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Martha Minow:
Not Only for Myself: Identity, Politics, and Law

The Colin Ruagh Thomas O'Fallon Memorial Lecture
University of Oregon School of Law, March 7, 1996



Copyright (c) 1996 University of Oregon
Oregon Law Review

Fall, 1996

75 Or. L. Rev. 647



SPEECH: Not Only for Myself: Identity, Politics, and Law


 
* The Colin Ruagh Thomas O'Fallon Memorial Lecture, University of Oregon School of Law, March 7, 1996.

MARTHA MINOW


 
Professor of Law, Harvard Law School. I was honored and touched by the invitation extended by Professor James O'Fallon to speak in the lecture series honoring his son Colin Ruagh Thomas O'Fallon. Thanks to members of the University of Oregon community, Vicky Spelman, Anthony Appiah, Larry Blum, Bonnie Honig, Todd Rakoff, Jane Schacter, Avi Soifer, Dennis Thompson, Carol Weisbrod, David Wilkins, David Wong, Zipporah Wiseman, and Joe Singer, for discussions influencing this Article. Thanks to Alexis Lahav and Andrew Kincheloe for research assistance on the topic of the jury, to Jane Park for research on the census, and to Laurie Corzett for general assistance. Portions of this Article will appear in Martha Minow, Not Only for Myself: Identity, Politics, and Law (1997).

SUMMARY:
  ... So his speech included a request that people not vote along gender lines but really listen to the candidates and what they wanted to do for the class. ... The minute that the category of women is invoked as describing the constituency for which feminism speaks, an internal debate invariably begins over what the descriptive content of that term will be.... In the early 1980s, the feminist "we" rightly came under attack by women of color who claimed that the "we" was invariably white, and that that "we" that was meant to solidify the movement was the very source of a painful factionalization. ... Moreover, the meanings of gender are inflected and informed by race, and the meanings of racial identity are similarly influenced by images of gender. ... Neither gender nor racial identity groupings alone can describe common experiences, standpoints, and relationships with others. ... Other scholars of group identity emphasize the fluidity and dynamism, the processes of becoming, as characteristic. ... On quite different grounds, Wendy Brown criticizes a city ordinance against discrimination in employment, housing, and public accommodation that covers a long list of group identities, including not only the familiar categories of race, ethnicity, gender, sexual orientation, and disability, but also the category of appearance. ...  

TEXT:
 [*647] 


 
If I am not for myself; who will be for me?',ql]If I am not for myself, who will be for me? If I am not for others, what am I? And if not now, when? - Hillel
 
HILLEL'S famous comments usually, and rightly, summon up a challenge occuring on psychological, moral, and political levels. How can we each have self-respect but also regard for others (as well as a proper sense of urgency about doing what is right)? I thought about Hillel when my nephew, Ben, told me his difficulties in running for a sixth grade class election. Ben wanted to vote for himself, but he did not want to seem arrogant. He also predicted that all the girls would vote for a girl candidate, and with more girls than boys in the class, that would determine the election. So his speech included a request that people not vote along gender lines but really listen to the candidates and what they wanted to do for the class. Ben got elected; he thinks it was his long boring speech which made people think he was a real politician.  [*648] 

Ben's sixth grade class already struggles with a contemporary problem that Hillel may not have fully had in mind. Group-based identity politics compound Hillel's questions. If we girls are not for ourselves, who will be? But if we are not for the boys too, what are we? If we whites are not for ourselves, who will be? But if we are not for others, what are we? And so forth; we can substitute sexual orientation, disability, religion, region, ethnicity, nationality - all the familiar categories of group division and identity politics. Then hear how familiar at least the first question seems. The second question, what are we if we are only for ourselves, is less common. Sometimes it is expressed in terms of universal good: why don't we all come together, or get along; why can't we emphasize our commonality rather than our differences? But the universalist appeal is so often read as a denial of differences that it fails to be heard.

I want to explore this dynamic particularly in the context of arguments that reflect the contemporary debate over identity politics. By identity politics, I mean the mobilization around gender, racial, and similar group-based categories in order to shape or alter the exercise of power to benefit group members. n1 These days, identity politics infuse debates over electoral politics, jury selection, school curricula, law school hiring practices, and even casting of Broadway plays. n2 Identity politics help people  [*649]  overcome a sense of anonymity and anomie while also giving shape to perceptions of unequal power and recognition. n3 Identity politics also stimulate controversy, largely by those who claim it undermines unity, individualism, or a nationalism founded upon individualism. n4
 
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n1. Todd Gitlin describes a three-stage process of identity politics by racial and ethnic minorities, women, and gays and lesbians:


 
Subordination on the basis of sex and sexuality became the basis for a liberationist sequence: first, the discovery of common experience and interests; next, an uprising against a society that had imposed inferior status; finally, the inversion of that status, so that distinct qualities once pointed to as proof of inferiority were transvalued into the basis for positive distinction.


 
Todd Gitlin, The Twilight of Common Dreams: Why America Is Wracked by Culture Wars 141 (1995). I do not mean to absorb into identity politics the entire range of group affiliations explored vividly in Aviam Soifer, Law and the Company We Keep (1995).

n2. See generally Minow, From Class Actions to "Miss Saigon": The Concept of Representation in the Law, 39 Clev. St. L. Rev. 269 (1991), reprinted in Representing Women: Law, Literature, and Feminism 8 (Susan S. Heinzelman & Zipporah B. Wiseman eds., 1994). In an earlier period, scholars addressed "the rise of the unmeltable ethnics." See, e.g., Nathan Glazer & Daniel P. Moynihan, Beyond the Melting Pot: The Negroes, Puerto Ricans, Jews, Italians, and Irish of New York City (2d ed. 1970); Michael Novak, The Rise of the Unmeltable Ethnics: Politics and Culture in the Seventies (1972). Many have observed that the late 1960s ushered in an era of ethnic and racial pride in the United States that challenged prior views of assimilation as the shared national goal. See, e.g., Gitlin, supra note 1, at 100-01; Stephen Steinberg, The Ethnic Myth: Race, Ethnicity, and Class in America (1981). Increasingly, this American experience affords a reference point for descriptions of group divisions in Europe and Africa, but often coupled with comments about the violent consequences of group divisions. Kwame A. Appiah & Henry L. Gates, Jr., Multiplying Identities, in Identities 1, 3 (Kwame A. Appiah & Henry L. Gates, Jr., eds., 1995).

n3. See Charles Taylor, The Politics of Recognition, in Multiculturalism and the "Politics of Recognition" 25 (Amy Gutmann ed., 1992).

n4. See infra part II (discussing unity and individualism theorists).
 
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Consistent with Hillel's first question, there is a healthy dimension to being for ourselves. The politics of identity have this dimension but seem generally to neglect Hillel's second question, what are we when we are only for ourselves. Identity politics takes one step out toward others - but limits this concern to those who match the individual's own identity trait. In identity politics, I am for others, but only those like myself.

I will consider here the ways in which this politics of identity lacks internal coherence; defining those like myself proves an unstable task. Moreover, the very origins of identity politics as responses to a world that has made group differences occasions for invidious discriminations and oppressions suggest the dangers of foreshortening concern along group lines. In such a world, I will argue, we need to be both for ourselves and for others. At the same time, calls for unity before excluded groups actually have been heard and respected do not fulfill Hillel's call, nor do commitments to individualism.

I take as my initial context the legal problems posed by representation, meaning, who may speak for whom and who may stand in for another. n5 I will explore how political uses of identities seem to be pressing people toward demanding representatives who look like themselves. I then will examine the difficulties internal to identity politics as well as the powerful and  [*650]  deserving motivations behind identity politics. In search of ways to address historical and present group-based harms without falling into the confusions and mistakes of either identity politics or opposition to it, I will explore six strategies and consider how each may advance Hillel's inquiries, and our own. Just like Hillel's questions, the strategies I suggest build upon, instead of ignore, the paradoxical qualities of human separateness and connection.
 
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n5. Representation in a more ambitious sense preoccupies many literary and social theorists; they are concerned with the substitution of language and images for experience, the interrelation among discourses and disciplines, or methods and contents of depictions of people in various media. See Law and Literature: Breaking Down the Walls, in Representing Women, supra note 2, at 2-7; Anne Norton, Republic of Signs: Liberal Theory and American Popular Culture 1-7 (1993) (connecting semantic and political representation). Although those topics resonate with this effort, they are not the focus of this Article.
 
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I
 
Who Can Speak for Whom?
 
Who can speak for someone else? Who can stand in for me to advance my interests and remind others who I am? Sometimes for these roles we want someone who symbolizes or mirrors us. Sometimes we want someone quite different from ourselves in talents, experiences, and appearance. The issue arises on occasion in selecting a lawyer. I have myself encountered a woman seeking a divorce who asked for a female lawyer, a poor person who wanted a wealthy lawyer, a gay person who wanted a gay lawyer, and a white male charged with employment discrimination who wanted a black female attorney. Tactical judgments about who will produce a victory in particular settings of negotiation or adjudication and concerns for symbolic expression motivate such preferences.

A similar bundle of concerns arises with the composition of a jury. Racial and gender diversity in jury membership seems to advance hopes for both more accurate judgments and ones more legitimate to a community that is itself diverse, though tactical and expressive interests may lead each side to try to shape the membership more specifically. Recently, the Supreme Court has permitted Equal Protection challenges to the use of peremptory challenges by parties to exclude jurors in noticeable racial or gender patterns. n6
 
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n6. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (mem.) (gender); Batson v. Kentucky, 476 U.S. 79 (1986) (race). The Court had earlier extended Equal Protection to systemic exclusion on the basis of race through peremptory challenges, but placed the burden of proof on the objecting party. Swain v. Alabama, 380 U.S. 202 (1965). In Batson, the Court ruled that the objecting party need only prove a prima facie case of discrimination to shift the burden of proof to the other side. This rationale has been applied to certain groups. See, e.g., United States v. Ruiz, 894 F.2d 501 (2d Cir. 1990) (Hispanics); United States v. Biaggi, 673 F. Supp. 96 (E.D.N.Y. 1987) aff'd, 853 F.2d 89 (2d Cir. 1988) (Italian-Americans). But see United States v. Angiulo, 847 F.2d 956 (1st Cir. 1988) (Italian-Americans). The rationale has not been applied to many other groups. See, e.g., Davis v. Minnesota, 114 S. Ct. 2120 (mem.) (1994) (religious people); Murchu v. United States, 926 F.2d 50 (1st Cir. 1991) (Irish people; Irish-Americans); United States v. Cresta, 825 F.2d 538 (1st Cir. 1987) (young people); State v. Spitler, 599 N.E.2d 408 (Ohio Ct. App. 1991) (homosexual people).
 
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These developments reflect longstanding struggles to overcome historic exclusions of African-Americans and women from jury participation, from voting, and from the full status of citizenship. n7 Reformers' focus on group-based identities responds directly to exclusions on those grounds. The insistence on group identity claims also reflects efforts to expose allegedly universal guarantees as partial and discriminatory in practice. n8 Jury composition and selection of an attorney are simply two areas in which identity politics seems to be both flourishing and controversial. People who support the politics of identity emphasize the value of a representative who shares the groups' identity. In the context of electoral politics, political philosopher Anne Phillips has recently defended what she calls "the politics of presence." n9 Recognizing the demands for representatives who mirror the differences in society, Phillips identifies and defends three aspects of these demands. First, there is a symbolic significance surrounding who is present in the chambers that wield democratic power. Second, there is an independent value to the inclusion of groups that have been previously suppressed. Third, there are predicted changes in policies from changes in the composition of the governing bodies that raise issues and shape responses to them. n10 As Phillips herself explores, serious  [*652]  difficulties arise when this view appears. Which groups should be represented, and who decides that basic question? n11 Should quotas or other techniques be used to ensure group representation?
 
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n7. See generally Derrick Bell, And We Are Not Saved: The Elusive Quest for Racial Justice (1987); Jon M. Van Dyke, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels 32 (1977); Linda K. Kerber, "A Constitutional Right to Be Treated Like ... Ladies": Women, Civic Obligation and Military Service, 1993 U. Chi. L. Sch. Roundtable 95; Linda K. Kerber, The Paradox of Women's Citizenship in the Early Republic: The Case of Martin v. Massachusetts, 1805, 97 Am. Hist. Rev. 349 (1992).

n8. See Carole Pateman, The Sexual Contract (1988); At the Boundaries of Law: Feminism and Legal Theory (Martha A. Fineman & Nancy S. Thomadsen eds., 1991); Iris Marion Young, Impartiality and the Civil Public: Some Implications of Feminist Critiques of Moral and Political Theory, in Feminism as Critique: On the Politics of Gender 57 (Seyla Benhabib & Drucilla Cornell eds., 1987); Iris M. Young, Polity and Group Difference: A Critique of the Ideal of Universal Citizenship, in Feminism and Political Theory 117 (Cass Sunstein ed., 1990) [hereinafter Young, Critique].

n9. See Anne Phillips, The Politics of Presence (1995).

n10. Id. at 45. Phillips explores the consequences of her argument for bodies of influence outside electoral offices. See id. at 185-87 (discussing how entrance of women into Australian civil service altered the content and direction of public policy and diversity concerns in selecting judges).

n11. How can a group gain representation in the larger polity when it also wants self-determination and insulation from the polity's control? See id. at 122-26 (discussing Canada's Quebecois).
 
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Related but less commonly addressed are problems of over-representation by members of minority groups. Disproportionate numbers of children of color land in special education classes. African-American males are the majority of American prisoners. People with mental disabilities are also over-represented in the criminal justice system. Is statistical representation a valid norm against which to test such practices? What remedies, if any, should law or politics pursue for these problems of too much presence?

Even deeper problems arise, though, with the politics of presence or any other version of identity politics. n12 Picking one person to mirror the group is bound to expose the central difficulties with identity politics, which I will now explore.
 
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n12. Phillips herself is a good guide to some of these difficulties. See id., at 74, 188 (problems of essentializing difference). Her responses call chiefly for mechanisms to assure the accountability of representatives to specified groups. See id. at 82, 145-67. This tends simply to move the problem back a step: which groups, organized under what auspices, should be the reference points for representatives' accountability?
 
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II
 
"Identity" Problems
 
Some people oppose identity politics from the start. They place the individual centrally in political and moral discussion and worry about any emphasis on groups, n13 or they think that the  [*653]  focus on ethnic, racial, and gender identities distracts attention from economic disparities. n14 Whether motivated by practical concerns about balkanized politics or theoretical concerns about individualism, these opponents of identity politics resist arguments for group-based representation, however they may be framed.
 
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n13. Richard Bernstein, Dictatorship of Virtue: Multiculturalism and the Battle for America's Future (1994); Arthur M. Schlesinger, Jr., The Disuniting of America (1992). Western political theories have long acknowledged the human tendency toward factions and the human experiences of individual differences but have urged conceptions that would subordinate such divisions under a collective unity.


