new "racial pragmatism," whereby "Obama eliminates any association with leaders some whites might consider racial extremists" by keeping Jesse Jackson, Sr. and Al Sharpton at arm's length).
77. Yen Le Espiritu, Asian American Panethnicity 23-24 (1993);
78. Ronald Takaki, Strangers from a Different Shore 363-71 (1998).
79. "Stockholm syndrome" refers to a hostage situation in which the hostage begins to identify with the hostage-taker as a psychological survival mechanism. The syndrome refers to a state of mind in which a victim is more loyal and bound to one's captors than one's rescuers. The term was coined following a hostage incident in Sweden in August of 1973, in which the captives believed their captors were protecting them from the police seeking to free them, and the freed hostages continued to defend their captors. One hostage became engaged to her captor and another started a defense fund, despite the fact that the hostage takers bound the hostages with dynamite and mistreated them generally. M. Namnyak et al., "Stockholm Syndrome": Psychiatric Diagnosis or Urban Myth?, 117:1 ACTA PSYCHIATRICA SCANDINAVICA 4, 4-5 (2007), available at http://www3.interscience.wiley.com/cgi-bin/fulltext/l 19385981/PDFSTART.
80. See infra Part III A (discussing legal post-racialism).
81. See infra Part III. B (discussing political post-racialism).
82. See infra Part III. C (discussing intellectual post-racialism).
83. Brown v. Bd. of Educ, 347 U. S. 483 (1954).
84. As with any classification of time periods, the attempt to define specific "eras" with dates is necessarily imprecise, as societal trends are fluid and overlapping. This Article uses dates that track the major shifts in the Supreme Court as they define the material interests of whiteness in relation to the law. It also uses dates to establish each era's dominant "racial project" OMI and WINANT, supra note 11, at 56 (defining a racial project as "simultaneously an interpretation, representation or explanation of racial dynamics, and an effort to reorganize and redistribute resources along particular racial lines").
85. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 127 S. Ct 2738 (2007).
86. Cheryl I. Harris, Whiteness as Property, 106 HARV. L. Rev. 1707, 1713-14 (1993)
87. Id. at 1731-45.
88. Id.
89. Omi and Winant, supra note 11, at 65-66.
90. See DERRICK BELL, AND WE Are Not Saved 51-74 (1987) (providing further examples of interest conversion in the area of civil-rights law).
91. See Eric Foner, Reconstruction: America's Unfinished Revolution: 1863-1877, at 575-87 (1988) (summarizing how the electoral crisis of 1876 and Hayes-Tilden Compromise of 1877 produced the inescapable result of Hayes' inauguration and an end to Reconstruction).
92. See id at 459 (1988) ("[T]he need for outside intervention was a humiliating confession of weakness for the Reconstruction regimes.").
93. See Derrick A. Bell, Race, Racism and American Law 40-47 (5th ed. 2004) [hereinafter BELL, Race, Racism] (theorizing Racial Compromise as a process whereby disparate groups of whites resolve their differences through the involuntary sacrifice of African Americans).
94. For an elaboration of white normativity and its material significance when applied against socially unequal subjects, see Terry Smith, Speaking Against Norms: Public Discourse and the Economy of Racialization in the Workplace, 57 Am. U. L. Rev. 523 (2008) (forwarding the example of workplace speech to illustrate how white normativity operates against employees of color who transgress dominant racial sensibilities or expectations).
95. FONER, supra note 49, at 199-200 (elaborating on the Black Codes that southern state legislatures enacted to coerce formerly enslaved Africans back to a state of unfree labor).
96. Slaughter-House Cases, 83 U. S. 36, 51-54 (1873);
97. see also RICHARD VALELLY, The Two RECONSTRUCTIONS: THE STRUGGLE FOR BLACK ENFRANCHISEMENT 104 (2004) (arguing that the Reconstruction Amendments did create and presuppose federal rights).
98. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department ofJustice, and Civil Rights, 1866-1876, at 154 (2005).
99. BELL, Race, RACISM, supra note 51, at 37-39 (describing how Republicans compromised with Democrats to settle the contested 1876 presidential elections by offering to withdraw federal troops from the South, thereby establishing "home rule," in exchange for elevating the Republican Hayes to the White House).
100. See James v. Bowman, 190 U. S. 127, 136 (1903) (denuding the Fifteenth Amendment of force by concluding that Section 5507 of the Revised Statutes was unconstitutional as the amendment does not contemplate "wrongful individual acts");
101. Civil Rights Cases, 109 U. S. 3, 24-35 (1883) (finding that the Civil Rights Act of 1875 has no audiority in the Constitution insofar as "[t]he wrongful act of an individual, unsupported by any [state] audiority, is simply a private wrong" and does not give rise to a civil rights violation);
102. United States v. Harris, 106 U. S. 629, 640 (1883) (upholding a challenge by indicted white members of a lynch mob who beat four African American prisoners and killed one of them on the grounds that the Ku Klux Klan Act of 1871 "is directed exclusively against the action of private persons, without reference to the laws of the states" and is therefore unwarranted by the Fourteendi Amendment);
103. Virginia v. Rives, 100 U. S. 313, 318 (1880) (ruling that exclusion of African Americans from juries does not violate the Fourteendi Amendment by construing such exclusion as the "action of private individuals" and not state action);
104. United States v. Cruikshank, 92 U. S. 542, 554 (1875) (arresting judgment and dismissing charges against white defendants including state officials for the massacre of African Americans on the basis that the Fourteendi Amendment does not "add any thing [sic] to the rights which one citizen has under the Constitution against another").
105. See Civil flights Cases, 109 U. S. at 25 (arguing that "[w]hen a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected") (emphasis added).
106. See Giles v. Harris, 189 U. S. 475, 486-87 (1903) (rationalizing non-relief in a "grandfather clause" voting-rights case by stating that "[i]f a white man came here on the same general allegations, admitting his sympathy with the plan, but alleging some special prejudice that had kept him off the list, we hardly should think it necessary to meet him with a reasoned answer");
107. Williams v. Mississippi, 170 U. S. 213, 222 (1898) (upholding state constitution and laws excluding African Americans from jury service through the use of criteria with a disparate racial impact on the basis that such exclusions "reach weak and vicious white men as well as weak and vicious black men");
108. Pace v. Alabama, 106 U. S. 583, 585 (1882) (finding no constitutional violation in antimiscegenation statute since "[t]he punishment of each offending person, whether white or black, is the same").
109. BELL, Race, Racism, supra note 51, at 40 (describing the principle of involuntary sacrifice of African Americans as ensuing as needed to facilitate disparate groups of whites to "setde a dispute" or "reestablish their relationship").
