Search the archive.

A frequent argument made in the European metropoles was that Africans were akin to children who have not and could not attain maturity due to their environmental conditions. This inability to attain autonomy actually legitimized the argument that African slaves were well suited for, or at least reconciled to, their enslavement. The French biologist George Louis Buffon, for example, asserted that African slaves were “easily accustomed to the yoke of servitude,” even if he was unsympathetic to their mistreatment and to the perception that they were accustomed to physical duress.40 Nonetheless, a persistent theme in much of this eighteenth-century literature is that the childlike mind of the African made her enslavement bearable. Saidiya Hartman’s extraordinary work Scenes of Subjection illustrates this in the context of antebellum America. Hartman shows how scenes of “the cheerful laughing Negro,” displayed through the spectacle of song and dance, reflected a normalization of domination on the basis of the enslaved character. As Hartman writes, “The gaze [of the abolitionist witness to the slave coffle] shifts from the spectacle to the inner recesses of feeling and desire—that is, the emotional substrate that presumably resides within the ‘poor slave,’ which mutes the shock of the scene and mitigates its ghastly incommensurability with the suggestion of contentment.”41 In other words, the excessiveness of the violence of enslavement and violent domination is effaced by the diminution of the enslaved person’s sentience. The result, as Hartman writes, is that the separation of fathers and children, the lash, the small irons attaching the enslaved like so many fish upon a trotline, ruthless masters, et cetera, et cetera, although distressing conditions as “we” might imagine them, appear to have little effect on these apparently happy creatures. Songs, jokes, and dance transform wretched conditions into a conspicuous, and apparently convincing, display of contentment. As a result, this circumscribed recognition of black humanity itself becomes an exercise of violence.42 The vast machinery of European imperial commerce that emerged over the course of the eighteenth century was predicated on this nexus between the surplus of violence of lethal domination and a discourse of racialization that legitimated its excesses. Resistance to European domination invariably proliferated across European colonies; this required a whole variety of extraordinarily cruel forms of violent suppression. Moreover, as Mbembe importantly notes, plantations themselves were highly segmented in terms of various roles assigned to Black slaves; some could become the very executioners demanded of them by their white masters: “It was not uncommon for a slave, once freed, to become a slave owner and hunter of fugitive slaves.”43 But the important point to note is that the master-slave relationship was always an unstable one. As Mbembe notes, “The slave master could deploy one form of coercion after another, create chains of dependence between him and his slaves, and alternate between terror and generosity, but his existence was always haunted by the specter of extermination.”44 This “specter of extermination” materialized in the Haitian Revolution of August 1791 when Dutty Boukman signaled its commencement with the ceremony in the Bois Caïman.45 It raged until 1804 with the final decimation of Napoleon’s army sent to reimpose slavery. All throughout the intervening years, the Haitian Revolution was the geopolitical center of the Atlantic world, involving French, British, Spanish forces with the sometimes-ambivalent aid by the nascent American Republic. It also involved a complex set of groups (white aristocrats, small white planters, free Blacks, mixed raced, etc.), class conflicts that were not necessarily based upon predetermined racial notions, shifting alliances, and the catastrophic loss of life—anywhere between two hundred thousand and three hundred thousand people died (mainly revolutionary, ex-enslaved Haitians). But what is crucial are two aspects that I want to highlight. First, the Haitian Revolution marked the violent manifestation of Black individual autonomy and its codification in the 1801 constitution by Toussaint l’Overture, which enacted the abolition of slavery. Second, in the constitution of Haiti of 1805 enacted by Jacques Dessalines, the Black sovereignty was explicitly stated in Article 1: “The people inhabiting the island formerly called St. Domingo, hereby agree to form themselves into a free state sovereign and independent of any other power in the universe, under the name of empire of Hayti.” The Haitian legal order crystalized a novel emancipatory ideal that was entirely absent in American and French Revolutions. In that sense, as Adom Getachew argues, the Haitian Revolution and the establishment of an independent Haitian state reflected an Arendtian event of bringing forth something new in the world: the assertion of Black collective action and autonomy and the universality of equality across race and gender.46 The “Haitian Revolution,” Raphael Hoermann argues, “harboured an ‘alternative modernity,’ which was diametrically opposed to the racialised, colonialist and capitalist North American modernity and thus had to be suppressed.”47 Second, the reaction to this assertion of Black individual and collective autonomy that challenged the framework of European imperial racial domination unleashed an unbounded, if not genocidal avant la lettre, violence. What explains this incredible violence? In what ways did this assertion of Black autonomy redefine ideas about security, danger, and fear that required such unrestrained violence and later significant ostracism of the Haitian Republic? In a letter to Napoleon in 1803, General Leclerc wrote that to maintain French hegemony over the island, “We must destroy all the negroes in the mountains, men and women, sparing only children younger than twelve, destroy half of those who live in the plains, and not leave in the colony a single man of color who has worn an officer’s epaulette.”48 What I wish to explore in the next two sections is this nexus between the claim to Black autonomy and the fears that it evoked, first, in terms of the unrestrained violence that was perceived to be a necessity in conflict between colonial authorities and insurgent Black slaves, and second, in terms of excluding Haiti from the Atlantic order. The so-called “Black fear” came to define a geopolitical disposition in the United States as it achieved hegemony in the western hemisphere.49 Fears of slave uprisings would be a crucial component in American domestic and foreign policy.50 But most importantly, the Haitian Revolution left a lasting legacy in the construction of a global racial order, in which the maintenance and reassertion of white supremacy was considered of crucial consequence. It is when such white supremacy was called into question that a space opens up for unbounded violence—racial violence.

https://www.tandfonline.com/doi/full/10.1080/10665684.2016.1227585

Political scientist and historian Neil Roberts (Citation2015) posits that the dialectics of slavery and freedom are under-theorized to address oppressive societies and associative, unpredictable marron practices. Marronage is a practice of freedom that must, necessarily, start from the condition and category of enslavement in order to transgress it. Working through connective conceptualizations of enslavement, disavowal, freedom, and agency, Roberts argues that historical and theoretical nuance has been absent in theorizing freedom as marronage from slavery. The repetitive flight for sovereignty must be considered, even if it is squelched repeatedly, in the cumulative. It is in the cumulative that its relentless expression of freedom can be viewed. “The actions, beliefs, and ideals of slave masses, good and bad, are, in a repeating circular logic, habitually ignored. We must remove the epistemological cataract” (Roberts, Citation2015, p. 115) that obscures the fugitive logic within and across these evasions. Pedagogical practices of resistance and survivance must, similarly, be apprehended, set still temporarily in order to be viewed, in their dialectical relationship to formal, oppressive structures of schooling. Learning that seeks to find a side street from the test score production factory mill of schooling does so in dialectical relationship to the factory. It sources, temporarily and liminally, its sense of being in relation to the oppressive stratifying structures of formal education. Learning as resistance within a context that creates and contains Black and Brown student bodies and accumulates property rights for a few, cannot be sufficiently described without addressing the intermittent departures from those structures. Neither can the structures of oppression be adequately understood without pedagogical practices of resistance. Education has always had the potential to serve and shield spaces of unruly learning. Perhaps a first step into this potential is seeing more clearly the fugitive acts of learning as they occur within oppressive structures.

[Deborah Cowen, professor in the Department of Geography at the University of Toronto, April 1 2024, “Crisis in Motion”, Duke University Press, https://read.dukeupress.edu/south-atlantic-quarterly/article-abstract/123/2/297/387193/Crisis-in-Motion]//owen

¶ Regenerating Reproduction¶ Barbadian poet Kamau Brathwaite writes, “That moment of utter disaster,¶ the very moment when it seems almost hopeless, too difficult to proceed,¶ you begin to glimpse a kind of radiance on the other end of the maelstrom”¶ (McSweeney n.d.). This capacity to see possibility through the depths of¶ catastrophe and to do so from a place of investment is exquisite and humbling. Estes crafts a similar path through the crisis of settler colonial infrastructure. Estes (2019) writes that “new pipelines are creeping across the¶ continent like a spiderweb, with frightening speed, but in the process, they¶ are also connecting and inciting to action disparate communities of the¶ exploited and dispossessed.”¶ The catastrophe of current times is clear. Across these three entangled¶ stories of expanded reproduction, I have lingered in the violence: the necropolitics of contemporary supply chains, the colonial afterlives of its infrastructures, and the destruction of planetary ecologies that have us hurtling¶ toward apocalypse. But what marks this moment is not just crisis but the¶ movements creating possibility for substantial and sustained transformation.¶ At each of the many sites we have encountered, fierce struggle confronts¶ efforts to expand imperial reproduction. From Amazon workers to the Amazon, from the streets of Montreal to the central plains, these “disparate communities of the exploited and dispossessed” are saying no and investing¶ instead in motion’s fugitive forms. In their refusal of the status quo, these¶ movements make possible other forms of motion.¶ Mohawk scholar Audra Simpson (2014) pursues the concept of refusal¶ in the context of colonial dispossession, suggesting that it is distinct from¶ “resistance” in that it rejects outright the entire paradigm of colonial thought,¶ value, and action. Refusal is the rejection of settler state legitimacy and¶ authority, she argues, and it opens up “a possibility for doing things differently” (7). Tina Campt (2019) also sees refusal as “a rejection of the status quo¶ as livable and the creation of possibility in the face of negation.” For Campt, it¶ is “a refusal to recognize a system that renders you fundamentally illegible¶ and unintelligible . . . using negation as a generative and creative source of¶ disorderly power to embrace the possibility of living otherwise.” In her engagement with the spatial practice of refusal, Leanne Simpson (2021) tells stories of the beaver. She explores the work of this beautiful¶ creature that blocks some flows, enabling whole new ecologies to flourish.¶ The blockade is a “counter logistical” practice of refusal that exemplifies this¶ perspective of having both disruptive and generative effects. Blockades have¶ long been mobilized against colonial infrastructure to disrupt colonial circulation. At a recent forum with leaders in the “Land Back” movement,¶ Kanahus Manuel, a member of the Secwepemc Women’s Warrior Society,¶ explained, “Blockades have been one of our go-tos as Indigenous people¶ when we’re talking about direct action” (Yellowhead Institute 2020). Manuel¶ situates the power of the blockade in the context of extractive logistics: “I¶ think about the resources extracted without our consent. It’s always about¶ getting these raw resources from Indigenous territories out to the global¶ market.” Manuel further suggests that the blockade isn’t only about blocking¶ but about also building. She continues, “The blockade is a place where we as¶ Indigenous people, our sovereignty, our jurisdiction and our territorial¶ authority, confront the assumed colonial authority and jurisdiction. They¶ think they own the land, but we know we own the land, and the blockade is¶ where we meet.” At the same forum, Mollie Wickam, spokesperson for the¶ Gitemd’en clan of the Wet’suwet’en people, spoke to the creative capacity of¶ blockades. “It started as a blockade. We set up a blockade, the RCMP came in¶ and raided, got an injunction against us. But we are still living out on the territory and it’s a resurgence that spread from coast to coast.” She continues,¶ “When we shut down the road . . . as soon as Wet’suwe’ten people had control over their territory . . . the waters run clear again, the animals return.¶ And you can actually live as a free person. I don’t know how many people¶ have actually experienced what that feels like. We’ve felt it.”¶ Manuel contributed to this extraordinary discussion from the front¶ lines of a blockade, in a kind of mobius strip of theory and action. This¶ blockade is one installation of the Tiny House Warriors, a group that Manuel¶ founded. They build very small homes, directly in the pathway of the Trans¶ Mountain Pipeline Expansion project, strategically placing them next to proposed “man camps” to challenge the rampant violence they concentrate on¶ Indigenous women. The tiny houses are also being equipped with off-grid¶ solar systems. Village sites “operate under the authority of Secwepemc law to¶ reassert collective jurisdiction and title over the whole of our unceded territory” (Tiny House Warriors n.d.).¶ Dakota scholar Kim Tallbear (2016) has noted the leadership of women¶ and gender nonconforming folx in Indigenous resurgence and theorizes the¶ tight relations of care and courage that fuel its feminism. Winona Laduke and I (2020) have termed this kind of feminist assemblage of systems to sustain decolonial life “alimentary infrastructure.” Alimentary infrastructure is¶ life-giving in its design, finance, and effects—it refuses expanded reproduction and supports the regeneration and becoming of ecologies. Metis scholar¶ Jordan Kinder (2021) describes an enriched sense of “embodied infrastructure” in the work of the Tiny House Warriors. Kinder describes their practice as “a return to harnessing flows in ways that foreground Indigenous¶ epistemologies and ways of being,” one that “disrupts resource logics and¶ their operations.”¶ Refusal also animates the contemporary abolition movement. In fact,¶ if movements for land back through blockade are about building as much as¶ breaking, we might consider movements for abolition as plotting radical¶ reproduction. Abolition is not simply a resistance to the violence of policing¶ or an effort to reform carceral systems, it is a rejection of the infrastructures¶ of coloniality—the “infrastructures of feeling,” on Gilmore’s terms, of white¶ supremacy and the physical infrastructures on which they are built that produce premature death. Dismantling violent infrastructures that terrorize¶ some as a means of protecting the reproduction of others remains a key to¶ abolition precisely because organizations like the RCMP were founded on¶ the protection of primitive accumulation through infrastructure expansion,¶ and this continues to this day. Black Lives Matter–Toronto cofounder Sandy¶ Hudson (2020) provocatively questions, precisely when in the RCMP’s history did they depart from their “literal original purpose of terrorizing Black¶ & Indigenous communities?” Abolition demands that reckoning.¶ At the same time, movement leaders regularly repeat that abolition¶ is about more than dismantling carceral infrastructure; it is about cultivating alternatives. “What if abolition is something that grows?” asks Gumbs¶ (2008) in Critical Resistance’s collection Abolition Now! Ruthie Gilmore¶ (2018) insists that “abolition is not absence, it is presence. What the world¶ will become already exists in fragments and pieces, experiments and possibilities. . . . Abolition is building the future from the present, in all of the¶ ways we can.” This positive vision of abolition as already here becomes clear¶ in an example that BLM-TO cofounder Janaya Khan offers. In response to a¶ community member’s question about existing examples of transformative¶ justice that do not rely on calling police, Khan suggested, “First and foremost, we need to look at models that already exist,” specifically citing the¶ experience of elders (Khan and Newbold 2018). Khan then explains that¶ there is much to learn from the survivance of Black trans sex workers, and¶ their creative work in assembling alternative infrastructures of community safety. Khan explains, “When a client is violent or dangerous, they can’t call¶ the cops. Sex work is not decriminalized here. In fact, it’s heavily criminalized. And so, Black trans sex workers have invented and implemented safety¶ strategies in order to keep each other safe because it’s not an option to call¶ the police.”¶ Movements that are making and marking our moment are working to¶ build a future from the “fragments and pieces, experiments and possibilities” that survive the violence of imperial motions. They are diagnosing the¶ crisis of expanded reproduction—and refusing to seek inclusion on a sinking ship. Instead, they are working—as Octavia Butler encouraged—to shape¶ change. Leanne Simpson (2014: 13) writes that decolonization is something¶ her ancestors “set in motion.” Only in that motion, and in the alimentary¶ infrastructures that support and sustain it, may we move toward the radiance beyond the maelstrom.