 
Whether read from the frontispiece of Hobbes' Leviathan, in which the many are made one through the unity of the sovereign, or from the formulations of tolerance codified by John Locke, John Stuart Mill and, more contemporaneously, George Kateb, in which the minimalist liberal state is cast as precisely what enables our politically unfettered individuality, we are invited to seek equal deference - equal blindness from - but not equalizing recognition from the state, liberalism's universal moment.


 
Wendy Brown, Wounded Attachments: Late Modern Oppositional Political Formations, in The Identity in Question 199, 204 (John Rajchman ed., 1995) [hereinafter Brown, Wounded Atachments].

n14. See Gitlin, supra note 1.
 
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But there are others more sympathetic to identity politics who nonetheless find real difficulties with political uses of identities. n15 Three difficulties have exploded in sympathetic discussions about identity politics in scholarship and also political action. The first is the tendency to "essentialize." This involves reducing a complex person to one trait - the trait drawing that person into membership in a particular group - and then equating that trait with a particular viewpoint and stereotype. This tendency leads people to treat a particular trait as the equivalent of a particular viewpoint and set of experiences, even though the group trait, such as race or gender, is at best a rough proxy for those views or experiences. n16 To be a lesbian does not mean that one hates men, or wants to be one; to be Chicano does not entail advocacy for bilingual education or even fluency in Spanish.
 
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n15. See generally After Identity: A Reader in Law and Culture (Dan Danielsen & Karen Engle eds., 1995).

n16. See generally Elizabeth V. Spelman, Inessential Woman: Problems of Exclusion in Feminist Thought (1988); Kathryn Abrams, Title VII and the Complex Female Subject, 92 Mich. L. Rev. 2479 (1994); Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581 (1990).
 
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Selecting a particular person to represent the group exposes faults of essentialism. Justice Clarence Thomas does not express the viewpoint of many who seek to advance African-American interests, nor does Margaret Thatcher embody the viewpoint of women advocated by feminists. People who share a trait, like race or gender, may differ in many other ways, including power to injure others who share that same trait. n17 The gap between the representative who shares the group trait and the interests and needs of people in the group may lead to debates over authenticity and over the relationship between identity and experi-  [*654]  ence. Those debates immediately challenge the simplicity of the identity category as a focus for mobilization and representation.
 
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n17. See Elizabeth V. Spelman, The Virtue of Feeling and the Feeling of Virtue, in Feminist Ethics 213 (Claudia Card ed., 1991) (describing pain some women have inflicted on other women).
 
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On this point, social theorist Judith Butler has commented:


 
The minute that the category of women is invoked as describing the constituency for which feminism speaks, an internal debate invariably begins over what the descriptive content of that term will be.... In the early 1980s, the feminist "we" rightly came under attack by women of color who claimed that the "we" was invariably white, and that that "we" that was meant to solidify the movement was the very source of a painful factionalization. The effort to characterize a feminine specificity through recourse to maternity, whether biological or social, produced a similar factionalization and even a disavowal of feminism altogether. For surely all women are not mothers; some cannot be, some are too young or too old to be, some choose not to be, and for some who are mothers, that is not necessarily the rallying point of their politicization in feminism. n18
 
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n18. Judith Butler, Contingent Foundations: Feminism and the Question of "Postmodernism," in Feminists Theorize the Political 3, 15 (Judith Butler & Joan W. Scott eds., 1992). The words marked by ellipses in the quoted portion are:


 
There are those who claim that there is an ontological specificity to women as childbearers that forms the basis of a specific legal and political interest in representation, and then there are others who understand maternity to be a social relation that is, under current social circumstances, the specific and cross-cultural situation of women. And there are those who seek recourse to Gilligan and others to establish a feminine specificity that makes itself clear in women's communities or ways of knowing. But every time that specificity is articulated, there is resistance and factionalization within the very constituency that is supposed to be unified by the articulation of its common element.


 
Id. See generally Denise Riley, "Am I That Name?" Feminism and the Category of "Women" in History (1988); Spelman, supra note 16.
 
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The defect in identity claims signaled by the charge of "essentialism" expresses the faulty assumption that any given trait of an individual determines viewpoint, experience, or political interest and commitment. Essentialist notions of identity also mistakenly reduce individuals to one trait when they themselves think that other traits also matter. Groups may try to use single identities for strategic political goals, but simply invoking a shared trait of identity does not produce political solidarity and action. n19 June Jordan explained the difficulty this way:
 
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n19. See Gitlin, supra note 1, at 206.
 
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So far as I can see, the usual race and class concepts of connection, or gender assumptions of unity, do not apply very well. I doubt that they ever did. Otherwise why would Black folks  [*655]  forever bemoan our lack of solidarity when the deal turns real. And if unity on the basis of sexual oppression is something natural, then why do we women, the majority people on the planet, still have a problem? n20
 
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n20. June Jordan, Report from the Bahamas, in On Call: Political Essays 39, 46 (1985).
 
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The second, related difficulty is the tendency of identity politics to neglect "intersectionality." n21 This notion refers to the way in which any particular individual stands at the crossroads of multiple groups. All women also have a race; all whites also have a gender; and the individuals stand in different places as gender and racial politics converge and diverge. Moreover, the meanings of gender are inflected and informed by race, and the meanings of racial identity are similarly influenced by images of gender.
 
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n21. Kimberle Crenshaw's work is pivotal in this analysis. See Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241 (1991); Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics, 1989 U. Chi. Legal F. 139 [hereinafter Crenshaw, Demarginalizing the Intersection of Race and Sex]. See also Abrams, supra note 16. A different kind of intersectionality arises for those who have ancestors of different races, ethnicities, and religions; they may claim one or all of them, or instead claim the experience of intersection as crucial to their self-understanding. See Maureen T. Reddy, Crossing the Color Line: Race, Parenting, and Culture 97-103 (1994).
 
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Black women have confronted male violence and white domination in ways quite different from the experiences of either white women or black men. n22 Black women and black men have different experiences and interests, argues Kimberle Crenshaw. She provides vivid illustrations with black women's responses to the obscenity prosecution of the music group 2 Live Crew and to the Senate's treatment of Anita Hill during the confirmation hearings for Justice Clarence Thomas. n23 Men who are black may experience racial discrimination while also participating in harassment or discriminatory practices toward women. Women who are white may experience gender discrimination while simultaneously participating in exclusionary practices against blacks and Hispanics. n24 Neither gender nor racial identity groupings alone  [*656]  can describe common experiences, standpoints, and relationships with others. n25
 
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n22. See Crenshaw, Demarginalizing the Intersection of Race and Sex, supra note 21, at 157-59.

n23. Kimberle Crenshaw, Whose Story Is It Anyway? Feminist and Antiracist Appropriations of Anita Hill, in Race-ing Justice, En-gendering Power 402 (Toni Morrison ed., 1992).

n24. Patricia Hill Collins offers the following perspective:


 
White feminists routinely point with confidence to their oppression as women but resist seeing how much their white skin privileges them. African-Americans who possess eloquent analyses of racism often persist in viewing poor white women as symbols of white power.... In essence, each group identifies the oppression with which it feels most comfortable as being fundamental and classifies all others as being of lesser importance.


 
Patricia H. Collins, Black Feminist Thought 229 (1990).

n25. See Johnnetta B. Cole, Commonalities and Differences, in All American Women: Lines That Divide, Ties That Bind 1 (Johnnetta B. Cole ed., 1986).
 
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Is it adequate, then, to identify a group representative who shares a race with other members, but a gender only with some of them, or a gender with other members but a race with only some of them? What about sharing a gender but not a religion? The challenge to a conception of representation based on one shared trait compounds with the recognition of further intersections. Individuals manifest not only race and gender but also other bases for potential group membership, such as age, disability, religion, immigrant status, and sexual orientation. Then political affiliation, music preferences, favored sports, and other commitments further bisect and realign groups. Some of the intersections seem to invite new "identity groupings," such as black women, Chicana lesbians, and male bikers. They may also expose and perhaps solidify the self-affirmations of other intersectional groups, such as "white men" or "married women." n26 At a minimum, recognizing intersectionality threatens to complicate identity politics with a proliferation of new, and old, identity groupings.
 
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n26. See Gitlin, supra note 1, at 23.
 
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The idea of individual membership in multiple, intersecting groups implies a more profound challenge, though, to identity politics and, indeed, to the especially simplistic focus on the black-white racial divide. n27 It implies ultimately that each person is alone at the unique crossroad of each intersecting group. n28 We  [*657]  are each the unique member of the sets of the endless groupings that touch us, whether called racial, gender, disability, family, regional, and so forth. Perhaps for strategic purposes we may choose to affiliate along one or a few lines of group membership, but these lines may shift as our strategies and goals also change. Sociologist Mary Waters reports on many Americans who choose an ancestry from among options they find in their past and present. n29 As Leon Wieseltier has asserted, "The American achievement is not the multicultural society, it is the multicultural individual." n30 Perhaps the very felt experience of multiple affiliations deepens people's desires to belong to one, if only temporarily. n31
 
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n27. See Patricia J. Williams, The Rooster's Egg 188-89 (1995):


 
One reason discussing race is so difficult in the United States is that moving past the divide of "black/white" requires juggling so many other factors: color has long been a powerful tool for assimilative erasure of class, religion, history, most ethnicity, gender and sexual orientation, disembodied institutional power, and so on.


 


n28. An alternative formulation looks at each person as an ensemble of social relations with a variety of people in a variety of roles. See Stanley Aronowitz, Reflections on Identity, in The Identity in Question, supra note 13, at 111, 114 (discussing and endorsing views of George Herbert Mead).

n29. Mary Waters, Ethnic Options 22-51, 150-64 (1990). Walters is careful to note that the latitude for choice about ancestral identity is smaller for nonwhites. Id. at 167. See also Aronowitz, supra note 28, at 115-16 (describing creation of Puerto Rican racial identity as a strategy response to American experiences in the 1940s).

n30. Gitlin, supra note 1, at 207.

n31. See Jodi Dean, Solidarity of Strangers: Feminism After Identity Politics 177 (1996) ("Many of us have diverse and conflicting identifications that escape categorization yet remain in need of articulation.").
 
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Yet even these complications seem modest compared with the third difficulty. It stems from contemporary challenges to the basic coherence of group definitions. Consider the tensions among self-identification, assignment by self-claimed group members, and assignment by self-claimed group opponents. n32 You say you are a Choctaw, but do the Choctaws say so? The Catholics claim you, but do you claim them? The Apartheid government declared you to be colored, whether you did or not. The gaps and conflicts among self-identification, internal group membership practices, and external, oppressive assignments have given rise to poignant and persistent narratives of personal and political pain and struggle. n33 These gaps and conflicts also expose the inconsistent meanings of group membership. The persistent failure of group-based categories to yield consistent applications hints at the defects in their boundaries, their origins, their applications,  [*658]  and their ultimate meaningfulness. n34
 
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n32. See generally Christopher A. Ford, Administering Identity: The Determination of "Race" in Race-Conscious Law, 82 Cal. L. Rev. 1231 (1994). The contrasting answers coming from self-identification, group recognition, and assignment by opponents are further complicated when the consequences of identification are positive, negative, or a mixture of both.

n33. See, e.g., Shirlee T. Haizlip, The Sweeter the Juice (1994); Gerald Torres & Kathryn Milun, Translating Yonnondio by Precedent and Evidence: The Mashpee Indian Case, 1990 Duke L.J. 625.

n34. See Williams, supra note 27, at 210 (discussing cultural histories of friends who use the "laconic categories of the census" but are "the grandchild of a German Lutheran artist killed by the Nazis" and a Romany who was passing because "'people don't trust gypsies'").
 
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The coherence is further challenged, though not automatically undermined, by historically shifting boundaries. Frequent border crossing can render the border uncertain. A "one-drop rule" defines who is nonwhite for purposes of much of U.S. history; but some parts of this country, and other countries at times, have instead recognized other degrees of ancestry, multiple ancestry, or the categories of biracial or multiracial. n35 Certain groups, once defined as nonwhite, secured the status of whiteness over time. n36 Certain individuals who "cross over" from one racial identity to another expose the incoherence of the racial categories just as do those who insist on a racial identity that does not match others' expectations. n37 Some people struggle to claim two cultures, based on ancestry, but feel alien or rejected by both.
 
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n35. See F. James Davis, The Hawaiian Alternative to the One-Drop Rule, in American Mixed Race: The Culture of Microdiversity 115-31 (Naomi Zack ed., 1995); Virginia R. Dominguez, White by Definition: Social Classification in Creole Louisiana (1986); Neil Gotonda, A Critique of "Our Constitution Is Color-Blind," 44 Stan. L. Rev. 1 (1991).

n36. See Ian Haney Lopez, White by Law: The Legal Construction of Race (1996); Neil Ignatiev, How the Irish Became White (1995).

n37. See generally Haizlip, supra note 33; Judy Scales-Trent, Notes of a White Black Woman (1995); Adrian Piper, Passing for White, Passing for Black, 58 Transition 4 (1992). See also Jane Doe v. State, 479 So. 2d 369, 372 (La. App. 1985) (state declares that a woman is black based on her parents' answer on birth certificate although her skin is white and she thought of herself as white).
 
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Similar boundary issues arise for the category of gender. Obvious boundary problems are posed by persons who claim to be in the wrongly gendered body and may secure transgender surgery, and by others whose embodiment fails to match comfortably the expected bodies of females and males. n38 Efforts to define the boundaries between sexual orientations are stymied by the claims of bisexuality, claims that threaten the easy distinctions between homosexual and heterosexual. n39 Persons with disabili-  [*659]  ties controlled by medication or surgery challenge the boundary between ability and disability just as do people who by age and exposures to life's difficulties acquire disabilities gradually or late in life.
 
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n38. See Michel Foucault, Herculine Barbain, Being the Recently Discovered Memoirs of a Nineteenth Century French Hermaphrodite (Richard MonDongall trans., 1980); Patricia Williams, The Alchemy of Race and Rights (1991) (discussing transgendered student who was rejected from each of the single-sex bathrooms).

n39. Marjorie Garber, Vice Versa: Bisexuality and the Eroticism of Everyday Life 65-66 (1995):


 
If bisexuality is in fact, as I suspect it to be, not just another sexual orientation but rather a sexuality that undoes sexual orientation as a category, a sexuality that threatens and challenges the easy binarities of straight and gay, queer and "het," and even, through its biological and physiological meanings, the gender categories of male and female, then the search for the meaning of the word "bisexual" offers a different kind of lesson. Rather than naming an invisible, undernoticed minority now finding its place in the sun, "bisexual" turns out to be, like bisexuals themselves, everywhere and nowhere. There is, in short, no "really" about it. The question of whether someone was "really" straight or "really" gay misrecognizes the nature of sexuality, which is fluid, not fixed, a narrative that changes over time rather than a fixed identity, however complex. The erotic discovery of bisexuality is the fact that it reveals sexuality to be a process of growth, transformation, and surprise, not a stable and knowable state of being.