110. See Duncan Kennedy, A Semiotics of Legal Argument, 42 SYRACUSE L. Rev. 75 (1991) (observing that legal argument consists of a series of matched pairs of binary opposites).
111. Yick Wo v. Hopkins, 118 U. S. 356, 374 (1886).
112. See Plessy v. Ferguson, 163 U. S. 537, 544 (1896) (upholding a state segregation statute by arguing that the Fourteendi Amendment "could not have been intended to... enforce social, as distinguished from political [civil], equality, or a commingling of the two races upon terms unsatisfactory to either");
113. Civil Rights Cases, 109 U. S. at 25 (distinguishing between constitutional protection of the "essential [civil] rights of life, liberty, and property" compared to "[m]ere [social] discriminations on account of race or color," such as those discriminations in the "enjoyment of accommodations in inns, public conveyances, and places of amusement");
114. Strauder v. West Virginia, 100 U. S. 303, 306 (1879) (affirming the Fourteendi Amendment's purpose as "securing to a race recendy emancipated... all the civil rights that the superior race enjoy");
115. see also Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of StatusEnforcing State Action, 49 STAN. L, REV. 1111, 1119-28 (1997) (detailing the pre-Brown history of the Supreme Court delineation between constitutionally protected "civil" and "political" rights versus unprotected "social" rights).
116. Once the Court established a "state action" prerequisite for Fourteendi Amendment claims in civil-rights cases, the "no private constitutional rights" doctrine discussed previously underwrote the public-private distinction. For the public-private distinction cases, see supra note 57 and accompanying text. See also Yick Wo, 119 U. S. at 374 (holding that the state's administration of a facially neutral law in a racially discriminatory manner violated the Equal Protection clause).
117. See Fong Yue Ting v. United States, 149 U. S. 698, 731 (1893) (stating that the judicial branch has no power to judge the "wisdom, the policy or the justice of the measures enacted by Congress");
118. Chae Chan Ping v. United States, 130 U. S. 581, 602-03 (1889) ("When once it is established that Congress possesses the power to pass an act, our province ends with its construction, and its application to cases as they are presented for determination. ").
119. See Cherokee Nation v. Georgia, 30 U. S. (5 Pet.) 1, 17-18 (1831) (circumscribing indigenous sovereignty to the oxymoronic "domestic dependent nation" by rationalizing in part tiiat "the habits and usages of the Indians" whose "appeal was to the tomahawk... [w]as well understood by the statesmen who framed the constitution of the United States, and might furnish some reason for omitting to enumerate them among the parties who might sue in the courts of the union");
120. Johnson v. Mcintosh, 21 U. S. (8 Wheat) 543, 585 (1823) (declaring contrary to the established understanding of the law of nations, that "discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise") (emphasis added). Chief Justice Marshall later elaborated "the circumstances of the people" as "fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest To leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people, was impossible, because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on dieir independence."
121. Id. at 589. For a discussion of the Marshall Triology, Chinese immigration/deportation cases, and insular cases as they relate to the racial contingency of the foundational principles of sovereign powers
122. see Sumi Cho and Gil Gott, The Racial Sovereign, in Sovereignty, Legality and Emergency (Austin Sam, ed., forthcoming 2010) (detailing the racial contingency of such foundational legal principles of "sovereignty" and "national security").
123. See Giles v. Harris, 189 U. S. 475, 488 (1903) (upholding state refusal to enroll onto voting lists prospective African American voters on the basis that such "relief from a great political wrong... by the people of a state and the state itself, must be given by them or by the legislative and political department of the government of the United States");
124. Civil Rights Cases, 109 U. S. at 11 (striking the Civil Rights Act of 1875 prohibiting segregation in public accommodations and conveyances on the basis that "legislative power conferred upon Congress... does not invest... power to legislate upon subjects which are within the domain of state legislation");
125. Hall v. DeCuir, 95 U. S. 485, 488 (1878) (striking as unconstitutional a state statute requiring equal rights and privileges on public conveyances on the grounds tiiat such legislation "does encroach upon die exclusive power of Congress");
126. Slaughter-House Cases, 83 U. S. (1 Wall.) 36, 78 (1872) (arguing that recognition of the federal government's concurrent jurisdiction for die "privileges and immunities of citizens" under the Fourteenth Amendment would "fetter and degrade the State governments by subjecting them to the control of Congress" as well as "radically change[] the whole theory of the relations of the State and Federal governments to each other");
127. Blyew v. United States, 80 U. S. (1 Wall.) 581 (1872) (denying federal jurisdiction under Civil Rights Act of 1866 for the murder of an African American family by whites despite a state law prohibiting testimony by African Americans unless they were parties to the case).
128. See Fong Yue Ting, 149 U. S. at 731 (stating that the judicial branch has no power to judge the "wisdom, the policy or the justice of the measures enacted by Congress");
129. Chae Chan Ping 130 U. S. at 602-03 (stating that the Court has no authority to pass judgment upon the morality of other branches of government).
130. Lone Wolf v. Hitchcock, 187 U. S. 553, 565 (1903) (holding that Congress has always exercised plenary power over the Indian tribes);
131. Chae Chan Ping, 130 U. S. at 606 (declaring Congress' determination on immigration laws even where such laws explicidy discriminate by race as "conclusive upon the judiciary" insofar as Congress, not the Court, "considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security");
132. United States v. Kagama 118 U. S. 375, 384-85 (1886) (holding that the federal government alone has the power to enforce its laws upon the Indian tribes).
133. See generally Natsu Taylor Saito, From Chinese Exclusion to Guantanamo Bay: Plenary Power and the Prerogative State (2007) (detailing the emergence of plenary power as a racially subordinating legal rationale that violates the rule of law, international law, and constitutional norms);
134. see also Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 TEX. L. REV. 1, 278 (2002) (arguing that judicially recognized powers that inhere in sovereignty have origins in both international law and racist, illiberal ideology and continue to exert influence over judicial decision-making).
135. James K. Hogue, Uncivil War: Five New Orleans Street Battles and the Rise and Fall of Radical Reconstruction 88-110 (2006);
136. LeeAnna Keith, The Colfax Massacre: The Untold Story of Black Power, White Terror, and the Death of Reconstruction 109-12 (2007).
137. HOGUE, supra note 70, at 142-46 (describing the Supreme Court's approach to the case);
138. KEITH, supra note 70, at 115 (same).
139. See generally CHARLES LANE, THE Day Freedom DIED: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction (2008) (detailing the events surrounding the massacre).
140. C. Vann Woodward, The Strange Career of Jim Crow 103 (4th ed. 2002) (citing William Graham Sumner's "stateways cannot change folkways" argument and how detrimental it was to pursuing the civil rights of formerly enslaved African Americans).
