DISCUSSING RACE, POLICING, AND THE FOURTH AMENDMENT THROUGH THE “WAR ON” PARADIGM
espite the longstanding history of race in America, the twenty-first century curiously purports to be an era of post-racialism. As support, it points to the first State of the Union address ever given by an African American President, Barack Obama. The former president’s ascendancy acknowledges our racial progress, but it is far from an uncomplicated celebratory milieu. While it is true that the convergence of racial progress and multicultural democracy marks this historical moment, claiming we are indeed post-racial overstates our reliance upon its significance. Rather than destabilize the basic notions of white superiority, the significance that we had a Black president, and thus the claim that we are post-racial, actually reinvigorates what Professor Joy James called “the disciplinary narratives of anti-black racism.”
Taking stock in this instance, however, means recognizing how the rise of Obama raises the specter of racial uplift by way of the redeployment of racist tropes of Black criminality. He is nominated, runs, and wins a presidential election not because of his Blackness, in which he represents the whole spectrum of Black social and political existence, but because his brand of Blackness is the “other”–the palpable, tolerable, embraceable Black man who represents the proudest moment in colorblind ideology: the ability of young African Americans to pull themselves up by their own bootstraps. In other words, Obama rises because of pathological Blackness, not in spite of it. This is not to understate President Obama’s qualification for the position, although many have tried. But as Professor Fred Moten explains, “[t]he cultural and political discourse on black pathology has been so pervasive that it could be said to constitute the background against which all representations of blacks, blackness, or (the color) black take place.” Stock taking in this context, then, means dealing with the contradictions of the present state of America, of Obama’s post-racial America, in terms of how white supremacy constitutes the basis not only for white identity but for Black subjectivity as well.
But the fashioning of Black existence within the framework of post-racialism presupposes a significant recognition about state power: how can we assess this state of dis-union through an understanding of the nexus between America’s war on social issues and popular culture? In particular, how is post-racial America affected by this nation’s longstanding war on Blackness, ranging from the Black Power Era to the era of Hip Hop? How does the state’s power to control the narrative of race demonstrate its ongoing efficacy in both classifying crimes and who is criminal? More importantly, what are some of the insidious ways in which state power moves under the cover of darkness? I maintain a key component for understanding the “fallout” of declaring war on social issues and its impact on young people of color is the recognition that the state is most effective where it is least visible example, in the trajectory of American law.
Contesting racial progress is not an easy task. After all, most Americans embrace the idea that our racial tolerance today is considerably different from the past: that the old vanguard of American racism is dead and buried, and racial enlightenment has risen from the fiery ashes of de jure and de facto segregation obliterated by 1960s civil rights struggles. While there may be some value to that argument, strict regimentation begs the question: racial enlightenment according to whom? In order to contest racial progress we must approach the discussion honestly. In other words, we need to locate these new discussions about post-racialism in the old discourse of colorblindness, which itself needs situating in terms of the state’s naked criminality against the liberation fighters of the Black Power Era.
Post-racialists, of course, would have us believe that the landmark ruling in Brown v. Board of Education and the passage of the Civil Rights Acts of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968, effectively made racism a thing of the past. In other words, law not only officially outlawed racism, but it also reframed its abrogation with irrefutable evidence of Black equality, most specifically, with the presence of more Blacks in high profile careers. But that characterization misses the mark. Because white civil society in this country has “long considered black people to be weapons of mass destruction,” the increasing presence of Black men in prominent positions should indeed give us pause. The persistence of racial inequality is not so easily replaced because a few Blacks have poked through America’s glass ceiling in law, politics, and business. Instead, racial inequities, namely in policing and punishment, still overwhelmingly prevail. In fact, the ongoing discourse of post-racialism actually makes it difficult to discern the ongoing reality of anti-Blackness in American law. Campaigns, such as “get tough” on crime, wage a “war on drugs,” and “increase our border security” adopt colorblind language, but their targets are almost overwhelmingly Black and Brown people. Simply, the effect of post-racial ideology on racial progress is to render racism illegitimate and suspect by definition, hence the use of the phrase “playing the race card” anytime a person of color simply points to the most mundane and obvious moments of racism in the post-Civil Rights Era.