 
See also Kenneth L. Karst, Myths of Identity: Individual and Group Portraits of Race and Sexual Orientation, 43 UCLA L. Rev. 263, 275-79 (1995).
 
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Incoherence difficulty arises not only because boundaries are difficult to draw. Ambiguous boundaries around racial, gender, and other identity categories expose their instability. For example, scholars have persistently questioned the coherence of "race" as a concept. n40 In so doing, they criticize any claims to its biological basis. n41 They also locate its precise origins as a historical idea. n42 Richard Ford suggests, "Because race is an unstable identity, its deployment depends on a symbolic connection between the characteristics that code as race but to which race can  [*660]  not be reduced (skin color, facial features, etc.) and some stable referent." n43 When Ian Haney Lopez examined United States judicial opinions interpreting the meaning of "white person" used in the naturalization statute, he found no consistent meaning. n44 Skin color, national origin, facial features, language, public perceptions, social science, and ancestry each became candidates for defining whiteness, but no single factor, nor combination of factors, could maintain a consistent place in the judicial texts. n45
 
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n40. See Kwame A. Appiah, Race, in Critical Terms for Literary Study (Frank Lentricchia and Thomas McLaughlin eds., 1990).

n41. See Allan Chase, The Legacy of Malthus: The Social Costs of the New Scientific Racism (1980); Stephen J. Gould, The Mismeasure of Man (1981); David A. Hollinger, Postethnic America: Beyond Multiculturalism 8, 27, 35 (1995); Nancy Stepan, The Idea of Race in Science: Great Britain, 1800-1960 (1982); Kwame A. Appiah, The Conservation of "Race," 23 Black Am. Lit. F. 36 (1989); Barbara J. Fields, Slavery, Race and Ideology in the United States, 181 New Left Rev. 95, 101 (1990); Dorothy E. Roberts, The Genetic Tie, 62 U. Chi. L. Rev. 209 (1995).

The effort to revive racialist ideas in Charles Murray & Richard J. Herrnstein, The Bell Curve: Intelligence and Class Structure in American Life (1994), received extensive scholarly criticism. See Peter Pasell, "Bell Curve" Critics Say Early I.Q. Isn't Destiny, N.Y. Times Nov. 9, 1994, at A25; The Bell Curve Wars: Race, Intelligence, and the Future of America (Steven Fraser ed., 1995); cf. Charles Lane, The Tainted Sources of "The Bell Curve," N.Y. Rev. of Books, Dec. 1, 1994, at 14; Symposium, Richard J. Herrnstein & Charles Murray, The Bell Curve, The New Republic, Oct. 3, 1994.

n42. David T. Goldberg, Racist Culture: Philosophy and the Politics of Meaning 1-10 (1993). See generally Karst, supra note 39.

n43. Richard T. Ford, Urban Space and the Color Line: The Consequences of Demarcation and Disorientation in the Postmodern Metropolis, 9 Harv. BlackLetter J. 117, 130 (1992). He continues: "The maintaining technologies of race [are] primarily economic and spatial." Id.

n44. Haney Lopez, supra note 36, at 2.

n45. Id. at 2, 96-107. For reasons like these, observers may call identity a myth, see Karst, supra note 39, at 282-89. Yet the weight of identities in people's lives is not well captured by this word. See id. at 307, 311-22. Nor does it adequately describe some identities, such as religious ones, which an adherent could view as a consequence of sincere personal belief rather than social convention.
 
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Scientists dispute whether biological bases produce differences in the behavior of men and women, and whether genetics explains sexual desire for someone of the same sex. n46 Studies of gender emphasize that differences among a variety of physical and other attributes, except reproduction, range as broadly within groups of males and females as between those groups. n47 To some theorists, the significance of gender in explaining human differences lies with cultural practices that are subject to change rather than with inherent features of nature. n48 A compatible but somewhat different view stresses gender as a set of performances changing through time rather than a pre-existing nature. n49
 
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n46. See Ruth Bleier, Science and Gender: A Critique of Biology and Its Theories on Women (1984); Anne Fausto-Sterling, Myths of Gender: Biological Theories about Men and Women (1985); Carl N. Degler, Darwinians Confront Gender; or, There Is More to It than History, in Theoretical Perspectives on Sexual Difference 33-46 (Deborah L. Rhode ed., 1990) [hereinafter Sexual Difference]; Ruth Hubbard, The Political Nature of "Human Nature," in Sexual Difference, supra at 63-73; Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 Stan. L. Rev. 503 (1994).

n47. See Fausto-Sterling, supra note 46; Hubbard, supra note 46.

n48. Degler, supra note 46; Hubbard, supra note 46.

n49. Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (1990) [hereinafter Butler, Gender Trouble]; Judith Butler, Bodies That Matter: On the Discursive Limits of "Sex" (1993) [hereinafter Butler, Bodies that Matter]. See also Erving Goffman, The Presentation of Self in Everyday Life (1959). Bonnie Honig traces the idea of a performative identity to the work of Hannah Arendt, and explores this notion in the context of complex and multiple identities related to gender, religion, nationality, and class. Bonnie Honig, Toward an Agonistic Feminism: Hannah Arendt and the Politics of Identity, in Feminist Interpretations of Hannah Arendt 135-66 (Bonnie Honig ed., 1995).
 
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Some people argue that social practices, such as legal rules and institutions, layer upon women the image of people who are mothers, who are sexualized, and who are terrorized; these images are mutable and could come to encompass men too or come to be moved away from the gender line altogether. n50 Many people attest to the contingent quality of their identities. For example, while talking with a Hindu landlord in an Indian community hostile to Muslims, philosopher Akeel Bilgrami asserted almost to his own surprise his identity as a Muslim. n51 "It seemed hardly to matter that I found Islamic theological doctrine wholly noncredible, that I had grown up in a home dominated by the views of an irreligious father, and that I had then for some years adopted the customary aggressive secular stance of those with communist leanings." n52 Self-identification with Muslims seemed the only self-respecting response in the circumstances of bigotry. For purposes of political goals or in response to immigrant experiences, previously distinct groups may merge together, exposing another way in which identities can be contingent. n53
 
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n50. See Mary Joe Frug, Postmodern Legal Feminism 129-53 (1992).

n51. Akeel Bilgrami, What Is a Muslim? Fundamental Commitment and Cultural Identity, in Identities, supra note 2, at 198.

n52. Id. at 199.

n53. See Yen Le Espiritue, Asian-American Panethnicity: Bridging Institutions and Identities (1992). Mary Waters emphasizes the more personal elections of an identity from an array of possibilities. Waters, supra note 29, at 51.
 
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A distinguished philosopher notes that the very concepts of similarity or kind reflect more about human mental processes than logic, since sets include things that are not alike as well as alike, and cultural practices instruct people about how to categorize. n54 Scholars of cognitive development herald the human capacity to subsume objects within a general category based on a selected attribute - but also to readily shift from one attribute to another and move freely among categories. n55 Moreover, people are able to use categories to reach objects by association and practical usage even if they exceed the familiar definition of the categories. n56 Thus, work on the nature of human knowledge it-  [*662]  self seems to undermine the stability and naturalness of the kinds of categories used in identity politics. As Jane Schacter notes, group-based identity categories seem both too particular to acknowledge the fundamental commonality of each individual and too general to capture the provisional complexity and specificity of an individual's process of identity definition. n57 Other scholars of group identity emphasize the fluidity and dynamism, the processes of becoming, as characteristic. n58 However much people may want to mobilize politically around identity groups, those groups are difficult to define and defy simple criteria.
 
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n54. W.V.O. Quine, Natural Kinds, in Ontological Relativity and Other Essays 114 (1969).

n55. A.R. Luria, Cognitive Development: Its Cultural and Social Foundations 48-49 (Michael Cole ed., Martin Lopez-Morillas & Lynn Solotaroff trans., 1976).

n56. Id. at 98. Yet some categories seem at time to freeze, and people seem to lose the ability to shift their scope and meaning; perhaps this reflects institutional practices and the play of power. See Mary Douglas, How Institutions Think (1986). See infra part III (discussing role of law and government in making identities seem real).

n57. Jane S. Schacter, Skepticism, Culture and the Gay Civil Rights Debate in a Post-Civil Rights Era, 110 Harv. L. Rev. 684 (1997) (Mar. 24, 1996 draft at 23-35, on file with author).

n58. Harold R. Isaacs, Idols of the Tribe: Group Identity and Political Change 205-07 (1989). Isaacs emphasized that groups are not defined solely by reference to physical characteristics, history, nationality, or language but instead amalgams of these and other features as well as interactions between inherited and acquired experiences. Id. See also Craig Calhoun, Social Theory and the Politics of Identity, in Social Theory and the Politics of Identity 9-36 (Craig Calhoun ed., 1994).
 
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To identify fluidity, change, border-crossing, and unstable categories is not to deny the real force and power that some people have accorded group labels and categories, to the clear detriment of others. n59 What else could explain a regime that, in historian Barbara Fields's words, "considers a white woman capable of giving birth to a black child but denies that a black woman can give birth to a white child"? n60 As another historian, David Hollinger, puts it in his recent book, Post-Ethnic America, "Racism is real, but races are not." n61 The power to create groups and oppress them is real, but the rationale for those groups or for the assignment of members is not. Benedict Anderson's book Imagined Communities artfully traces the creation of nations as official eff-  [*663]  orts by dynastic regimes to control workers and peasants; in the process, colonial powers created census categories that in turn stamped racial categories to replace previous religious, status, and anonymous identities. n62 Thomas Scheff argues that these cognitive maps of difference join with emotions of pride and shame to fuel prejudice and oppression. n63
 
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n59. See Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (1991); John Comaroff & Jean Comaroff, Ethnography and the Historical Imagination 50-67 (1992); Dominguez, supra note 35, at 11-16.

n60. Barbara J. Fields, Ideology and Race in American History, in Region, Race, and Reconstruction 143, 149 (J. Morgan Kousser & James M. McPherson eds., 1982).

n61. David A. Hollinger, Post-Ethnic America: Beyond Multiculturalism 39 (1995); see also Michael Omi & Howard Winant, Racial Formation in the United States: From the 1960s to the 1990s (1994).

n62. Anderson, supra note 59, at 109-10, 149-50, 163, 166-81. He also acknowledges yearnings for solidarity that fueled movements by peasants and workers under the heading of ethnicity, which elites in control then converted for their own purposes. Id. Stephen Steinberg explores how people use ethnicity as a medium to imagine connections with the past and to fulfill a yearning for meaning in the face of present discontents. Steinberg, supra note 2, at 262. Mary Waters found people ascribing to their ethnic group values held by many others. Waters, supra note 29, at 134. Thus, individuals imagine a group as a basis for both community and individuality against a backdrop of historic practices articulating group identities. Id. at 147-64. See also Margaret Conavan, The Skeleton in the Cupboard: Nationhood, Patriotism and the Limited Loyalty (forthcoming).

n63. Thomas J. Scheff, Emotions and Identity: A Theory of Ethnic Nationalism, in Calhoun, supra note 58, at 277-303.
 
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In this view, group-based differences need not have a foundation in biology, or anything but historic oppressions, to make them real enough to warrant recognition and mobilization. n64 We do not need refined understandings of identities to acknowledge how much people in power have hurt others along lines producing the harsh reality of identities. The Nazis resolved the question of who is a Jew in the most definitive way. n65 Similarly, "black means being identified by a white racist society as black." n66
 
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n64. See Hollinger, supra note 41, at 38-39 (group categories in the U.S. derive not from biology or culture, but "from the dynamics of prejudice and oppression in U.S. history and from the need for political tools to overcome the legacy of that victimization").

n65. See Michael R. Marrus & Robert O. Paxton, Vichy France and the Jews 85, 205 (1981); Richard Weisberg, Poethics and Other Strategies of Law and Literature 151 (1992).

n66. Walter B. Michaels, The No-Drop Rule, in Identities, supra note 2, at 401-11; see also William E. Connolly, Identity Difference: Democratic Negotiations of Political Paradox (1991) (identity requires difference in order to exist and secure its own certainty). Sometimes, a society simply piggy-backs on prior oppression to treat a group-based category as currently meaningful. See Barbara J. Fields, Slavery, Race and Ideology in the United States of America, 181 New Left Rev. 95, 97 (1990) (discussing Supreme Court acceptance in 1987 of nineteenth century definition of Jews and Arabs as racially distinct from caucasians).
 
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Thus, Catharine MacKinnon locates gender difference not in biology but historic oppression when she asks, "Can you imagine elevating one half of a population and denigrating the other half  [*664]  and producing a population in which everyone is the same?" n67 Judith Butler argues that the meaning of anyone's gender is troubled and unfixed except by exercises of convention and authority. n68 Marilyn Frye and Peggy MacIntosh, among others, have detailed the ways in which part of the comforts enjoyed by those with more power is the distance from other people's pain and the seeming invisibility of their own privileges. n69 Empirical studies of individuals' self-understandings highlight the impact of societal views about groups and discrimination by more powerful groups. n70
 
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n67. Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law 37 (1987) [hereinafter Feminism Unmodified].

n68. See Butler, Gender Trouble, supra note 49.

n69. Marilyn Frye, The Politics of Reality: Essays on Feminist Theory 110-27 (1983); Peggy McIntosh, White Privilege and Male Privilege: A Personal Accounting of Coming to See Correspondences Through Work in Women's Studies, in Race, Class, and Gender: An Anthology 70-80 (Margaret L. Anderson & Patricia Hill Collins eds., 1992); Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1709, 1761 (1993) (whiteness includes the power to make rules and the settled expectation that whites will face no undue obstacles while also controlling the legal meanings of group identity).

n70. Angelo Falcon, Puerto Ricans and the Politics of Racial Identity, in Racial and Ethnic Identity: Psychological Development and Creative Expression 193, 201 (Herbert W. Harris et al. eds., 1995) [hereinafter Racial and Ethnic Identity]. There is a curious tendency, though, of scholars who advance this view to treat "power" as singular in its form and direction.
 