141. See Fang Yue Ting, 149 U. S. at 731 (stating that the judicial branch has no power to judge the "wisdom, the policy or the justice of the measures enacted by Congress");
142. Chae Chan Ping, 130 U. S. at 602 ("The question whether our government is justified in disregarding its engagements with another nation is not one for the determination of the courts.").
143. Brown v. Bd. of Educ, 347 U. S. 483, 495 (1954) (stating that desegregation has no place in education);
144. Brown v. Bd. of Educ. (Brown II), 349 U. S. 294, 300 (1955) (setting the standard for compliance as "all deliberate speed").
145. U. S. C. § 21 (1964) (declaring that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance").
146. U. S. C. § 1973 (1965) (prohibiting attempts "to deny or abridge the right of any citizen of the United States to vote on account of race or color").
147. Hart-Cellar Act, INS Act, Pub. L. 89-236, 79 stat. (1965) (eliminating race-based national quotas for immigration).
148. See Dred Scott v. Sanford, 60 U. S. 393, 394 (1856) (stating that the framers never intended slaves to be citizens in the Constitution);
149. supra note 66 and accompanying text (illustrating complicity with racism toward Indian tribes in the Marshall Trilogy).
150. For a more detailed description of racial redemption, see Cho, supra note 14, at 11966.
151. Id. at 73-74 nn. 1-2.
152. This is perhaps best reflected in society's nonsanctioning of the South and establishment of the oxymoronic "all deliberate speed" pace of desegregation.
153. See 102 CONG. REC. 4459-61 (1956) (statement of Sen. George) (popularly known as the "Southern Manifesto");
154. Briggs v. Elliott, 132 F. Supp. 776, 777 (1955) (declaring that the Constitution does not require integration, but "[i]t merely forbids discrimination");
155. BELL, RACE, RACISM, supra note 51, at 147-59 (discussing pupil placement, one-grade-a-year, and freedom-of-choice plans);
156. JOHN HOPE FRANKLIN and ALFRED A. MOSS, Jr., FROM SLAVERY TO Freedom: A History of African Americans 513 (8th ed. 2000) (describing how over ninety southern-elected federal officials pledged to resist the Brown decision).
157. Milliken v. Bradley, 418 U. S. 717, 753-57 (1974) (Stewart, J., concurring).
158. Washington v. Davis, 426 U. S. 229, 239-43 (1976). Five years prior, in Palmer v. Thompson, the Court had the opportunity to establish an intent requirement or even acknowledge the significance of intent to an Equal Protection claim. Instead, the Court refused to inquire into the intent of the City of Jackson, Mississippi, when African American residents brought an Equal Protection claim following the City's decision to close its swimming pools rather than desegregate them. The City adopted race-neutral rationales of preserving the peace and the economic difficulty of running profitable integrated city pools. The City then turned over the pools to the local YMCA to operate on a segregated basis. The Court rejected the African American petitioners' claim, stating that legislative acts do not run afoul of the Equal Protection Clause despite the evidence of discriminatory intent as long as decisionmakers can also articulate a non-discriminatory plausible reason for their actions.
159. Palmer v. Thompson, 403 U. S. 217, 225-26 (1971).
160. Arlington Heights v. Metro. Hous. Dev. Corp., 429 U. S. 252, 270-71 (1977).
161. Wygant v. Jackson Bd. of Educ, 476 U. S. 267 (1986);
162. Plessy v. Ferguson, 163 U. S. 537 (1896).
163. Wygant, 476 U. S. at 276.
164. Laura K. Ray, A Law Clerk and His Justice: What William Rehnquist Did Not Learn from Robert Jackson, 29 IND. L. REV. 535, 536, 554 (1996);
165. Brad Snyder, How the Conservatives Canonized Brown v. Board of Education, 52 RUTGERS L. REV. 383, 384 (2000).
166. See GIRARDEAU A. SPANN, RACE AGAINST THE COURT: THE SUPREME COURT AND Minorities in Contemporary America 1 (1993) (noting that the Supreme Court of the early 1990s was "unreceptive to legal claims asserted by racial minorities");
167. Omi and WINANT, supra note 11, at 135.
168. City of Richmond v. J A Croson Co., 488 U. S. 469, 497 (1989) (emphasizing the distinction between "societal discrimination,' which is an inadequate basis for race-conscious classifications, and the type of identified discrimination that can support and define the scope of race-based relief);
169. see also Parents Involved in Cmty. Schs. v. Seatde Sch. Dist. No. 1, 127 S. Ct 2738, 2795 (2007) (Kennedy, J., concurring in part, dissenting in part) (describing O'Connor's "inherendy unmeasurable" "societal discrimination" emphasis in Croson as reinforcing the de facto vs. de jure discrimination difference).
170. Price Waterhouse v. Hopkins, 490 U. S. 228, 258 (1989).
171. Wards Cove Packing Co. v. Atonio, 290 U. S. 642, 659 (1989).
172. Patterson v. McLean Credit Union, 491 U. S. 164, 176-78 (1989).
173. Maureen Dowd, Trying to Head Off His Own Veto, Bush Holds Meeting on Rights Bill, N. Y. TIMES, May 15, 1990, at A1.
174. See Susan Cluck Mezey, Elusive Equality: Women's Rights, Pubuc Policy, and the Law 85 (2003) (describing President George H. W. Bush's October 22, 1990 veto of the Kennedy-Hawkins bill and the United States Senate's failure to override the veto in a 66-34 vote; just one vote shy).
175. See Dowd, supra note 94 (discussing the fear of racial balancing).
176. Adarand Constructors, Inc. v. Pena, 515 U. S. 200, 201-02 (1995).
177. Thomas Ross, Innocence and Affirmative Action, 43 VAND. L. REV. 297, 298 (1990).
178. Adarand, 515 U. S. at 223-24.
179. Id. at 227.
180. But see Jack M. Balkin and Reva B. Siegel, The American Civil Rigits Tradition: Anticlassification or Antisubordination, in ISSUES IN LEGAL SCHOLARSHIP: THE ORIGINS AND FATE OF ANTISUBORDINATION THEORY 11 (2003) available at http://www.bepress.com/cgi/viewcontent. cgi?article= 1039&context=ils.
181. FORD, The Race Card, supra note 31, at 317-18, 325-26.
182. Proposition 209 passed in California in 1996. JESSICA LARSON and STEPHEN Menendian, Kirwan Inst, for the Study of Race and Ethnicity, Anti-Affirmative Action Ballot Initiatives 2 (2008), available at http:// 4909e99d35cada63e7f757471b7243be73e53e14. gripelements.com/publications/anti- afSrmative-action-ballot-initiatives-report.pdf. Washington state's Initiative 200 passed in 1998. Id. Michigan's Proposition 2 passed in 2006. Id. at 3. Nebraska approved its Initiative in the 2008 election. Id. at 11.
