Kendall Thomas is a professor of law at Columbia University. He writes about and lectures on constitutional law, civil rights, race, and sexuality. He co-edited, with Kimberle Crenshaw, Neil Gotanda, and Gary Peller, the important anthology, Critical Race Theory: The Key Writings That Formed the Movement (The New Press). Most recently his essay, “Ain’t Nothin’ Like the Real Thing: Black Masculinity, Gay Sexuality, and the Jargon of Authenticity,” appeared in The House That Race Built, edited by Wahneema Lubiano (Pantheon). Thomas did a star-turn in Yvonne Rainer’s soon-to-be released movie, MURDER and murder. He sometimes sings in church, cooks extremely well, and loves spending time in Paris. After lunch (which he didn’t cook), we talked in his apartment in Chelsea.
Lynne Tillman Your work as a legal theorist, from my reading of it, emphasizes the real effects of law on the body, and the large context in which laws are enacted and carried out. The Supreme Court upheld a Georgia law prohibiting consensual sexual acts, sodomy: Bowers v. Hardwick. In Beyond the Privacy Principle you argued that Hardwick’s privacy in his bedroom couldn’t be separated from his being perceived as homosexual in public.
Kendall Thomas Our understanding of privacy is always relational. The sphere of my private life is always bounded by, defined in relation to, set up against, notions of those aspects of my life and of other people’s lives that are public. I think the effort to describe exhaustively the realm of sexual freedom in the language of privacy is misguided—there is always this remainder of one’s sexual identity which overruns the boundaries of private life and is given expression in public.
LT Hardwick worked as a bartender in a gay bar; the arresting officer knew because of the context in which he worked who, and what, his sexual identity was or might be.
KT At the very least, it was suspected. I always find it remarkable that no one thinks to question the very public dimension of normative heterosexuality. Very often the sexual family, to use Martha Fineman’s term, is not viewed as such, so in political life—take the recent presidential campaign—the emphasis on family is not understood to be an emphasis on the public character of heterosexuality or the ways in which heterosexual relations are underwritten, subsidized, endorsed, supported, and promoted by state policy.
LT One of the points that you make is that privacy, to gays and lesbians, is what keeps them in the closet. That privacy in the context of homosexual life is different from privacy in heterosexual life.
KT Ideas of privacy are very deeply indicated in the social structure. Gay men and lesbians in this society are situated in a very different place from heterosexuals, making the meaning of privacy for gay men, lesbians, and bisexuals very different from the meaning of privacy for heterosexuals.
LT I wonder if you see Roe v. Wade in these terms, since abortion is argued as a woman’s right to privacy. Doesn’t it share a similar problem with issues in the Hardwick case? Women’s dirty secrets are all right if kept private?
KT It’s important to think about how much the supporters of abortion rights have lost by appealing to the language of privacy to protect an interest in women that has very many public dimensions and which is ultimately about gender politics and the ways state policy can or cannot be fashioned to regulate women’s lives. Every feature of the decision to have an abortion is marked by public concerns. The relationship between a pregnant woman and her doctor is a market relation. It takes place in the public sphere of the market. It’s not a purely private decision, then, simply by virtue of the fact that health care is distributed in this country through the mechanisms of the market. Another public dimension of the decision to terminate a pregnancy has to do with a pregnant woman’s relationship to the man, or men, in her life. One of the most important, and I think insightful, parts of Sandra Day O’Connor’s opinion in the Casey case from Pennsylvania had to do with the risks that women who decide to have abortions face when their partners disapprove of that decision. The very real physical risks, the violence that is associated with that decision, and the ways in which public policies that make the choice a woman’s and a woman’s alone are very much implicated in a woman’s decision. In the same way, no adequate account can be offered of sexual politics, whether it’s questions of gay/lesbian rights, or questions of reproductive rights—no adequate account of those issues can ignore their public effects and implications.
