Decompositional Rights

The oscillation between then and now distills the past four hundred years into one definitive moment. And, at the same time, the still-unfolding narrative of captivity and dispossession exceeds the discrete parameters of the event. In itemizing the long list of violations, are we any closer to freedom, or do such litanies only confirm what is feared—history is an injury that has yet to cease happening? —Saidiya Hartman, "The Time of Slavery"

Saidiya Hartman wonders in the epigraph above whether a distinction can be made from "the long list of violations" between "freedom" and "history [as] an injury that has yet to cease happening." This same question can be put to civil rights discourse in American legal history and begs the further question of how, ultimately, we might understand the law's promise of equality given an essentially knotted relation between freedom and captivity? Does the enduring black struggle for civil rights work toward liberation, or does it fatally rehearse the "still-unfolding narrative of captivity and dispossession"? And, how does the time of slavery require a wholesale rethinking of the normative understanding of citizenship as a legal capacity to bear rights (usually civil rights)?

One way to begin an answer to these questions is with a certain latent skepticism toward civil rights that surfaces by the "litanies" of claims to civil rights. At the same time, this skepticism emerges also as a question about what is at stake when civil rights in American legal history are reduced to either a narrative of freedom or dispossession. In particular, the black claim to civil rights—exceeding the organization of the American legal archive into identity-based constituencies or periods of civil rights reforms in the mid-nineteenth and twentieth centuries—suggests that this narrative binary is neither necessary nor adequate to the task of rethinking the relation between race and law. Both post–civil rights critiques and defenses of civil rights bear the mark of this theoretical acquiescence, specifically by continuing to reduce the force of the black claim to the identity of its claimant or its historical impact on the development of civil rights law.

Taking a step back from these debates, we might ask instead: What is this claim on civil rights that forever gives the lie to the law's history of equality? What is this claim that in its repetition at once drags down the ideal of democratic citizenship and resurrects it in an always already colorblind vision of political community? Contrary to Hannah Arendt's argument that "the nation-state cannot exist once its principle of equality for the law has broken down," Hartman's sense of history suggests that the nation-state exists precisely because the principle of equality has always been broken. The United States as a nation-state is constituted by a permanent condition of inequality between blacks as the descendants of slaves and an always-plural community of citizens. Within this scene, the black claim to civil rights compels us to ask how such broken equality becomes constitutional, as well as how such constitution is escaped.

I offer some provisional answers to these questions in this chapter by tracing the force of what I call a decompositional right, which upon its pleading decays the assurances of equality and civil rights proffered by legal rationality. It is a form of right that recursively un-writes the various types of rights the law has developed to define citizenship. And it surfaces in legal reason by what Derrida calls a "degenerescence" of the presumed effective relationship between civil rights and citizenship. "Degenerescence" is one of the names Derrida gives to what he calls "an essential disruption" of law "within the heart of the law itself" (whatever type of law—in his particular piece, the laws governing genres).

Accordingly, I examine how the law maintains a taxonomy of rights in the face of the black claim to civil rights. This taxonomy orders categories of civil, social, and political rights, assigns various levels of legal protection for and enforcement of them, and becomes a theoretical matrix by which rights-based claims are adjudicated. I am interested specifically in how the black claim splays this generic taxonomy of rights from which the classic rights of citizenship are engendered. In what follows, we enter into the degenerescence of this taxonomy through perhaps the most exhausted topic of racial jurisprudence: affirmative action in higher education. There we find that the decomposition of the law's principle of equality into what the Supreme Court tepidly reaffirmed in 2013 as the "educational benefits of diversity" is merely an elapsed half-life of the law's inverted image of black citizenship. By exploring the foundational cases adjudicating the issue of black citizenship—Plessy v. Ferguson (1896), the Civil Rights Case of 1883, and Dred Scott v. Sandford (1857)—we find not a legal personality to be incorporated into universal citizenship, but instead, one who must be endlessly demoted from citizenship. Ultimately, what we will find by tracing the decompositional right through these cases is a form of noncitizenship that I call "dispossessive citizenship."

The Colorblindness of Multiracial Citizenship

The question of citizenship and race appears in contemporary racial jurisprudence obliquely. Outside of the de jure and de facto racial politics of naturalization and immigration law that many have recently criticized for excluding foreign nationals and regulating their kinship networks, racial jurisprudence and its focus on discrimination engages issues of citizenship through constructions of a colorblind national history. This fantasmatically establishes the origin of American citizenship not in racial exclusion, but in a racial inclusion that citizenship professes to have always strived for. And in the spirit of racial inclusion, affirmative action in higher education remains an important area of racial jurisprudence where that origin story of an inclusive multiracial citizenship lives on.

Consider the Supreme Court decision, Grutter v. Bollinger (2003), decided in the wake of three decades of right-wing assaults on race-based affirmative action policies, particularly in higher education. This case confirmed the persistence and persuasiveness of the origin story of American multiracial citizenship in what affirmative action jurisprudence calls the "diversity rationale." This justification, which validates race-based affirmative action policies with the goal of creating a diverse learning environment, arises from the Court's recognition of the university's First Amendment right to academic freedom. Reiterating this rationale to the exclusion of other possible justifications advanced by proponents of affirmative action, Justice O'Connor reasoned,

[The] benefits [of diversity] are not theoretical but real, as major American businesses have made clear that the skills needed in today's increasingly global...