183. Johnathan Martin, McCain Campaign Manager Obama Played the 'Race Card,' POLITICO, July 31, 2008, http://www.politico.com/blogs/jonathanmartin/0708/ McCain-campaign-chief-Obama-playing-race-card.html (predicting McCain and the GOP would use racially tinged attacks against him, Obama reportedly said, "what they're going to try to do is make you scared of me... [scared that I don't] look like all those other presidents on the dollar bills");
184. Katherine Q. Seelye and Julie Bosnian, Ferraro's Remarks Become Talk of the Campaign, N. Y. TIMES, Mar. 12, 2008, at A23 (noting Ms. Ferraro's reported comment that, "If Obama was a white man, he would not be in this position. And if he was a woman of color, he would not be in this position. He happens to be very lucky to be who he is. And the country is caught up in the concept").
185. See Girardeau A. Spann, The Conscience of a Court, 63 U. MIAMI L. Rev. 431, 467-68 (2009) [hereinafter, Spann, The Conscience of a Court] (criticizing the Court's doctrinal maneuvers to uphold school resegregation by diverting attention to the "standard-of-review debate;
186. the nature of qualifying diversity; the nature of narrow tailoring; the relevance of racial balancing; the effect of societal discrimination; the distinction between de facto and de jure discrimination; and the relevance of colorblindness").
187. Id. at 465-68 (discussing both the various judicial " waterboarding" techniques utilized to torture constitutional doctrine and foreclose greater racial equality in Parents Involved, as well as the "dog-whistle politics" used to assure white stakeholders that their racial privilege could be promoted in a way that would be consistent with the Equal Protection Clause and the Constitution).
188. See generally Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 127 S. Ct 2738 (2007) (discussing these limiting principles).
189. See also Spann, The Conscience of a Court, supra note 105, at 448-52 (detailing the "standard litany of regressive legal propositions that ultimately treats the Equal Protection Clause as a haven for existing white privilege, rather than as a guarantee of racial equality").
190. See Regents of the Univ. of Cal. v. Bakke, 438 U. S. 265, 290-99 (1978) (analyzing strict scrutiny in the context of race).
191. Grutter v. Bollinger, 539 U. S. 306, 330-31 (2003) (acknowledging interest convergence rationales to uphold affirmative action). In her opinion for the Court, Justice O'Connor articulates two such interest convergences. The first is what I would call the "global capitalism" interest convergence in upholding civil rights and affirmative action: "[M]ajor American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints."
192. Id. at 330. The second interest convergence is what I would call the "global policeman" rationale: "[H]igh-ranking retired officers and civilian leaders of the United States military assert that, '[biased on [their] decades of experience,' a 'highly qualified, racially diverse officer corps... is essential to the military's ability to fulfill its principle mission to provide national security.'"
193. Id. at 331.
194. See also infra notes 111-14 and accompanying text.
195. Sumi Cho, From Massive Resistance, to Passive Resistance, to Righteous Resistance: Understanding the Culture Wars from Brown to Grutter, 7 U. Pa. J. Const. L. 809, 809 n. 3 (2005).
196. See Grutter, 539 U. S. at 318, 335 (2003) (upholding as constitutional University of Michigan Law School's admissions numerically undefined goal of "critical mass," described as "meaningful numbers" or "meaningful representation," "understood to mean a number that encourages underrepresented minority students to participate in the classroom and not feel isolated" with "no number, percentage, or range of numbers or percentages that constitute critical mass").
197. Parents Involved, 127 S. Ct. at 2757 (reviewing the Grutter decision in which the law school sought to admit an "undefined 'meaningful number' necessary to achieve a genuinely diverse student body").
198. For example, culture, not race; ideology, not race; critical mass, not baselines or targets.
199. See Girardeau A. Spann, Neutralizing Grutter, 7 U. Pa. J. CONST. L. 633, 642 (2005) ("By outlawing the pursuit of racial balance in the name of colorblind race neutrality, Grutter prohibits the only remedy that is likely to be effective in combating contemporary racial discrimination. ").
200. See Grulter, 539 U. S. at 327-33 (affirming Justice Powell's diversity rationale announced in Bakke and the accompanying race-conscious student admission plan as a compelling state interest under strict scrutiny review).
201. Grutter v. Bollinger established that a public law school has a compelling state interest in attaining a diverse student body. Id. at 328.
202. However, in Parents Involved, the Court distinguished the "holistic" diversity rationale used in graduate legal education from racial diversity alone utilized in Parents Involved for K-12 public education, thereby scrutinizing whether the Seatde and Louisville race-conscious student-assignment plans and diversity rationale comported with strict scrutiny review.
203. Parents Involved, 127 S. Ct. at 2753-54.
204. See also Girardeau Spann, The Conscience of a Court, supra note 105, at 449-50.
205. Grutter, 539 U. S. at 333 (describing the second "narrow tailoring" prong under strict scrutiny review as "[t]he means chosen to accomplish the [government's] asserted purpose must be specifically and narrowly framed to accomplish thal purpose") (citation omitted).
206. Id. (describing the narrow tailoring requirement as the obligation to ensure that "the means chosen 'fit' th[e] compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype")
207. quoting City of Richmond v. J. A. Croson Co., 488 U. S. 469, 493 (1989)).
208. But see generally, Ian Ayres and Sydney Foster, Don't Tell, Don't Ask: Narrow Tailoring After Grutter and Gratz, (2005), http://works. bepress.com/ian-ayres/10 (maintaining that the Supreme Court changed the meaning of narrow tailoring in the Grutter and Gratz cases from a "minimum necessary preference requirement" to an individualized-consideration requirement mat amounts to a version of "don't ask, don't tell" scrutiny).
209. Parents Involved, 127 S. Ct. at 2759.
210. Id.
211. Id.
212. Id.
213. Id.
214. Parents Invoked, 127 S. Ct. at 2759.
215. Id. at 2760
216. (citing Parents Involved in Cmty. Sens, v, Seattle Sch. Dist No. 1, 377 F.3d 984-85 (2004)).
217. Id.
218. Id.
219. Id.
220. Parents Involved, 127 S. Ct. at 2743.
221. Id. at 2827 (Stevens. J., dissenting).
222. Id. at 2768.
223. Nw. Austin Mun. Util. Dist. No. 1 v. Holder, No. 08-322 (U. S. argued Apr. 29, 2009);
224. Ricci v. DeStefano, Nos. 07-1428 and 08-328 (U. S. argued Apr. 22, 2009).
225. Shelby Steele, Why Jesse Jackson Hates Obama, WALLST. J.July 22, 2008, at A19.
226. Thompson, supra note 6.
227. See supra note 23 (describing Derrick Bell's interest-convergence theory).
228. Along these lines, Attorney General Eric Holder's "A Nation of Cowards" speech is most intriguing and could be interpreted as a politically savvy way for Obama to mediate his official post-racial agenda by posing his Attorney General as the "bad cop" who will pursue explicit race talk and push the racial envelope, while allowing the President to adhere to his "good cop" strategy of cajoling the voting public to embrace progressive universal reforms. See Eric Holder, Att'y Gen., Dep't of Justice, Remarks as Prepared for Delivery by Attorney General Eric Holder at the Department of Justice African American History Month Program (Feb. 18, 2009), available at http://www.usdoj.gov/ag/speeches/2009/ag-speech-090218.html.
