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2021 Jotwell: J. Things We Like 1 (2021)

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Lex
The Journal of Things We Like (Lots)
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Visibly Fragile America

Author  : Marc-Tizoc Gonzalez

Tagged  as  : Poverty Law

Date  : January 4, 2021

Etienne C. Toussaint, Of American Fragility: Public Rituals. Human Rights. and The End of Invisible Man, 52 Colum.
Hum.  Rts. L. Rev. __ (forthcoming, 2021).


Focusing  on Black American lives during the Covid-19 pandemic of 2020, UDC Law  Professor Etienne C. Toussaint's
latest article is a tour de force, which provocatively yet persuasively argues that U.S. history, law, and society iteratively
reconstitute socioeconomic inequality through collective rituals of white supremacy that both create and reconstitute
anti-Black racism and redeem white privilege. (P. 5.) For Toussaint, the catastrophe of pandemic illuminates the
fragility of U.S. democracy in two significant ways: not only has the pandemic unmasked the adverse impact of
decades  of inequitable laws and public policies in low-income Black communities across the United States[,] but it has
also spotlighted America's racially biased, violent, and supervisory policing culture[.] (P. 3.)

These  themes are well-known to scholars of Critical Race Theory (CRT) and poverty law in the United States.
Toussaint's contribution feels exciting and noteworthy because of his skillful synthesis of multiple literatures within
legal scholarship and across the disciplines, including inter alia, anthropological theory on rituals; critiques of rights-
based  discourse (domestic and international) for reifying abstract liberal ideologies of equality, liberty, and
universalism; and an adroit evaluation of Martha Fineman's theory of human vulnerability (and Amartya Sen's theory
of development  as freedom) in light of the collective experience of Black Americans under white supremacy.

I particularly enjoyed Toussaint's review of Critical Legal Studies scholarship that deconstructed domestic rights-
based  discourse as a tool to dismantle social and economic inequality (P. 26) and CRT scholarship that demonstrated
the importance of rights to the freedom struggles of oppressed and marginalized populations, including the plight of
Black Americans  from chattel slavery to Jim Crow segregation to mass incarceration. (P. 28.) I also appreciated his
argument  for advocates to draw upon a reconstructed human rights discourse-tempered  by the social struggles of
Black Americans-to   challenge the normative underpinnings of contemporary U.S. public policy and articulate an
emancipatory  vision of democracy.

Toussaint's most important theoretical contribution, however, is his dreadful yet cogent analysis of the ideology of
white supremacy.  Tousaint uses the lens of the late religious studies scholar Catherine Bell's theorization of the
ritual, in materialist terms, as a bridge between tradition and an ever-changing social world, a structural mechanism
that navigates the tensions between the internal moral self and the external sociopolitical order (P. 9). He then
elaborates:

       The  historic and ongoing subjugation of Black people in America is forged by discrete ceremonies of racial
       ritualization that use race to construct notions of domination and resistance within the arena of the social
       body. In so doing, rituals of white supremacy create white sacred time by enabling historic anti-Black ideas
       to be born again, interrupting modern sociopolitical life with racist traditions that renew, regenerate, and re-
       energize their participants, infusing the present with holy meaning. (P. 10.)


One  has only to recall photographs and similar representations of past instances of openly anti-Black racism (e.g.,
lynching and other practices of racialized and sexualized violence against Black Americans before and after


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