LT Your work consistently underscores how the public and the private are enmeshed, inseparable, and just now you mentioned violence. Throughout your work, violence is a major theme—violence on the bodies of gays and lesbians, the violence of the lynching of black men and black women. Your involvement in abstract legal thinking and theory generally intersects with real effects on physical bodies. Especially, again, violence. It interests me that you went into law.
KT I wanted to try to understand this grammar of power that is law, the ways in which it organizes our common social life—secretes itself into the most personal aspects of our individual lives. What I’ve come to understand in the years that I’ve been thinking about and working in law is the degree to which actors in the legal system avoid and evade the fundamentally violent character of law, even in those areas of the law where its violent nature seems most apparent.
LT How do you see law as being violent?
KT One would begin with the basic Weberian definition of the state and law as monopolies of legitimate violence. In the name of the language of legal rights and legal duties, individuals have lost their freedom, and indeed, their very lives. So, as the great American legal theorist Robert Hubbard put it, so much of the work of the law takes place in a field of pain and suffering and of agony and death. Too much discussion of legal ideology and institutions in this country and elsewhere ignores that basic material fact about the context in which law is adopted and applied.
LT In Weberian terms, the state is defined, constituted, by its right to kill.
KT That’s the ultimate power of the state, the power over life and death. But it’s that fact that so many players in the legal system shirk, because it’s terrifying.
LT With that understanding of the legal system as violent, you could have become an anarchist.
KT Well, who can explain these accidents of inclination.
LT You argue within the system—with it—a system that can inflict pain and suffering…you’re in the belly of the beast.
KT I came of age politically during a period in this country’s life in which the political morality of non-violence still had some currency. I was raised in a family with a very strong Christian, social, gospel orientation, which was committed to non-violent activism in the model of Martin Luther King, Jr. The philosophy of non-violence has always spoken very strongly to me, even though I grew up in California at a time when in black communities there, and indeed throughout the nation, the Black Panthers, which rejected non-violence, had its highest visibility and influence. Part of my rejection of the practice of violence is based on a realistic and a realist political understanding of the unequal access to the means of violence.
LT That’s very pragmatic.
KT I’m interested in the emancipation of people who’ve historically been cut off from access to the means of violence. I prefer the critique of violence rather than the celebration of violence. And as a pragmatic matter, I’ve decided to critique it, not celebrate it. If violence were ever to become the open and accepted vehicle for resolving conflict in this society, there’s no question in my mind that sexual, racial, and ethnic minorities would lose.
LT You’re a member of two significant minorities, black and gay. In your essay “Rouge et Noir Reread”, in Critical Race Theory, you argue that Herndon v. Lowry, an important first amendment case—”one of the great civil liberties decisions of the ’30s”—shouldn’t be separated from the unsuccessful Herndon cases prior to it. The Supreme Court declared that Herndon’s conviction of attempting to incite insurrection against the state of Georgia was unconstitutional on the grounds that its political crimes statutes deprived Herndon of his rights to freedom of speech and assembly. The theme of separation, its impossibility and its problems, operates throughout your work. You also argue that race is basically not considered in the Herndon case, yet it’s the background against which law is being made. It was fraught, even to determine what language to use about Herndon: he was variously “a Negro,” “a darkey,” “the defendant.”
KT The Herndon case was the second-most famous political controversy concerning African Americans in the 1930s, after the Scottsboro cases. Herndon really represents or contains, in a compressed form, all the old intractable themes of racial politics in the U.S. What interested me was the way in which it was remembered, and the ways in which the memorialization of this decision, which led ultimately to the release of this young African American Communist Party organizer, depended on the erasure, the forgetting, of very important aspects of the case. I’ve always been interested in the ways law tells stories about its past that delete, in an obviously ideologically interested way, those parts of the story that don’t fit into the grand narrative of law in America, which is the story of the protection of human dignity and freedom. Since there are few issues over which the country as a whole has stumbled as much as race—the legal system in particular—I wanted to try to offer a genealogy of how in legal history the story of a case like Herndon could be both remembered and forgotten at the same time.