Three miracles seem to characterize the history of Black people in the United States. The very survival of Black people in the face of murderous brutality and genocidal intent qualifies as a miracle. The enduring reality of Black humanity in a society that has used every means at its disposal to destroy Black dignity and deny Black people the opportunity to exercise their full humanity appears miraculous. The historical record of democratic aspiration and achievement by Black people, of creating democratic opportunities for themselves and extending them to others, seems to defy normal rational explanations. Despite the social death at the center of the slave system and the organized abandonments of today’s neoliberal capitalism, despite beatings, lynchings, shootings, mass incarceration and systematic impoverishment, Black people have survived and thrived. In slavery, African people in the Americas owned virtually nothing, not even the skin on their backs. They had every reason to give in to despair. Yet they somehow managed to survive, to extend recognition and respect to each other while in bondage, and to maintain a commitment to the linked fate of all humans. Time and time again, Black people have countered vicious dehumanization with determined and successful re-humanization. Insisting on their own humanity and the humanity of all people, even that of their oppressors, they have been at the forefront of what Dr. King called “the bitter but beautiful struggle” for a more just and better world. From the egalitarian politics of abolition democracy in the wake of the Civil War and the participatory democracy of the civil rights movement to the contemporary insurgencies waged under the banners of #BlackLivesMatter and #SayHerName, struggles for Black survival and Black humanity have repeatedly linked the termination of existing racist policies to the creation of new democratic practices and institutions. Forced to cope with the nadir of political evil over centuries, Black people have responded consistently by forging advanced concepts of a deeply politicized love. Perhaps precisely because brutality and oppression can make people decidedly unlovable, African people in America have been adept at finding ways to perceive something left to love inside themselves and in others. That ability has enabled their survival, the preservation of their humanity, and their emergence as the nation’s foremost champions of democracy and social justice. The people who were systematically denied access to the fruits and benefits of democratic citizenship and social membership turned out to be the people who valued democracy the most and who did the most to extend it to others. Cedric Robinson has demonstrated that the three miracles were not really miracles at all, but rather products of a collective intelligence developed over generations of struggle. In Black Marxism, Robinson defines the Black Radical Tradition as “the continuing development of a collective consciousness informed by the historical struggles for liberation and motivated by the shared sense of obligation to preserve the collective being, the ontological totality.”1 Thus in many ways, the greatest achievement of the Black community was itself, its emergence as an aggrieved and insurgent polity committed to social justice. The “Black” in the Black Radical Tradition is a politics rather than a pigment, a culture rather than a color.

[Anjali Vats, 1-23-2019, "Prince of Intellectual Property: On Creatorship, Ownership, and Black Capitalism in Purple Afterworlds (Prince in/as Blackness)," Taylor & Francis, https://www.tandfonline.com/doi/full/10.1080/10646175.2018.1523760,]//owen

Anti-piracy measures and support for Black capitalism are not without complications, however. With respect to the former, Prince’s statement reflects and invokes a narrative of racialized infringement, one in which Asian actors often bear the brunt of the blame for “copying” and “stealing” works from the developed world (Liang, 2009). Though he largely targets his ire at corporations instead of demonizing particular racial groups, Prince nonetheless implicitly endorses filling the floating signifier “piracy” with racialized meaning. Prince invites, as well, a narrative of racial uplift through material accumulation, which centers the need for access to the property-related aspects of the American Dream and valorizes a race liberal understanding of racial justice (Melamed, 2011). The term Black capitalism was one that Richard Nixon used in the 1960s, as a means of undercutting Lyndon B. Johnson’s Great Society (Weems & Randolph, 2001). As James Boggs put it, “When we talk about the system, we are talking about capitalism … And when we talk about capitalism, we are talking about the system that has created the situation that blacks are in today!” (Boggs, 2011, p. 185). Situating Prince’s calls for Black creatorship, then, which are radical with respect to their recognition of Black creativity and Black personhood, requires also acknowledging their fundamental economic conservatism. As the racialized battle to protect U.S. intellectual property demonstrates, his anti-piracy stances justify neocolonial expansion internationally. Moreover, his embrace of Black capitalism endorses an economic order that is both intertwined with race liberalism and the necessary oppression of labor. Prince, then, offers important starting points for envisioning Black creatorship and Black personhood but not radical racial justice. Achieving the latter requires dramatic reimagining of economic relationality, including intellectual property itself.¶ Prince is dead, long live prince¶ Prince’s (intellectual) property battles did not end with his death. In a Halftime Show¶ that is widely regarded as the best of all time, he performed in the pouring rain at¶ Superbowl XLI in Miami, FL. Prince also performed, in a manner of speaking, at¶ Superbowl LII in Minneapolis, MN, with Justin Timberlake—this time in a video of a¶ live performance projected onto an enormous piece of billowing fabric. Days before¶ Timberlake was to perform, Black Twitter exploded with rumors that he would be featuring a Prince hologram and outrage at the notion that Timberlake would do such a¶ thing. After all, “Prince Hated Holograms Before They Were Even Invented,”¶ announced Fader (Gore, 2018). A practicing Jehovah’s Witness who was known to go¶ door-to-door with Sly and the Family Stone bassist Larry Graham to spread God’s¶ word, Prince once said that holograms were demonic. When all was said and done,¶ Timberlake did not use a hologram in his tribute performance, though he did use rare¶ footage of Prince performing, ironically enough, the song “I Would Die 4 U.”¶ There were never any actual plans for a Prince hologram (Lockett, 2018). And,¶ according to Tweets from Prince’s estate, his family authorized his performance at the¶ Superbowl. The controversy over Timberlake’s use of Prince’s image did not subside,¶ however. Citing his involvement in Nipplegate, appropriation of hip hop, and a¶ Timbaland song that insulted Prince, Black Twitter expressed its outrage over¶ Timberlake’s choice to perform with Prince, albeit through video footage and not hologram. Summing up the problem, Michael Harriot at The Root wrote in biting critique,¶ “It all belongs to them. We belong to them. Therefore[,] the theft of our culture, art,¶ words and very lives should never be referred to as appropriation or theft … It’s¶ American” (Harriot, 2018). Built into this critique is underlying reference to the very¶ property relations that have facilitated injustice and violence from settler colonialism on.¶ As Harriot pointed out, Timberlake’s use of Prince’s image, even permissively, raises¶ many questions about Black labor, even after death, as well as (intellectual) property.¶ Prince, who had no will and operated in a copyright structure with no posthumous¶ moral right to integrity of musical works, de facto gave control over his estate to his¶ family, who soon after the Superbowl gave Universal Studios complete authority to¶ manage Prince’s music. The Afterworld, in Prince’s parlance from “Let’s Go Crazy,”¶ might be read as Heaven itself, a place free from the pain, complications, and suffering¶ of life. But although Prince may be in the Afterworld, there is a world after Prince that¶ is very much of this Earth, in which he is part of the circulation of the “afterlives of¶ slavery” (Hartman, 1997). In her theorization of the afterlives of slavery, Hartman notes¶ the manner in which the effects of slavery structurally persist after its end—but also¶ how African Americans continue to resist them. Read alongside Hartman and Sharpe,¶ Prince’s performance at the Superbowl might be interpreted as one that exploited his¶ labor. Popular cultural critic Anthony Oliviera tweeted after Timberlake’s performance,¶ “the myth of the zombie emerged in pre-revolutionary Haitian culture, and sprang¶ from the anxiety among its enslaved peoples that even in death, it was possible to be¶ made to perform deathless labour on the master’s behalf.” Oliviera’s reading, like¶ Harriot’s, reminds us that intellectual property, too, is part of the complex landscape of¶ slavery’s afterlives.¶ However, despite the problems with Timberlake’s performance, failing to find¶ Prince’s agency in the Superbowl is a lost opportunity to think about the contours of¶ (intellectual) property and fugitivity. More apt than Oliviera’s zombie frame, which¶ treats Prince as agencyless tool of Whiteness and capitalism, is reading the musician as¶ spectral presence who “insists on the continuing existence in the present of traumatic¶ racial histories that American modernity would rather forget” (Hurley, 2015, p. 313).¶ The zombie is inapposite in this case because, as Jessica Hurley explains, it is “a walking¶ embodiment of past populations that will not stay dead but extrude threateningly into¶ the present, where systems of government disintegrate in the face of an unruly, unrulable population of the no-longer-human” (p. 313, emphasis added). The zombie is not¶ spiritual but material, a soul imprisoned in a body over which it lacks control (McGee,¶ 2012, p. 242). The zombie frame, then, while it makes important commentary on forced¶ labor, fails to describe the state in which Prince appears at the Superbowl. He does not¶ take the form of the walking dead, laboring without consent, but rather appears as an¶ ephemeral presence who continues to do the radically resistive work he did in life.¶ Timberlake offers his homage with and to the recorded images of a man who was larger¶ than life—particularly in Minnesota—and whose existence came to define the¶ Superbowl itself. ¶ Imagining Prince’s spectral presence at the Superbowl as part of Fred Moten’s larger¶ conceptualization of fugitivity leaves space to read him as an intrusive and liminal figure who, at the hands of his family, critiques slavery and appropriation as he did in life,¶ even from the Afterworld. Such a reading transforms Prince from object of¶ Timberlake’s exploitation to returned spirit acting against Whiteness, racism, and racial¶ capitalism. Prince’s presence at the Superbowl, particularly given his (intellectual) property politics in life, changes its “microclimate,” and advances his lifelong struggle to¶ change the “weather” of anti-Blackness in creatorship. Prince’s colleagues and proteges,¶ including Spike Lee and Janelle Monae, invoke his presence in ways that continue his¶ life’s work of refusing to be owned and refusing to be less than his White counterparts.¶ In this way, Prince epitomizes fugitivity, which Moten writes, is “a movement of escape,¶ of the stolen that can be said, since it inheres in every closed circle, every enclosure”¶ (Moten, 2008, p. 179). Film footage allows the musician to deftly escape the confines of¶ the Afterworld and create space for retelling his narratives of (intellectual) property and¶ ownership. Indeed, Prince creates a new category of existence in this world from the¶ Afterworld, an act that is consistent with his historical persona. As he reminds us in¶ song: “I am something that you’ll never comprehend.” As during his life, Prince defies¶ categorization at the Superbowl, forging his own path in life after death.¶ Prince’s intellectual property afterlives, including at the Superbowl, are evidence of¶ his posthumous rebellion against a legal system that inadequately protected him and¶ other Black artists. Prince’s negotiations with record labels, investments in racial justice, name change, and antipiracy battles all showcased his commitment to producing¶ cultural schema for understanding and protecting Black creatorship as inalienable¶ property right. Through a series of Afro-alienation acts and structural seizures of¶ power, Prince created a career that performed the very understandings of Black creatorship and Black capitalism that he believed would result in racial justice. Prince’s¶ second Superbowl appearance does not merely replicate the forced labor of slavery or¶ the theft of Blues, jazz, and rock ‘n roll. It is evidence that the post-Prince world is¶ not a world without Prince but one in which Prince terraforms his own Afterworld¶ and its racial microclimates, particularly around race, copyright, and creatorship.

Where did logistics get this ambition to connect bodies, objects, affects, information, without subjects, without the formality of subjects, as if it could reign sovereign over the informal, the concrete and generative indeterminacy of material life? The truth is, modern logistics was born that way. Or more precisely it was born in resistance to, given as the acquisition of, this ambition, this desire and this practice of the informal. Modern logistics is founded with the first great movement of commodities, the ones that could speak. It was founded in the Atlantic slave trade, founded against the Atlantic slave. Breaking from the plundering accumulation of armies to the primitive accumulation of capital, modern logistics was marked, branded, seared with the transportation of the commodity labor that was not, and ever after would not be, no matter who was in that hold or containerized in that ship. From the motley crew who followed in the red wakes of these slave ships, to the prisoners shipped to the settler colonies, to the mass migrations of industrialisation in the Americas, to the indentured slaves from India, China, and Java, to the trucks and boats leading north across the Mediterranean or the Rio Grande, to one- way tickets from the Philippines to the Gulf States or Bangladesh to Singapore, logistics was always the transport of slavery, not ‘free’ labor. Logistics remains, as ever, the transport of objects that is held in the movement of things. And the transport of things remains, as ever, logistics’ unrealizable ambition. Logistics could not contain what it had relegated to the hold. It cannot. Robert F. Harney, the historian of migration ‘from the bottom- up,’ used to say once you crossed the Atlantic, you were never on the right side again. B Jenkins, a migrant sent by history, used to turn a broken circle in the basement floor to clear the air when welcoming her students, her panthers. No standpoint was enough, no standpoint was right. She and their mothers and fathers tilled the same fields, burned up the same desert roads, preoccupied the same merely culinary union. Harney kept in mind the mass migrations from Southern and Eastern Europe at the turn of the 19th century, beside themselves in the annunciation of logistical modernity. No standpoint. If commodity labor would come to have a standpoint, the standpoint from which one’s own abolition became necessary, then what of those who had already been abolished and remained? If the proletariat was located at a point in the circuits of capital, a point in the production process from which it had a peculiar view of capitalist totality, what of those who were located at every point, which is to say at no point, in the production process? What of those who were not just labor but commodity, not just in production but in circulation, not just in circulation but in distribution as property, not just property but property that reproduced and realized itself ? The standpoint of no standpoint, everywhere and nowhere, of never and to come, of thing and nothing. If the proletariat was thought capable of blowing the foundations sky high, what of the shipped, what of the containerized? What could such flesh do? Logistics somehow knows that it is not true that we do not yet know what flesh can do. There is a social capacity to instantiate again and again the exhaustion of the standpoint as undercommon ground that logistics knows as unknowable, calculates as an absence that it cannot have but always longs for, that it cannot, but longs, to be or, at least, to be around, to surround. Logisitics senses this capacity as never before – this historical insurgent legacy, this historicity, this logisticality, of the shipped. Modernity is sutured by this hold. This movement of things, unformed objects, deformed subjects, nothing yet and already. This movement of nothing is not just the origin of modern logistics, but the annunciation of modernity itself, and not just the annunciation of modernity itself but the insurgent prophesy that all of modernity will have at its heart, in its own hold, this movement of things, this interdicted, outlawed social life of nothing. The work of Sandro Mazzadra and Brett Neilson on borders for instance reminds us that the proliferation of borders between states, within states, between people, within people is a proliferation of states of statelessness. These borders grope their way toward the movement of things, bang on containers, kick at hostels, harass camps, shout after fugitives, seeking all the time to harness this movement of things, this logisticality. But this fails to happen, borders fail to cohere, because the movement of things will not cohere. This logisticality will not cohere. It is, as Sara Ahmed says, queer disorientation, the absence of coherence, but not of things, in the moving presence of absolutely nothing. As Frank B. Wilderson III teaches us, the improvisational imperative is, therefore, “to stay in the hold of the ship, despite my fantasies of flight.”

