Abstract

Excerpted From: Ion Meyn, Carceral Apartheid: Centering State Responsibility for the Racial Order, 46 Cardozo Law Review 433 (December, 2024) (323 Footnotes) (Full Document)

Erasing state responsibility for the racial order has been an uninterrupted project of White supremacy since slavery. The “law of nature,” wrote Professor Claudio Saunt, “justified every act of dispossession, and every act of dispossession furnished yet more proof of nature's inevitable course.” Within this natural order, the state and its White beneficiaries bore no blame for the violent redistribution of land, wealth, and freedom. When Northern Jim Crow regimes were constructed in response to manumission movements at the turn of the nineteenth century, resulting racial disparities were attributed to “an ordination of Providence, and no more to be changed than the laws of nature.” This self-serving justification attributed racial oppression to biological difference, not the overwhelming assurance of state retribution for violations of the racial order.

The Reconstruction Amendments would do little to disrupt these commitments. The Supreme Court interpreted the Fourteenth Amendment to command equal treatment under the law as it also legitimized a conception of the natural order rooted in biological racism. To achieve this balancing act, the Amendment's authorization of federal intervention would only be triggered by “state action,” which the Court narrowly defined as an official state act of racial discrimination. This definition attributed most racial terror to private ordering, which would fall outside of “state action” and remain immune from any threat of federal meddling. The Court's demarcation of this violent and racist natural order was broadly conceived. It included practices within White communities that perpetrated racial violence and exclusion from land, jobs, public accommodations, activities essential to security, social networks, and wealth-building. This conception that racial hierarchy reflected the natural order, versus the political order, still anchors constitutional law.

Erasing state accountability for the racial order obscures what should arguably be plain: that a precondition of any racial order is state violence. If the power of White communities to subordinate residents of color was a constellation of private choices independent of state power, what explains compliance? If not state violence, is there another explanation for this compliance that is not anchored in biological racism? If we reject socioeconomic or cultural justifications that cloak biological determinism, we are left with confronting a racial order that is backed by the guarantee of state violence. But current doctrine assumes that racial disparities reflect a natural order, and thus persons of color tolerate these conditions because race biologically confers advantages and disadvantages that determines educational attainment, wealth accumulation, and social standing. Current doctrine also accepts that mass incarceration--carceral apartheid-- reflects the inability of persons of color to address cultural deficiencies or to check inherent criminal impulses. Whether justifications for these doctrines spring from narratives of inherent White merit, personal choice, cultural pathology, or socioeconomic failure, they ultimately traffic in biological racism.

In contrast to the doctrinal absolution of state responsibility, this Article offers a multidimensional account of how the state has deployed violence to produce the racial order. At the heart of this account is the administration of criminal law. The carceral system engages in direct racial violence as it also broadcasts a guarantee of retributive violence for any failure to comply with White private acts of racial harm. In theorizing that state violence is a precondition to private ordering's racial commitments, this Article does not address how state violence may be necessary to maintain defensible political arrangements. This Article instead proceeds with the understanding that racial oppression is so cruel and dehumanizing that it can only be sustained by the overwhelming violence of the state.

In centering the state violence that is necessary to sustain the racial order, this Article provides a broader understanding of state action that would authorize Congress under the Fourteenth Amendment to legislatively address prior and ongoing racial harms. For example, a Fair Policing Act that requires jurisdictions to maintain any racial disparities in stops, arrests, charging, and sentencing within a tolerable level (say, not to exceed five percent). Or a Fair Admissions Act that requires admissions at national universities to reflect the demographic representation of marginalized racial groups. Or a Housing Accountability Act that would subsidize loans and new home construction for members of racial groups excluded from the federally-intervened housing market between 1935 and 1968, with job quotas for members of racial groups excluded from trade unions during the same period. Understanding state violence as a precondition of racial oppression would also grant more discretion to state and federal institutions to consider race-conscious interventions to address racial disparities within their institutions or regulatory remit.

In taking up this challenge to examine state action through its violence, this Article attempts to show how state violence makes possible private acts of racial subjugation. Part I offers a typology to understand ways in which the state constructs the racial order, proposing four categories of state violence: (1) direct violence; (2) a violent guarantee to acts of communal racial harm; (3) a violent guarantee backing the distribution of government benefits to White beneficiaries; and (4) extralegal violence. Part II examines the criminal system to show how state violence is expressed in these four ways. In examining who is subject to this violence, how this violence is deployed, and who benefits from this violence, the carceral system's role in constructing and maintaining the racial order comes into focus. This historical examination is framed around moments of existential threats to the racial order, as well as moments of significant transformation in policing designed to respond to those threats. Part III identifies common narratives that are deployed to absolve the state of responsibility for racial harms. The typologies proposed--to identify the state's role in the racial order and to identify efforts to erase the state's role--are intended to assist in taking the accountability necessary to begin to meaningfully address racial harms and disparities.

[. . .]

Our country was given form by racial violence. Race was constructed to perpetrate and legitimate slavery. Racism was essential to occupying improved Native land east of the Mississippi River, a genocide and dislocation legitimized through the Doctrine of Discovery, required by federal law, funded by Northern investors, and enforced by the Army and the “private acts” of White settlers. Racism was necessary to insist on carceral slavery after the abolition of chattel slavery. Racism justified the invasion and occupation of Northern Mexico. Racism was necessary to Jim Crow apartheid. Racism was essential to send persons of Japanese descent to internment camps and distribute their property to White persons. Racism reserved the benefits of a federally intervened housing market to White families. Racism was critical to federal programs of mass sterilization of Black, Brown, and Native women between 1920 and 1975. Racism has driven policies and practices that send Black and Brown persons to jail, prison, and supervision in overwhelming numbers. Racism was critical to detaining, torturing, and deporting persons of Middle Eastern descent domestically and abroad, and then excluding them from U.S. soil.

The increasing work of historians to expose the topography of racial harm is beginning to uncover what most White scholars could not see or did not want to see. It is critical that resources are invested in the historical interrogation of racial harm and a forensic accounting of White benefits, even as efforts to account crash against a bulwark of White resistance, including the continued judicial affirmation of doctrines fashioned in the 1880s by racist judges.

The carceral system is at the center of understanding how state violence can be broadly deployed to construct and maintain the racial order. The criminal system uses direct violence, it aligns itself with communal racial violence, it protects the distribution and value of White welfare, and at times uses extralegal violence to exploit Black and Brown persons. This Article attempts to provide an expanded definition of “state action” that centers state violence, rejects biological difference, is focused on accountability for prior and ongoing racial harm, and would provide authority for Congress to address the racial order's disparate distribution of harms and benefits. Understanding that state violence is essential to the construction and maintenance of the racial order will move us closer to acknowledgement, accountability, reparation, and repair.

Associate Professor, University of Wisconsin Law School.