LT What was forgotten?
KT That Herndon was a member of the Communist Party. That Herndon was an African American. What was forgotten was that the case in significant ways could only have arisen in a political context in which the country as a whole decided to abdicate any sense of responsibility to citizens of the South who were black, and to leave them at the mercy of white, supremacist, political systems in the South.
LT You point out the differences between rulings in the Scottsboro and Herndon cases. The law dealt one way, you suggest, in Scottsboro, with what it thought were “ignorant Negroes,” and another when confronted with Herndon, who was black, educated, a political agent in his own right. You indicate how both the language in the law and the way the law was framed were very different; the same judge would use different words, because of these differences between Herndon and the Scottsboro defendants.
KT That is a reflection in legal terms of the difficulty that the white supremacist imagination has had with the idea of black political agency and with the conception of racial relationships in this country as being structured by reciprocity and notions of egalitarian citizenship. That story of course is not quite over. There’s a sense in which the assertion of black agency even in current political life…
LT Someone like a Farrakhan…
KT Right. Particularly the assertion of black agency that stages itself as opposed to racial integration and sees assimilation as a threat.
LT Racial integration as erasure?
KT Racial integration as the repression of difference. If you consider who the most popular African American figures in American political life are today, you’ll find they’re people like Colin Powell, whose political identity is very much dependent on the suppression of racial specificity in the name of some putatively broader conception of a colorblind American identity.
LT Except he does support affirmative action.
KT In that respect he should be distinguished from a Clarence Thomas who has embraced the norm of colorblindness. I think it’s fair to say that, notwithstanding his support of affirmative action, Colin Powell posits an ideal state of affairs in which colorblindness is the norm.
LT Considering Herndon and legal violence, you could say the law does violence to African Americans by ignoring that aspect of the struggle—race—that was part of it. And it does that in terms of the First Amendment, as if Herndon’s problems had nothing to do with his being a black man in the South who was a Communist.
KT That same kind of selective memory is at work in the way other important moments in American constitutional law involving race have been received. Today there’s categorical condemnation on the right and among liberals of the decision one hundred years ago this year, by the Supreme Court in Plessy v. Ferguson, a case that upheld laws mandating racial segregation in public transportation…
LT Separate but equal…
KT It was the case which announced federal support for the separate but equal doctrine, which more than any other ideological construct of the 20th century is responsible for the abysmal state of racial relations in this country and the continuation of racial domination. But there was immense support across a wide spectrum of white America for the basic principle of segregation, and even some of the most virulent opponents of desegregation in this country have been able to escape their racist past. It’s astounding to me that someone like Strom Thurmond has been able to reconstruct himself, given his white supremacist past. It’s not as though his views have changed, and then he’s one of the chief supporters of Clarence Thomas for a seat on the Supreme Court…
LT A grotesque irony.
KT People who openly threatened to disobey the Supreme Court’s decision in 1954 in Brown v. the Board of Education, when the court declared separate was not equal in education, have been able to escape that past.
LT So the effect of Plessy v. Ferguson was to legitimate the continuation of white supremacy. Today there’s general rejection of segregation in any kind of legal sense, but there’s the question of what integration means. And who’s being integrated into what.
KT I’d have to build on a set of observations about the Brown case. It represented a moment in which the whole problem of racial domination, at least in legal terms, and I think in broader political terms, was effectively reduced to the question of racial segregation. The sum and substance of racial domination came to be the exclusion of African Americans and other people of color from participation in institutions of public life—politics, civil society, the market. In a very real sense, the displacement of a broader understanding of what racism is by this narrow conception of racism—as segregation—has made our situation all the more intractable. It goes a long way toward explaining, for example, the hostility to race-based affirmative action. If one understands racism to be about the removal of formal, legal segregation, or barriers constructed to disadvantage people of color, then once laws outlawing segregation have been adopted, the problem of racism has been solved. So people say, as they’re saying today, we’ve come such a long way. But two things need to be said about white supremacy: first, white supremacy operated and operates through a myriad of mechanisms of which formal, legal, and racial segregation is only one component. White racism has played itself out in less formal, but no less powerful ways in the market—access to capital, entry into labor markets. And in access to substantive equal education opportunities even once the formal institution of segregation has been dismantled. To ignore the ways in which the legal challenge of the civil rights movement to white supremacy was a legal challenge not just to racial segregation but also to racial domination, which operates through a host of other practices, is fundamentally to fail to understand the purpose of the really rather modest gains that affirmative action has made possible.