[Deborah Cowen, professor in the Department of Geography at the University of Toronto, April 1 2024, “Crisis in Motion”, Duke University Press, https://read.dukeupress.edu/south-atlantic-quarterly/article-abstract/123/2/297/387193/Crisis-in-Motion]//owen

Twenty twenty is marked as a year of cascading¶ global crises, yet the unfolding of time since then¶ reminds us that Gregorian temporal borders cannot contain the forces of life and death any better¶ than Westphalian spatial ones. The first week of¶ 2021 saw 80,300 COVID-19 deaths around the¶ world, massive bushfires burning again in Australia, and the stunning white supremacist attack¶ on the US Capitol, among other disasters. The¶ ubiquity of crises defines our present, even as¶ everyday life has long been unlivable for so many.¶ In The Apocalypse of Settler Colonialism, Gerald¶ Horne (2018) reminds us that even apocalypse—¶ the biggest crisis of all—is a recurring experience¶ for colonized and enslaved peoples. Yet, the feeling¶ that life cannot or will not go on, at least in this way,¶ may be shared now more widely than ever before.¶ This essay investigates a common thread to the¶ multitude of crises that constitute contemporary¶ life: circulation. In contrast to theories of crisis that¶ see its emergence in the disruption of circulation, I¶ locate crisis in the production of particular regimes¶ of motion. These forms of crisis have their genesis¶ in the organization of circulation toward expanded¶ reproduction. Motion animates all life, but engineering circulation—infrastructuring it—toward accumulation brings premature death. Following a brief engagement with¶ interdisciplinary approaches to theorizing motion through reproduction and¶ infrastructure, the article shifts to follow three contemporary crises of¶ expanded reproduction. I trace how crisis is produced by specific configurations of motion, underpinned by particular forms of infrastructure. I look to¶ crisis in three seemingly distinct realms—supply chain disruption during¶ COVID-19, blockades of colonial circulatory infrastructures, and the disastrous [logies of extractivism—to demonstrate how crisis is not simply¶ caused by disrupted circulation but by the prior and underlying organizing¶ of circulation. Each case is a thread of a wider story about the violent motion¶ of expanded reproduction. Between them are places, people, and forms of¶ power that repeat in the entangled crises of premature death, dispossession,¶ and ecological collapse. But I also suggest that circulatory crises are transformed from everyday violence against Black, Indigenous, and subaltern¶people into crisis for capitalist circulatory systems through spatial practices¶ of anti-colonial refusal. The final section of the article engages radical alternatives to racial capitalist and settler colonial circulation that abound. Looking to struggles over the imperial logistics of circulation and containment, I¶ ask what kinds of collective futures are set in motion through infrastructure’s refusal and repair.¶ Moving through Broken Worlds¶ Stuart Hall (1988) famously conceives of crisis as occurring “when the social¶ formation can no longer be reproduced on the basis of the pre-existing system of social relations.” Lauren Berlant (2016: 393) likewise locates crisis in¶ reproduction. “All times are transitional,” Berlant writes, “but at some crisis¶ times like this one, politics is defined by a collectively held sense that a glitch¶ has appeared in the reproduction of life.” Reproduction insists that life, lifeworlds, and what Beverley Mullings (2021: 152) terms “life-work” in the tradition of feminist social reproduction theory need to be continually remade¶ at a variety of scales—at once intimate and imperial. Bodies need to be fed,¶ cells need to regenerate, populations need to be replaced, relations need to be¶ performed. Even solidarity, according to Ruthie Gilmore (2020), “needs to¶ be remade and remade and remade—it never just is.” Wherever reproduction is the linchpin, crisis is already understood as crisis in motion.¶ The notion that life is motion has myriad sources. Writing from the territory where I live, Leanne Simpson explores how Anishinaabe lifeworlds are¶ anchored in motion. Simpson (2011: 85) writes that “being enmeshed in the¶ cyclical flux of the earth lodge, Nishnaabeg people traveled throughout their localized territories in seasonal fashion. . . . Our lifeway required cyclical and¶ rhythmical movements. . . . Society and clan structure expanded and contracted like a beating heart or working lungs.” Simpson engages Vizenor’s¶ (1999: ix) seminal work on the concept of transmotion, which posits that¶ “natives have always been on the move, by chance, necessity, barter, reciprocal sustenance, and by trade over extensive routes; the actual motion is a natural right, and the tribal stories of transmotion are a continuous sense of¶ visionary sovereignty.” Octavia Butler, who has been described as “a radical¶ Black feminist theorist, historiographer, and researcher across fields and disciplines,” was also invested in motion (Streetby 2018: 720). In her extraordinary novel Parable of the Sower, life is motion. God is change. Like the biblical¶ figure who struggles to find fertile soil to sow seeds for a future, Butler’s¶ brand of “radical reproduction” requires that we cultivate change. Butler¶ (1995: 218) explains, “We can focus them, alter their speed or impact, in general we can shape change, but we can’t stop it no matter how hard we try.¶ Throughout the universe, the ongoing reality is change.” Indeed, motion is at¶ the heart of Black radical and feminist thought through figurations of fugitivity. For Saidiya Hartman (2017: 468), movement constitutes a form of deeply¶ situated faith in futurity. She writes, “The thought of what might be possible¶ was indistinguishable from moving bodies and the transient rush and flight¶ of black folks in this city-within-the-city.” Huey Newton (2018), likewise, prescribed a form of Black radicalism tethered to change, asserting, “We believe¶ that everything is in a constant state of change, so we employ a framework of¶ thinking that can put us in touch with the process of change.” C. L. R. James¶ too centers social motion in his work. Both empire and its contestation are¶ matters of motion, as he outlines in Beyond a Boundary (1963: 113): “Time¶ would pass, old empires would fall and new ones take their place, the relations of countries and the relations of classes had to change, before I discovered that it is not quality of goods and utility which matter, but movement:¶ not where you are or what you have, but where you have come from, where¶ you are going and the rate at which you are getting there.”¶ In these traditions, motion is constitutive of life itself, and crisis takes¶ shape through life’s disruption. Leanne Simpson (2015), for instance,¶ describes colonialism as a bomb going off in slow motion which disrupts the¶ rhythms, cycles, and movement of Nishnaabeg life. Yet, alongside these vital¶ visions of life in motion are diagnoses of the violence of colonial and racial¶ capitalist circulation. For Marx, crisis can emerge with problems in circulation, but a larger¶ kind of crisis lies in the production of specifically capitalist motion. As Nail¶ (2020: 40) writes, “For Marx, everything is in motion, not just capitalism. . . . The issue for Marx is not between capitalist movement and revolutionary¶ stasis. The question . . . is how a specifically capitalist pattern of circulation¶ works.” Capitalism, for Marx, is a regime of motion defined by dispossession¶ and exploitation. Jody Melamed (2015: 77) emphasizes the violent motions of¶ racial capitalism when she writes, “Capital can only be capital when it is¶ accumulating and it can only accumulate by producing and moving through¶ relations of severe inequality among human groups.” Marx’s extended focus¶ on motion is associated with volumes 2 and 3 of Capital, but the argument¶ that capitalism is in itself a regime of motion lies at the center of his most¶ fundamental and basic theory of value—it is his “general formula for capital.” The capitalist regime of motion is identical to what he terms expanded¶ reproduction. Here, reproduction is not characterized by a simple circuit of¶ subsistence; instead capital is accumulated, or hoarded, as it moves from M¶ money to C commodity and back to M money form. It is not magic that¶ makes expanded reproduction possible, but theft. Surplus rather than survival becomes the end game of reproduction within a capitalist regime of¶ motion. Or, as Rosa Luxemburg (1951: 34) explains, “Profit becomes an end¶ in itself, the decisive factor which determines not only production but also¶ reproduction.” Theft is typically thought of in terms of labor’s surplus, but as¶ Dene scholar Glen Coulthard (2014) argues, if we take colonialism seriously,¶ then expanded reproduction may equally or additionally entail theft of land¶ and more-than-human life. Primitive accumulation is perpetual.¶ Ruthie Gilmore (2007) reminds us that motion takes different forms¶ that are related but not identical. She insists that capital circulates through¶ captive humans, whose own motion is disrupted by their containment in¶ carceral—and, we should add, plantation—space. Physical movement is critically important, and for Marx even a source of value. And yet, Marx ([1887]¶ 1993: 226) also suggests that capital circulation can “take place without¶ physical movement. . . . A house that is sold from A to B circulates as a commodity, but it does not get up and walk.” This does not make physical motion¶ less important, only more complex. While these forms of motion are not¶ identical, they also cannot be disentangled. Physical circulation has the special capacity to accelerate the circulation of capital. The circulation of legal¶ documents and financial transactions are necessary to sanction the house¶ sale, and these are undeniably material. Luxemburg (1951: 40–41) sees these¶ two forms of motion as necessarily entangled, making expanded reproduction inherently imperial. It is driven not only by “a permanent incentive to¶ reproduction in general,” she writes, “but also a motive for its expansion, for¶ reproduction on an ever larger scale.” For Luxemburg, expanded reproduction inevitably relies on geographic expansion. But what underpins particular configurations of motion? How does the relationship between different¶ forms of motion materialize? And how does motion get organized otherwise? Infrastructures are quite literally the socio-technical systems assembled to sustain or expand reproduction. Decades ago, David Harvey (1981)¶ argued that crises of capitalist motion can be temporarily resolved through¶ the production of built infrastructure, what he termed a “spatial fix.” Ruthie¶ Gilmore (2022: 490) writes, “In the material world, infrastructure . . . speeds¶ some processes and slows down others, setting agendas, producing isolation, enabling cooperation.” Ever concerned with the complexities of materiality, Gilmore also reminds us that the infrastructures of feeling are material too, “in the sense that ideology becomes material as do the actions that¶ feelings enable or constrain” (490). Assuming a capacious materiality, Berlant (2016: 393) helpfully defines infrastructure as “the movement or patterning of social form,” and suggests that “an infrastructural analysis helps¶ us see that what we commonly call ‘structure’ is not . . . an intractable principle of continuity across time and space, but . . . a convergence of force and¶ value in patterns of movement that’s only solid when seen from a distance.”¶ Years ago, Doreen Massey (1993) argued that transportation and communications infrastructures produce “power geometries”—speeding up motion¶ and connectivity for some but in ways that erect barriers or slow the motion¶ of others. Dams, ports, roads, rails, pipelines, prisons, and cables enable and¶ constrain particular configurations of motion, of reproduction.¶ Imperial infrastructures support the flourishing of some at the expense¶ of others. Infrastructure is vital to biological and social reproduction, but, as¶ Winona LaDuke and I (2020) have argued, “insofar as they are oriented¶ towards expanded reproduction . . . infrastructures dispossess, extract and¶ accumulate.” Anti-colonial and Indigenous writers explore the infrastructural¶ underpinnings of imperialism (A. Simpson 2014; Khalili 2020; Goeman¶ 2022; Spice 2018; Estes 2019; Pasternak and Dafnos 2018; Murphy 2013;¶ Karuka 2019). For Leanne Simpson (2011), it is a colonial hydro dam that disrupts her people’s lifeways, their rhythms and motions, by fragmenting the¶ movement of waters and fish. Walter Rodney (1981) provides a breathtaking¶ account of the back-breaking enslaved labor that built the system of dikes¶ and canals, which made the plantation (and human habitation) possible along¶ the Guyanese coast. Omar Salamanca (2020) explains how construction of¶ road systems that segregate Palestinian and Israeli mobilities are vital to land¶ dispossession and the re/production of the wider apartheid system. Even nasty¶ old imperialists can help us to think about imperial motion as infrastructural Alfred Thayer Mahan—a founding father of classic geopolitics—suggested¶ that the geography of British colonies could be mapped according to a simple¶ logic: the fueling of maritime forces. Mahan (1890) writes that “useful harbors¶ and the conditions of the communications between them constitute . . . the¶ main strategic outlines of the situation.” Infrastructure materializes imperial¶ circulation, and as such becomes a critical site of anti-colonial struggle. Blockades of infrastructure serve as embodied practice of refusal in the arsenal of¶ anti-colonial struggle. Deliberate disruption of rail lines and roads, of pipelines and ports, by Black and Indigenous people is an enactment of refusal¶ that brings the “objective” and “subjective” dimensions of crisis onto common¶ ground through spatial practice. In their spatial and temporal precision,¶ refusal through blockade transforms the ongoing crises lived by colonized¶ people—what Eugene Brennan refers to in the introduction to this special¶ issue as “crisis as tendency”—into a general and temporally precise crisis “as¶ event,” of and for expanded reproduction.¶ The sections that follow ground these ideas in particular times and¶ places where crises in the realm of circulation translate into crises in the¶ reproduction of life. While these stories trace seemingly distinct worlds, they¶ cannot be pulled apart. The promise of an infrastructural analysis of the crises of motion that constitute our collective predicament is derived from reading them together, as crises of expanded reproduction.¶ Crisis 1—Logistics of the Pandemic’s Path¶ As the last month of the wretched year of 2020 drew to a close, a dramatic crisis of circulation unfolded at the British/French border. As many as ten thousand truckers transformed hundreds of kilometers of roads in southern¶ England into a massive linear parking lot when the Channel crossing closed.¶ France’s refusal to allow usual traffic through was officially prompted by¶ attempts to contain the second COVID strain. Truckers from across Europe¶ who had carefully planned transnational itineraries to make it home for winter holidays were left stranded. No food, no services, and no medical tests were¶ initially on offer. Despite the dependence of national economies on transnational supply chains, little thought has been invested in planning for disruption of this kind or at this scale. For the first few days of the crisis, truckers¶ relied on small provisions they kept in their cabs, and the few filthy restrooms¶ they could find nearby. Eventually, the British army was deployed to manage¶ the scene. Only as COVID tests were processed did the French allow the backlog to ease, but this crisis in motion diagnosed some elements of the power¶ and precarity of supply chain capitalism in our pandemic present.¶ From panics over toilet paper and the hoarding of essentials, to concerns about shutdowns in China creating disruption to supply for Western¶ consumption, to the geopolitical crisis of PPE, pandemic pedagogy involved¶ mass education about basic tenets of supply chain capitalism. Labor scholar¶ Kim Moody (2020) suggests that “the pandemic has graphically demonstrated the centrality of the ‘human networks’ that keep the global supply¶ chains moving. That is, all those who produce the goods and those that bring¶ them to the factory, the hospital, the supermarket, or your self-isolating¶ home.” Fears of disrupted supply chains led to the designation of “essential¶ worker” that offered a brief opening for the valorization of hyper-exploited¶ precarious workers of color. Instead, corporate public relations stunts performed gratitude to essential workers while refusing meaningful shifts in¶ financial compensation, sick leave, or even access to PPE. It is telling that¶ Amazon’s Jeff Bezos—the world’s first trillionaire—is a leader in the logistics sector. Bezos grabbed even more wealth through the pandemic and the¶ hyper-exploitation of essential workers, also prompting an explosion of labor¶ actions in the sector. This is critical, but the problem of logistics and disruption speaks to how this calculative management and martial science has¶ remade society and space beyond just transportation and distribution. In¶ fact, the crisis in motion of this moment lies not only in matters of physical¶ distribution but also in the production of life in imperial motion.¶ Logistics has long been about making live and die by making and containing motion. Logistics had its ancient genesis as an art of war, supplying¶ and sustaining the battlefield. Modern logistics emerged through gruesome¶ imperial circulations such as the transatlantic slave trade (cf. Harney and¶ Moten 2013) and the “movements westward” that devastated Indigenous¶ societies and ecologies on Turtle Island. The “revolution in logistics” took¶ shape in the post-WWII period and saw the harnessing of military methods¶ of “supplying the front” for corporate operations. Before the revolution, logistics was a martial art of moving and provisioning “men and munitions.”¶ After the revolution, “logistics” emerged as a management science of materials movement across production and distribution in both the corporate and¶ military sector (Cowen 2014). Logistics transformed not just “distribution”¶ but racial capitalism itself, its relationship to questions of circulation and¶ containment and to matters of life and (premature) death.¶ To further ground these arguments, we return to Turtle Island/North¶ America, to a scene of backlog far more gruesome than the first. This brutal¶ backlog took shape at a border of sorts—the border between animal life and¶ meat product at the slaughterhouse gate. Along with prisons, care facilities,¶ and distribution centers, meat processing plants have been ground zero for¶ pandemic outbreaks, with striking impacts on precarious, often migrant,¶ workers, mostly of color. After decades of corporate consolidation, a small¶ number of American slaughterhouses process billions of pounds of meat¶ each year. One single Smithfield’s plant in North Dakota produces 5 percent of¶ the nation’s pork products, while 98 percent of beef products are processed by¶ just fifty slaughterhouses (Corkery and Yaffe-Bellany 2020). COVID outbreaks occur because of working conditions and productivity demands that¶ make meaningful distancing impossible, because of a lack of provisioning¶ of PPE, and because of the social determinants of health. The outbreaks led¶ to plant closures, creating enormous bottlenecks in the profoundly industrial and logistical meat sector. In the US and elsewhere, the infection and¶ premature death of processing plant workers (not only their labor actions)¶ have been a source of “supply chain disruption,” and the massive “culls” of¶ animal life have been one of the gruesome costs. Millions of nonhuman¶ lives have been prematurely extinguished—sometimes by turning off ventilation systems, the critical infrastructures that support livestock breath, to¶ produce slow, mass suffocation.¶ As the crisis of corporate killing deepened, Trump responded by issuing an executive order that deemed meatpacking plants to be “critical infrastructure” under the Defense Production Act of 1950. The executive order¶ prohibited their closure by state health authorities and provided meatpacking companies with a legal defense from liability claims by their employees.¶ Perhaps predictably, the order worked to protect infrastructures of expanded¶ reproduction for corporations while sacrificing the social reproduction of¶ essential workers. Yet plants continue to close when outbreaks cannot be discursively contained.¶ While this crisis is horrific, logistics comes into play long before the¶ movement of livestock from the farm to the slaughterhouse. Today, logistics¶ drives the very design of the pig or cow itself. The Ikea “flat pack” has¶ reshaped furniture to facilitate low-cost, long-distance movement, shifting¶ the labor of assembly onto the consumer. Likewise, the logistics of swine and¶ cattle production have reshaped the very form of the pig and cow to enhance¶ the efficiency of the supply chain toward expanded reproduction. For supply¶ chain management, “the pig” is one stage of pork (as commodity) in the¶ cycle of value realization. The logistical pig has been refigured as a life-form¶ toward that end. In the corporate meat sector, every aspect of the cycle of life¶ has been reorganized by supply chain management and its software so that¶ the animal fits the system of motion. As one industry textbook explains,¶ “Logistics not science is the underpinning of a successful breeding policy”¶ (Knap 2012: 7972). This includes everything from ovulation synchronization for reproductive efficiency to the timing of insemination and the weaning of sows and cows to fit trucking schedules, themselves organized to¶ maximize efficiency at processing facilities. Swine hips are standardized to¶ fit the machines of slaughter.¶ In the meat supply chain, livestock is subject to more and more logistical refashioning, though this sector was also a key innovator in modern¶ industrial logistics. Henry Ford did not invent the assembly line, but witnessed a system where carcasses were suspended from a moving trolley in¶ Gustavus Swift’s Chicago slaughterhouses. Swift’s “disassembly line” accelerated the circulation of meat and capital before being adapted to the auto plant.¶ Meat processing has long been at the forefront of corporate logistical life. The¶ invention of cold storage rail cars provided a mobile spatial fix to the distance¶ between settler cities and the feed lots on the Plains. Cold storage allowed for¶ cattle to be moved after slaughter, making transport more efficient and accumulation more expansive; frozen packages of beef are easier to move than¶ living, breathing cattle. But with a corporate meat supply chain organized as¶ a conveyor belt—not only after animal death but for the production of animal¶ life—any significant disruption can quickly become system failure.¶ This dreadful example suggests that logistics makes forms of life and¶ death in motion. Logistics organizes movement into, through, and beyond production. Both a management and martial science of movement, logistics aims¶ to maximize the circulation of capital through materials movement. Crisis in¶ motion takes shape not only in the crucially important sector of “distribution.”¶ Rather, logistics produces forms of life in motion that are defined by crisis.