Inclusion is Not Enough: An Open Letter to the NYU Law American Constitution Society
Krystle Okafor1Krystle Okafor is a J.D. candidate, Root-Tilden-Kern Scholar, and Moelis Urban Law and Public Affairs Fellow at the New York University School of Law. Meena Roldán Oberdick, Alexander Arnold, and Yeji Jung provided thoughtful feedback on earlier versions of this piece.
January 28, 2021
I join the NYU Law American Constitution Society (“ACS”) in wholeheartedly condemning the white supremacist violence in Washington.2NYU Law’s Chapter of ACS sent an identical letter to the student body as the one included in the Tweet. A copy is on file with Quorum. However, I am struck by the incongruence between ACS’s citation of anti-Black racism and its panegyric for U.S. democracy. It cannot simultaneously be that anti-Black racism is a U.S. mainstay, as ACS concedes, and that the U.S. was “architected on the principles of freedom and popular sovereignty,” as ACS claims. The former disproves the latter. Platitudes like “inclusive constitutionalism” are cold comfort — they appeal to a hallowed order that has never existed, especially not for Black Americans. What is worse, platitudes prevent us from developing an analysis fit for transformative change. This moment calls for radical clarity, not vacuity.
At the writing of the U.S. Constitution, Blackness and humanity were deemed mutually exclusive. Later, under that same document, Blackness and citizenship were deemed mutually exclusive. Given America’s bitter history and the events of the past year — disproportionate Black death, disproportionate Black unemployment, the extrajudicial police murder of Black people, the repression of protestors who rallied to honor the inherent value of Black life — eulogizing the U.S. project is inapt. It is whitewashing.
Of course, the January 6, 2021 putsch was about something more than anti-Blackness, something that eludes easy encapsulation. Trumpism comprises identity politics — virulent strains of racism, anti-Semitism, xenophobia, toxic masculinity, and jingoism — blending racial revanche with aggrieved entitlement. It also comprises authoritarian governance: attacking the press and the judiciary, politicizing law enforcement and the administrative state, using public office for private gain, and delegitimizing elections. Perhaps, then, the putsch was intended as a show of American exceptionalism: white makes might, might makes right.
I would argue that the prevailing liberal consensus, as exemplified by the ACS letter, is also indicative of American exceptionalism. Liberals treat the Constitution as gospel, upholding and growing it through continuous incorporation, spreading the good news. Liberals espouse faith in existing systems, pursuing redemption and healing despite the constant reverberations of those systems’ inherent, foundational violence. Liberal apologia — even from men of courage — can minimize “high crimes against the flesh.” Glorifying U.S. institutions dehistoricizes the exploitation and oppression for which they are responsible. Deeming a white nationalist attack an “attack on us all” evokes a superficial pluralism that erases difference. If Trumpism were an attack on us all, it would have fewer adherents, acolytes, and enablers.
The rise of Trumpism and the historical debasement of Black people should not compel us to incorporate marginalized populations into noxious systems; it should compel us to build anew. We need an analysis that acknowledges Black people’s collective grief, the long-standing emptiness of U.S. democratic institutions, and state actors’ hand in fostering both. We need a definition of the problem that poses transformation as the solution, not mere inclusion, as ACS suggests, or “fairness within the bounds of the law,” the focus of Dean Morrison’s letter. If the law and its implements have been and continue to be fundamentally unfair, why not look beyond their bounds to brighter horizons?
2020 provided hopeful blueprints for new institutions. The CARES Act showcased the federal government’s ability to rapidly administer demogrants, making universal basic income and reparations more viable. Eviction and utility shutoff moratoria augured toward a future in which public goods are protected as a matter of social citizenship. Emergency release initiatives freeing incarcerated people from jails to protect public health exposed the inherent contradictions of “public safety” measures like incarceration that actually increase one’s risk of premature death. In 2021, we must build from these blueprints. They demonstrate the potential of non-reformist reforms.
How can we bring a non-reformist lens to the Constitution, grappling with its abiding role in sustaining systemic inequities while also acknowledging its equally abiding role as a locus for liberatory demands? Black legal scholars, some more optimistic than others, offer compelling options for a course forward.
There is what Dorothy Roberts has called “abolition constitutionalism.” Since the founding era, state and federal courts have weaponized the Constitution to preserve the status-quo racial capitalist power structure. Yet, like the antislavery theorizing of the antebellum period, divergent public readings of the Constitution have always endured against the dominant regime. In the abolitionist history of the Reconstruction Amendments, Roberts finds the potential for reclaiming constitutional interpretation to promote radical visions of the future and take steps towards achieving those visions.
There is also Derrick Bell’s “racial realism.” Not unlike contemporary theorists and activists, Bell reasoned that Black liberation is practically foreclosed in a settler colonial regime premised on Black subjugation. Racism, Bell found, “is not simply an excrescence on a fundamentally healthy liberal democratic body but is part of what shapes and energizes the body.” What use is legal reform then? The curative solutions we seek may thus be far removed from courts, legislative advocacy, and elections, each of which are ameliorative and fickle in nature. Per Bell, the typical foci of cause lawyering should be secondary to mass mobilization in the quest to end white supremacy.
Despite their distinct positions, Roberts and Bell both remind us that Trumpism and its sequelae cannot be resolved solely through a restoration of the constitutional order. Calls of this nature — to “repair and preserve our precious democratic institutions” — obscure what is actually needed: transformative change.
Lastly, if we are to forgo mere representation for transformation, we must pivot from legal saviorism to coalitions of the willing. Instead of deputizing ourselves as “leaders” or “guardians” of a democracy that has never truly existed, we must root ourselves in broad-based movements to build new systems. The charge of the left today is not exalting the “integrity and continuing existence of our democracy,” but rather collaborating to reduce the scale, power, and tools of exploitative and oppressive institutions and building anew. Inclusion is not enough.
In his “Letter from a Birmingham Jail,” Dr. Martin Luther King, Jr. observed that “shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.” When liberals revere emblems of U.S. government, they legitimize systems of structural violence and entrench their power as those system’s agents and beneficiaries. As we commemorate Black History Month, let us reject this impulse and heed King’s call for “a mighty struggle.” The moment requires no less.
By: Krystle Okafor, N.Y.U. School of Law J.D. Class of 2022
Suggested Citation: Krystle Okafor, Inclusion is Not Enough: An Open Letter to the NYU Law American Constitution Society, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2021).