Privacy law enabled racial privilege to persist while formally denying it
Evidence
That the emergent legal emphasis on privacy in modern constitutional law is coterminous with the legally mediated shift I have been noting from racial naturalism to historicism is not a superficial coincidence. The-soon-to-be-Justice Brandeis’s famous essay on the constitutional place of privacy that he penned with Stewart Warren (Warren and Brandeis 1890) opens the possibility for thinking exactly the extension of privatized racial privilege and power in the shift to formalized constitutional colorblindness first marked by Justice Harlan’s equally famous dissent in Plessy v. Ferguson (1896). In the discourse of privacy, the modern state in fact has managed to order a lexicon by which it has enabled distinctions in substance and content while denying them in form. — David Theo Goldberg, The Racial State, 82
Categorization
- XREF: Connects to Goldberg’s overall thesis on the racial state and to broader critical legal studies on colorblindness as a vehicle for racial inequality. — connects to: Official colorblindness lets familiar-partner privilege continue unchecked as exclusion — David Theo Goldberg, The Threat of Race: Reflections on…, 1621; Banning racial data collection protects private discrimination from scrutiny — David Theo Goldberg, The Threat of Race: Reflections on…, 1767
- QUESTION: Worth chasing: does the Brandeis-Warren privacy essay later get cited in cases with racial-subtext outcomes, and do critics make that link?