¶ In arguing for a productive conception of logistical power, I am also¶ inviting us to think about the logistical crisis of the COVID pandemic differently. Jennifer Terry (2009) has argued that all wars have their “signature¶ injury”—the particular damage to soldiers’ bodies that derives from widespread use of historically specific weapons technologies. Similarly, we might¶ question how the organization of motion through logistics and its infrastructures produces signature injuries at a planetary scale. Could this pandemic be a signature injury of logistical life? Did the novel coronavirus have¶ its genesis in habitat destruction, rapid global suburbanization, industrial¶ agribusiness, and supply chain infrastructures that constitute racial capitalism today? To consider this question more carefully and to attend to the profoundly colonial contours of crises in motion, the article now moves to look¶ at infrastructure’s imperial afterlives. The second story of crisis also begins¶ in the summer of 2020.¶ Crisis 2—Infrastructure’s Afterlives¶ On August 29, 2020, the head of Canada’s first prime minister, Sir John A.¶ Macdonald, hit the ground. Montreal activists “toppled and decapitated” his¶ statue during an action calling on political leaders to defund police services¶ (Rudin 2021). A few weeks earlier, Black Lives Matter activists in Toronto¶ queerly covered their Macdonald in pink paint, eliciting a formal public¶ thank-you from Indigenous leaders in a show of anti-colonial movement solidarity. Local media reported that Toronto’s Macdonald “has been covered up¶ ever since, and inside this enclosure, you can see a bag over the father of¶ Canadian Confederation’s head” (Warmington 2020). East coast activists in¶ Charlottetown doused their Macdonald in blood-colored paint as did organizers out west in Victoria, while in the capital city of Ottawa, Macdonald¶ was placed under state surveillance, with CCTV cameras and police patrols¶ to protect his body (and the settler colonial body politic) from disfiguration.¶ As monuments to colonial and racial capitalist violence came crashing¶ down around the world, entangled movements for Indigenous Land Back¶ and Black Lives Matter on this territory too had had enough. They insisted¶ that Canada’s first prime minister could no longer be allowed to stand—neither physically as statue in the city, nor symbolically as heroic figure in history. In official pedagogy, Macdonald is remembered as the nation’s founding father, but the patriarch’s decapitation announces another biography of¶ an engineer of genocide.¶ These competing accounts collide on the railway tracks. Macdonald¶ insisted that a transcontinental railroad would be the “spine” of his new colonial state—the skeleton for a new body politic. At the height of what Karuka¶ (2019) calls railroad colonialism, Macdonald took to build an iron road from¶ coast to coast, connecting scattered British colonies of North America. First¶ envisioned in the mid-1800s as a key link in British imperial circulatory systems to the Far East, the rail would compete with the growing westward¶ reach of the rising US empire, unload surplus population, and maintain¶ imperial hegemony. More than metaphor, this socio-technical spine would¶ support a vast continental reach of settlement and circulation and become¶ the vital physical backbone upholding settler economy and legal jurisdiction.¶ MacDonald’s iron spine indeed became the backbone of a new settler colonial body politic, but what kind of beast did it build?¶ Rail infrastructure made the settler state possible, and it did so¶ through imperial logistics of creative destructive anchored in dispossession,¶ displacement, and hyper-exploitation. In this era of the railway barons, infra¶ structure expansion became an extraordinarily lucrative means of expanding reproduction. A massive public-private partnership, the railroad was¶ financed by land theft. Enormous tracts of Indigenous land were granted by¶ the Dominion government to the railroad companies. The railroad recruited¶ settlers through their own Department of Colonization, as well as by selling¶ land to private colonization companies. White settlers were incentivized to¶ settle, with proximity to whiteness the means for sorting settler racial hierarchies. Black migration was specifically and actively discouraged by both¶ informal and formal means. Banks and bankers feasted on this infrastructure of enclosure. Through it they circulated capital extracted from the theft¶ of bodies, labor, and lands throughout the colonized world. Banks like Barings, with capital accrued through slavery and colonialism, provided critical¶ capital for the Canadian Pacific Railway (CPR) in its final stages of construction and to this day are commemorated in the name of one of its premier stations. Revelstoke station—now a world-famous ski resort—was named after¶ Lord Revelstoke, also known as Edward Baring, to acknowledge the bank’s¶ crucial capital injection into the infrastructure (Cowen 2020). In a strange¶ and delicious coincidence, Revelstoke ski resort features a famous hill called¶ “kill the banker.” The railroads were also bound up in complex racialized¶ labor regimes that particularly impacted Chinese and Black workers. As in¶ the US, the most dangerous parts of construction were assigned to Chinese¶ workers. Underpaid and relying on their own provisions and medical care,¶ Chinese workers died at a rate of two per kilometer in the treacherous Rocky¶ Mountains. Black workers were recruited as porters with conditions of work¶ that rivaled those of slavery (Matthieu 2010). The rail carried white passengers into intimate fantasies of racial subservience, and it carried racialized¶ workers to premature deaths.¶ Across Turtle Island, railroads became the key infrastructure in the¶ colonial war against first peoples. On both sides of the medicine line, the¶ railroads enabled land theft. A key rationale for the Canadian rail was its role¶ in asserting the border against American invasion. Lands were cleared for¶ the coming railroad, while the railroad also became a colonial weapon to¶ clear the land. Rail was critical in the extermination of the buffalo that had¶ roamed Turtle Island, from Alaska and the Yukon Territories down through¶ Georgia. In just a few decades, herds were hunted to near extinction with¶ devastating consequences for Indigenous peoples whose lifeways were profoundly entangled with the buffalo. Settler states saw the buffalo slaughter¶ as logistical warfare to clear the plains through extermination of Indigenous¶ peoples’ food supply. This is painfully clear in US Colonel Richard Irving¶ Dodge’s directive to “kill every buffalo you can! Every buffalo dead is an Indian¶ gone” (Smits 1994). Daschuk (2013: 162) has further documented how, with¶ the disappearance of the buffalo, officials “denied food, as a means to ethnically cleanse a vast region from Regina to the Alberta border as the Canadian¶ Pacific Railway took shape.” Deliberate starvation was used to force Indigenous peoples off their territories and into reserves. When organized resistance¶ to colonial dispossession took shape in the 1885 Uprising, the transcontinental¶ railroad transported Canadian militia forces to the front lines of colonial wars¶ against Cree and Metis people, providing the definitive logistical advantage.¶ The construction of this massive colonial infrastructure demanded¶ assembly of another. Colonial circulatory infrastructure required colonial security infrastructure. What is now the Royal Canadian Mounted Police (RCMP)¶ was created in 1873, initially as the North West Mounted Police, a paramilitary¶ force created to protect the colonial order both “internally” where settler¶ jurisdiction had already been asserted and “externally” where it remained an¶ ambition. In fact, the name change indexes that achievement. Dhillon (2015:¶ 8) argues that the Mounties have carried out “genocidal extermination, subjugation, and physical containment of Indigenous communities.” They were¶ deployed on the Canadian frontier to “ensure the negation of Indigenous¶ sovereignty and to implement effective policies of containment and surveillance” (Nettelbeck and Smandych 2010: 357).¶ The force was also specifically created to clear the way for the railroad¶ and to protect the infrastructure as it was built. Protecting the infrastructure¶ of colonization was thus a critical means of conquest. In 1885, Mounties saw¶ their jurisdiction expanded at the direct request of the president of the¶ CPR—to protect the infrastructure as it laid new tracks west of the Rockies.¶ Mounties were also deployed to break the strikes of rail workers laying tracks¶ through the mountains. Later, in 1920, when Macdonald’s genocidal residential school system became compulsory, Mounties were charged with¶ ensuring attendance. Mounted police were also a part of transnational imperial struggle. Precisely because of their expertise in “counterinsurgency”¶ warfare against Indigenous people on the plains, they were deployed to fight¶ the Boers in the 1899–1903 South African war. Today, the RCMP website¶ proudly proclaims, “The two regiments consisting of North West Mounted¶ Police members had experience dealing with counter-insurgency during the¶ North-West Rebellion. Consequently, they achieved many successes in battle.” Colonial infrastructure required the protection of martial force, and—¶ as Mahan insists—martial force required infrastructure to enhance and¶ extend that force.¶ Over 150 years later, these same railroad tracks remain a site of acute¶ struggle over colonial violence. Just a few months prior to Macdonald’s¶ decapitation, the railroad became the stage for a momentous standoff¶ between the settler state and Indigenous peoples. On February 6, 2020, the¶ same Mounted Police formed to protect the infrastructures of settler “civilization” violently raided the unceded territory of the Wet’suwet’en Nation to¶ clear the way for corporate construction of a natural gas pipeline. Arresting¶ land defenders and leadership, destroying community infrastructure, and¶ interrupting ceremony, the raid went on for days. Under Wet’suwet’en law,¶ authority over the nation’s unceded territory lies with hereditary chiefs from¶ five clans in a system of governance that long predates colonization. All five¶ hereditary chiefs rejected the construction of the pipeline on their territory.¶ In direct response to their calls for support, dramatic and sustained actions¶ proliferated. Indigenous people and their allies blockaded the national rail¶ network, launching the #ShutDownCanada movement. Coast to coast occupations of rail lines and ports, highways and bridges, and central city streets¶ by Indigenous land defenders and their allies had impact. Flows of commuters and commodities that rely on rapid circulation ground to a halt. Standing¶ in solidarity with the Wet’suwet’en and standing immediately atop the transcontinental tracks, Mohawk land protectors offered teachings about the original treaties that past and present infrastructures trespass. Materially invoking the infrastructural violence at the heart of Canada’s colonial problem,¶ Mohawk land protectors created the space and opportunity for moving forward differently.¶ If the contemporary crisis of colonial violence circulates through imperial infrastructures, how might a reckoning with this ongoing unfolding of¶ infrastructural injustice lay the tracks for a different road forward? And how¶ might we draw out the wider imperial ecologies in these accounts of crisis?Crisis 3—Imperial Ecologies¶ In the summer of 2020, as city streets were alight with demands for a racial¶ reckoning and as the pandemic continued to devastate and mutate, the Amazon burned at an unprecedented pace as part of our deepening climate crisis. This extraordinary ecosystem had been in the unmaking for many years¶ and is now projected to collapse later this century, yet summer 2020 marked¶ dramatically increased rates of destruction. Protection of the Amazon, 60¶ percent of which is claimed by Brazil, is crucial to the continued existence of¶ life on earth as we know it. Home to Indigenous and African descendent peoples who are fiercely defending their homelands, the Amazon—“the¶ lungs of the earth”—is the source of a fifth of the world’s oxygen supply¶ (Gonzales 2019). The moisture that evaporates from the Amazon rains on¶ farmlands across South America and up to the US Midwest. The species¶ diversity within the Amazon is unparalleled on the planet. It is the extraordinary scale, ecological complexity, and abundance of the rainforest and its¶ main river that led Jeff Bezos, in 1994, to rename his fledgling distribution¶ platform from “Cadabra” to Amazon. You can find untold riches and¶ resources in the Amazon, or at least you could. But it is not just the rest of us¶ earthlings that rely on the critical Amazon ecosystem; Amazon the corporation does too.¶ In the Amazon, a geopolitics of infrastructure is remaking critical¶ planetary ecologies. The fires themselves have garnered global media attention, but less prominent in the coverage is the way that deforestation is taking shape to make way for an extractive industrial economy financed and¶ underpinned by infrastructure development. Deforestation closely follows¶ the development of new road and rail infrastructure; satellite images show¶ how roads cut into and fragment forest canopy and intensify traffic in the¶ Amazon. Infrastructure serves as vector for deforestation, with 95 percent of¶ it taking place within five and a half kilometers of roadways. Infrastructure¶ furthermore enables development of more infrastructure; energy, industrial¶ agriculture, and extractive systems become possible when transportation¶ makes new lands accessible. Cattle ranching has become the largest land use¶ driving of deforestation in every country with jurisdiction in the Amazon,¶ accounting for 80 percent of the current deforestation rates, but it is transport infrastructure that underpins this industrial transformation. Amazonian infrastructure expansion was a linchpin in Bolsonaro’s broader economic plans (Holmes 2019). Brazil is planning “to build a series of big new¶ hydroelectric dams and webs of waterways, rail lines, ports and roads that¶ can overcome logistical obstacles standing in the way of exporting commodities and other goods.”¶ Brazil is arguably a key stage for US and Chinese imperial competition¶ through infrastructure. Brazil recently signed on as a member state of the¶ Asian Infrastructure Investment Bank (Ennes 2020), and Chinese banks¶ are already heavily invested in Brazilian infrastructure projects (“Chinese¶ Banks Expand in Brazil Eyeing Infrastructure” 2015). China’s presence is¶ growing, while it is also “shifting from a focus on extracting raw materials¶ toward financing infrastructure necessary to produce and transport them.”¶ Key plans and deals for infrastructure expansion in the Brazilian Amazon have also been unfolding in the United States. New trade deals were established in 2019 between the American and Brazilian governments, and infrastructure investment is the vehicle for economic cooperation. In September¶ 2019, Brazil’s infrastructure minister reported on talks with the US: “We¶ have major programs of concessions in all areas that will transform our¶ infrastructure, logistics and competitiveness” (Wemer 2020). A year later, a¶ $1 billion (USD) MOU was signed between the two countries. An interim¶ report from March 2020 described a key goal of the agreement being to¶ close the gap between China and US investment in Brazil’s “growing infrastructure construction,” of which China accounts for 7 percent and the US¶ only 2 percent.¶ US finance is heavily implicated in the development of Amazonian¶ infrastructure. Grim (2019) goes so far as to name US-based Blackstone—¶ the world’s largest asset management firm—as the “driving force behind¶ Amazon Deforestation,” with major stakes in an enormous terminal and¶ highway project to support industrial agriculture expansion. BlackRock—an¶ offshoot of Blackstone that manages more than $6 trillion in investments—¶ has invested heavily in industrial Brazilian cattle. JBS (n.d.), “the world’s¶ largest animal protein producer” (as the website proudly proclaims) and,¶ after Nestle, the world’s largest food corporation, is implicated in both the¶ destruction of the Amazon and working conditions that are “akin to slavery.”¶ Despite its loud claims to invest in sustainable supply chains, BlackRock¶ increased its stake in JBS in 2016 by $41 million, and again in 2018.¶ This infrastructural incursion into the Amazon is fueling the displacement and dispossession of Indigenous and Afro-Brazilian people and provoking widespread resistance. Pereira da Silva and Cordoba (2020) write, “The¶ strategy of Bolsonaro’s government and its allies in congress is very clear: to¶ take 9.8 million hectares from Indigenous and traditional territories in the¶ Amazon to seize more land for agribusiness.” When it comes to the Amazon’s¶ peoples, that Brazil blatantly undermines their self-determination appears to¶ be more the rule than the exception. Dias (2019) writes, “For more than a century, a series of Brazilian governments have sought to move into the country’s¶ interior, developing—or, to be more precise, colonizing—the Amazon.” In¶ 2019, while the fires burned, Bolsonaro’s presidential spokesperson tried to¶ allay concerns about Indigenous peoples of the Amazon while recentering¶ the focus on “national interest” when he explained that “the Indians will be¶ consulted, but national interest must prevail.” This colonial stance is¶ unchanged from the Brazilian state in 1975, when road construction through¶ the Amazon saw the murder of thousands of Indigenous Amazonian people. In 1975, Col. João Tarcísio Cartaxo Arruda explained, “This road is important and must be constructed, whatever the cost. We will not change its layout, and the only burden for our battalions will be to pacify the Indians”¶ (Dias 2019). Perhaps more surprising than the colonial continuity within¶ Brazil is the extraordinary convergence in colonial discourse between Brazil¶ and Canada. While Canada’s Justin Trudeau is often cast as the progressive¶ boy toy of leaders on the world stage, his words—almost interchangeable¶ with the Bolsonaro regime—should give pause. At the height of Indigenousled resistance to the Transmountain pipeline, Trudeau insisted, “[The Transmountain pipeline] is in the national interest and it will get built” (Global¶ News 2018).¶ These transnational ties forged by colonial infrastructure and its protection are precisely what prompts this circuit in the south. Today in Brazil,¶ bovine life is implanted into the Amazon landscape in a process of agro-industrial colonization underpinned by infrastructure. But this is not the first time¶ a massive infrastructural incursion has served to replace Indigenous peoples¶ and ecosystems with settlers and extractive bovine industry. It is not even the¶ first time in this article. As in the Amazon, colonization of the central plains¶ transformed complex ecologies into landscapes of capitalist agribusiness, and¶ here too, this colonial transformation relied on infrastructure. Winona¶ LaDuke (2017) emphasizes the scale of nineteenth-century colonial ecological¶ destruction: “There were then more than 250 types of grass, along with profusions of prairie dogs, purple corn flower, prairie turnips, mushrooms, and a¶ host of other species listed today as endangered or protected. . . . Those 50 million buffalo have been replaced by farms and 45 million cattle.” Karuka (2019:¶ 40) describes how “railroad colonialism transformed bountiful prairie lands¶ into massive monocrop areas for beef, pork, and grain production.” The railroads were critical here but so were logistical innovations in their use. Gustav¶ Swift may have inspired Ford with his disassembly line, but it was his refrigerated railcar that allowed processed beef rather than live cattle to be shipped¶ east—linking the industrial cities of the east with increased efficiency to the¶ farms of the western frontier.¶ The deep entanglements between these three stories of crisis continue¶ to unfold. In 2007, JBS, the Brazilian global meat giant, already financed by¶ US investment firms, entered the US livestock market through a buyout of¶ Swift and Co., the firm founded by Gustavus Swift. In another extraordinary¶ convergence, COVID-19 outbreaks at their Greeley facility have been among¶ the largest in the United States. Gilmore argues that all life is geographical,¶ and perhaps so too is death. The geography of COVID outbreaks in the meat supply chain points to a much longer and larger crisis of sovereignty and food¶ systems in the imperial logistics of social reproduction. The plant, which¶ employs more than three thousand workers, is located in the northeast corner¶ of Colorado, on Indigenous lands that remain deeply contested to this day.¶ In 1803, in what Nick Estes (2017: 117) describes as the “largest real¶ estate transaction in world history,” known today as the Louisiana Purchase,¶ the US “bought” an enormous tract of land from France. It was, in fact, Barings Bank (of Canadian railroad fame) that financed this deal. The Sioux¶ Nation or Oceti Sakowin eventually signed peace treaties with the invading¶ American settler state to bring an end to the wars against them. Greeley is¶ within the lands of the Fort Laramie treaties, which provided this “temporary reprieve” and a “25-million-acre territory” for the Oceti Sakowin. With¶ the buffalo slaughter and settler invasion, Estes describes how this vast land¶ base was steadily diminished. By 1876, Congress abolished treaty making¶ with Native Nations, and in 1877 it illegally ceded the Black Hills and created¶ the present-day reservation system. Foregrounding the invasion of rail and¶ hydro dams historically and oil pipelines more recently, Estes traces how settler violations of the Fort Laramie treaties provide context for the extraordinary Standing Rock uprising, and the ongoing legal action to restore these¶ Indigenous lands. Indeed, the Fort Laramie Treaty of 1868 remains at the¶ center of a land dispute that the Smithsonian suggests “brings into question¶ the very meaning of international agreements and who has the right to adjudicate them when they break down.” They report on the 1980 Supreme¶ Court ruling that awarded more than $100 million in reparation to the Sioux¶ Nation, on the grounds that the US had illegally appropriated the Black¶ Hills. The payment was refused, and Chief Spotted Tail instead insisted,¶ “We’d like to see that land back.”¶ These specific lands figured in all three stories of crisis—as the site of¶ COVID outbreaks in processing plants, as Indigenous homelands subject to¶ the violent dispossession of railroads and police force, and as a vital complex¶ ecology that has been devastated and remade into a zone of extractive corporate agriculture. The beef, the bankers, and the borders also repeat. Multiple¶ threads of entanglement in fact make it impossible to pull these crises apart.¶ The borders of these stories of crises in motion deliberately give way—they¶ wind through and into each other. They are all stories of the crisis of expanded¶ reproduction.¶ Imperial logistics may be able to manage more circumscribed crises of¶ distribution. With ready access to disposable “essential workers” and to¶ Indigenous and Afro-Amazonian people’s lands, the sector can even thrive in a context of quarantine, as Bezos’s trillions suggest. But logistics cannot¶ manage the crisis of life that its own logics and infrastructures produce.¶ Anti-colonial movements are organizing to interrupt lethal circulation and to¶ organize motion otherwise. The final section of this article shows how they¶ are regenerating reproduction through refusal.