229. Thompson, supra note 6 (reporting on Obama's "swift and unequivocal" response that race would not be a defining feature in his candidacy at one of the first strategic meetings Obama held with advisors about a run for the presidency). For an example of electoral racialism (and a precursor to electoral post-racialism)
230. see Russ Rymer, Op-Ed., The George Wallace We Forgot, N. Y. TIMES, Oct. 24, 2008, at A31 (describing the racialized interest convergence between George Wallace and the Ku Klux Klan in the Alabama Governor's 1962 "segregation now, segregation forever" campaign strategy).
231. Thompson, supra note 6 (quoting an unidentified Obama adviser disclosing that Obama stayed away from the Jena protest and did not publicize visits to Black churches on his press schedule in order to appeal to white voters in the hotly contested, all-important Iowa primary).
232. SeanCallebs, Obama Takes Heat for Skipping State of the Black Union, CNN. COM, Feb. 23, 2008, http://www.cnn.com/2008/POLITICS/02/23/obama.sobu/index. html;
233. Alexander Mooney, fesse fackson: Obama Needs to Bring More Attention to fena 6, CNN. COM, Sept. 19, 2007, http://www.cnn.com/2007/POLITICS/09/19/ jackson.jena6/index.html.
234. Thompson, supra note 6 (referencing an interview with chief Obama strategist, David Axelrod, stating that the campaign had not mapped out a detailed strategy on race).
235. Id.
236. Id. (reporting on West's admonition that Obama "should speak forcefully about the legacy of racism in the nation and not cast the problems that disproportionately affect blacks as social ills shared by many Americans").
237. Id.
238. Obama's Father's Day Remarks, Transcript, N. Y. TIMES, June 15, 2008, available at http://www.nytimes.com/2008/06/15/us/politics/15text-obama.html.
239. Russell Goldman, Do Black Activists Want a Black President?, ABC NEWS. COM, July 10, 2008, http://abcnews.go.com/Politics/Vote2008/story?id= 5350382&page=l.
240. Louis Chude-Sokei, Shades of Black, LA. TIMES, Feb. 18, 2007, at M6, available at http://articlees.latimes.com/2007/feb/18/opinion/op0chude-sokei18;
241. Ta-Nehisi Paul Coates, Is Obama Black Enough?, TIME, Feb. 1, 2007, http://www.time.com/time/nation/article/0, 8599, 1584736, 00.html.
242. Thompson, supra note 6.
243. Polling data underscored this dilemma when it reflected that three out of five African American voters in South Carolina were women, and they were torn between Clinton and Obama. Margaret Talev, Michelle Obama Slumps to Sway Black Women to Husband's Campaign, McCLATCHY NEWSPAPERS, Nov. 26, 2007, available at http://www.mcclatchydc.com/227/story/21909.html.
244. Id.
245. Id.
246. Primary Results, South Carolina, Democrats Exit Polls, http://www.msnbc.msn.com/id/21226006/ (last visited Mar. 31, 2009). Critical-race theorist and hip-hop author Jeff Chang identified the strategic turn to racial solidarity using Michelle Obama as a "turning point" among the African American electorate.
247. Jeff Chang, The Ongoing Evolution of Obama's "Post-Racial Politics," HUFHNGTON POST, Feb. 12, 2008, http://www.huffingtonpost.com/ jeff-chang/the-ongoing-evolution-of-b-86312.html/.
248. Thompson, supra note 6 (describing "internal [Obama campaign] differences between the predominantly white team of top advisers and the mostly black tier of aides").
249. Clarence Page, Barack Obama and His Pastor-first Not Black Enough-Now Is He Too Black?, CUTTING EDGE, Mar. 31, 2008, available at http://www. thecuttingedgenews.com/index. php?article=400&pageid=&pagename (observing that after the Reverend Wright controversy, white voters seem to be wondering if Obama is "too Black").
250. But see Obama Not "Black" Enough for Jeremiah Wright?, May 4, 2008, http://jointreconstudygroup. blogspot.com/2008/05/obama-notblack-enough- for-jeremiah.html (suggesting that Obama is "not Black enough" based on his response to the Reverend Wright controversy).
251. Obama, A More Perfect Union, supra note 25.
252. Id.
253. Id.
254. Id. On Black anger, Obama acknowledged: But for all those who scratched and clawed their way to get a piece of the American Dream, there were many who didn't make it-those who were ultimately defeated, in one way or another, by discrimination. That legacy of defeat was passed on to future generations-those young men and increasingly young women who we see standing on street corners or languishing in our prisons, without hope or prospects for the future. Even for those blacks who did make it, questions of race, and racism, continue to define their worldview in fundamental ways. For the men and women of Reverend Wright's generation, the memories of humiliation and doubt and fear have not gone away; nor has the anger and the bitterness of those years.
255. Id. On white resentment, Obama analyzed: In fact, a similar anger exists within segments of the white community. Most workingand middle-class white Americans don't feel that they have been particularly privileged by their race.... They are anxious about their futures, and feel their dreams slipping away; in an era of stagnant wages and global competition, opportunity comes to be seen as a zero sum game, in which your dreams come at my expense. So when they are told to bus their children to a school across town; when they hear that an African American is getting an advantage in landing a good job or a spot in a good college because of an injustice that they themselves never committed; when they're told that their fears about crime in urban neighborhoods are somehow prejudiced, resentment builds over time.
256. Obama, A More Perfect Union, supra note 25.
257. Obama's "to do" list for African Americans: For the African-American community, that path means embracing the burdens of our past without becoming victims of our past. It means continuing to insist on a full measure of justice in every aspect of American life. But it also means binding our particular grievances-for better health care, and better schools, and better jobs-to the larger aspirations of all Americans-the white woman struggling to break the glass ceiling, the white man whose been laid off, the immigrant trying to feed his family. And it means taking full responsibility for own lives-by demanding more from our fathers, and spending more time with our children, and reading to them, and teaching them that while they may face challenges and discrimination in their own lives, they must never succumb to despair or cynicism; they must always believe that they can write their own destiny.
