![handle is hein.journals/bulron104 and id is 1 raw text is:
CONSTITUTIONALIZING RACISM
JONATHAN P. FEINGOLD*
INTRODUCTION
Unreasonable is Devon Carbado at his best. Through accessible prose,
carefully crafted hypotheticals, effective visualizations, and some cross-
examination (for the reader), Carbado reintroduces us to the Fourth Amendment.
In arresting detail, Unreasonable exposes how the Supreme Court has turned the
Fourth Amendment against the people-and specifically, against people
racialized as Black.' Part of the Bill of Rights,2 the Fourth Amendment was
adopted to protect the right of the people from police overreach.3 Yet over the
* Associate Professor of Law, Boston University School of Law. J.D., University of Cali-
fornia, Los Angeles School of Law; B.A., Vassar College. Many thanks to the Boston Uni-
versity Law Review Online for inviting this response to Devon Carbado's Unreasonable.
1 I employ the phrasing racialized as to emphasize the fact that race is a complex social
phenomenon-not a biological category. Race includes the racial categories individuals
identify with and society assigns to them. Common articulations like Black person or white
person are convenient, but risk reifying biological conceptions of race. For this reason, I
avoid the phrasing when possible. Though I recognize alternatives-such as racialized as-
can feel burdensome and distracting. See generally #RaceClass Episode 16, How to Talk
about Race without Reproducing Racism, https://soundcloud.com/user-808872105/ep-16-
how-to-talk-about-race-without-reproducing-racism-a-conversation-with-dr-deadric-wil-
liams.
2 See National Archives, The Bill of Rights: What Does it Say?, (last visited Oct. 10, 2023)
https://www.archives.gov/founding-docs/bill-of-rights/what-does-it-say (The Bill of Rights
is the first 10 Amendments to the Constitution. It spells out Americans' rights in relation to
their government. It guarantees civil rights and liberties to the individual-like freedom of
speech, press, and religion.).
3 The Fourth Amendment guarantees [t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall notbe violated.
U.S. CONST. amend. IV. As one of my students recently remarked, the Bill of Rights might
have been adopted to protect the people, but the Congress that ratified the Fourth Amend-
ment in 1791 did not intend for all people to enjoy its protections. Quite to the contrary. As
Carbado notes, the 'the right of the people' was never intended to include 'the right of Black
people.' ... the Bill of Rights was part of a Constitution that presupposed, protected, and
indeed legitimized chattel slavery. DEVON CARBADO, UNREASONABLE 23 (2022) (This pro-
vision did not expressly mention slavery, using the euphemism person held to Service or
Labour. As such, it is an early example of how not explicitly referencing race-or -color-
blindness-can be a strategy through which to constitutionalize racial subordination.). Car-
bado adds that Congress also anticipated that slave patrols would comprise part of the gov-
erning regime of slavery, and passed the Fugitive Slave Act less than a decade after the Fourth
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