Unsurprisingly, laws, policies, and discourses that “did not see race” did not remedy the persistent structural inequalities that had resulted from centuries of racism and dispossession. They only created an appearance of equality that operated as a perpetual alibi to claims of race discrimination. In part, as Jodi Melamed argues, racial liberalism refers to the transition from “mesmerizing narratives of the white man’s burden”2 that informed openly racist and colonial policymaking to “liberal antiracisms—of reform, of colorblindness, of diversity in a postracial world—that explained (away) the inequalities of a still-racialized capitalism”3 as official state policy. No longer did the management of race entail grappling with structural racism. Instead, anti-racism required citizens, policymakers, and lawmakers to adopt colorblind universalism, a form of thinking that identified racism and the effects of racism as individual matters, not structural ones, and emphasized individual rights and formal equality as the paths to racial justice. The effect of the turn toward racial liberalism was to protect white supremacy in novel and less-overt ways, often through the mobilization of coded language that could not be easily discredited. Racial liberalism “instantiated a new worldwide racial project that completely supplemented and displaced its predecessor: a formally anti-racist, liberal-capitalist modernity articulated under conditions of US global ascendancy.”4 Nikhil Pal Singh’s understanding of race in the world of racial liberalism, as a set of “historic repertoires and cultural and signifying systems that stigmatize and depreciate one form of humanity for the purposes of another’s health, development, safety, profit or pleasure,”5 gestures toward the importance of racial scripts in sustaining racial inequality even in a world of purported colorblind universalism. Even as the United States moved toward desegregation and equality, national conservatism around race and capitalism entrenched systematic oppression, albeit in ways that were less overt than in previous eras. This chapter examines how intellectual property law continued to construct racialized understandings of creatorship through the language of citizenship and personhood in the post–civil rights era. Intellectual property rhetorics were not immune from the ideologies and discourses of racial liberalism—in fact, the former and latter were deeply intertwined. After the civil rights movement, copyright, trademark, and patent law, which had in previous eras formally excluded people of color from protection, modernized and coproduced age-old racial scripts alongside racially liberalized but persistently white discourses of citizenship and nation. Yet the political, cultural, and doctrinal language of intellectual property law often escaped scrutiny. Instead, it continued to normalize white knowledge production at the expense of the creatorship of people of color and used purportedly race neutral legal language to maintain systems of racial capitalism. The race liberal creator was a white male genius—a Romantic creator modernized through the language of racial liberalism—whose success was deserved because of his commitment to hard work, ingenuity, and creativity. Race liberal creatorship operated as a tool for fueling purportedly colorblind American nationalism while demonizing people of color and eliding explicit engagement with the debates about racial equality, including those that followed the collapse of Johnson’s Great Society and the assassinations of Dr. Martin Luther King Jr. and Robert Kennedy. From the 1960s on, creatorship evolved into an increasingly important imagined engine for national growth, one that also stoked the fires of economic protectionism, xenophobic nationalism, military adventurism, and neocolonial extraction. Copyright, trademark, and patent law evolved not in the spirit of radical equality espoused by the civil rights movement but from a perpetrator perspective, which protected white property interests in knowledge while disciplining people of color for their creatorship. Three sets of racial scripts organized intellectual property law and racial feelings about the role of copyrighted works, trademarks, and inventions in the race liberal era. First, developing understandings of expertise as the primary domain of Western science updated familiar, raced conceptions of human progress and cemented understandings of knowledge as white property. While such negotiations unfolded primarily in the area of patent law, the Sampling Wars of the 1990s also normalized whiteness and the performance of white practices of knowledge making as central to expertise and thus property ownership. Second, the criminalization of non-white creatorship—through anti-Black tropes of hip hop artists as obscene, thieving copyright thugs—mobilized not only familiar racial scripts as a means of discrediting people of color creatorship but also anxieties about crime, economic growth, and jobs in America. This process invoked raced definitions of true imagination that had run through earlier copyright jurisprudence. Third, white resentment about racial mixing and power persisted after the Supreme Court’s decision in Loving v. Virginia (1967), which found antimiscegenation statutes to be unconstitutional. These anxieties about racial purity manifested in the context of trademark law, specifically the periodic embrace of trademark dilution. The resurgence of jurisprudence and legislation around trademark tarnishment and trademark blurring, subsets of trademark dilution, refashioned the consumer gaze to reflect national sentiments about white marginalization, specifically via economic language about expansive brand protection. In these ways, copyrights, patents, and trademarks continued to operate as sites for the projection and production of anxieties about the state of the nation and its (white) citizenry, just as they had in past eras. Indeed, the presumption that the racial ideologies of knowledge production somehow shifted is counterintuitive, given the persistence of racist ideologies in other areas of culture and politics. Reading intellectual property citizenship through the lens of racial liberalism is thus a productive means of rendering these increasingly hidden racial investments visible and identifying the contours of the ideal race liberal creator.