258. Id. Obama's "to do" list for whites: In the white community, the path to a more perfect union means acknowledging that what ails the African-American community does not just exist in the minds of black people; that the legacy of discrimination-and current incidents of discrimination, while less overt than in the past-are real and must be addressed. Not just with words, but with deeds-by investing in our schools and our communities; by enforcing our civil rights laws and ensuring fairness in our criminal justice system; by providing this generation with ladders of opportunity that were unavailable for previous generations. It requires all Americans to realize that your dreams do not have to come at the expense of my dreams; that investing in the health, welfare, and education of black and brown and white children will ultimately help all of America prosper.
259. Id.
260. Id.
261. The Thernstroms and John McWhorter are currently affiliated with the right-wing Manhattan Institute, which also formerly sponsored Dinesh D'Souza (who also formerly affiliated with the American Enterprise Institute and the Hoover Institute).
262. DINESH D'SOUZA, Illiberal Education: The Politics of Race and Sex on Campus 231-51 (1991) (arguing against affirmative-action admissions in higher education).
263. JOHN MCWHORTER, Losing the Race: Self-Sabotage in Black America 166-83 (2000) (blaming affirmative action for separatism, victimology, and anti-intellectualism among Black students).
264. Abigail Thernstrom & Stephan Thernstrom, Racial Gerrymandering Is Unnecessary, WALL ST. J., Nov. 11, 2008, at A15 (using the election of Barack Obama to argue against the Voting Rights Act of 1965).
265. DINESH D'SOUZA, The End of Racism: Principles for a Multiracial Society 544-46 (1995) (advocating for the repeal of the Civil Rights Act of 1964, which enacted prohibitions against employment discrimination and other forms of social and economic discrimination).
266. See COKORINOS, supra note 1, at 13 (explaining that sophisticated conservative private organizations mounted the attack against affirmative action).
267. David Roediger, supra note 30, at 40-45.
268. Id. at 40-42 (analogizing recent "retreat from race" literature as in keeping with the tradition announced by labor leader Eugene Victor Debs that class struggle be "colorless").
269. PAUL GILROY, Ain't No Black in the Union Jack (1987).
270. See generally PAUL GILROY, THE BLACK ATLANTIC: MODERNITY AND DOUBLE CONSCIOUSNESS (1993).
271. PAUL GILROY, Against Race: Imagining Political Culture Beyond the Color Line (2000) [hereinafter GILROY, AGAINST RACE].
272. Id. at 11-53.
273. Id. at 17-18.
274. Id. at 207-37, 333.
275. See Thomas West, Against Race: Imagining Political Culture Beyond the Color Line, 22 JAC (2006), http://www.jacweb.org/Archived-volumes/Text-artides/ V22-I1-Rev-West.htm
276. reviewing PAUL GILROY, Against Race: Imagining Political Culture Beyond the Color Line (2000) and noting that black culture and "revolutionary conservatism," most evident in rap and hip-hop, "illustrates just how complex racial cultural politics have become").
277. Id.
278. Patricia Hill Collins, A Tale of Two Titles, in 2 ETHNICITIES 539, 541 (2002).
279. Id.
280. Id. at 543.
281. DARDER & TORRES, supra note 29, at 1. They define race as "an ideology that has served well to successfully obscure and disguise class interests behind the smokescreen of multiculturalism, diversity, difference, and more recently, whiteness." Id.
282. Id. at 22.
283. Id.
284. Id. at 97-117.
285. Id. at 99 (acknowledging that while critical race theorists and, "in particular, Latino critical race theorists" have referenced capitalism or class in their work, critical race theory overall "has done little to further our understanding of the political economy of racism and racialization").
286. DARDER & TORRES, supra note 29, at 115.
287. Id.
288. Id. at 112.
289. Id. at 110-13.
290. Id. at 115.
291. DARDER & TORRES, supra note 29, at 112.
292. For example, Darder and Torres criticize the use of narrative in critical-race scholarship for three reasons: (1) the tendency to "romanticize" the experiences of people of color and marginalized groups; (2) the tendency to "'overhomogenize' both 'white' people and 'people of color'"; and (3) the tendency toward chauvinistic "exaggerations, excesses, and ideological trends."
293. Id. at 103-04.
294. Id. at 115.
295. Id. at 23-24.
296. Id. at 116.
297. DARDER & TORRES, supra note 29, at 115.
298. See infra notes 196-216 and accompanying text
299. DARDER & TORRES, supra note 29, at 3.
300. Id.
301. Id.
302. Id. at 34;
303. see also id. at 114 (arguing that "denial of 'races' does not imply the denial of racism or racist ideologies").
304. Id. at 35.
305. DARDER & TORRES, supra note 29, at 35.
306. Id.
307. Id. at 35-37. Indeed, the chapter that includes this discussion is entitled "Does 'Race'" Matter?-playing off of the title of Professor West's 1994 best-selling book, RACE MATTERS.
308. Id. at 35.
309. Id. at 36.
310. DARDER & TORRES, supra note 29, at 2.
311. Id. at 43-44.
312. Id. at 43 (citing CORNEL WEST, RACE MATTERS 3-4 (2001)).
313. Id. at 45.
314. Id. at 111 (citing BELL HOOKS, TALKING BACK, THINKING FEMINIST, THINKING BLACK 112-13 (1989)).
315. DARDER & TORRES, supra note 29, at 111.
316. Id. at 108.
317. See generally MICHAEL ERIC DYSON, I MAY NOT GET THERE WITH YOU: THE TRUE MARTIN LUTHER KING Jr. (2001) (describing King's career);
318. Jeff Cohen & Norman Solomon, The Martin Luther King You Don't See on TV, FAIR. ORG, Jan. 5, 1995, http://www.fair.org/index.php?page=2269 (recounting King's admonishing of Congress for its demonstrated "hostility to the poor"-appropriating "military funds with alacrity and generosity," but providing "poverty funds with miserliness").
319. JUDITH CLAVIR ALBERT & STEWART EDWARD ALBERT, The Sixties Papers: Documents OF A REBELLIOUS DECADE 159-64 (1984), available at http://historymatters.gmu.edu/d/6445/ (last visited Mar.31, 2009).
320. DARDER & TORRES, supra note 29, at 35, 111.
321. See also Roediger, supra note 30, at 48 (noting the "consistent refrain" of Darder and Torres' study is that "African Americans can practice 'racism'" and that the authors "persistently lay[] all manner of mischief at the door of the civil rights and Black Power movements").
322. Id. at 1.
323. GILROY, Against Race, supra note 168, at 42 (declaring that "[raciological] developments have been complemented by the appeal of articulate but britde traveling nationalisms firmly rooted in African-American circumstances, as well as by cynicism and opportunism");
324. see also Molefi Kete Asante, Against Race, by Paul Gilroy, 31:6 J. BLACK STUD. 847 (2001) (book review). Asante notes that Gilroy's work is not against all collective identities, as there is no critique of Jewish identity, French identity, or Chinese identity as collective historical realities. Rather, Gilroy sees "the principal culprits as African Americans who retain a complex love of African culture."