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Regardless of the theoretical arguments against essentialism and for intersectionality, many people believe and perceive that their identities are bound up with experiences of subordination along simplistic group lines. n71 Experiences of mistreatment along group lines influence how individuals view people from their own groups, and people in other groups. Todd Gitlin's book, which is chiefly an attack - from the progressive left - on identity politics as a distraction from deeper issues of poverty and economic dislocation, nonetheless asserts confidently that "blacks are more likely than whites to doubt the promise of America; women more likely than men to care about children and fear rape; Jews more likely than Buddhists to study the Holocaust." n72 The racial divide in public responses to the verdict in the murder trial of O.J. Simpson is only one recent confirmation  [*665]  of this perception. n73
 
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n71. Avery Gordon & Christopher Newfield, White Philosophy, in Identities, supra note 2, at 380, 399.

n72. Gitlin, supra note 1, at 203. But see Jennifer L. Hochschild, Facing Up to the American Dream: Race, Class, and the Soul of the Nation (1995) (studies of views by racial groups).

n73. For related reasons, Harlon Dalton argues that even though the black community is not monolithic, it is still possible to talk about what it needs and believes, just as people talk about American aspirations. Harlan Dalton, Racial Healing 163 (1995).
 
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Focusing on historical and ongoing oppression cannot, however, fully rehabilitate identity politics. n74 The problem here is less incoherence than the personal, psychological, and political costs of engaging in politics around group identifications. Individuals' experiences of membership in more than one group may produce complicated responses to discrimination. For example, a study suggests that some young African-American males develop an exaggerated conception of male power and devaluation of females, apparently as a coping response to racial and economic disadvantage. n75
 
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n74. Nor can it fully capture what identities mean to people. As Karst writes, "It would be erroneous and patronizing to reduce the culture of black Americans to a simple legacy of oppression." Karst, supra note 39, at 318.

n75. Margaret B. Spencer et al., Identity as Coping: Adolescent African-American Males' Adaptive Responses to High-Risk Environments, in Racial and Ethnic Identity, supra note 70, at 31, 49.
 
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Privilege and oppression both can mark a person's experience, even simultaneously. Simply validating experience affords no guarantee of ending a person's own role in dominating others. Mobilizing African-American males is a current development in identity politics, as in the Million Man March, but that strategy risks splintering men and women who could be working together. n76 That strategy also could seem to condone sexist attitudes that undermine the vision of equality and human liberation behind identity politics. Here, then, is a place where the errors of essentialism, the insights of intersectionality, and the basic incoherence of group identities run up against the case of adopting categories that were never designed to help those assigned to them.
 
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n76. The risk of splintering is, however, coupled by the possibility of a therapeutic sense of connection. For a discussion of both, see Debra Dickerson, Queen for a Day?, The New Republic, Nov. 6, 1995, at 22; Glenn C. Loury, One Man's March, The New Republic, Nov. 6, 1995, at 18-22.
 
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Mobilizing in resistance to oppression based on a group trait may strengthen that oppression and the conceptions that it unleashes. As one observer recently put it:


 
This politics of being, essentializing or fixing who we are, is in actuality often an inversion or continuation of ascribed colonial identities, though stated as "difference." The stereotypi-  [*666]  cal contents of Africanness or Indianness, for example, are in the end colonial constructs, harbouring the colonizer's gaze. We look at ourselves with his eyes and find ourselves both adorned and wanting. n77
 
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n77. Himani Bannerji, Thinking Through: Essays on Feminism, Marxism and Anti-Racism 183-4 (1995). See also Gitlin, supra note 1, at 208 ("Hasn't history already done its detestable and irreversible work, stamping inferiority on dark-skinned peoples, enslaving them in the name of that classification? Without doubt, the group identities that have lasted longest and cut deepest are the ones that persecution has engraved.").
 
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The internalized sense of inferiority and the assumption that human relationships must be marked by hierarchy and domination are legacies of oppression. A piece of the oppressor, then, lies within each person, as Franz Fanon, Albert Memmi, George W. Hegel, and so many observers recount. n78 Paulo Freire has argued that the true focus of revolutionary change is never merely the oppressive situation, but also the piece of the oppressor which is implanted within each person and which knows only the oppressor's tactics and relationships. n79 This insight undergirds Jacques Ranciere's observation that emancipation is never the simple assertion of an identity; it is always, at the same time, the denial of an identity given by the ruling order. n80 Efforts to reclaim identities produced by oppression can express creative resistance, n81 but it is not clear they can extirpate either the specific category's origins or the reductionism of categorical thinking.
 
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n78. Frantz Fanon, Black Skin, White Masks (1967); Paulo Freire, Pedogagy of the Oppressed (1970); Georg W. F. Hegel, Phenomenonology of Spirit 179-96 (A. V. Miller trans., 1977); Albert Memmi, The Colonizer and the Colonized (Beacon Press 1967) (1965); see also Toni Morrison, The Bluest Eye (1970) (young black child yearns for blond hair and blue eyes, having internalized racist culture).

n79. Freire, supra note 78.

n80. Jacques Ranciere, Politics, Identification, and Subjectivization, in The Identity in Question, supra note 13, at 63, 68.

n81. See Mary Daly, Beyond God the Father: Toward a Philosophy of Women's Liberation (1973) (reclaiming hag and witch).
 
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Besides strengthening the categories and methods of oppression, identity politics may freeze people in pain and also fuel their dependence on their own victim status as a source of meaning. Wendy Brown has written powerfully about these dangers; she argues that identity-based claims re-enact subordination along the lines of historical subjugation. n82 This danger arises, in her view, not only because of the ready acceptance of those very  [*667]  lines of distinction and oppression in a society that has used them, but also because people become invested in their pain and suffering, or in her terms, their "wounded attachments." n83 She writes:
 
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n82. Brown, Wounded Attachments, supra note 13.

n83. Id. at 202, 220; see also Gayatri Chakravorty Spivak, Acting Bits/Identity Talk, in Identities, supra note 2, at 147 (describing identity as a wound).
 
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Politicized identity, premised on exclusion and fueled by the humiliation and suffering imposed by its historically structured impotence in the context of a discourse of sovereign individuals, is as likely to seek generalized political paralysis, to feast on generalized political impotence, as it is to seek its own or collective liberation through empowerment. Indeed, it is more likely to punish and reproach ... than to find venues of self-affirming action. n84
 
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n84. Brown, Wounded Attachments, supra note 13, at 217. The omitted language is a quotation from Nietzsche's Zarathustra: "'Punishment is what revenge calls itself; with a hypocritical lie it creates a good conscience for itself.'" Id. at 217, 226 (quoting Thus Spoke Zarathustra, in The Portable Nietzsche 252 (W. Kaufmann ed., 1954)). In a companion piece, Judith Butler acknowledges how terms of identity that injure also create social recognition, and how embracing the injurious term is necessary as a stage in learning to resist and oppose it. Judith Butler, Subjection, Resistance, Resignification: Between Freud and Foucault, in The Identity in Question, supra note 13, at 229, 245 [hereinafter Butler, Subjection, Resistance, Resignification].
 
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Brown urges efforts to shape a democratic political culture that would actually hear the stories of victimization while inciting victims to triumph over their experiences through political action. n85 Toward this end, she proposes shifting the focus from identity toward a focus on desires and wants, from the language of "I am" to the language of "I want." n86 In this way, perhaps politics could move beyond the artificially fixed and frozen identity positions and blame games toward expressive and engaged political action, but Brown has yet to sketch a language of solidarity rather than individual self-interest.
 
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n85. Brown, Wounded Attachments, supra note 13, at 221.

n86. Id.
 
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Therapeutic understandings of trauma and recovery support this call to shift from what an individual lacks to what an individual, with others, can envision and seek. Judith Herman's work on child abuse, incest, rape, and war-time trauma emphasizes the crucial importance to individual psychological health of recovering memories and learning to speak about atrocity. n87 She also stresses the significance of moving on through mourning, acting  [*668]  and fighting back, and reconnecting with others. n88 Identity politics risks directing all energy and time to pain without moving through recovery, action, and reconnection with larger communities. There remains a crucial place for anger and recrimination, as well as forgiveness and reconciliation. n89 But when identity politics takes the form of claiming excuses due to past victimization, it even makes it difficult for others to remember and acknowledge past wrongdoings and harms. n90
 
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n87. Judith Lewis Herman, Trauma and Recovery (1992).

n88. Id.

n89. See Jeffrie G. Murphy & Jean Hamptom, Forgiveness and Mercy (1988).

n90. Dalton, supra note 73, at 148-49.
 
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Personal testimony about oppression displaces analysis of social structures that produce and maintain it. n91 Identity politics tends to locate the problem in the identity group rather than the social relations that produce identity groupings. n92 Cornel West observes: "we confine discussions about race in America to the 'problems' black people pose for whites rather than consider what this way of viewing black people reveals about us as a nation." n93 Serious discussion of race in America, he argues, "must begin not with the problems of black people but with the flaws of American society - flaws rooted in historic inequalities and longstanding cultural stereotypes." n94 Identity politics is likely to reinforce white people's conception of blacks as "them" rather than pressing home everyone's mutual dependence and relationships. n95 Identity politics also tends to not only produce defensiveness among white men, but also to make it easier for white men to abandon and even blame people of color and women of all sorts for their circumstances. Blame should not be placed on identity politics for the indifference or selfishness of those who wish it would go away, but nor should those who pursue identity politics be excused of its effects.
 
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n91. Id. at 10. See also Martha Minow, Surviving Victim Talk, 40 UCLA L. Rev. 1411, 1413 (1993).

n92. See Joan W. Scott, Multiculturalism and the Politics of Identity, in The Identity in Question, supra note 13, at 3-6 [hereinafter Scott, Multiculturalism].

n93. Cornel West, Race Matters 2-3 (1993).

n94. Id. at 3.

n95. "As long as black people are viewed as a 'them,' the burden falls on blacks to do all the 'cultural' and 'moral' work necessary for healthy race relations." Id.
 
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Adjudicating who is right and who is wrong in the conflicts between identity politics advocates and those who charge identity politics with threatening unity occupies too much time and attention compared with the stakes really at issue. After all, if  [*669]  the alternative is a notational unity, then the fight simply focuses on which kind of identity ought to trump others. Those caught up in this debate too often fail to focus on, much less remedy, the savage brutalities affecting the most vulnerable members of society - and therefore the entire quality of the society. Thus, amid rancorous debates over multicultural curricula, actual school performance by children most at risk of failure remains largely neglected. n96 Intense university debates over identity-based issues in faculty promotions mobilize students while eviscerated public budgets for higher education do not. n97 Devastated urban neighborhoods; massively widening gaps between a small group of wealthy people and the rest of the society; evaporating public sector support for art, libraries, and human services; the disruption of families caused at least in part by economic hardship; and the substitution of market values for all other vocabularies of moral and political reasoning occur before our eyes. n98 Racial patterns of inequality persist or grow larger in some respects than in the past. n99
 
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n96. John U. Ogbu, Professor of anthropology at the University of California, Berkeley, reports that neither the ideal of the common curriculum nor the ideal of multiculturalism is likely to enhance the academic achievement of members of minority groups who traditionally do not succeed in school. See Gitlin, supra note 1, at 30.

n97. Id. at 158.

n98. Id. at 160-61, 236-37. See also West, supra note 93.

n99. Orlando Patterson, The Paradox of Integration: Why Whites and Blacks Seem So Divided, The New Republic, Nov. 6, 1995, at 24-27 (describing average improvement for African Americans but increase in percentage living in poverty since 1969, Depression-level unemployment, one in three black men between 25 and 29 supervised by criminal justice system, and racism in police departments); Gordon and Newfield, supra note 71, at 382; Conversation with Barry Bluestone (research for forthcoming study of data on workplace participation, showing effect of access to a computer and to education very helpful for whites, not so for blacks, Hispanics).
 
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The language and tactics of identity politics do not provide a purchase on these events, nor do they seem to entice people to engage in political resistance to them. n100 The invocation of racial, gender, or other identities helps develop not only a rich sense of who you are, but also what explains your life circumstances. n101 Judith Butler put it bluntly: "You can articulate your  [*670]  identity all you want; you need the damn resources in order to respond to the concrete problems of bodies in pain." n102 To get the resources, you need to work with others; to care about other bodies in pain, you need to move beyond your own circumstances.
 
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n100. See E.J. Dionne, Jr., Why Americans Hate Politics 21 (1991). Some observers mourn the decline of class as a meaningful identity category and imagine it could better mobilize political action and challenges to inequality; for complex economic, political, and psychological reasons, it just has not worked that way. See West, supra note 93, at 15-18.

n101. Dalton, supra note 73, at 154. "For most of us Black folk, the problem is not that we are mired in victimhood; it is that we no longer are able to give a satisfactory account of who we are and why we remain on the bottom." Id. at 150.

n102. Judith Butler, Discussion, in The Identity in Question, supra note 13, at 139 [hereinafter Butler, Discussion]. Butler herself resists the idea of surpassing identities, however, given reactionary politics, and instead urges efforts to invoke identity provisionally, for strategic purposes, while questioning notions of identity and emphasizing the contingent and fluctuating aspects of identity. Id. at 129-31.
 
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I am not urging renewed claims of unity, a contested notion in politics. n103 Unity and universalism, however appealing as ideals, have in practice often saved only some. n104 Perhaps those terms are doomed to fail because they invoke too enormous a set of notions of community and commonality; perhaps they have failed in the past but might inspire effective political struggles in the future. n105 In any case, universalist ideals have often failed to expose structures of power and processes through which differences among people become excuses for misallocating resources. n106
 
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n103. Longstanding debates include calls for unity on the one side and objections that the unity actually involves domination and suppression on the other. See David Zarefsky, The Roots of American Community, The Carroll C. Arnold Lecture, Speech Communication Association, San Antonio, Texas, Nov. 17, 1995. Continuous contests over the meaning of "American," for example, may be its one consistency. Sheldon S. Wolin, The Presence of the Past: Essays on the State and the Constitution 10 (1989). A promising effort to acknowledge the contests and nonetheless promote a conception of "we" without labels is Jodi Dean, Solidarity of Strangers: Feminism After Identity Politics (1996). See also Karst, supra note 39, at 366 (defending citizenship as an inclusive framework that promotes individual freedom). In contrast, others argue for building between groups that will remain distinct by working together on shared practical actions. See, e.g., John Brown Childs, The Value of Transcommunal Identity Politics, Z Magazine, July-Aug. 1994.

n104. See Childs, supra note 103 (discussing false universality); see also Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law (1990).

n105. See Gitlin, supra note 1, at 43, 50, 103; Michael Walzer, Thick and Thin: Moral Argument at Home and Abroad (1994); Martha Minow, What Ever Happened to Children's Rights?, 80 Minn. L. Rev. 267 (1995) (considering chances for political mobilization around the International Convention on Children's Rights).

n106. See Gordon & Newfield, supra note 71, at 380-81; Scott, supra note 92, at 5-6. Some mourn the loss of a proletarian struggle, Marxism, or other progressive universalisms to frame responses to poverty, racism, and xenophobia, but reinventing politics will take more than reviving dying ideologies. See Ranciere, supra note 80, at 69-70.
 
