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AMERICA’S RACIAL STAIN The Taint Argument and the Limits of Constitutional Law and Rhetoric

AMERICA’S RACIAL STAIN The Taint Argument and the Limits of Constitutional Law and Rhetoric AMERICA ’S RACIAL STAIN AMERICAN JOURNAL of LAW and EQUALITY AMERICA’S RACIAL STAIN The Taint Argument and the Limits of Constitutional Law and Rhetoric Louis Michael Seidman* Nothing lasts, and yet nothing passes, either. And nothing passes just because nothing lasts. I. INTRODUCTION How should reformers respond to America’s racial stain? The problem is more complex than many imagine. Political activists usually attempt to promote change by taking advan- tage of a gap between current reality and a touchstone they use to measure the normative desirability of that reality. But what if the touchstone itself is infected by the reality that activists want to change? Consider first the Constitution. For much of our history, social movements have re- sorted to constitutional law and rhetoric as a foundation grounding campaigns for re- form. That history creates a problem: if critique of the status quo is deep enough to erode the moral standing of the Constitution itself, then reformers destroy the substrate on which the critique rests. There is no simple way for a document born in original sin to cleanse itself of its own impurity. *Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center. I owe special thanks to http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png American Journal of Law and Equality MIT Press

AMERICA’S RACIAL STAIN The Taint Argument and the Limits of Constitutional Law and Rhetoric

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Publisher
MIT Press
Copyright
© 2022 Louis Michael Seidman. Published under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International license (CC BY-NC-ND).
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2694-5711
DOI
10.1162/ajle_a_00043
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Abstract

AMERICA ’S RACIAL STAIN AMERICAN JOURNAL of LAW and EQUALITY AMERICA’S RACIAL STAIN The Taint Argument and the Limits of Constitutional Law and Rhetoric Louis Michael Seidman* Nothing lasts, and yet nothing passes, either. And nothing passes just because nothing lasts. I. INTRODUCTION How should reformers respond to America’s racial stain? The problem is more complex than many imagine. Political activists usually attempt to promote change by taking advan- tage of a gap between current reality and a touchstone they use to measure the normative desirability of that reality. But what if the touchstone itself is infected by the reality that activists want to change? Consider first the Constitution. For much of our history, social movements have re- sorted to constitutional law and rhetoric as a foundation grounding campaigns for re- form. That history creates a problem: if critique of the status quo is deep enough to erode the moral standing of the Constitution itself, then reformers destroy the substrate on which the critique rests. There is no simple way for a document born in original sin to cleanse itself of its own impurity. *Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center. I owe special thanks to

Journal

American Journal of Law and Equality – MIT Press

Published: Aug 15, 2022

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