325. Id. at 848.
326. GILROY, Against Race, supra note 168, at 115.
327. Id. at 207-37, 333.
328. DARDER & TORRES, supra note 29, at 115.
329. See supra note 216 and accompanying text;
330. Collins, supra note 174, at 177-79.
331. Abigail Thernstrom, Getting Beyond Race: A Review of The Race Card: How Bluffing About Bias Makes Race Relations Worse," by Richard Thompson Ford; "Sellout: The Politics of Racial Betrayal," by Randall Kennedy; and "A Bound Man: Why We Are Excited About Obama and Why He Can't Win," by Shelby Steele, CLAREMONT REV. OF BOOKS (Winter 2009), available at http://www.thernstrom.com/articles/reviews-winter-2009.html;
332. Robert Verbruggen, Race Games, Old and New, Nat'l Rev., Mar. 10, 2008, at 57.
333. Robert Verbruggen, supra note 220, at 57.
334. FORD, The Race Card, supra note 31, at 6-8.
335. According to Ford, there are the "easy cases of blatant animus" or "obviously irrational stereotyping" warranting antidiscrimination law's intervention. Id. at 263. However, subtler forms of racism "so well hidden that we must find its traces in offhand comments, aesthetic preferences, and the inadvertent effects of neutral policies" warrant a new approach. Id. Ford proceeds in this chapter to forward his proposal for antidiscrimination law that avoids searching "all the more stubbornly for hidden bigots and incognito racists, applying more rarified and obscure definitions of racism with ever more shrill and anxious conviction, maybe we should look to new approaches to deal with racial injustices that don't fit well in the civil rights framework."
336. Id. at 265.
337. Id. at 54-59.
338. See id. at 22-24 (criticizing hip-hop artist Jay-Z's boycott of Cristal champagne in light of "black unemployment, poverty, rates of incarceration, and life expectancy");
339. id. at 72-87 (describing Oprah's reported experiences being turned away from a Parisian boutique).
340. See id. at 106-22 (pointing out the differences between the same-sex marriage movement and the civil-rights movement).
341. It is thus possible that Professor Ford's main audience is not primarily white liberals, but rather, white radicals and critical-legal scholars at elite law schools. In this regard, his work on post-racialism represents a sort of "nuclear option"-an attempt to explode the heated "rights debate" between critical-legal and critical-race scholars in the late 1980s and early 1990s. For the history of the rights debate and how it tracked racially within the radical community of legal scholars
342. see Kimberlé Crenshaw, Introduction, in CRITICAL RACE THEORY: KEY WRITINGS THAT FORMED THE MOVEMENT xxii-xxvii (Kimberlé Crenshaw et. al. eds., 2001).
343. Ford implies that those who are truly worthy of laying claim to the civil rights tradition and deployment of the charge of racism are those who attack material disadvantage, confront political disenfranchisement, or face violent repression as opposed to those who pursue symbolic suffering or purely psychological injury: Early social justice movements attacked material disadvantage, political disenfranchisement, and violent repression. But as the long, hot summers of the 1960s and 1970s passed into history and cliche, social movements for women, gays and lesbians, the disabled, and racial groups have become as likely to advance claims based on symbolic suffering and purely psychological injury.
344. FORD, The Race Card, supra note 31, at 90.
345. Id. at 27-29, 338 (arguing that "[b]ecause working people like Rosa Parks risked all to stand up to unabashed bigots who were backed by social convention and the force of law, celebrities such as Oprah Winfrey and Jay-Z have the luxury of complaining of minor and ambiguous slights from professional snobs").
346. Id. at 26-30.
347. Id.
348. Id. at 27.
349. FORD, The Race Card, supra note 31, at 30.
350. Id.
351. Id. at 279, 345.
352. Id. at 30.
353. Id. at 5, 31.
354. FORD, The Race Card, supra note 31, at 27, 30-31.
355. Id. at 91.
356. Id. at 339.
357. Id. at 73-74.
358. Id. at 23.
359. FORD, The Race Card, supra note 31, at 21.
360. Id. at 345.
361. Id. at 345.
362. Id.
363. RICHARD T. FORD, Racial Culture: A Critique 211 (2005) [hereinafter Ford, Racial Culture].
364. Id. at 59-123 (discussing, in Chapter Two, "identities as collective action"). For a response to Ford's critique of difference discourse
365. see Barbara J. Flagg, An Essay for Keisha (and a Response to Professor Ford), DUKE J. GENDER L. & Pol'y 179, 201 (2007) (critiquing Ford's brightline distinctions between both oppression-based and cultural claims and ascriptive identities and cultural practices).
366. FORD, Racial CULTURE, supra note 248, at 2 (describing "difference discourse" as a "variant of multiculturalism").
367. Id. at 211.
368. Id. at 212.
369. Id.
370. see also RANDALL KENNEDY, INTERRACIAL INTIMACIES: SEX, MARRIAGE, IDENTITY, AND ADOPTION 35 (2003) (advocating for a "positive ideal" in the form of "a cosmopolitan ethos that welcomes the prospect of genuine, loving interracial intimacy").
371. See FORD, RACIAL CULTURE, supra note 248, at 3 (observing that the celebratory discourse of group difference "employs precisely the same description of group difference that the bigots employ").
372. Id. at 14 (disclosing his original subtitle, "A Critique from the Left").
373. Id.
374. Id.
375. Id.
376. FORD, The Race Card, supra note 31, at 22.
377. See supra notes 232-39 and accompanying text.
378. FORD, The Race Card, supra note 31, at 349.
379. Richard Thompson Ford, The Wrong Poster Children, SLATE, Sept. 24, 2007, http://www.slate.com/id/2174600/[hereinafter Ford, Poster Children].
380. FORD, The Race Card, supra note 31, at 90.
381. Ford, Poster Children, supra note 262.
382. See Tom Mangold, "Stealth Racism" Stalks Deep South, BBC News, May 24, 2007, http://news.bbc.co.uk/2/hi/programmes/this-world/6685441.stm (giving accounts of geographic segregation in Jena, Louisiana).
383. Howard Witt, Racial Demons Rear Heads: After Months of Unrest Between Blacks and Whites in Louisiana Town, Some See Racism and Uneven Justice, Chi. Trib., May 20, 2007, § 1, at 3.
384. Id.
385. Id.
386. Id.
387. Id.
388. Bill Quigley, Injustice in Jena as Nooses Hang from the "White Tree," TRUTHOUT, July 3, 2007, http://www.truthout.org/article/bill- quigley4njusticejena-nooses-hang-firom-white-tree? print.