LT Do you think that’s why Franz Fanon figures prominently again? He explored, for one thing, how racism becomes internalized, how white and black are in relation to each other, so ridding society of racism is more difficult than erasing simple-seeming legal barriers.
KT The psychic structures of racism are the subject of collective denial in this country. We like to think that reasonable people of goodwill, acting reasonably, can forge a rational public policy that will make notions of racial equality a reality. But that rational-choice model of how we go about overcoming racial domination ignores the deeply embedded psychic structure of racism and the ways in which racism is secreted through and between individual bodies and the perceptions of physical difference whose social meanings are a function not of rational judgment, but of deep, deep psychic processes. It’s really made the problem of explaining racism, much less addressing it, immensely difficult for those of us who are trying to offer critical perspectives on race.
LT Law is about reason, and part of your project seems to be about un-reason. You’re saying it may be reasonable to assume somebody has privacy in his or her own home, but actually, this matter exceeds reason. Your work lies in the interstices of the battle between law as reason and psychic structure as un-reason. It’s clustered right on that gnarly point, whether it’s about homosexuality or about race.
KT I think it would be a mistake, in trying to understand the politics of law conceptually or arguing normatively for a particular conception of law and its intended politics, to attempt to escape the affective, symbolic, extra-rational dimensions of the social practice we call law. I reject the idea that what law should strive for is the elimination of any vestiges of feelings and beliefs, for the sake of a kind of pure reason. Social life has an unavoidably extra-rational dimension that those of us engaged in anti-racist, anti-homophobic, or anti-sexist political work have to come to terms with. So much of the power of the New Right’s agenda lies in the unabashed way they have successfully identified and appealed to deep emotional sentiments.
LT Anxieties and fears…
KT More positively, pride. The enlightenment project of the regulation of social life by protocols of reason ignores everything that history has taught us in the modern period about human community. The notion that the appeal to or the mobilization of deep-seated human aspirations, beliefs, and commitments that exceed the language of rationality should be condemned seems to me naive as a pragmatic matter, and just wrong as a moral matter.
LT In your essay “Strange Fruit,” on the Hill-Thomas hearings, you write: “No African American man was ever lynched on the word of an aggrieved black woman.” You also analyze Thomas’s language and focus on two main language operations: how he describes what’s happening to him, “a high-tech lynching;” and two, his many references to dirt. You discuss racism in terms of dirt and what’s hidden.
KT It has to do with a deep psychic structure of ideology. Ideologies are not, again, fully rational, elaborated belief systems, but social practices that are inscribed in the minds and bodies of individuals in ways that can’t be explained in the language of rational choice, decision, and action. Clarence Thomas gave us unwittingly an example of that when he described the charges against him as dirt, the indelible marks that these charges had made upon him. We know from statements he had made before his nomination that this is a man who was deeply damaged by the fact that in the white supremacist imagination he was the object of demonology. Again, you have this putatively rational process which is overtaken by symbols, images, and language that have very little to do with the received notion of reason, of disinterested deliberation.
LT The senators questioning him would say, “Tell us what you mean about the way black men are thought of.” That’s where the spectacle lays. In coded terms, Clarence Thomas was called upon to speak about the “dirt on black men.”