This past October, Los Angeles City Council President Nury Martinez resigned over racist remarks she made during an October 2021 meeting with other Latino leaders. Alberto Retana, the president of Community Coalition in southern Los Angeles, called out the councilmembers who “participate[d] in a back door deal to aggrandize the careers of 3 at the expense of Black erasure and Black voter suppression.” As a bulwark of the LA labor movement, Martinez’s remarks dealt an especially painful blow to labor leaders by demonstrating how pervasive anti-Blackness remains within the larger struggle for workers’ rights. Addressing anti-Blackness in the labor movement is more vital than ever. Unions have seen a fierce resurgence of unions in the U.S. in 2022. In the first half of the year alone, unions have won 641 elections—the most in nearly 20 years, according to data from the National Labor Relations Board (NLRB). But as unions fight for fair pay and better working conditions, advocates say that it’s past time for a critical reckoning with a long history of anti-Black sentiment within unionization efforts and the greater workers’ rights movement. America itself was built on Black labor. In 1961, Dr. Martin Luther King Jr. spoke before the national AFL-CIO—the largest federation of trade unions in the nation, emphasizing the importance of unions to Black communities. He asserted that even though Black people had the most to gain from a successful labor movement, the labor movements, too, had everything to gain from Black empowerment. He argued that they would be able to organize workers, unseat corrupt politicians, and enact major social reforms. But to do that, union leadership had to confront a well-documented history of excluding Black workers from general membership, apprenticeship programs, and from skilled job training.King’s perspective was prescient. Since his speech, labor unions have become some of the largest civic organizations in the U.S., representing 14 million workers—a little more than 10% of all U.S. wage and salary workers. Union approval is also at its highest level since 1965. A majority of Americans have recognized the key role unions play for the American worker. And yet, as the LA City Council scandal neatly illustrates, the current revitalization of unions has yet to fully contend with the extent of racism and anti-Blackness within the movement itself, especially among leadership. As a result, some union members are taking it upon themselves to tackle inequity and injustice in the labor movement. “Change rooted in anti-racism [and] anti-oppression doesn’t live in the hands of elected officials … True power always lives in the people,” Retana tweeted. Black workers are vital to union power. Unions have become some of the largest mass membership organizations of people of color writ large. Black workers make up a critical portion of this union membership, a fact that labor leaders can’t afford to ignore. As more Black workers entered the workforce and protested for their rights in the mid-20th century, union leaders needed their support to pass agendas, reach collective bargaining agreements, and even elect preferred political candidates. Unions also make a critical difference for Black workers. In 2020, Black workers were slightly overrepresented among union workers, making up 13.6% of the union workforce while only being 13% of the overall workforce. And the data shows that unions have become the single greatest force in accelerating economic equity for Black Americans. According to the Center for American Progress and the Center for Economic and Policy Research (CEPR), Black Americans see gains across nearly every category of economic prosperity as part of a union. Black households with a union member have a median wealth that is more than three times the median wealth of non-union Black households. Wealth benefits hold true even for Black workers with low-wage occupations and fewer years of formal education, taking home 18.9% higher pay than their non-union counterparts. Furthermore, Black union workers are much more likely to have employer-provided health insurance (71.4% of Black union workers vs. 47.7% of non-union Black workers). Black union workers are also 18.3 percentage points more likely to have an employer-sponsored retirement plan. Unions have also helped to combat the Black-white wage gap by standardizing pay rates among workers in similar positions.It’s also critical to note that the makeup of the Black union workforce has shifted dramatically over the last several decades. CEPR data finds that today’s Black union workers are more likely to be women, older, immigrant, and have more years of formal education. Cathy Kennedy, a vice president of National Nurses United (NNU), the largest U.S. union and professional association of registered nurses, grounds her experience as a biracial Black and Asian woman and believes that having diverse leadership creates a positive cycle for workers looking to move up the ranks.“It’s wonderful to see that within our organization, our top leadership consists of women of color,” Kennedy said. “It’s helpful because nurses see someone that looks like them in top leadership, and it’s important to recognize that.”Anti-racism work requires constant effort. As unions become ever more diverse, confronting anti-Blackness and creating racial equity has become make-or-break to the success of workers’ rights movements. As a son of sharecroppers from the South, the issue is personal for AFL-CIO secretary-treasurer Fred Redmond. After decades of helping to build labor solidarity, Redmond now holds the highest officer position for a Black leader in the history of America’s labor movement and said the AFL-CIO is working to link criminal justice reform to the greater labor movement. “We have to stand with our Black and brown members no matter what,” Redmond said. “Our priorities include making sure that our federations and central labor councils educate union members and members of the public on racial justice, criminal justice reform, and opening pathways to young people of color to become leadership professionals.” Redmond noted how Black citizens are locked out of many job opportunities and stripped of their right to fully contribute to society, hurting the labor movement. At the AFL-CIO, leaders have launched a Racial Justice Task Force that has not only facilitated external conversations around police and criminal legal reform but also internal discussions among the rank-and-file, many of whom have never had such a conversation. For advocates like Redmond, it’s vital for workers’ rights organizations to engage in restorative work to support those whom the system has entangled. In their view, the rights to vote and receive government benefits are irrevocably tied to the right to stable and well-paying jobs. While some unions are exploring external partnerships to address racist inequities within their organizations, others are focused on using internal conversations to create anti-racist and equitable cultures. The NNU has a racial justice curriculum to educate nurses on gender justice and racial justice, as well as how to bring both principles to the bargaining table. “Nobody wants to talk about a lack of inclusion, so we have to emphasize these issues to support our nurses of color,” Kennedy said. “We have webinars, ongoing classes, and discussions on race, on the history of our Filipino nurses, our African-American nurses … there was a lot of damage done [in the medical field]. So I think the timing is right.” Further, according to a study published in the American Journal of Political Science by Paul Frymer of Princeton University and Jacob Grumbach of the University of Washington, these efforts work. Union membership has been shown to increase support for issues affecting Black workers, which Frymer and Grumbach connect to unions encouraging political and anti-racist discussions among rank-and-file members. The study demonstrated that white union members feel less racial resentment than non-union members by between 4.7% and 6.3%. The number is substantial—rivaling or surpassing other demographic variables, such as gender or education, that shape political views in the U.S. White members are also more likely to support policies that benefit Black workers even after union membership has ended.

However, Kennedy admits that there are some who resist this type of education. She’s often heard naysayers claim that they don’t need to know any anti-racist education because they’re not prejudiced and “just want to take care of [their] patients.” “We all need to confront ourselves,” Kennedy said. “I have my own prejudice, my own bias, but I have to be made aware of it so that I’m open to listening, because it is about listening and recognizing.” Workers rights don’t exist in a vacuum According to Redmond, the fight for Black workers requires solidarity on all fronts of injustice and inequity. He said it’s important to the movement’s success to recognize that labor touches everything from mental health and social isolation, to physical wellness, voting access, and, most critically, legal reform. “One of the biggest threats to our members is legislation that supports union-busting,” Redmond said. “We still have laws tilted toward corporations.” Redmond and his colleagues have worked to support legislation to empower unions, but progress is slow in a divided Congress. He also highlighted the need for police reform in particular, as there are 13 police unions in the AFL-CIO. “Along with these unionized officers, we’ve been having some serious discussions about what police reform looks like,” Redmond said. “It’s a challenging issue, but the work is so important.” There have also been calls and efforts from rank-and-file members within the AFL-CIO and its affiliates to oust police unions entirely, but executive leadership has failed to take meaningful steps in that direction, according to The Real News Network. Despite the needed work around anti-racism, the biggest threat to Black workers is the decline in the unions’ power. According to CEPR data, in 1983, 31.7% of Black workers were represented by a union. But Black unionization rates have fallen drastically since then, with only 14.2% of Black workers represented by a union in 2015. The data also indicates that the Black-white wage gap would be 13% lower if union membership had not fallen. Advocates say that the progress of the labor movement for Black and brown workers hinges on leadership. It requires leaders committed to equity and anti-racism—both in public and behind closed doors. It also requires leaders to monitor what individual chapters are doing and to what extent they implement anti-racist practices. But when the work is done, its potential is powerful. That is why this current resurgence in organized labor is so significant. It presents an opportunity to continue unions’ attempts to tackle both economic and racial justice that began in the 20th century. “This is about humanity, respect, equality, inclusion, everything,” Kennedy said.

How does anti-Blackness manifest itself? No continent has been more impacted by the ravages of colonialism and racism than the African continent. Sadly, even today, Africans are at the receiving end of discrimination, from vaccine apartheid to visa apartheid. The Covid-19 pandemic offers a stunning recent example of anti-Blackness. No continent is less vaccinated and boosted than the African continent [3]. While wealthy nations rushed to clean up the shelves, hoard vaccines, and even throw away millions of expired vaccines, the African region was left last in the line. Despite the efforts of activists and the support of most countries, a few rich countries blocked the TRIPS waiver that could have significantly expanded vaccine manufacturing in the Global South. Two years after vaccination began in wealthy nations, and even as second and third booster shots are being offered in the Global North, barely one in four people in the African region are vaccinated with two doses (as of January 2023) [3]. The African region has also had the lowest Covid-19 testing rate, and access to anti-viral medications such as Paxlovid is practically non-existent. This pattern of discrimination is not new. More than 30 years ago, when anti-retrovirals (ARV) became available, they were considered too expensive to roll-out in the African region. As late as 2001, some experts maintained that ARV treatment in Sub-Saharan Africa was impossible. It took incredible activism, legal action, and community effort before they started becoming available, by which time millions of Africans got infected and died. When the Ebola outbreak ravaged West Africa during 2014–16, it killed more than 11,000 people in Guinea, Liberia, and Sierra Leone. Even intravenous hydration was seen as being too challenging during this crisis. While an overwhelming majority of the mostly White American and European healthcare workers who contracted Ebola survived, the infection killed two-thirds of West Africans with Ebola. Investments in R&D dramatically increased only after Ebola infections began to be reported outside Africa; in fact, investment for new product development increased more than 900-fold after the outbreak in 2014 [4]. Africa is the only continent where mpox has been endemic for decades. And yet, when the global outbreak occurred, the west was prioritized for vaccine rollout. A giant share of the mpox vaccines is still held by the US, UK, Canada and France–some of the richest nations in the world, while the African region was once again left behind [5]. In the same vein, although sub-Saharan Africa carries the highest burden of cervical cancer cases and deaths globally, access to human papillomavirus vaccines remains very low in most African countries. When the same patterns echo across diseases and across decades, it is hard to call it anything but anti-Blackness. Anti-Blackness is structural and dangerous The de-prioritization of African lives by the rest of the world has harmful and deadly consequences. For example, in the sub-Saharan African countries most affected, HIV/AIDS lowered life expectancy among adults by about twenty years. Earlier access to ARVs could have prevented this devastating impact. Given the low vaccine and booster coverage in Africa against Covid-19, and emerging, highly immune-evasive subvariants, the African continent is poorly prepared to face any new, deadly variant of SARS-CoV2 as well as the consequences of long Covid. Why is anti-Blackness so widespread? Historically, and even today, every aspect of global health is dominated by rich nations in the Global North. The health of Black people in Africa was never a priority for countries that colonized and exploited the continent; rather global health and its precursors grew out of the need to protect colonialists from diseases prevalent in colonised regions of the world. In fact, the act of colonial conquest was so violently disruptive that it radically altered lives and habitats leading to what was referred to in the early 1900s as the “pathological revolution” [6]. Hence, historically, decisions about the health of Black people were made in countries far away and not always in their best interests. Are things better today? Sadly, data show we have a very long way to go. In 2020, less than 10% of the largest global health organizations were head-quartered in the African region, and very few of the global health organizations are led by African nationals [7]. A survey of over 2000 Board seats of global health organizations shows that less than 3% of the seats are held by nationals of low-income countries [8].