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Identity politics offers valuable conceptions and occasions for  [*671]  being for oneself and forging solidarity with others based on a perception of a shared trait; it has also offered important challenges to exclusionary practices. Identity politics effectively questions exclusionary practices that claim to be inclusive, such as color-blind policies that nonetheless produce all-white beneficiaries. Identity politics also disturbs the repression of historic and continuing group-based injuries. Identity politics sustains crucial institutions, such as black churches, and significant gains in respect for difference, such as the growing prevalence of sign-language interpreters at public events. Yet identity politics has not yet much helped people forge coalitions across groups, or learn to understand how these interests are interconnected, or practice talking across differences and divides. n107 Instead, identity politics tends to breed more identity politics. n108 Summoning up unity produces splinters. Rather than building bridges, the only point of agreement between those who assert the significance of group identities and those who resist is the reality and  [*672]  apparent immutability of polarization and disagreement. n109
 
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n107. Several scholars have drawn from identity politics the ideas that we each are "other" to others, and indeed strangers to ourselves, as efforts to promote openness to others, but this somewhat elusive set of notions is not the dominant or even widely understood message of identity politics. See Dean, supra note 31; Julia Kristeva, Strangers to Ourselves 169, 194-95 (Leon S. Roudiez trans., 1991); infra note 108 (noting Butler's attention to Cornell, Connolly, Irigaray). Instead, the practices of identity politics are too often characterized by personal testimony that uses experience as authority and grounds for exclusion and silencing of others. See Scott, Multiculturalism, supra note 92, at 10; Joan W. Scott, Experience, in Feminists Theorize the Political 22, 23-24, supra note 18 [hereinafter Scott, Experience].

n108. There has been a shift from discussion of "identity" to discussion of "identities." See Judith Butler, Collected and Fractured: Responses to Identities, in Identities, supra note 2, at 439. Yet rather than expanded attention and concern, this shift continues to limit and confirm the preoccupations of inwardness. "If identity becomes the unit that is multiplied, then the principle of identity is repeated - and reconfirmed - without ever yielding to another set of terms." Id. The proliferation of multiple identities leads some to try to "harden the categories" to strengthen the chances of political mobilization. Steven Epstein, Gay Politics, Ethnic Identity: The Limits of Social Constructionism, 9 Socialist Rev. 12 (1987). Butler maintains that some identity theorists pursue its potential for an ethical stance of openness. See Butler, supra at 441 (referring to thinkers such as William Connolly, Kendall Thomas, Drucilla Cornell, and Luce Irigaray). But the actual unfolding of politics around identity themes has not had that effect, and the abstruseness of theorists' prose on this point does not bode well for changes in this regard in the future. Some exceptions can be found. John Brown Childs, for example, reports experiments in "transcommunality" such as a Gang Truce and other grassroots dialogues. Childs, supra note 103, at 48-51.

n109. See Gitlin, supra note 1 at 167; Minow, supra note 91.
 
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Identity politics ironically responds to group-based exclusions by reiterating group boundaries. The problem is not only that responses to oppression reiterate the oppressive move of treating identity as fixed. The potentially multiple, fluid qualities of any person's identity seem to disappear in the assertion of one trait - but considerable power must be marshalled to accomplish this disappearing act, given the nonessential, intersectional, and incoherent qualities of group-based identities.

The question, then, is not whether identities are fluid and contestable - they are. Rather, the question is why we ever forget this. A major reason is the deployment of governmental power, through official categorizing schemes and policies. n110 Governments enjoy near monopoly on lawful violence. n111 Holding that most basic power, governmental authorities can work with the more subtle devices of words and texts. n112 The legal reliance on sharply bounded categories reinforces group status differences when applied to issues of personal identity. n113 When governmental power is mobilized to invest group categories with significance and to assign individuals to those categories, the use of identity groupings can injure as easily as it can help. n114 This is one of the  [*673]  reasons why the Constitution treats as unlawful entanglement with religion, efforts by the government to decide who is or is not a bona fide member of a religion. n115
 
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n110. See Anderson, supra note 59, at 164-70 (discussing role of census-taking in the creation of group identities); Homi K. Bhabha, The Location of Culture 66 (1994) ("Fixity, as the sign of cultural/historical/racial difference in the discourse of colonialism, is a paradoxical mode of representation: it connotes rigidity and an unchanging order as well as disorder, degeneracy and daemonic repetition."); Karst, supra note 39, at 289-96 (discussing legal "factfinding" that assigns identity). Increasingly, consumer-oriented markets also produce and sell identities, with an emphasis therefore on the visible and distinguishable. See Linda Alcoff, Mestizo Identity, in American Mixed Race: The Culture of Microdiversity 257, 270-71 (Naomi Zack ed., 1995) [hereinafter American Mixed Race].

n111. Self defense is the chief exception.

n112. See Robert M. Cover, The Supreme Court, 1982 Term - Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4 (1983) [hereinafter Cover, Supreme Court]; Robert M. Cover, Violence and the Word, 95 Yale L.J. 1601 (1986) [hereinafter Cover, Violence].

n113. Minow, supra note 104; Richard Sennett, Authority 10-11 (1981).

n114. Governmental and other powerful forces also complicate any assertion that a particular identity is freely chosen, or freely rejected. Kenneth Karst puts the point this way:


 
Among the teachings of our history of identity-labeling by government, one lesson is clear: When the law and other controls make the social environment hostile to people who wear a particular public identity label, it is hard to locate any authenticity in an individual's "choice" to repudiate the disfavored label.


 
Karst, supra note 39, at 323.

n115. See Lemon v. Kurtzman, 403 U.S. 602 (1971). Instead, the government may only inquire as to the sincerity of the individual's belief. See generally Laurence H. Tribe, American Constitutional Law (2d ed. 1988).
 
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Governmental - and personal - preoccupation with group identity works to hide each person's uniqueness, membership in multiple groups, and subjection by the incoherencies of group-based notions. Governmental force tends even to deny the interconnections among official norms and norms generated and sustained in resistance to or simply outside of them. n116 Thus, group-based identity can be a source of self-esteem and spiritual meaning; a defensive response to negative treatment along group-based lines; a way to forge alliances and engage in self-definition; and also a way to ensure schisms and to hide from oneself and to withdraw from others. n117 Especially when imposed or reiterated by governments, group identities obscure and hinder people's connections with those assigned to other groups.
 
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n116. Cover, Supreme Court, supra note 112.

n117. Dean, supra note 31, at 177. Although "the critique of identity politics has taught us that we can neither solve the problems of social and legal exclusion nor do justice to the complexity of multiple, shifting, and situated identities so long as we continue to struggle on the terrain of identity politics," identities seem to offer security and belonging. Id.
 
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What elements of identity politics can help people find commonalities or forge bridges across different kinds of group memberships? Individuals can and do find commonalities and forge bridges every day. June Jordan recounts both her worries in advance and the immediate success of her effort to connect a black South African woman with an Irish woman. n118 Both had experienced violence at the hand of a beloved male family member. They thus found a commonality based on experiences they have shared despite other kinds of differences in identities.
 
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n118. Jordan, supra note 20, at 48-49.
 
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Groups also work to build bridges - bridges between groups, not just individuals - and for this purpose identity politics may provide the vital requirement of self-respect and respect for difference. The idea of deliberative democratic processes rests on the hope, and the experience, of individuals and groups learning to be for something larger than themselves, although the practice  [*674]  of democratic politics falls considerably short. n119 Outside of politics, a recent, powerful example occurred when many people of Billings, Montana, rallied to support a Jewish family after a cinderblock smashed their window displaying a menorah. In response to this event and the increasingly vocal presence of the Ku Klux Klan, many members of the community displayed menorahs in their own windows and organized a vigil outside the synagogue. n120
 
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n119. See infra text at notes 154-61 (discussing limitations of contemporary politics).

n120. Dean, supra note 31, at 180.
 
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People find a connection in their common experiences of betrayal and assault. Perhaps this is another kind of wounded attachment, but one that does not cling to lines of racial, gender, or other assigned group differences. Connection through experiences perceived as common itself becomes a common experience as well. All of us have been betrayed at times by those who claim to be like us; we have also, at times, felt understood by or allied to people who seem quite different from ourselves.

What collective, societal projects could encourage people to have more experiences of connection with those who seem different? What initiatives can governments or private groups adopt to promote people's abilities to be for themselves and also for others? How do practices of representation - and alternatives to them - enhance or undermine this end? What stances toward group identities should a government informed by critical reflection take? I will consider these questions next, in my concluding section.



III
 
For Oneself and for Others
 
Identity politics, especially when addressed to issues of representation, directly expresses distrust about the ability of people to speak and stand in for those who seem different from themselves. The obvious sources for this distrust lie in historic and continuing practices of group exclusions and oppressions, and persistent evidence of at least some predictable differences in interests and attitudes, again along group lines. The language and ideals of universal commitment to individualism have not produced equality and freedom for all, and thus have earned the distrust manifested by identity politics.  [*675] 

To encourage people to trust others, a basic sense of security - economic, social, and psychological - would help. Security along these dimensions would also enhance people's abilities to be for themselves and also for others. As Todd Gitlin observes, "Who got seated at the table and in what order mattered less if the table was piled high." n121 We end with a circularity of problems, though, if collective security is a precondition for mutual concern - and coalitions for mutual support are necessary for economic, social, and psychological security. Such circularity may suggest promise in aligning methods and goals. Working to build political coalitions, for example, to seek the economic well-being of children of all colors and incomes, could strengthen sources of mutual regard while also improving material conditions. Marion Wright Edelman's inspired and hard work in this vein, along with other efforts on behalf of children, strikes me as vitally important. n122 I also think that focusing on an issue such as the well-being of all children could join people who otherwise feel divided. Even if people joined together for different reasons, a shared goal could produce collective efforts and also the kinds of common experiences that can nurture trust. But this does not seem to describe contemporary American politics. Instead, coalitions that cross lines of race, ethnicity, and class in particular do not seem to happen when people do not trust one another. Moreover, such political and social projects do not themselves address the wounds that propel and sustain identity politics.
 
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n121. Gitlin, supra note 1, at 232.

n122. See Martha Minow, Children's Studies: A Proposal, 57 Ohio St. L.J. 511 (1996); Minow, supra note 105.
 
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What could address those wounds and wounding conditions? We need, I think, both to acknowledge the injuries and rewards of group-based experiences while also weakening the collective processes that seem to fuse otherwise fluid identity possibilities for individuals. Both defenders and opponents of identity politics should address the systemic harms that animate and perpetuate identity politics. This will require committed response to the harms and inventive approaches toward the future. Crucial here are both sustained public acknowledgment of past and continuing oppressions on group-bases and support for individual self-fulfillment without the truncated effects of assigned group identities. And also crucial here are efforts to draw individuals into the  [*676]  rewarding, maddening process of debating with others over collective governance.

This double mission requires not only settings for telling and knowing the truths about exclusions and degradations, and the processes that produce group identities and faulty stereotypes, but also structures that permit people to experiment with and negotiate through the groups, interests, and practices that can afford them personal meaning. n123 It calls for language and politics that permit people to be for themselves, but also for others. These efforts should problematize group affiliations while enhancing people's chances to claim more than one of them. This approach also invites efforts to expose persistent findings of group differences in social and economic status as clues to problems in societal practices, rather than problems located in the disadvantaged groups. n124
 
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n123. Joan Scott calls for efforts "to treat identity as the unstable, never-secured effect of a process of enunciation of cultural difference," as historically conferred with political salience for different contexts and subject to redefinition, resistance, and chance. Scott, Multiculturalism, supra note 92, at 11.

n124. See Frug, supra note 50, at 38-48 (urging a progressive use of identified sex differences to expose them as contingent).
 
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Let's consider adopting deliberately competing societal strategies. Some specify roles for the government; some urge governmental restraint; others could well be advanced through collective but private means: social movements, philanthropy, grass roots activities, religious group efforts. Some will resist any use of group names; others will revel in them. I mean to invite debate and promote a proliferation of strategies rather than to pronounce any one of them the answer. To fight against ignorance about historic discrimination and rigid group assignment will involve different and, at times, inconsistent strategies.



A. Remembering and Remedying Group-Based Harms: Using Law and Settings for Public Discussion to Force Attention to Group-BasedHarms

1. Intensive and Aggressive Enforcement of Anti-Discrimination Laws
 
Laws already adopted at the federal, state, and local levels forbid discrimination in hiring, housing, public accommodations, and school admissions against otherwise qualified people on vari-  [*677]  ous group-based grounds. n125 Vigorous enforcement of such laws could strengthen, especially for people who identify with victim categories, the sense of trust in the larger community. Such enforcement could, of course, fuel resentment by others, especially if the remedies pose losses to them in what may seem like a zero-sum game. Hence the ongoing debate over affirmative action and "reverse discrimination." n126
 
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n125. Sexual orientation receives no federal protection against discrimination, and protection in only some municipalities and states.

n126. See generally Christopher Edley, Jr., Not All Black and White: Affirmative Action, Race, and American Values (1996).
 
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On quite different grounds, Wendy Brown criticizes a city ordinance against discrimination in employment, housing, and public accommodation that covers a long list of group identities, including not only the familiar categories of race, ethnicity, gender, sexual orientation, and disability, but also the category of appearance. n127 She objects to this effort to render as equivalent the risks faced by African-Americans and white teens who dye and spike their hair; she worries that the use of identity categories even in a remedial mode becomes complicit with the regulatory regimes that produce them; she cautions against the regulation that obscures the effects of social power. n128 Similarly, Kristin Bumiller has examined the danger that civil rights laws require individuals to claim the status of victims in a way that recapitulates their group-based exclusions. n129
 
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n127. Brown, Wounded Attachments, supra note 13, at 211.

n128. Id.

n129. Kristin Bumiller, The Civil Rights Society (1988). Karst also suggests that the equal protection doctrine of "suspect class" makes it seem that those who have been injured must persuade the courts that they are qualified members of a group that truly satisfies the protected identity category. Karst, supra note 39, at 326.
 
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These cautions warrant attention. n130 But before ceding to them, I wonder if it could be possible to refine the anti-discrimination effort to attend specifically to the constructed nature of group identities and the critiques of their essentialism, monolithic rigidity, and pretended coherence. n131 The recent federal civil rights law forbidding discrimination on the basis of disability  [*678]  explicitly defines disability to include being regarded by others as having a disability. n132 Litigation enforcement under this provision directly invites examination of the processes through which people form attitudes and misapprehensions about others who seem different. Perhaps a similar invitation could be built into regulations against discrimination on the basis of race, gender, ethnicity, and other group-based categories. n133
 
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n130. For careful rejections of neutral, "race-blind" governmental policies that forbid group-based remedies, see Owen M. Fiss, Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff. 107 (1976); Karst, supra note 39, at 331-52.

n131. See supra part II (three problems in identity politics). See also Karst, supra note 39, at 328 (arguing that recognition of the mythical qualities of racial identity should deepen rather than undermine commitment to enforcing anti-discrimination laws).

n132. The Americans with Disabilities Act of 1990, 42 U.S.C. 12102(2)(C) (1994).

n133. Such an argument was proposed but rejected when a Jewish group sought protection against racial discrimination on the grounds that they were - wrongly - perceived to be a race. See Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987). The Supreme Court decided to turn to nineteenth-century definitions of race and thereby treated Jews as a race. Id. at 617-18. See Minow, supra note 104, at 55. Karst suggests that by using the nineteenth-century dictionary definition, the Court did implicitly move away from the pretense of biological foundations for race. Karst, supra note 39, at 325.
 