Although Critical Race scholars have interrogated post-racial ideology and its jurisprudence, no one has connected it to its material base: the historiography of the late 1960s Black Power Era where the dirty work of an anti-Black state apparatus was deeply mired in extra-legal activities. During the Black Power Era, from 1966 through 1980, the state pursued two primary strategies in repressing the Black liberation struggle: to criminalize Black expressions of sovereignty and to criminally assault Black people everywhere. The FBI’s clandestine counterintelligence program, COINTELPRO, was a central means toward this end and should be a requisite study for all generations. Fraudulent prosecutions and assassinations of Black leaders and rank and file activists were coupled with the mundane killings of everyday Black folk by the police. Between 1966 and 1969, the federal government engaged in numerous counterintelligence operations against Black liberation organizations and their leaders. Between 1971 and 1973, nearly 1000 Black people were killed by law enforcement. This is a higher rate of state-sanctioned death–over one police murder per day for three years–than during the height of anti-Black lynchings around the turn of the twentieth century.
To all that’s been said thus far about post-racialism, I wish to add this: the discourse on post-racialism emerges from a context of profound anxiety and self-consciousness about the ongoing brutality of the law’s relationship to Black Americans. The assiduous insistence on defining racism as merely individual acts of bias betrays a desire to hide the reality of structural violence and institutionalized forms of discrimination. Whereas post-racialism emerged out of a raw and violent period of social protest and state repression, seeking to transform the meaning of these struggles from a historic political context to merely a matter of criminality, legal discourse on post-racialism appears after four decades of law and order retrenchment. The memory of the social movements, of the state’s naked criminality, and of the law as a space of open contestation has waned. So, also, has the memory of a racial discourse that was actually grounded in reality. Post-racialism, therefore, is really about a desire by whites to move this society into a post-Black people era. It ignores the insatiable demands of the Black community and denies the ways in which Black existence is a reminder of state violence. Simply, post-racialism hopes Black people will stop being Black.
While new generations of young people are raised under conditions that are considerably worse than those faced prior to the post-Civil Rights Era, both liberal and conservative whites appear eager to “move on”–to disregard, with finality, the historical context that produced today’s miserable conditions. The generation I refer to is the children of the Black Power activists of the 1960s and 1970s, the children who came of age in the 1980s and 1990s, and were bequeathed revolutionary ideals in a post-revolutionary age. This generation also faced a society in which changes in the political economy have reduced employment and education opportunities forever, state restructuring abetted rather than ameliorated poverty, conservative jurisprudence facilitated draconian public policy, and Cold War foreign policy translated into war-making against people of color throughout the Third World. This generation of Black and Brown youth would come to be called gangsters, thugs, and hoodlums, while they would come to call themselves “the Hip Hop generation.”
The 1980s, the beginning of the post-Civil Rights Era of colorblindness and formal legal equality, saw an increase in structural violence that hit Black communities the hardest. The portion of Black children living in poverty during this decade increased from 41.2 to 43.7 percent. The increase in child poverty is directly related to deindustrialization and state restructuring. By the 1980s, the rise of the financial industry and the decline in manufacturing meant a devastating loss in stable working-class jobs, a decline in real wages for all working people, and a rise in part-time, low-wage, dead-end service-sector jobs. Fifty percent of Black males employed in the manufacturing sector in five Midwest states lost their jobs as a result of deindustrialization between 1979 and 1984. Consequently, between 1965 and 1990, Black family income fell fifty percent, and Black youth unemployment quadrupled. Although popular discourse pathologized the Black family for the problems it faced during these times, the shifts in the political economy clearly meant that parents’ material conditions to provide for their children had seriously deteriorated.
