john powellWilliams Chair in Civil Rights and Civil Liberties,

Moritz College of LawDirector, The Kirwan Institute for the Study of

Race & EthnicityThe Ohio State University

March 18, 2011, U.C Irvine

Today, . . . with the important exception of employment discrimination, work, livelihoods, social provision, and the material bases of citizenship have vanished from the constitutional landscape. That is a scandal, for the United States is no different from other nations: Constitutional democracy is really impossible here . . . without some limits on social and economic deprivation.

- William E. Forbath, “Social and Economic Rights in the American Grain”

Critical Race Theory on the Non-Separation Between Race and

Class

Race, class, and the other categories of difference that make a difference are co-constitutive.

This co-constitution operates at all scales:• Individual identity• Group identity and membership• Intergroup coalitions• Across space and over time

The New Deal’s racial exclusion• Ira Katznelson, When Affirmative Action Was White• Systematic exclusion of non-whites from New

Deal programs• Entrenched structural inequality that remains

with us today in the former of harms to people of color in housing, credit, and labor markets

The weakness of the American welfare state• Alberto Alesina & Ed Glaeser U.S. welfare state miserly compared to Western

European peers• Irwin Garfinkel et al. Even if U.S. welfare state isn’t so small, it grossly

misallocates resources and is generally regressive• Joe Soss et al. Politics of welfare provision at the state level remains

deeply racialized

Thought-leaders continue to diagnose the moment as “post-X,” especially post-racial.

We hardly need to be reminded that we’re not post-racial, even if racializationworks differently in the Age of Obama.

Hence the persistent relevance of CRT’s insistence on the intersectional perspective.

From Race and Class to the Structure of

Opportunity

Race and class continue to be important modes of individual and group identity-formation.

But the signal function of race and class is their role in sorting individuals and groups within/among institutions.

Therefore, we must shift our inquiry to the racialization of opportunity structures.

Housing

Childcare

Effective Participation

Employment

HealthEducation

Transportation

Structural racism/racialization• Inter-institutional arrangements and interactions

produce racialized outcomes Implicit bias

• Non-conscious attitudes that give rise to mental schemas, which embed racism and produce biased behavior.

It’s an open question whether America’s changing racial demographics alter the picture I’ve sketched—a picture often framed as white power vs. black subordination.

A tentative answer: Maybe not, because blacks and Hispanics seem to be converging vis-à-vis opportunity structures.• E.g., segregation patterns

The Dynamic Role of Corporate Power

The debate around Citizens United stages one way to talk about corporate power, i.e. the apparently zero-sum relationship between corporate rights and individual rights.

Consider in this light the appropriation of the 14th Amendment to vindicate corporate rights rather than civil rights.

But corporations increasingly rework how power shapes key domains of life.

Misidentifying the situation, not public vs. private

Expansion of corporate prerogative

Corporate space diminishes public &private space

15

Corporate

Private

Public Private

Non-pubic

Corporate

Spheres