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In this spirit, I think that legislatures, police departments, prosecutors, governors, and mayors should examine massive group disparities in their purview as clues to underlying problems deserving remedy, rather than accurate reflections of real differences among people. For example, if one out of three African-American males in their twenties are supervised by the criminal justice system, this should be a clue that something is terribly wrong in that system and in the larger society - and not instead serve as a confirmation of stereotypic notions of African-American male criminality. n134 Investigation into these practices might not justify compensation or relief to particular individuals, the sort of remedies a court normally would consider. Structural changes in the operations of police and prosecutors might be called for, although they probably would be more effective if designed by those personnel than by courts. The adoption of community police approaches that try to ensure access to sports and constructive out-of-school activities, especially for young black and Hispanic males, is an example of the view that their overrepresentation in the criminal justice system reflects failures in the broader environment rather than defects in themselves. Governmental practices that yield massive racial, gender, or ethnic disparities should raise questions for those in charge about those practices and challenge assumptions that the problem lies in "those people." The disproportionate presence in prisons and people with mental disabilities should also prompt inquiry into  [*679]  the societal practices that make this seem like an appropriate response.
 
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n134. See Bonnie Honig, Political Theory and the Displacement of Politics 137-48 (1993).
 
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More basically, challenges to the hypocrisy - the gap between our ideals of equality and freedom and the reality - offer the best hope for pulling this country together. From the beginning, the ideals of equality and freedom were not manifest in practice, and nor are they fully now. What makes politics and law capable of drawing us together is their readiness for individuals brash enough to say, "But you said ... ," and courageous enough to hold people accountable to the ideals so often stated.



2. Facilitate Public Compensation and Reparations for Past and Continuing Group-Based Harms
 
Compensation involves payments for specific losses or damages identified and measured through a legal procedure; reparations involve payments to amend for more general wrongs and injuries through a political process. n135 Greater use of public fora for debating compensation and reparations for group harm could air enduring grievances, educate broader publics, and produce some sense of closure. The very same practices could trivialize atrocities, encourage unmanageable numbers of claims and wounded attachments, invite trivial claims, or feed resentment by those who do not personally benefit.
 
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n135. Michael D'Orso, Like Judgment Day: The Ruin and Redemption of a Town Called Rosewood 206 (1996).
 
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Although these negative consequences deserve attention, so do the positive possibilities. Consider these two examples: (1) in May 1994, the Governor of Florida signed into law a claims bill passed by the legislature for the destruction in 1923 of the town of Rosewood, Florida; n136 and (2) a group of whites burned the town which was inhabited entirely by African-Americans (except for the sole white store owner), and killed at least eight people. The precipitating event was the claim by a white woman in a neighboring town that she had been raped by a black man, although no such man was ever found. The law enforcement officials knew and did not intervene during the week of destruction. After an investigation, an adversarial hearing, and a public debate, the state senate approved a bill to compensate survivors, to  [*680]  compensate families of residents who lost property, and to create a minority college scholarship fund with preferences to descendants of Rosewood. The state law enforcement department was also directed to conduct a criminal investigation. n137
 
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n136. C. Jeanne Bassett, House Bill 591: Florida Compensates Rosewood Victims and Their Families for a Seventy-One-Year-Old Injury, 22 Fla. St. U. L. Rev. 503 (1994).

n137. Id.; see also D'Orso, supra note 135, at 297.
 
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The incident could be distinguished from others, such as the massive Southern lynchings, because of the extended time during which the public officials could have acted but did not; in addition, good evidence, including considerable contemporaneous press coverage, substantiated the claim. Thus, this instance would not necessarily inspire massive and unmanageable additional claims. n138 The allocation of money for Rosewood did produce tension and conflict: first, by whites opposed to the bill, and second, by claimants for the compensation itself. n139 The ultimate amount of the compensation was small when divided among the claimants, and many found the experience incomplete, if not anticlimactic. n140 But the experience unearthed a history that had been suppressed, permitted many individuals to work through trauma they and their families had experienced, and taught a watching nation about the prejudice, violence, and official complicity. n141
 
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n138. Bassett, supra note 136, at 521.

n139. D'Orso, supra note 135, at 162-69, 306-17.

n140. Id. at 318-20.

n141. See id. at 93-106, 318-23. The story has inspired a book and two movies.
 
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A second example is reparations for the internment of Japanese-Americans and Japanese residents in the United States during World War II. n142 Again, the risks of trivializing the harms competed with the risks of provoking majority resentment and hostility. Yet the process of seeking and substantiating the basis for reparations could afford a constructive method for recalling history and acknowledging group harms. n143
 
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n142. 50 U.S.C. app. 1989b-9 (1994). See also American-Japanese Evacuation Claims Act of 1948, 50 U.S.C. app. 1981-1987 (1994) (providing for compensation for specified property losses). For an argument defending these reparations, see Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 Harv. C.R.-C.L. L. Rev. 323 (1987); see also Linda Kay, Our Share of Seats in the Tundra - Guaranteed, Chicago Tribune, Nov. 19, 1995, at 1 (discussing Canadian reparations for a newly created territory).

n143. Another example is the United States Indian Claims Commission, established in 1946 and closed in 1978, which heard claims concerning abrogation of tribal or other Indian property rights occuring prior to the 1940s. See Robert N. Clinton et al., American Indian Law 721-24 (3d ed. 1991).
 
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Serious scholarly arguments for reparations to African-Ameri-  [*681]  cans for slavery have yet to spark political success, and the topic may raise particular complexities. n144 Nonetheless, sustained political debate on this issue could permit people to express longstanding perceptions about the scope and consequences of group-based injuries.
 
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n144. See Boris I. Bittker, The Case for Black Reparations (1973) (finding black reparations constitutional but partial, and therefore at risk of unfairness; urging national debate on the subject); Rhonda V. Magee, Note, The Master's Tools, From the Bottom Up: Responses to African-American Reparations Theory in Mainstream and Outsider Remedies Discourse, 79 Va. L. Rev. 863 (1993); Vincene Verdun, If the Shoe Fits, Wear It: An Analysis of Reparations to African Americans, 67 Tul. L. Rev. 597 (1993).
 
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3. Frame a Variety of Settings for Eliciting Facts and Narratives of Past and Continuing Group-based Harms
 
South Africa has recently established what it calls the "Truth and Reconciliation Commission." It will have no law enforcement duties nor any power to hear compensation or reparations claims. Instead, this official body will seek testimony and evidence about what really happened under Apartheid in order to get a truthful record, acknowledgment of suffering, and a basis to permit the entire society to move ahead in forging a new future. To achieve these ends, the Commission plans to grant immunity from prosecution or liability to those participants in Apartheid policies and also to African National Congress (ANC) participants for violent or other criminal conduct, but only if they voluntarily come forward to speak.

There may be no direct analogue for this device in an ongoing, as opposed to new, governmental regime such as the contemporary United States. n145 Nonetheless, the idea of a procedure designed to elicit narratives, freeing the participants from legal consequences, may hold promise here. In his recent book, Racial Healing, Harlon Dalton calls for attention to the contemporary consequences of slavery rather than exclusive concern with slavery as history. n146 Quite beyond the "monstrous but transitory harms" n147 to the enchained, slavery "served to indelibly link  [*682]  Blackness and subservience in the American subconscious. At a deep level, slavery stamped Black people as inferior, as lacking in virtue, as lacking the capacity to order their own lives" n148 and therefore inexorably headed for prison. Creating public settings in which interracial groups could examine such claims would instruct all involved and trigger a probing exploration of the processes producing group identity and prejudices against groups.
 
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n145. For an extensive consideration of the effects on collective memory of prosecutorial approaches to state-sponsored mass brutality, see Mark J. Osiel, Ever Again: Legal Remembrance of Administrative Massacre, 144 U. Pa. L. Rev. 463 (1995).

n146. Dalton, supra note 73, at 157.

n147. Id. at 155.

n148. Id. at 156 (referring to the work of Professor D. Marvin Jones).
 
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Dalton also suggests that attention to the consequences of slavery would require considering the paradoxical benefits of racial separation in strengthening a sense of community and actual independent institutions. n149 This kind of insight would also highlight the processes producing group identities and attachments to them while inviting comparisons with other ways to build and sustain community responsibility and vibrant institutions. To learn from the still new model of South Africa's Truth and Reconciliation Commission, a parallel activity here would need to consider criticisms of the oppressed group as well.
 
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n149. Id. at 157-58; see also bell hooks, Yearning: Race, Gender, and Cultural Politics (1990) (discussing homeplace).
 
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Alongside or instead of large public gatherings for such explorations, electronic discussion groups, interfaith gatherings, and therapeutic support groups should be promoted with public and private support. People with chronic illnesses and disabilities may find conversing in electronic spaces a remarkable opportunity to connect with others before falling into negative attitudes about their conditions, and efforts to promote their access to electronic discussion groups would be justifiable on these and other grounds. The point would be to convene people to talk and listen about why group statuses have taken the shapes they have, complete with paradoxes and complexities, rather than simplistic and blaming claims. Opportunities for individuals to construct and present their stories could be instructive to others and deeply healing for themselves. Trauma and recovery require recollection and remembrance if they are not to halt productive daily life; this is the insight behind the South African Truth and Reconciliation Commission as well as trauma recovery groups elsewhere. n150
 
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n150. See Herman, supra note 87.
 
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Many settings for truth telling and support should be framed to  [*683]  feel safe, and therefore less than fully diverse across groups that do not trust one another. But constructing settings precisely for mutually mistrusting individuals and groups would be a crucial, complementary part of this strategy, as would devising settings for people to rub elbows or collaborate on issues unrelated to past and present group conflicts. Such settings could be privately sponsored and confidential, or privately sponsored but open, or even broadcast through varied mass media or interest means. Robert Cover explored the dramatic efforts to use trial-like formats with no claim of official power, such as a Vietnam war crimes inquiry framed by philosophers Bertrand Russell and Jean Paul Sartre. n151 Lacking the coercive powers of the State, privately sponsored settings may support normative explorations and commitments at odds with prevailing views more easily than do governmental agencies. n152
 
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n151. Robert Cover, The Folktales of Justice: Tales of Jurisdiction, in Narrative, Violence, and the Law: The Essays of Robert Cover 173, 187 (Martha Minow et al. eds., 1992).

n152. See Cover, Supreme Court, supra note 112.
 
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B. Expand Possibilities for Individual Self-Determination
 
Three further strategies create tensions with the previous force by fostering materials for individual self-definition. If individuals in turn reinvigorate existing view groups, they will afford cherished sources of meaning.



1. Devise Governmental Policies That Permit Individuals to Affiliate or Identify Themselves with Groups Temporarily and for Specific Purposes Rather Than Rely on Governmental Assignment to Fixed Groups
 
If one of the problems behind identity politics is the assignment of individuals by government or powerful actors to groups beyond their own control or choice, renewed assignments to groups, even for remedial purposes, can reinstall the injury and incoherence, constraint and mythology of forced group identity. One alternative worth exploring is governmental structures that permit people to identify themselves in temporary groups for specific purposes.

Consider rules for electing representatives to Congress or another legislative body. Two kinds of voting rules are at stake: the  [*684]  rules about what constitutes a voting district for purposes of aggregating votes, and the rules about how to count votes for purposes of declaring winners and losers. The conventional rules determine which votes to aggregate and divide the electorate into geographic districts; and the selected geographic lines may split a given group of voters into ineffective minorities between more than one district. Yet equally troubling are districting plans that concentrate a group within one or a few districts, removing their views from any influence in other districts and therefore ensuring that their elected representatives become a minority among the entire group of representatives. The conventional rule determining how to count votes is that the majority rules, which means 51% of the votes determine 100% of the outcome.

The Voting Rights Act specifically permits challenges to voting districting that dilutes the voting power of racially identified groups. n153 Civil rights advocates have supported the enforcement of these provisions with the particular hope of increasing the number of minority representatives elected to office. Critics of race-consciousness attack the Act and its implementation for designing districts artificially to yield more minority representatives.
 
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n153. 42 U.S.C. 1973 (1994).
 
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Lani Guinier has led an alternative line of critics who challenge pre-existing districts as neither natural nor neutral, and question the majority-take-all method for counting votes. She proposes two changes: first, the creation of multi-representative districts, or at-large elections, in which all the voters in the district vote to elect more than one representative; and second, proportional voting, which mathematically determines the minimum number of votes necessary to produce a winner and devises a random method for distributing the "losing votes" to other candidates so that some of them may also win enough to meet the minimum number of votes to be elected. n154
 
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n154. Lani Guinier, The Tyranny of the Majority: Fundamental Fairness in Representative Democracy 120-22 (1994).
 
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When Guinier was nominated to serve as the head of the Civil Rights Division of the Clinton Justice Department, a right-wing campaign successfully defeated her after portraying her as a "Quota Queen." n155 Critics maintained that Guinier wanted the  [*685]  electoral rules to produce fixed numbers of Black, Hispanic, Asian, and white representatives. In fact, Guinier's scholarship challenges precisely those conceptions. Instead, her proposals seek to make each vote have equal value and, therefore, to prevent majority groups from freezing out minority group members from exercising an effective vote. n156
 
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n155. The term also had racist overtones. See Stephen Carter, Foreword, to Guinier, supra note 154, at vii, xix.

n156. That both the Reagan and Bush administrations pursued remedies for Voting Rights Act violations using multidistrict and proportional representation rules seems to have escaped Guinier's critics. Carter, supra note 155, at xi.
 
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Guinier specifically endorses cumulative voting, the method commonly used within corporate governance, which gives each voting member the same number of votes as there are open seats, and allows the voter to assign more than one vote to a given candidate to reflect her own intensity of preference. n157 Guinier notes that this method would permit minority group voters to obtain their preferred candidate if they work together. However, this method also permits other groups to coordinate that way. "All voters have the potential to form voluntary constituencies based on their own assessment of their interests. As a consequence, semiproportional systems such as cumulative voting give more voters, not just racial minorities, the opportunity to vote for a winning candidate." n158 Further, "racial-group interests become those self-identified, voluntary constituencies that choose to combine because of like minds, not like bodies." n159 The goal is to produce a voting method that permits individuals freedom to move beyond artificial groups based solely on residence, race, or any other feature besides the individual's choice to affiliate with other like-minded voters. n160
 
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n157. Guinier, supra note 154, at 149.

n158. Id.

n159. Id.

n160. Id.
 