State restructuring over the course of the 1980s and 1990s undermined Civil Rights Era progress in substantial ways. It ended welfare and affirmative action, rolled back many basic social services, and established a new reliance on criminal justice to create and deal with the predictable problems connected to joblessness and poverty. During this period of social change, the children of the former Black revolutionaries came to know the meaning of race through their experiences of continuing and cumulative discrimination in housing, employment, and education, persistent police brutality, and toxic environmental pollution in their neighborhoods. In other words, unlike their parents’ generation, whose struggles focused on legal equality and deeply entrenched battles against racial segregation, the Hip Hop generation is besieged by a plethora of post-Civil Rights problems, including racial profiling, rising rates of incarceration, poor(er) education, heightened sexual-identity wars, environmental racism, AIDS, and unemployment worsened by the onset of American capitalist globalization, namely job outsourcing to low wage developing countries.
Although Black residents organized their communities throughout the 1960s and 1970s against the violations of civil rights legislation guaranteeing fair housing, fair employment, and educational equity, the post-Civil Rights political imagination is more concerned with the cultural controversies stirred up by the beats, rhymes, graffiti art, dance styles, and posturing emerging from inner-city youth. From “the promises that break by themselves . . . to the breaks with great promise,” the Hip Hop generation rose from the devastation of the state’s war against Black revolutionaries to carry on the tradition of irreverence and creative artistry that has been a central component of Black expressive vernacular culture since at least the “baaadman tales” of Jelly Roll Morton in the late nineteenth century and the age-old tradition of “signifying.”
Like the attack on Black politics during the Black Power Era, the attack on politics in rap music with the structural violence of the political economy–narrowed the cultural terrain on which counter- narratives about our present historical moment might address ongoing Black dispossession. By narrowing the field of representation, hardcore lyrics and stereotyped Black maleness become a commodity for purchase, trade, and power. In the absence of political mass movements, revolutionary hardcore or “conscious” rap is difficult to sell. As Professor Joy James explains:
The drive for capital promotes some and curtails other underground narratives: boasting about breaking women = $$; boasting about reading to your two-year-old = $0; romanticizing killing or dying by the young rebel = $$; celebrating the pursuit of old age as irascible rebel = $0. Capital as medium transforms the hardcore into market transactions, that is, into forms of alienation in labor, desire, and politics.
In other words, rapping about shooting, killing, or dominating other Black men is far more lucrative than rapping about how corporate lawyers in Citizens United v. Federal Election Commission colonized the First Amendment to the U.S. Constitution to define the corporation as a “legal person,” enabling them to successfully claim that the corporation is entitled to free speech like an actual human being.
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Focusing on the “long fetch” of Black suffering that emanates from the era of Black Power, this Article claims that understanding the present state of anti-Blackness in modern policing and the trajectory of Fourth Amendment analysis, which currently authorizes racial stereotypes in (de)establishing privacy rights, is critical to reconciling the specter of legal violence against young Black men. While the Black Power Era was a period of Black self-determination, the post-Civil Rights Era, which has been recognized as the Hip Hop Era, has witnessed the rise of the American gangster–emanating from the government, extending to its citizens.
Understanding how legal proclivities on race and criminal justice induce narratives that emanate from Black Power and influence rap music is important because it reveals how the contemporary dialogue championing the successes of the Civil Rights Era fails to account for the hidden history of America’s protracted war on Black liberation. Further, missing these historical connections prevents public recognition that modern interpretations and applications of the Fourth Amendment have not only changed post-Civil Rights policing, but also retrenched anti-Blackness in everyday legal parlance.
While there is much fallout from the war on Black Power, namely the over-incarceration of young Black men, police brutality, unconstitutional searches and seizures, and racial profiling, there exists one more: the problem of honestly narrating race and law in a colorblind world. Simply put, Hip Hop artists have replaced the political visionaries of the Black Power Era as the voices of resistance to, and freedom from, racial and political oppression deeply embedded within American law. Recognizing the rise of Hip Hop, and rap music, as part of the fallout from the war on Black Power helps us clearly see how stories of law and order shifted from the soapbox poets of Black Power to the street poets of Hip Hop. In this space, Hip Hop’s shifting discourse on law takes a decidedly different form: where reading or listening to rap music reveals how the fallout of the war on crime and the war on drugs exposes the deep connections between Black social existence and transformation within American law.
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