still-developing America interpellate its consumers into emerging capitalist markets and racial hierarchies. Put more succinctly, “[t]he ‘incorporation of America’ was integrally related to the corporeality of others,” 18 specifically racially different others. As Lauren Berlant writes, trademarks connect buyers with particularized understandings of identity and nation, creating connections through which consumer goods acquire affective meaning. By the 1900s, “product consciousness had become so crucial a part of national history and popular self-identity that the public’s relation to business took on a patriotic value.” 19 During this period, trademarks performed the important social task of mediating hierarchies of difference and establishing a “racial order of things.” 20 Images of mammies and black beasts, in particular, did the cultural work of justifying the need for racist social organization that continued to deny the egalitarian treatment of former slaves.21 Even today, trademarking and advertising function as important forms of identity branding—in both senses of the term—creating and circulating ideologies around commercial products but also in marking certain bodies as different. Given the ways in which trademarks brand bodies, it follows that bodies have the capacity to rebrand trademarks. As in law, “in the process of privileging a rational, male dominant voice, western rhetoric has in turn focused on the mind to the exclusion of the body.” 22 People of color theorizing, including critical race theory and black feminist thought, have been integral to the process of developing a “deep and embodied understanding not only of the limits and dangers of a legal strategy but of the history of slavery, colonisation and racism which informs the politics and the legality of race in America.” 23 According to Raymie McKerrow, turning to corporeal rhetoric is thus important not only “if we are to broaden the definition of rhetoric to include its practice in the lived experience of those outside what has been termed an administrative rhetoric” 24 but also to make legible the “particular experiences and epistemologies that provide philosophies about reality different from those available to other groups,” 25 here in the context of trademark law. Rhetorical scholars have taken up McKerrow’s call, considering how the body fits into rhetorical theory,26 the relationships between bodies, social protest, and public argumentation,27 and the ways in which embodied performances implicate questions of identity.28 Disidentification is a useful frame for understanding how minoritarian groups perform within particular ideological constraints—particularly those around race, law, and capitalism—and use embodied modes of resistance to intervene in oppressive regimes of power. Disidentification is “a third mode of dealing with dominant ideology, one that neither opts to assimilate within such a structure nor strictly opposes it. . .a strategy that works on and against dominant ideology. . . laboring to enact permanent structural change while at the same time valuing the importance of local or everyday struggles of resistance.” 29 Further, it is an intersectional framework with broad applicability. For instance, a rich and growing body of literature in communication seeks to understand the range of world-making possibilities brought into being by the disidentifying subject.30 Scholarship theorizing disidentification and citizenship is particularly helpful here as it highlights the ways in which embodied performances can partially rework legal and cultural regimes around group membership.31 The examples of disidentification I engage implicate majoritarian definitions of property— including intellectual property—and memory, particularly as they are normalized by and through trademark law. Stereotypical images of mammies and black beasts reinforce narratives of black bodies as property, using trademarked images to create the cultural conditions in which continued oppression of former slaves is culturally and politically possible. In addition to creating a visual hierarchy of race, as Coombe contends, and linking brands with national identity, as Berlant maintains, intellectual property is, as Stephen Best argues, an indirect outgrowth of the logics of slavery. Fugitive slave laws conceptually justified the ownership of intangible human properties, that is, slave labor, thus laying the foundations for the ownership of similarly fugitive products of personhood, such as “voice, countenance, and ideas and thoughts.” 32 In tracing the historical evolution of intellectual property, Best notes that “[j]urists concluded, in short, that the legal relations of property are between people and not, as had earlier been thought, between people and things.” 33 Invoking Best’s analysis offers insight into how trademark law, as part of a larger corpus of intellectual property law, arises from the monetization of the ineffable performances of black bodies. Corporeal performances that highlight (black) bodily autonomy are, then, an important means of interrupting the ideological work of fugitive slave laws, intellectual property laws, and (white) commodification of bodies of color. The two cases that I discuss short circuit the theoretical link that Best identifies, creating space for people of color to respond to the historical memories and narratives reinforced through intellectual property law. Williams’s prosopopeic disidentification becomes a mechanism for disarticulating black women from histories of obedient servitude and asexuality while Lynch’s (de)propertizing disidentification contests narratives of black men as beasts to be owned, policed, and disciplined. As Lovalerie King argues, American law operates as a site of memory and one that necessarily provokes the question “Whose history will prevail?” 34 In the foregoing sections, I examine how Williams and Lynch, while working within the context of trademark law, rework important understandings of property and memory related to blackness.

We know what emerged from this discovery. The ideological weapon of humanitarian intervention and the mantra, “responsibility to protect” became invaluable to justify imperialist war, even when the victims were not white, because an appeal could be made to another powerful force – liberal white saviorism! However, in this short essay I want to address something even more insidious and dangerous than the general propaganda efforts to generate support for the war against Russia, and that is: in the process of building support for war, the white supremacist, ultranationalist, and neo-Nazi elements in Ukrainian society and in the state were downplayed, if not ignored. That whitewashing, coupled with the inordinate attention given to the war, with the inevitable sympathy for the white victims of this war – a war motivated by the desire of Ukrainians to join Europe, to “defend Europeanness,” and European “civilization” – revealed a contradiction that has always been present at the heart of the emergence of what became Europe. That contradiction was the hyper-valuation of white lives, of “whiteness,” in relationship to the racialized “others,” a contradiction that I refer to as the “white lives matter more movement.” This whitewashing of Ukraine is particularly dangerous because it is occurring at a historical moment of deep crisis for the global capitalist order, producing proto-fascist movements across Europe that are becoming more visible and bolder. As I said in previous writings on this subject, U.S. authorities and the U.S. and Western European press understood that Ukraine had an active problem with white supremacist ultranationalists and literal neo-Nazis. Nevertheless, in order to engender support for Ukraine and to set the stage for the performance of a lifetime by Volodymyr Zelensky, Ukraine’s actor president, Ukraine had to be recreated, minus the ultranationalist influence and Nazis. Herein lies the danger for non-Europeans. The coup in 2014 saw for the first time since the second world-war, literal neo-Nazis serving in the government of a European state. Moreover, even though the ultranationalists and neo-Nazis did not have a commanding electoral base, their non-state presence controlling the streets of major cities and towns across Ukraine was significant. They were notorious for their attacks on LGBTQ populations, anarchists, non-Europeans, and Roma peoples. Their violent opposition to communists and communism and socialism of any sort was officially amplified with repressive legislation that outlawed and repressed most left political tendencies. Beginning in 2014, white supremacists from throughout the European world traveled to Ukraine, with over four thousand “volunteers” traveling to Ukraine recently to fight in response to Zelensky’s call to help fight the Russians. It did not matter to Zelensky or the European nations supplying weapons and paying the salaries of these “volunteers” that most of them were self-identified white supremacists. Again, we do not need to make the case of the presence of these forces in Ukraine. That has already been done, here , here, and here . The political issue is that the sanitizing of the right-wing Ukrainian state has strengthened the far-right not only in Ukraine but globally. The whitewashing by liberals and the liberal/left in the U.S. that transformed these elements into “moderate” Nazis is having the effect of legitimizing their proto-fascist racialized politics, a politics that is emerging across the white world. There is a reason Marine LePen has a chance to defeat Emmanuel Macron, even after he moved further to the right after being elected. Liberals pretend to be opposed to the right, but they do not because they aligned themselves with the neo-liberal right more than two decades ago. The right will never defeat the far-right – the dilemma of the democratic party in the U.S. But in embracing the illusion of being in opposition and conceding ideological terrain in the elusive quest for “bipartisanship” the far-right is further legitimized and emboldened. The whitewashing of the right in Ukraine in order to support its U.S.-backed government will have domestic political consequences. For example, the liberal and left/liberal argument for opposing Trump was that his supporters were infected with racism and his movement represented a proto-fascist political development in the body politic of the U.S. The political and ideological challenge now is to square this support for white supremacists in Ukraine with their opposition to Trump. How do you condemn Trumpian racism after embracing a government and society infested with white supremacists and literal neo-Nazis? What is the answer? Liberals and left/liberals are forced to whitewash the white supremacist threat in both places. The blatant appeals to European unity and unspoken but, nevertheless, acknowledged assumptions of the civilizational superiority of the “West” – that discourse around the Ukrainian issue – poses an existential threat to the non-European world. By not challenging this discourse, with Ukrainian president Zelensky being the main spokesperson for, is creating a dangerous ideological foundation for the legitimation of a cross class white supremacist alliance to defend something called “European values” and the interests of Europe, interests that will be poised as one in contradiction to the interests of the non-Western global majority.

Cheryl Harris’s landmark article “Whiteness as Property,” is an exceptional meditation on the aporia of race in law that I have been trying to outline RACIAL PROFILING 87 through Lawrence, Powell, and Prigg. As an exemplar of critical thought on race and law, it suggests another scale of legal interpretation that, by its interrogation of the legal status of the slave, offers the chance for a transformative reading. Harris’s article opens with an allegory about the history of passing in a white world. This is a history, Harris writes, about “not merely passing, but trespassing.”58 In contrast to the criminal existence of blackness under Jim Crow, Harris describes whiteness as a form of denial. “They [whites] remained oblivious to the worlds within worlds that existed just beyond the edge of their awareness and yet were present in their very midst.”59 Between black trespass and white denial, the modern discourse of property that Harris examines is a circumlocution of a secure, legally protected white racial identity. She refers to this as the “embrace of a lie.”60 What is this lie, exactly, at the heart of the legal notion of whiteness as property? It is true that whiteness is a social construction protected by a law that treats it as a kind of property that can be possessed. Yet we can also read in Harris’s theory a tacit acknowledgement of whiteness as a psychical formation organized by an unconscious relationship to blackness. Although the dominant tendency is to read Harris’s piece as an analysis of how the legal ideology of property legitimizes the social privileges and powers that accrue to white identity, it is also perhaps an immanent theoretical engagement with race in the dreamwork of the law. Let us look at this embedded theory more closely. Harris arrives at whiteness’s resemblance to property through an exposition of the legal position of the slave as both thing and person, and how the law deals with the slave’s resistance to this paradox. For purposes of political representation, the slave is both citizen and property; for purposes of commodity production, the slave is both thing and human; and for purposes of exchange, the slave is both money and person. Against the threatening capacity of humanity’s “market-alienability,”61 and against the universalizable “threat of commodification,”62 Harris observes, somewhat in passing, “whiteness became a shield.”63 We are dealing here with immaterial things like benefits, values, capacities, and expectations accrued to the social identity of whiteness.64 Few have appreciated Harris’s focus on how modern property law administers classical forms of property, including intangible things.65 It is this focus that expands the notion of whiteness as property to include not only identity as a source of property interests (for example, that which is legally protected by a cause of action against defamation), but also as the very capacity and expectation to have a past, a community, and a future that the idea of ownership implies. But no one has seized upon an even more crucial insight in Harris’s theory: under her legal metaphorization of whiteness as property is yet another literary move—not by metaphor but by a striking declarative. In writing about how property law enforces white identity and power, Harris’s assertion that “whiteness became a shield” grounds the conceptual metaphor of “whiteness as property.” Thus we can extend Harris’s formulation “whiteness as property” to “whiteness as property is shield.” The resemblance between the syntagm “whiteness as property is shield” and Frantz Fanon’s figuration of “white masks” is a suggestive overlap that emphasizes the fantasmatic structure of whiteness. For it was one of Fanon’s tasks in Black Skin, White Masks to meditate on white culture’s symbolic reliance on phobic fantasies of blackness.66 On this extended formulation, when Harris finds that the “absence [of whiteness] meant being the object of property,”67 her analysis of formally recognized whiteness is also an implicit analysis of the fantasmatic sense of threat, anxiety, and defensiveness crucial to white cultural life. As a shield protecting one from being made into an object, so the legal fantasy goes, whiteness as property provides the assurance of personhood itself. This shield of whiteness is inalienable, personal; it can be used and enjoyed; it is a marker of standing; and it is a mode of self-possession.68 Most interestingly, this white shield is also a symbolic representation in law of the legal fantasy of personhood. So when Harris writes further, “Owning white identity as property affirmed the self-identity and liberty of whites and, conversely, denied the self-identity and liberty of Blacks,”69 we should pause at this precise problem: a racial position from which claims to various forms of value can be made, and from which representational acts can signify personhood—both for the world and for the self. Whiteness, as an object of law, is private property; and whiteness, as a representational act in law, “self-identity,” is the cultural capacity to imagine oneself a subject of the law. Harris’s analysis of the relationship between race and law exceeds issues of unequal access to the privileges of private property; it encompasses the larger legal problem of blackness as a form of life lived in the unassimilable depths of the law’s language and its interpretive world of meaning. It points us to the possibility of understanding (or at least how the law understands) blackness as the experience of the law’s rendering of social reality into words. Lacan calls this a symbolic death, where “the symbol first manifests itself as the killing of the thing,” and thus, any mobilization of symbolic power always bears the trace of a murderous intimacy with “the thing,” or a form of social existence irreducible to the symbolic life of the law.70 This brings us to the central legal case for Harris’s text, Plessy v. Ferguson (1896), and an arresting recollection embedded in her discussion of it. In Chapter 1, I expanded on Plessy’s ruling that formal racial segregation is constitu- RACIAL PROFILING 89 tional and its implications for thinking about a multiracial citizenship structured by the fantasy of colorblindness. It is worth revisiting Plessy through Harris’s analysis because it, like Lawrence and Prigg, presents the racial profile through apostrophization. I am specifically interested in Harris’s vital focus beyond the ruling on how Homer Plessy’s lawyer, Albion Tourgée, rhetorically challenged Jim Crow. Harris quotes from Tourgée’s filings, “Probably most white persons if given a choice, would prefer death to life in the United States as colored persons. Under these conditions, is it possible to conclude that the reputation of being white is not property? Indeed, is it not the most valuable sort of property, being the master-key that unlocks the golden door of opportunity?”71 Tourgée’s larger argument here was about how the imprecision of formal racial categories applied to social practices results in arbitrary deprivations of property interests in racial identity. As Harris observes, the Court evaded this argument by simply asserting that Plessy’s racial classification was clear. On my reading of this evasion, the problem with it is not the refusal to acknowledge the mishaps of due process in the application of formal racial categories. It is that the evasion admits a more disturbing truth about the function of formal racial categories. Toward this end, the Court pointed out that if Plessy was in fact a white man, according to Louisiana’s rules of racial categorization, he could claim money damages for defamation.72 And in this dismissive gesture, we witness the affirmation not only of whiteness as property, but also, the fantasy of a world where it is better to be dead than black. “Under these conditions, is it possible to conclude that the reputation of being white is not property?”73 By answering in the negative (that it is not possible to conclude that whiteness is not property), the Court by implication also affirmed the truth of “these conditions”: that being black is worse than biological death. The black claim invokes the terror of being cast under the sign of blackness as “the thing” that the law protects itself and its subjects against. While the Court acknowledges the possibility of injury to Plessy’s whiteness, it sees the injury of how this property interest materializes over and against the worse-than-death condition of being black, the realness of the fantasy of black life in symbolic death,74 and of a black sociality beyond the boundary of any kind or form of representation.75 Contained in Plessy, as well as in Harris’s focus on this fragment of the case, is the truth of the relation between law and projection, between rule and fantasy: whiteness as property is a shield against symbolic death. In Lawrence, overturning Lawrence’s and Garner’s convictions depends on the representability of same-sex intimacy as either consensual or deviant behavior. In Prigg, overturning Prigg’s conviction pivots on the representability of Morgan as either person or property. In Plessy, upholding the railroad’s segre-