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Thus, individuals may identify themselves, through their vote, with others who share a race, a gender, a concern for the environment, or any other factors. The grouping occurs upon the act of voting and only for that purpose at that time. This conception of voting thus exhibits the possibility of structures to permit self-identification by individuals as temporary, contingent members of self-formed groups. n161 This conception is especially helpful in  [*686]  supporting the conception of American pluralism that acknowledges peoples' membership in and affiliation with multiple groups.
 
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n161. This approach is compatible with a more general argument made by Chantal Mouffe: "The issue is to create a new conception of citizenship in which the distinction of gender becomes nonpertinent.... What I'm against is a certain type of identity politics that says what politics is about is the representation of all those identities as they already exist." Discussion, in The Identity in Question, supra note 13, at 31 (statement by Chantal Mouffe).
 
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Would this conception have application elsewhere? One hotly contested context is the United States Census. In 1997, a mini-survey in preparation for the census of the year 2000 will test a new category, "multiracial," in response to the demands of organizations of mixed race parents. n162 Others wish to more finely tune racial self-identification groups by subdividing existing categories to permit identification such as Pakistani or Polynesian, for example. n163 The standard classifications of white, Asian-American, African-American, Hispanic-nonwhite, and Native American/Pacific Islander are themselves arbitrary and certainly confining for those who identify with more than one, or none of these categories. n164 Powerful articulations of difficulties faced by persons of mixed race attest to the cruelties as well as the incoherence of standard distinctions. n165 In addition, the U.S. Census classifications contribute to a false view of "pure" race while also confusing race and ethnicity. n166
 
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n162. Clarence Page, The Political Reality of Separating Races, Rocky Mountain News, Sept. 14, 1995, at 63A.

n163. Karst, supra note 39, at 329.

n164. See generally American Mixed Race, supra note 110; Hollinger, supra note 41, at 22-38. See also Lise Funderburg, Black, White, Other (1994) [hereinafter Funderburg, Black, White, Other]. Lisa Funderburg, Boxed In, NY Times, July 10, 1996, at A15.

n165. Alcoff, supra note 110; Gloria Anzaldua, Borderlands/La Frontera: The New Mestiza (1987).

n166. Sharon M. Lee, Racial Classification in the US Census: 1890-1990, 16 Ethnic and Racial Studies 75 (1993).
 
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Yet the practical uses of the Census, for example, to enforce school desegregation, fair housing, and employment laws make the choice of categories and method of assignment politically significant and politically charged. n167 Given the historic practice of  [*687]  assigning anyone with "one drop" of nonwhite ancestry to the nonwhite category, remedial civil rights laws justifiably could treat "multiracial" as nonwhite, n168 but this would not resolve difficulties posed where allocations turn on the comparative presence of Blacks, Hispanics, Asians, or other nonwhite groups. n169 It is difficult to know who would be helped and who would be hurt if people could identify themselves as "multiracial," but I do find compelling this poetic comment by Michael Gorra: "the box on the census form of the self does need to be checked, if only to make sure there's someone at home. And it would be better if you could always do it yourself, but too often other peoples' pencils get there first." n170 The move to self-identification, rather than labeling by a census official, is a crucial and already accomplished reform.
 
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n167. See Mike McNamee, Should the Census Be Less Black and White?, Business Week, July 4, 1994, at 40. Similarly, census questions about disability could be reformed to permit people to identify themselves in ways other than perjorative categories while still producing information relevant to the societal need for support for persons with disabilities.

These questions suggest that there could be a practical side to what philosophers have called "attributive meaning," picking out an object simply for a present purpose but not for unrelated purposes. See Keith S. Donnellan, Reference and Definite Descriptions, in Naming, Necessity, and Natural Kinds (Stephen P. Schwartz ed., 1977).

n168. Karst, supra note 39, at 399. He suggests a different approach where race is an issue in adoption. Id. at 348 (citing Julie Lythcott-Haims, Where Do Mixed Babies Belong? Racial Classification in America and Its Implications for Transracial Adoption, 29 Harv. C.R.-C.L. L. Rev. 531, 551-57 (1994)).

n169. Karst, supra note 39, at 341.

n170. Michael Gorra, Response to Identities, in Identities, supra note 2, at 434, 438.
 
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My own suggestion would permit individuals to check as many boxes relevant to race and ethnicity as seem relevant. Total or regional responses can be divided by the actual number of people counted by the census. The resulting fractions will help remind anyone using census information of its sources in self-identification and of the roughness of its truths.



2. For Prospective Governmental Action Rather Than Efforts to Remedy or Comprehend Past Group Harms, Try Achieving Governmental Purposes Without Deploying Group-Based Categories While Remaining Committed to Overturning the Effects of Categorical Exclusions in Social and Political Realms
 
This is not a call for color-blindness, gender neutrality, or other pretenses that we have already achieved a world free from the legacies of group-based exclusions. Instead, it is an invitation to invent ways to achieve governmental purposes that do not deploy yet again the group-based identities. Architectural designs for buildings that accommodate people who use wheelchairs without segregating them in separate entrances and elevators are a concrete example. Three legal examples are discussed below.  [*688] 



a. Peremptory Challenges
 
After a lengthy struggle by civil rights and defense attorneys, the Supreme Court adopted the view that prosecutors' uses of peremptory challenges that resulted in excluding persons of a particular race could violate the Equal Protection Clause. n171 The Court extended this decision quickly to civil cases and to exclusions based on gender as well. n172 Why should the Equal Protection scrutiny stop at race and gender - rather than extend to ethnicity, linguistic minority, religion, sexual orientation, disability, and age, not to mention intersectional categories such as immigrant woman? n173 Alternatively, why not adopt quotas to assure racial, gender, and other categorical representation on juries? n174
 
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n171. Batson v. Kentucky, 476 U.S. 79, 79-98 (1986). The challenger has to make out a prima facie case that the pattern of exclusions triggers an Equal Protection concern, and then the other side has the chance to offer non-prejudicial grounds for the struck jurors. Id. See also Hernandez v. New York, 500 U.S. 352, 360-62 (1991) (Kennedy, J., plurality opinion) (finding it a sufficient explanation for the exclusion of Spanish-speaking jurors - treated as a racial exclusion - that the jurors might have difficulty accepting the English translator's version of the Spanish testimony). The relative ease with which parties may defend against the prima facie case renders the Batson test quite limited if the goal is to end invidious racial, ethnic, religious, or sex discrimination in jury selection. Jeffrey Abramson, We, The Jury: The Jury System and the Ideal of Democracy 259-60 (1994).

n172. Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) (extending Batson to civil cases); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (extending Batson to exclusion on the basis of gender).

n173. Justice Thomas, joined by Justice Scalia, dissented from the Supreme Court's denial of review of a case in which the criminal defendant claimed that peremptory challenges should also be tested against exclusions based on religious bias. See Davis v. Minnesota, 114 S. Ct. 2120 (1994) (mem.) (Thomas, J., dissenting). Justice Ginsburg wrote in her concurrence in the denial of the petition for a writ of certiorari that the state court had itself rejected the claim in part because it is usually improper to even ask questions about the jurors' religious affiliations and beliefs. Id. (Ginsburg, J., concurring).

n174. See Sheri L. Johnson, Black Innocence and the White Jury, 83 Mich. L. Rev. 1611, 1651-1708 (1985). Others have proposed affirmative selection to achieve similar representative ends based on group identity. See, e.g., Tracey L. Altman, Note, Affirmative Selection: A New Response to Peremptory Challenge Abuse, 38 Stan. L. Rev. 781, 802-12 (1986); Donna J. Meyer, A New Peremptory Inclusion to Increase Representativeness and Impartiality in Jury Selection, 45 Case W. Res. L. Rev. 251 (1994). Yet such an approach may well increase the likelihood of hung juries. Hans Zeisel, Comment, Affirmative Peremptory Juror Selection, 39 Stan. L. Rev. 1165 (1987).
 
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Before we go down that path, however, it is worth considering whether we can achieve the goals behind equal protection and behind the jury system another way. At stake in the composition  [*689]  of juries is a conception of the decision-making body as a representative cross-section of society who are peers of the parties. n175 Longstanding legal and social practices excluded certain groups from jury service altogether. n176 Discriminatory practices may occur in the gathering of names for the general jury pool, the selection of particular individuals from the pool to serve on juries, and the exclusion of particular individuals from a jury through the process of voir dire. n177
 
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n175. Strauder v. West Virginia, 100 U.S. 303, 308 (1879); Altman, supra note 174, at 787-93.

n176. See Batson v. Kentucky, 476 U.S. 79 (1986) (discussing history of exclusion of blacks); Taylor v. Louisiana, 419 U.S. 522 (1975) (discussing exclusion of women).

n177. Lisa E. Alexander, Vicinage, Venue, and Community Cross-Section: Obstacles to a State Defendant's Right to a Trial by a Representative Jury, 19 Hastings Const. L.Q. 261, 261-62 (1991).
 
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Such exclusions interfere with the parties' rights to have a representative jury and the citizen's right and duty to serve on the jury. n178 Besides providing the appearance of fairness through representation, the cross-sectional jury also can generate insights based on a range of experiences and perspectives. n179 The historic right of the parties to strike a specified number of jurors without stating a reason n180 risks undermining these purposes; for these reasons, the Court has erected the Equal Protection scrutiny of use of the peremptory challenge. Yet an alternative solution would be to eliminate the peremptory challenge altogether. n181
 
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n178. For a thoughtful discussion of the issue, see Abramson, supra note 171, at 99-141.


 
As ancient as the peremptory challenge's credentials are, the theory of impartiality that underlies its use (that both sides should be free to eliminate persons suspected of racial, sexual, or ethnic bias against them) is in conflict with the theory of impartiality in the cross-sectional ideal (that such bias needs to be represented on an impartial jury because there is no way to escape from it, there are only ways to balance it).


 
Id. at 132.

n179. Toni M. Massaro, Peremptories or Peers? Rethinking Sixth Amendment Doctrine, Images, and Procedures, 64 N.C. L. Rev. 501, 545-47 (1986).

n180. The peremptory challenge began in England with the King's power to challenge any juror and was gradually accepted into the common law and carried over to the United States with the endorsement of Joseph Story. See Van Dyke, supra note 7, at 148-49. The Supreme Court granted peremptory challenges to the prosecutor in 1887. Id. at 150.

n181. See Batson v. Kentucky, 476 U.S. 79, 102-03, 107-08 (Marshall, J., concurring) (arguing for the elimination of peremptory challenges in order to end discrimination in jury selection). See also Abramson, supra note 171, at 258-64 (recommending elimination of all peremptory challenges because Batson fails to guard against discrimination in jury selection even for groups gaining Equal Protection coverage as well as for groups lacking Equal Protection coverage).
 
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Several benefits could emerge from this elimination of the peremptory challenge. The messy administration of the Equal Protection challenges and the strategic gamesmanship surrounding jury selection would end. So would the unresolved debate about which groups deserve this kind of Equal Protection. n182 Eliminating peremptory challenges would reduce the parties' (and lawyers') abilities to shape the jury and seek to influence their results, which could hurt, but also help members of disadvantaged groups. The very practice of trying to shape the jury through peremptory challenges has been so deeply characterized by stereotypic predictions about how members of particular groups would respond to the topics on trial that elimination of the peremptory challenge could rule all such thinking out of bounds when selection of a jury is at stake.
 
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n182. Abramson, supra note 171, at 12. (Lawyers use peremptory challenges "on the basis of some suspicion that young or old, rich or poor, white-collar or blue-collar, Italian or Irish, Protestant or Jewish jurors will be favorable to the other side" - but most of these stereotypes would elude Equal Protection scrutiny because they do not refer to "suspect classes" protected under the Batson test.).
 
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Indeed, parties, and lawyers, commonly seek to remove jurors based on their group characteristics because they load many presumptions - and prejudices - onto those identities. n183 The prosecution tries to exclude people who look like the defendant on the assumption of undue sympathy; the defense tries to exclude those of different racial and ethnic groups from the defendant. Why permit peremptory challenges that presume that people cannot empathize across lines of difference? Not only would such a rule be untrue to human possibilities; it might also be a self-fulfilling prophesy. n184
 
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n183. See generally Sheri L. Johnson, The Language and Culture (Not to Say Race) of Peremptory Challenges, 35 Wm. & Mary L. Rev. 21 (1993).

n184. See Altman, supra note 174, at 800-01 (discussing possibility that people are more or less empathetic in relation to rules and institutional expectations).
 
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Eliminating peremptory challenges would not halt attention to group-based categories, for aggressive anti-discrimination enforcement would still be needed at the systemic levels defining the pool of available jurors and calling up specific people to serve. n185 Eliminating peremptory challenges would, however, afford one way to restrict the use of governmentally imposed  [*691]  group-based categories while still achieving the underlying governmental purpose. It would signal one more place where government power will not be used to reinforce artificial group identities.
 
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n185. Efforts to supplement voter registration lists may be necessary to produce inclusive jury pools, given the disparities in voter registration rates across groups. See generally David Kairys et al., Jury Representativeness: A Mandate for Multiple Source Lists, 65 Cal. L. Rev. 776 (1977).
 
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b. Reasonable Person n186
 
Scholars, lawyers, and judges have justly attacked this pervasive legal concept for installing the views and beliefs of only some people - typically, middle-class white Protestant able-bodied men - rather than create new common law categories for setting standards of care or reasonableness. But should the "reasonable person" standard be replaced now with the "reasonable woman" when a woman is the defendant or plaintiff, or the "reasonable Carribean-American male," or further efforts to articulate sub-group identities? These may well be improvements over a pretended universal but actually partial notion, better called the reasonable middle-class, Protestant, able-bodied man. Yet the practical problems posed by proliferating sub-group standards are immense, and so are the more symbolic and psychological risks of confining individuals to governmentally prescribed group categories.
 
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n186. See generally Martha Minow & Todd Rakoff, Is the "Reasonable Person" a Reasonable Standard in a Multicultural World?, in Austin Sarat et al., Everyday Practices and Trouble Cases (forthcoming). I thank Todd Rakoff for the many conversations that inform the discussion there and here.
 
