Special thanks to Atiba Ellis and Nancy Leong for their invitation. My note is inspired by my favorite law review article, Anthony Farley’s The Black Body as Fetish Object. I use fetish object as a reification of racial relations. My focus is upon the most important of racial relations – racial violence against Black bodies. From the wealth of genealogical materials, my first exemplary narrative is the Colfax Massacre and the Supreme Court’s decision in U.S. v. Cruikshank. Cruikshank is the central marker in the modern era of racial violence and colorblind ideology.
On Easter Sunday, 1873, over one hundred Whites with rifles and a cannon attacked a large group of armed freedmen who had occupied the Grant Parish courthouse to defend a Republican appointed sheriff and judge. The white Democrats attacked, set the Courthouse afire, and killed many as they tried to escape the flames and surrender. Others were executed after being taken prisoner. Over one hundred Blacks were killed.
A federal prosecution was blocked by the Supreme Court. While there are doctrinal twists to Cruikshank, I believe the decision establishes the Supreme Court as the ultimate defender of public and private violence against Black armed resistance. Using constitutional doctrines summarized by Starger, Davis and Francois as the Confederate Narrative, Cruikshank establishes a foundational principle of modern race law: armed Black resistance will be met with overwhelming military force.
My second exemplary narrative is Bobby Hutton’s death in 1968. Following an armed confrontation with Oakland police, Hutton, Eldridge Cleaver and other Black Panthers were surrounded in an Oakland house. After tear gassing, Hutton stripped to his underwear to show he was unarmed and attempted to surrender. Hutton was killed by police.
The third exemplary narrative is the occupation of the Malheur National Wildlife Refuge by armed militia. The militia, while composed entirely of Whites, did not argue directly for white supremacy over Blacks. They articulated an aggressive variation of the Confederate Narrative: states’ rights, conquest and disposition of Indian lands, and the rights of armed resistance. Federal authorities adopted tactics similar to Ruby Ridge and Waco but with greater patience for political theater. State violence was nuanced and limited.
My argument about Malheur is its peculiar constitutional formulation. Malheur is exemplary not simply because it illustrates discrimination in administration of colorblind justice. The constitutional lesson is the non-use of disciplinary violence. The overwhelming military force exercised in Ferguson is the norm for Black resistance which carries even a hint of rebellion. In Malheur, the ideological affirmations are multiple. i) Colorblind constitutional claims to the Confederate Narrative are to be tolerated, including armed political theater. ii) The absence of armed evangelical resistance frees the Court to expand its use of religious freedom. iii) Any Black resistance outside of the disciplinary guidelines established by the Supreme Court will be treated as racial rebellion. Public and private violence is freely available against such rebellion.
When the Supreme Court has arrogated to itself the power to fetishize racial violence onto its canonical text, I can only offer this cautionary note. (PS – I am inspired by Beyoncé’s subversion of the Super Bowl.)
Neil Gotanda, Professor of Law, Western State College of Law