389. Mangold, supra note 265.
390. Witt, supra note 266.
391. Id.
392. Id.
393. Id.
394. Mangold, supra note 265.
395. Id.
396. Quigley, supra note 271.
397. Id.
398. Id.
399. Id.
400. Critical-race scholar Anthony Alfieri acknowledges that Jena District Attorney Walters might have a colorblind "alibi" for his seeming disparate treatment of white and Black youth.
401. Anthony V. Alfieri, Prosecuting the Jena Six, 93 CORNELL L. REV. 1285, 1292 (2008). However, Alfieri connects this colorblind defense to identity-degrading and community-disempowering relationships between white prosecutors and black offenders in a segregated locale, noting that "long-standing prosecutorial norms and practice traditions permit[] the colorblind, and alternatively color-coded, tolerance of postbellum segregation to continue unabated."
402. Id. at 1296.
403. Ford, Poster Children, supra note 262.
404. Id.
405. Id. Initially, Rosa Parks seems distinct from the Jena Six because her opposition to subordination did not involve physical violence. However, the underlying and inescapable similarity between Parks and the Jena Six lies in the unequal treatment they received based solely on their race.
406. Id. For more information on the central role of Color of Change to the Jena Six protest
407. see Joe Garofoli, Beating Case Galvanizes S. F. Online Activist Group, S. F. CHRON., Sept 22, 2007, at A6 (tracing the central role of Color of Change to the Jena Six protest movement, and, in turn, the centrality of the Jena Six to the development of a new media, race-based organizing movement).
408. Ford, Poster Children, supra note 262. Ford's uncharitable read of the Jena Six and their supporters is perhaps not so startling in light of his "lampooning" methodology articulated in Racial Culture that he employs to attack and defeat race-based collective political action.
409. FORD, Racial Culture, supra note 248, at 211 (quoting Brian Barry, Culture & Equality 31 (2002) for the strategy of counteracting non-rational beliefs by the non-rational means of "mocking, ridiculing, and lampooning").
410. Salim Muwakkil, Jena and the Post-Civil Rights Fallacy, IN THESE Times, Nov. 2007, at 15, available at http://www.inthesetimes.com/article/3375/jena- and-the-post-civil-rights-fallacy/. In addition to Obama, the post-racial new Black leadership cohort often includes "Massachusetts Gov. Deval Patrick, Newark Mayor Cory Booker, Washington D. C. Mayor Adrian Fenty, former Tennessee Rep. Harold Ford, Alabama Rep. Artur Davis, and Philadelphia [Mayor] Michael Nutter," among others. Id.
411. Id.
412. Id. Booker T. Washington urged African Americans to pursue racial equality through a course of gradualism and accommodation. Washington argued progress could be made through industrial education and bridging the wealth and property-ownership gap between African Americans and whites. W. E. B. Dubois challenged Washington, arguing that true racial equality could not occur without making legitimate demands for political power (the right to vote), civil rights, and higher education of the African American youth.
413. See W. E. B. Dubois Critiques Booker T. Washington, History Matters, http://historymatters.gmu.edu/d/40/ (last visited July 15, 2009).
414. Id.
415. Id. Muwakkil points out how African American males confront "a criminal justice system that incarcerates them more than eight times the rate of whites" in penal institutions that operate as "festering holding pens for black and Latino youth." Id.
416. Muwakkil, supra note 289.
417. Ford, Poster Children, supra note 262, at 1.
418. Evelyn Brooks Higginbotham, Righteous Discontent: The Women's Movement IN THE BLACK BAPTIST CHURCH 1880-1920, at 185-230 (1993) (coining the term "politics of respectability" to refer to the constricted political strategies of Black Baptist women who sought racial uplift by adopting an ideology of The Cult of True Womanhood). Of course, Professor Ford's preference for the "perfect plaintiff" tilts toward a more economically privileged and socially respectable plaintiff, which, in contradictory fashion, runs the risk of incurring his "not truly worthy" critique.
419. In the 1955 case of Briggs v. Elliott, a per curium district court that included Judge Parker declared: "The Constitution... does not require integration.... It merely forbids the use of governmental power to enforce segregation. "
420. Briggs v. Elliott, 132 F. Supp. 776, 777 (E. D. S. C. 1955) (per curium).
421. See BELL, RACE, RACISM, supra note 51, at 147-50 (discussing these efforts).
422. TALI MENDELBERG, The Race Card: Campaign Strategy, Implicit messages, and the Norm of Equality 3-27 (2001).
423. Osajima, supra note 17, at 167 (explaining that the idea of a model minority "was an image that carried political and ideological implications specific to the historical conditions of race relations").
424. Muwakkil, supra note 289, at 15.
425. The five states were Arizona, Colorado, Missouri, Nebraska, and Oklahoma. The antiaffirmative action initiative passed in Nebraska, but was rejected in Colorado and failed to make the ballot in Arizona, Missouri, and Oklahoma.
426. Tyler Lewis, Victory on Equal Opportunity, Nov. 6, 2008, Crvilrights.org, http://www.civilrights.org/equal-opportunity/connerly/039-victory-onequal- opportunity.html.
427. See ctr. for social inclusion, Kirwan Inst. for the Study of Race & Ethnicity, Thinking Change: Race, Framing and the Public Conversation on Diversity: What Social Science Tells Advocates About Winning Support for Racial Justice Policies 10 (2005) (analyzing the various approaches employed by affirmative action advocates, ranging from "race-neutral" strategies that avoid mention of structural racism or affirmative action, to using the term affirmative action while educating the public about media frames that produce negative reactions to race-conscious remedies);
428. Khaled Ali Beydoun, Without Color of Law: The Losing Race Against Colorblindness in Michigan, 12 Mich. J. Race & L. 465, 495 (2007) (reporting that white focus groups polled about Michigan's statewide initiative on affirmative action insisted that the term "affirmative action" not be used at all in messaging due to participants' sense that the term "was irrevocably negative, unsalvageable and thus counterproductive" to defeating the anti-affirmative action initiative).
429. Immanuel Wallerstein, Remembering Andre Gunder Frank While Thinking About the Future, Monthly Rev., June 2008, at 50.
430. Id. at 51.
431. Id. at 53.
432. Id.
433. Id. at 54.
434. Wallerstein, supra note 304, at 54.
435. Id. at 58.
436. Id.
437. Id.
438. Id. at 58-69.
439. Wallerstein, supra note 304, at 59.
440. Id.
441. See generally BARACK OBAMA, THE AUDACITY OF HOPE: THOUGHTS ON RECLAIMING THE AMERICAN DREAM (2006) (describing President Obama's vision about how governments should operate).