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Is it possible to devise an alternative that also avoids sliding back into the faulty neutrality of the "reasonable person" standard? One route would retain "reasonable person," but link it to "the circumstances" where circumstances include encountering the meanings of group identity in a given community during the specific time period. n187 This route would permit testimony and even expert evidence about such meanings while resisting the easy but faulty route of assigning individuals to group categories that then acquire the force of a legal norm. n188
 
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n187. Is it so different to use "reasonable person who is blind," rather than "reasonable blind person;" or "reasonable person who is Chicano," rather than "reasonable Chicano"? Two differences would emerge: (1) the circumstances considered under the first formulation for each case would not stop with the group identity label, but continue and thereby permit consideration of the intersecting experiences of gender, region, age, and so forth; and (2) the test would avoid being treated as if it were solid and fixed on identity that is inevitably mutable and affected deeply by other unnamed dimensions.

n188. Where a woman is a plaintiff, as in a sexual harassment suit, another alternative would set as the standard the treatment anyone would want for a sister, daughter, or wife. Thanks to Nell Minow for this formulation. Rakoff and I actually avoid in our paper the "hot-button" issues such as sexual harassment and rape. We think it fair to assert that contemporary social attitudes differ considerably along gender (and perhaps racial or ethnic) lines, and instead argue that in the more ordinary disputes over contracts, torts, and criminal law, "reasonable person" should be modified to reflect circumstances rather than to implement "reasonable woman," "reasonable Asian-American," and so forth.
 
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c. Hate Speech Codes
 
Colleges and universities for several years have debated and some have adopted codes of conduct that proscribe "hate speech." n189 Students of color and women had argued that they often feel silenced in classrooms and injured elsewhere on campus by epithets or other speech stereotyping and degrading members of their groups. Some white male students counter that they feel silenced by the implicit demand for "politically correct" speech. The intense campus and public debates surrounding proposed speech codes tend to polarize communities. n190 Arguments against regulation tend to assert the First Amendment as the end of the discussion, while arguments for the codes tend to identify opponents as insensitive, prejudiced, or hostile. Richard Abel has characterized the debates this way: "If the dominant trivialise the harm they inflict, the subordinate abuse their moral leverage by playing identity politics, claiming exclusive rights to speak for or about their group." n191
 
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n189. The first highly visible case was Doe v. University of Mich., 721 F. Supp. 852 (E.D. Mich. 1989) (rejecting state university's hate speech code as a violation of the First Amendment). An analogous debate addresses proposed regulation of pornography. See generally MacKinnon, Feminism Unmodified, supra note 67; Catherine A. MacKinnon, Only Words (1993); Frank I. Michelman, Conceptions of Democracy in American Constitutional Argument: The Case of Pornography Regulation, 56 Tenn. L. Rev. 291 (1989); Nadine Strossen, A Feminist Critique of "The" Feminist Critique of Pornography, 79 Va. L. Rev. 1099 (1993).

n190. The polarization extends to scholarly books that divide the debate between them. For the pro-First Amendment view, see Henry L. Gates, Jr. et al., Speaking of Race, Speaking of Sex: Hate Speech, Civil Rights, and Civil Liberties (1994). For the pro-regulation perspective, see Mari J. Matsuda et al., Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (1993). See also Steven H. Shiffrin, Racist Speech, Outside Jurisprudence, and the Meaning of America, 80 Cornell L. Rev. 43 (1994) (discussing criminal sanctions against racially motivated crimes and the attendant debates over the meanings of America). A comparison between the debate within the United States and Canada's practices is a healthy reminder of the possibility of alternative approaches. See Kent Greenawalt, Fighting Words: Individuals, Communities, and Liberties of Speech (1995).

n191. Richard Abel, Speech and Respect 150 (1994). He recommends informal processes that respond to racist speech with speech, including acknowledgment of harm and apologies. Id. at 145. He also argues that speech bans are bound to include exceptions for politics, art, and scholarship that engulf the rule, and evasions through parody, ambiguity, and romantic defiance. Id. at 93, 98, 105-07.
 
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Of course, restrictions on speech are extensive throughout college campuses: in professors' rules about who speaks and when in class, in rules confining public assemblies and posters, and in the usual rules of libel and defamation that govern the entire society. Informal norms present in the general culture or cultivated in the local one also powerfully regulate what people think they should say and what people do say. No one, therefore, is truly in favor of completely unfettered speech in college settings. In addition, even defenders of codes carve out exceptions to assure speech freedom and, indeed, invite test cases at the boundaries of the restrictions. n192 So the debate, although usually not characterized this way, could be viewed as one over which kinds of restrictions are justified, not over whether to have any.
 
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n192. See Thomas C. Grey, Stanford Seeks Only to Curb Insulting Epithets, N.Y. Times, May 17, 1989, at A26 (letter to the editor); Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 Mich. L. Rev. 2320 (1989).
 
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In the analogous area of hate crimes, the Supreme Court has rejected on First Amendment grounds laws that focus exclusively on groups that historically have suffered from discrimination. n193 According to one commentator, the Court seemed to construe the First Amendment as forbidding governments from telling the world that "violence driven by racial hatred is more destructive than violence driven by class hatred, political animosity, labor strife or just plain greed?" n194
 
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n193. R.A.V. v. City of St. Paul, 505 U.S. 377, 391-92 (1992). The majority also found defective the prohibition of some kinds of fighting words - those using race, color, creed, religion, or gender - but not others, such as "aspersions upon a person's mother." Id. The Supreme Court later approved legislation that does not criminalize hateful expression itself but instead permits enhanced penalties for acts already criminalized if committed "by reason of the race, color, religion or national origin of another person or group of persons." Joel Zand, Hate Crime Laws: Disagreement in the Courts, ADL on the Frontline (Anti-Defamation League), Oct. 1992, at 7 (describing legislation upheld in Ohio v. Wyant, 508 U.S. 969 (1993)).

n194. Linda Greenhouse, Defining the Freedom to Hate While Punching, N.Y. Times, Dec. 20, 1992, at E5.
 
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Rather than join the debate about degree of victimization n195 and about which kinds of categories should or should not receive protection through speech codes or hate crime statutes, I would like to consider the ways in which the debates over these issues distract attention from the conditions that permit hateful expression. n196 In a sense, the hate speech codes reinforce and reify  [*694]  identities for the future without doing anything to redress the historic and ongoing processes that produce hateful expressions geared to categories such as race and gender. The greater diversity of students on college campuses over the past decade means that many students encounter, for the first time, people who are very different from themselves in the intense and intimate settings of classrooms and dorms. Yet colleges have not taken many steps to acknowledge these encounters. Most have not diversified faculties as much as student bodies, nor have they altered curricular offerings. Nor have most developed ways to teach students about the displacement of economic insecurity - in the current global economy - onto issues of group difference.
 
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n195. Though I do so in Minow, supra note 91, at 1423.

n196. I explore this argument more fully in Martha Minow, Speaking and Writing Against Hate, 11 Cardozo L. Rev. 1393, 1404-08 (1990). Shiffrin develops a related argument that hate speech regulations are likely to be counterproductive by mobilizing opposition and fanning racial resentment. Shiffrin, supra note 190, at 98-103.
 
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The focus on disciplinary codes and First Amendment defenses does not address the sources and forms of hate nor the institutional contexts that could alter hateful expressions. Colleges should articulate and enforce codes of conduct that prohibit acts that injure others; students, faculty, and administrators should protest and condemn statements of hatred. But more basic reforms to the structures of important centers of learning should proceed to address the causes for hateful expressions in what should be places of civility and respect.



C. Public Support for Art and Artistic Opportunities to Address Topics of Past and Present Identities and Affiliations, Oppressions and Resistances, and IndividualFreedom.
 
Alexis de Tocqueville may have been the first but surely not the last to observe that American tendency to convert social issues into legal debates. n197 Law provides crucial settings and vocabulary for working out issues and dilemmas in a society that shares little besides a Constitution and the civic culture that surrounds it. n198 Yet perhaps the dominance of law grows also from inadequate opportunities for expression in other settings and vocabularies. One vibrant alternative is art. Theatre, visual arts,  [*695]  dance, music, fiction, public memorials, and other forms of creative expression can provide avenues for provocation, catharsis, remembrance, and invention, all of which would enhance richer and more complex renditions of identity and all it does and could mean for people. n199
 
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n197. See Alexis de Tocqueville, Democracy in America (Richard D. Heffner ed., 1956); Mary Ann Glendon, A Nation Under Lawyers: How the Crisis in the Legal Profession Is Transforming American Society (1994).

n198. See Sanford Levinson, Constitutional Faith (1988); Chantal Mouffe, Democratic Politics and the Question of Identity, in The Identity in Question, supra note 13, at 33; Walzer, supra note 105.

n199. Schools can be wonderful settings for exploring artistic expression especially around the complexity of group identities. See Kathy Greeley, Making Plays, Making Meaning, Making Change, in Social Issues and Service at the Middle Level (Samuel Totten & Jon E. Pedersen eds., 1995) (discussing elementary school teacher's use of playwriting to help students grapple with past injustices and to take risks in self-expression and change).
 
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Maya Lin's Vietnam Memorial and the debates it triggered provide a vivid example. Her vision of a wall placed as a gash in the land, a wall polished and engraved with the names of those Americans who died in the Vietnam War, offended many who sought greater majesty and appreciation for those who served in that most contentious war. n200 In response, veterans groups organized to fund and commission a more representational sculpture of men in combat; another group of women veterans organized to fund and commission a similarly representational sculpture. n201 Meanwhile, the crowds visiting the Wall found it permitted stunning occasions of personal and collective grief. Many have commented on the power of seeing themselves reflected in the polished marble. One ritual of producing paper rubbings of the names and another of leaving distinctive personal objects as tributes to those named have themselves stimulated new kinds of art and expression. n202
 
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n200. Edward Guthmann, Freida Lee Mock's Strong Clear Vision: Director Says "Lin" Stands on Its Own, S.F. Chron., Nov. 8, 1995, at D1 (describing film about Maya Lin, the memorial, and the politics surrounding it).

n201. See Robert Atkins, When the Art Is Public, the Making Is, Too, N.Y. Times, July 23, 1995, 2, at 1.

n202. Jay Pridmore, Revealing Displays Make Vietnam Museum Noteworthy, Chi. Trib., Sept. 9, 1994, at 14 (describing Smithsonian Institution exhibit of objects left by mourners at the Vietnam Memorial). See Pamela Weinstock, Note, The National Endowment for the Arts Funding Controversy and the Miller Test: A Plea for the Reunification of Art and Society, 72 B.U. L. Rev. 803 (1992).
 
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Sadly, these possibilities for the public dimensions of art are seldom offered in defense to cost-cutting and attacks on art as frivolous, offensive, or dangerous. n203 Cultivating greater appreciation for the possibilities of the arts - and greater opportunities for public participation in the creation as well as appreciation of  [*696]  art - may be one of the most significant ways to enhance people's abilities to be for others as well as for themselves. Chances to participate as actors in community theatre or as singers in a multiracial choir afford people room to express what they already know and space to learn with people unlike themselves. For it is through the imaginative identification with others unlike oneself that art can transport; it is through the suspension of disbelief about others unlike oneself that people can discover their own deep sensibilities. Although art is not the only arena for self-expression and imagination, it remains a rich realm in which to be for yourself and for others.
 
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n203. See Kathleen M. Sullivan, Free Speech and Unfree Markets, 42 UCLA L. Rev. 949, 962 (1995) (discussing Jesse Helms and others attacking public funding of the arts).
 
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Greater attention to the history of the arts in America would also enhance understanding of the complex interconnections among people of different groups in forging artistic expression. From jazz to American fiction, the mutual influences of Blacks and whites, Latin Americans and Europeans, men and women, immigrants, and natives is a wondrous story of interconnection and strife. n204 The burgeoning world of deaf theatre owes much to American artists while also borrowing from the traditions of Yiddish and other cultural theatres. The tales of the unmelted ethnic - the compound identity - may be distinctively American. n205 Artistic forums allow creators and viewers to explore group identities in complex and subtle ways that challenge simple labels. Art also invites people to cross over gender, racial, and generational lines, lines between self and other, and lines between what is and what could be.
 
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n204. See Ann Douglas, Terrible Honesty: Mongrel Manhattan in the 1920s (1995); Toni Morrison, Playing in the Dark (1992); Williams, supra note 27, at 196 (1995):


 
It is one thing to romanticize the notion of culture as fixed and pure, and quite another to ignore the legal and economic consequences of a dominant social gaze that habitually, repeatedly sees its own cultural production in such naturalized yet unreflectively nativistic terms that there is little vision for how much has been borrowed or given, little appreciation for the generosity of our interdependence.


 


n205. Gitlin, supra note 1, at 59. But cf. Martha Minow, Identities, 3 Yale J.L. & Human. 97, 122-26 (1991) (discussing French debate over Islamic students' attire in violation of school dress codes).
 
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Conclusion
 
If you thought I would now proceed to adjudicate among these six strategies, I am sorry to disappoint you. I think we need them all, or at least debate about them all. And if you hoped I'd re-  [*697]  solve my opening questions about who may speak for someone else, again, I am sorry to disappoint. But I hope that the issues of representation have reverberated in new ways, in my consideration not only of election methods and juries, but also art and therapy, compensation and reparations, hate and recovery. Indeed, identity categories should more basically be understood in terms of their representations - in art, advertising, fashion, fiction, and self-presentation.

Identity politics have been crucial and perhaps inevitable responses to perceived oppressions. So are the as yet unrealized ideals of universal equality and individual liberty, unity and commonality, at least in supporting basic democratic institutions and a civic culture that makes it possible to call people hypocritical if they betray these ideals. But the debate over identity politics as an assault on individualism - and universal ideals as tools of oppressor classes - has reached a point of repetitious stalemate. I think it is time to stop or at least expand the ways to address the injuries that animate these debates.

This will require a constant double move: attentive to the continuing practices of group-based oppression and the gratification of group-based mobilization, the new efforts must also welcome the undefinable, multiple quality of each individual's experience. Aggressive and ambitious challenges to continuing group-based harms; debates over reparations for past group-based harms; acknowledgment in public settings of as yet unacknowledged histories; exploration of methods that permit individuals to choose their own, temporary affiliations; experimentation with achieving governmental ends by neither reiterating group-based categories nor ignoring them, and expanding the opportunities for artistic expression and participation - deliberately contradictory strategies could help one by one, but would be even better taken together. The tension among these suggestions is a plus, not a minus, in a world that has too often tried to suppress the tensions around identity. If reparations and truth-telling push people more into group identities, then temporary affiliations, alternatives to group-based categories, and proliferation of artistic expressions encourage fluid and individualist explorations resisting assigned group status. If aggressive anti-discrimination matters risk reinvesting identity categories with governmentally imposed coherence, then efforts at temporary affiliations and alternatives to group-based categories work in the other direction.  [*698] 

Especially where the government acts, installing group-based categories as if they were fixed, singular, and coherent poses dangers for individuals and hinders efforts to build bridges. Ignoring historical and continuing patterns of group-based oppression would be a supreme act of denial, but reflexively repeating those very group lines will not overcome the psychological and social consequences of that oppression. We need, I think, to return to Hillel's questions: If we are not for ourselves, who will be? But if we are not for others, what are we? It is time to be not only for ourselves.




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