KT The whole episode for me is a vivid instance of the operations of racial pornography, of the point of intersection of race and sex that characterizes the operation of white supremacy and racial domination in this country. Senator Orrin Hatch knew perfectly well what he was doing, so the staging of a kind of privileged ignorance was itself the operation of white supremacy. That ignorance was by no means innocent, but calculated, and ultimately could’ve cared less about the consequences for Clarence Thomas himself in having to recite in public the myriad ways in which black humanity has been demonized in this country. Lurid, lurid…
LT You wrote that Thomas was separated from the rest of black people through this process.
KT That was staged. The intention of the confirmation was at some level to separate Thomas from those aspects of his past which were racial. Basically his past was deracialized and became the story of, if not everyman, anyman, who could succeed in this country if, by dint of hard work and determination, he was willing to do what was necessary to distinguish himself.
LT The Republicans used race when they wanted to build their case.
KT Race was present in the case from its inception, but in a coded way. So much of contemporary racial politics, what is called by some neo-racism, takes place by way of encoding racial signification in what appear to be non-racial signifiers. When you talk about welfare mothers, everyone knows you’re talking about black and Hispanic women. There’s a level of sophistication, in a sense, in contemporary American political discourse in which racism is able to consolidate its projects by strategies of indirection.
LT At the same moment, many theorists—I imagine you’re one—are critical of race as a category.
KT Critical of certain understandings of the category of race. I think, however, it’s an understanding of race as socially constructed, an understanding to which I subscribe, that allows us to track with the precision demanded these encodings, recodings, and transcodings of race in language which on the face of it appear to be about something else. Racial identities are constructed next to and up against, erected like sexual orientation, in relation to something else. It’s a basic Saussarean principle—no sign has meaning except in relation to other signs.
LT One’s in the process of defining and redefining, with others who are also in that process. A moment of uncertainty emerged in the O.J. Simpson civil trial, during jury selection, when juror watchers couldn’t decide what race some of the jurors were.
KT We must be very careful about the implications we draw from the very correct observation about the fluidity of race and the ways in which racial identity and therefore racial meanings are never permanently fixed.
LT Start thinking about whiteness…
KT Right. To say that race and its meanings are unfixed is not to say it’s without effects. It would be more precise to say that these identities are provisional, and they’re provisional because it takes a lot of work to maintain and sustain them. Racial identity and its meanings, and our notions of what we think count as racial, were not invented once and for all and then left to work independent of our actively picking them up and putting them to work, inscribing them on our bodies and in public spaces, in the houses we live, the places we work, the churches we go…
LT Erving Goffman’s idea was that one always has to perform identity.
KT Race is very much about performativity, which is not to say, however, that if we all decided one day to abandon the notion of racial identity that race wouldn’t continue to operate in a very profound and material way in our lives for some time to come. Racial identities, understood either in positive terms or as the basis of practices of domination, have a materiality which is far greater than any one of us or any group of us. This means that, even if racial identities don’t have a life of their own, they have effects that are far broader and far more extensive than our intentions.
LT Individual intentions.
KT Individual or collective intentions. I think the negotiations of difference are a contract with difficulty. So much of what passes for progressive politics, I think, has irresponsibly refused to take up what I call the sectoral specificity, the locational specificity, of individuals whose racial, gendered, sexual, and class articulations resist easy categorical responses. That’s the project I’ve committed myself to, intellectually and politically. I think, finally, it holds out the best hope of allowing us to acknowledge difference without freezing difference in place.
LT Your own identity or identities—your negotiations—is a sort of model. A democratic model would account for those differences within individuals and within groups contesting for their rights.
KT Whether it’s anti-racist, anti-sexist, or anti-homophobic politics, the challenge in the contemporary landscape is to try to negotiate a politics of difference which understands that identities are always identifications; that identifications are always situational and therefore provisional; and therefore must always be open to and actively pursue interrogation and examination; and must always be willing to concede their provisional and regional relevance. That seems to me the challenge. Post-identity politics does not mean an eschewal of the politics of identification.