Hastings Constitutional Law Quarterly


Furtive Blackness: On Blackness and Being (“Furtive Blackness”) and The Strict Scrutiny of Black and BlaQueer Life (“Strict Scrutiny”) take a fresh approach to both criminal law and constitutional law; particularly as they apply to African descended peoples in the United States. This is an intervention as to the description of the terms of Blackness in light of the social order but, also, an exposure of the failures and gaps of law. This is why the categories as we have them are inefficient to account for Black life. The way legal scholars have encountered and understood the language of law has been wholly insufficient to understand how law encounters human life. These articles are about the hermeneutics of law. While I center case history and Black letter law, I am also arguing explicitly that the law has a dynamic life beyond the courtroom, a life of constructing and dissembling Black life. Together, these essays and exercises in legal philosophy are pointing toward a new method of thinking about law, a method that makes central the material reality of the Black in black letter law.

They examine the semiotic relationships between race, gender, sexuality, and the law. While Furtive Blackness is primarily concerned with regimes of policing—both by badged officers and deputized citizens—Strict Scrutiny examines how the reconstruction amendments have been deployed and redeployed to strictly scrutinize Black presence and appeals to justice and make them unintelligible, irrelevant claims without justiciable and therefore outside of law the concern of law. Strict Scrutiny is a riff on the phrase of judicial review that is primarily concerned with the Court’s inversion of the term to tightly regulate and foreclose Black access to legal redress, as well as the police practice of strictly scrutinizing Black presence and movement in public and private places. In essence, the ascription of furtivity makes way for strict scrutinization; while the Black interior strategy of furtivity and refusal creates a survival praxis that allows for a reprieve in the wake of these indignities.

These articles are an interpretation of the law as a tool of anti-blackness and an exposition of Black thought and deed in response to anti Blackness, both in black letter law and day to day life. Both articles are descriptive, interdisciplinary and rooted in traditional law and accented by Black queer and feminist theory, critical race studies, performance studies and literary analysis.

Specifically, Furtive Blackness engages the Fugitive Slave Law, Black (and Slave) Codes, Fourth and Fourteenth Amendments jurisprudence and current cases of racialized and gendered policing to develop an analytic to Fourth Amendment law, criminal procedure, and policing as practiced by officers of the law and deputized white citizens. This analytic seeks to shed light on how Black and BlaQueer (LGBTQ) people—and bodies—have come to exist both in and outside of law; reachable through its policing arm, yet unreachable by many of its fundamental protections. In other words, this work seeks to articulate a framework that maps how American jurisprudence renders Black and BlaQueer people furtive—what I am titling “Furtive Blackness”—and how this furtivity exists as an afterlife of slavery and operates as a social and legal pretext for police encounters.

Furtive Blackness is primarily interested in how Black culture, flesh and movement come to operate—well outside the auspices of the Fourth, Thirteenth and Fourteenth Amendment—as bodies of evidence for probable cause, reasonable suspicion and the logics for the deployment of quotidian searches, excessive force and mass incarceration; Strict Scrutiny is primarily concerned with how Black presence appeals to justice are turned aside and viewed skeptically as always, already faulty and often, outside of justiciability. As such, I’m also interested in how this experience with being rendered furtive simultaneously marks Black citizens as outside of the protection of law, yet easily and routinely within its disciplinary reach.