A. Tracing the Costs In 1913, Baker noted that although his list of nearly 400 African American patentees sat in a book on the shelves of theLibrary of Congress (referencing his essay in Culp’s volume), a candidate for Congress in Maryland, fighting a “hotly contested” election, had recently asserted “that the colored race should be denied the right to vote because . . . ‘no one of the race had ever yet reached the dignity of an inventor.’”190 This syllogism that African Americans could not invent and therefore should not be permitted to vote rested on two pillars: white forgetting and the political meaning of patents. It was only by forgetting Ned and the uncounted others who invented and patented that the Maryland politician and his white audiences could believe there was no such person as a black inventor. That forgetting permitted white leaders seeking to maintain, expand, and justify white supremacy in American law and society to make the repeated assertion that African Americans could not invent as proof of black inferiority. That assertion had political power because of the political higher circulations and more prestige did not publish African American authors or African American history. See supra notes 108, 135–141 and accompanying text. 187. Cf. Anderson, supra note 159, at 63 (analyzing print media as a way of creating “imagined communities”). 188. Taylor, supra note 66, at 334–39. 189. See supra note 11 and accompanying text. 190. Baker, The Colored Inventor, supra note 29, at 3 (quoting one of the candidate’s speeches). 1112 COLUMBIA LAW REVIEW [Vol. 120:1077 meaning of patents as certification of inventive ability, that is, the ability to originate and not just imitate. This claim became a favorite of politicians seeking to limit or nullify the Reconstruction Amendments and construct a Jim Crow society, com- plete with race-based franchise exclusions, because the ability to think independently had long been identified as a crucial ability in a democratic republic that required its citizens to self-govern through the franchise and other civic acts, like jury service and elected office. In American political thought, espoused by many of the Founders, those who only imitated were dangerous to the polity, because they merely copied opinions and actions. Such persons would be too easily swayed by demagogues, the argument ran. Democratic republicanism required independent thinkers. In the early republic, states sought to create an independent electorate by limit- ing suffrage to the propertied.191 By the mid-nineteenth-century, however, many states had loosened property limits on white male suffrage.192 Instead, identity became the means of distinguishing those able to exercise the franchise based on presumed innate ability.193 Even after the Reconstruction Amendments guaranteed citizenship and black male suf- frage, free African Americans joined women, Native Americans, children, and the insane as those excluded from full legal personhood as presump- tively disabled.194 Patents as certification of inventive ability and a proxy for independ- ent thought were thus facts relevant to the boundaries of citizenship as established in law and society. By the time the newly formed NAACP used its resources to publish The Colored Inventor, the assertion that African Americans had never received patents or invented had become persuasive evidence that the tightening legal strictures constraining black citizenship in Jim Crow America were justified. In 1886, one of the first African American activists to publish Baker’s list, the Reverend Richard W. Wright, warned that it was neither “prudent [n]or sagacious” to ignore the re- peated claims he saw in Southern newspapers of black inventive inability.195 Wright claimed that “six out of every seven men” believe it is scientifically provable “that Negros have no faculty for invention.”196 191. Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 9–12 (2000) (describing justifications for retaining colonial property requirements). 192. Id. at 52. 193. Laura E. Free, Suffrage Reconstructed: Gender, Race, and Voting Rights in the Civil War Era 11–17 (2015). 194. Welke, supra note 27, at 6–13 (describing how “ability, no less than race and gen- der, was fundamental to personhood and citizenship,” from “the nation’s founding . . . throughout the long nineteenth century,” as “[f]undamental rights of personhood . . . were limited to ‘the able’”). 195. Wright, supra note 81, at 398. 196. Id. at 398–99. Richard R. Wright, Sr., born enslaved in Georgia, was an educator and banker and active in Republican politics. Kevin F. Modesto, “Won’t Be Weighted Down:” 2020] RACE AND SELECTIVE LEGAL MEMORY 1113 If, as six out of seven white Americans believed, African Americans could not invent and were limited to imitation, they lacked this ability cru- cial to democratic self-governance. That belief rested on forgetting the les- sons of Invention of a Slave. The costs of that forgetting were and are legal costs that reach far beyond the patent office. The costs are paid in the continuing strength of legal and social racial hierarchies. It is noteworthy that during the decades when federal courts and leg- islators permitted states to pass and enforce Jim Crow laws, the patent office was a rare locus where rights could be asserted and secured in ways that were both formally and practically race-blind. States control many of the “rights of belonging,” such as the right to vote, to serve on juries, to attend public schools, and to get business permits and gun licenses, but they do not control any aspect of the federal patent system. While Baker noted that “it rarely leaves anything to the imagination” when an African American inventor comes “to the Patent Office to look after his invention,” such appearances are not required by the law.197 There was no legal requirement for black inventors to submit themselves to the racial catego- rization of white America in order to receive a patent.198 African Americans could (and did) originate and invent—and despite persistent and serious social, financial, and educational hurdles to patenting, some did so. Those patents represented not only the innovation and ambitions of each patentee to commercialize an invention, but a collective political resource to combat the costs of de jure and de facto racial inequality. Even as legal changes dismantled the first Jim Crow regime in the second half of the twentieth century, African Americans such as Burt, Diggs, Yancy, Sluby, and James continued to recognize and use the political power of patents, knowing that their community was continuing to pay these costs.199 The arguments of “pro-slavery traducers”200 did not disap- pear with the surrender of the Confederacy, nor with the passage of the Civil Rights Act of 1964, but continue as part of the ideology of white supremacy.

**language edits with strikethrough, replacements in [brackets]

1. The neoliberal discourse

Possibly the simplest (though perhaps also the crudest) method of determining the role of the slave in producing law is to locate the slave within the earliest institutional expressions of the law – by this I mean within the earliest legal form. What I want to suggest here is that the slave existed almost simultaneously with the emergence of law, and to suggest therefore that this particular human subject was known to law at a point that precedes the advent on to the legal stage of those who would now be perceived to be the more powerful actors within the legal arena. In this regard it is instructive to turn to an analysis of the law of contract as it developed from the ancient law of chattels and other rules governing the acquisition and exchange of commodities. Both legal historians and contemporary critical theorists would tend towards the view that contract, however crudely conceptualised, was an early form of law.20 Indeed Pashukanis is often attributed with advancing the idea that ‘the model of contract preceded all subsequent forms of legality’.21 Thanks mainly to the work of critical race scholars, notably Patricia Williams and Cheryl Harris,22 the constitutive relation of the slave to the moulding of early contract doctrine is now an important, though still marginal, lesson of critical theory and legal history. In a recent keynote address, Patricia Williams was to make explicit the relation between the development of the law of contract, the legal form that according to Douzinas et al (commenting on Pashukanis) was ‘the exemplary justification for the rule of law’23 – and those subjugated or repressed in various ways: Contract law is about alienation, about making strange, putting at a distance, transforming into something else, fixing a price, making interchangeable with the currency of the realm. Contract law is thus in tension with that which American constitutional theory considered ‘unalienable’ [sic] or what can’t be sold: that is notions of corporeal integrity, mental and physical inviolability, the pricelessness of our bodies, the embodiment of our dignity – all that we enshrine in the nation of civil rights and human rights. This tension between what can be sold and what ought not to be sold, is also an overlap or an intersection of course. It is the place where we consider questions such as slavery, indentured servitude, prostitution and trafficking in women and children.24 In posing contract as the exemplary model of law, and in revealing the ‘tensions’ in contract doctrine resulting from the commercial appropriation of human dignity and freedom, Pashukanis and Williams ease the way towards the claim that the slave as chattel and therefore one of the principal ‘objects’ regulated by the early contract form – our exemplary protagonist – existed at the earliest stage in the development of modern law. Whilst Pashukanis’ conception of law emerging from the ‘commodity form of production’25 would not be an idea that attracts universal approval, most legal historians would account some form of contractual relation as the earliest expression of modern law. Although amongst English legal historians there is some dispute as to whether rules and principles governing all forms of moveable goods (chattels) were the earliest known to English law, or whether land laws marked the origin of the common law, the former view appears to hold sway. For instance, Jenks argues that moveable goods made possible private land and associated rights and that the legal recognition of ‘property in chattels’ arose with the much earlier ‘law of theft’.26 The early preoccupation of the law with moveable goods was, according to Jenks, readily explainable by the easy availability of land ‘in primitive times’ and the converse scarcity of resources able to work upon the land. This meant that a somewhat greater premium was placed upon ‘cattle, slaves, weapons, jewels’ and other ‘moveables’ than on any other commodity (emphasis added).27 ‘weapons and jewels’ as the subject matter of this earliest of the concepts and processes that, according to Friedman, comprise the law, what Jenks also observes is the beginnings of an early market system in which chattels or moveable goods were essential components. The importance of chattels to the functioning of this market as well as their relative scarcity was such as to call for some form of regulation over their sale and barter and over alternative means to which they were put to use. The early common law served as the necessary form of regulation and, in so regulating chattels, the early juridical order crucially established a ‘material world’ that could be utterly subjugated to the demands of this early market state and later to the various manifestations of capitalism. The idea of a material world subjugated to power and dominance in whatever form is, of course, crucial to contemporary theorising on oppressed groupings, though this is not the place to elaborate on the idea.28 What needs to be emphasised, however, is that this ‘material world’ is not, as its nomenclature might suggest, inhabited by non-human species only. It simply depicts a particular idea of materiality that appears to have emerged from the construction of the slave. Drawing from the history of early modern law, what was subjugated to the demands of the market was not merely material goods proper and animals, but the human slave (chattel) who appears to co-exist with the emergence of the law of chattels, and thus, arguably, with the doctrinal origins of modern law. The means through which this world of ‘political’ materiality has matured is a complex tale and one somewhat beyond the scope of this inquiry. However, it is clear that one method of constructing such a world is by enabling the control of material things and other living species, formal acquisition being one overriding measure of control: through law, the ownership or control over materiality, including human slaves, was facilitated. To be in a position to dispose of material and in general to use the material as a resource is a means of subordinating it to control by dominant force, and of establishing material in a subordinated relationship to such forces. This world of political materiality was significantly shaped, in the early stages of the law, through the law of chattels. What is significant for these purposes is that it was the law of chattels within which we see produced the first human protagonist – the first human subject made to labour towards the law’s concepts and definitions – specifically to labour towards a definition or understanding of the nature of chattels, and this fact, I argue, is crucial in identifying the first set of doctrines of modern law, and thus to point to the vital but repressed forms of life integral to the production of law.

And so too business innovation has become logistical and no longer strategic. Business innovation of course does not come from business. It is more often derived from military strategies of resistance to its own armies, transferred free to business. Once this consisted in transferring innovations like the line and the formation and the chain of command from military science to the factory and the office, or transferring psychological and propaganda warfare to human relations and marketing. These were free transfers of strategic innovation, requiring managers to instantiate and maintain them. No more. As everything from the internet to the shipping container testify, in keeping with cold wars and wars on terror that lead always to the failure of strategy, it is logistical free transfers that matter. Containerisation was failing as a business innovation until the American government used containers to try to supply its troops in South East Asia with enough weapons, booze, and drugs to keep them from killing their own officers, to keep a war going that could not be won strategically. Those who dreamt of the internet, if not those who built it, were precisely worried about the corruption of intelligence that the outbreak of democracy, as the Trilateral Commission thought of it, made possible in the 1970s. ARPANET as an intelligence gathering network could not have its head turned by sex or ideology, much less the powerful combination of the two. It would not be confused by the outbreak of democracy. And it assumed a never-ending accumulation of intelligence for a never-ending war that many would not want to fight. To Toni Negri’s challenge, show me a business innovation and I will show you a worker’s rebellion, we could add a pre-history the state fearing its own workforce. Containerisation itself stands for what should be called the first wave of regulatory innovation as logistics, which moves in tandem with the first wave of financialisation, the other response to these insurgencies by capitalism, aside from violent repression. Indeed logistics and financialisation worked together in both phases of innovation, with, roughly speaking, the first working on production across bodies, the second renovating the subject of production. Financialisation is per- haps the better known of the two strategies of resistance to rebellion, with a first phase selling off factories and state assets, and the second selling of homes and banks, only in both instances to rent them back on credit in a kind of global pawn-broking. This had the desired effect of reorganizing any subjects attached to such pawned objects into walking, talking credit reports, who contract their own financial contagion, as Randy Martin and Angela Mitropoulos suggest in different ways, eventually producing an entity hooked into financial affects in a way that make it more logistical object than strategic subject. But all the while logistics itself had no lasting interest in this financialised subject or its reorganization. Logistics was after a bigger prize, something that has always haunted it but became more palpable in the double wave that produced logistical populations when the container came to rule the waves, the roads, and the rails with information, affect, meaning shot through flesh as through other objects, again on a scale and in a form impossible to ignore. The prize seemed almost within reach. Of course this fantasy of what Marx called the automatic subject, this fantasy that capital could exist without labor, is nothing new but is continually explored at the nexus of finance capital, logistics and the terror of state-sponsored personhood which is instantiated in various pageants of conferral and withholding. It is marked today by the term human capital. Human capital would ap- pear to be a strategic category, involved as Michel Feher suggests, with a strategy of investment in and speculation on the self. But as Marina Vishmidt reminds us, the automatic subject of capital that human capital seeks to emulate, is a hollow subject, and a subject dedicated to hollowing itself precisely by expelling the negativity of labor, by exiling the one who, in being less and more than one, are his figure, his other, his double, the bearers of a generativity without reserve. Now, human capital is the automatic subject’s substitute, carrying out its engagement with the skills of daily financialisation and logistics, both of which act on it as if it were an impediment to movement and not a vehicle in motion. Human capital, in other words, departs from the strategic subject of neoliberalism, generalizing through self- infliction the departure that subject ritually imposes upon its exiled interiors and making of itself a porous object that still talks like a subject, as if in some burlesque enactment of philosophy’s dream of the ultimate reconciliation. It is for this reason that human capital can- not be strategized, or indeed managed, in any traditional sense, and therefore in turn we can see the hollowing out of the field of business strategy, including the decline of the MBA degree, and the rise of ‘leadership studies.’ Leadership studies weighs down the bookstore shelves and the business student today but leadership cannot manage. It is the evacuation of management by strategy in a desperate attempt to maintain control of private gain from a form of social production under capital that is becoming automatic and therefore not so much unmanageable as auto-managed. What is opened up here is a course in and for a general logistics. To read logistics is to read of the stated desire to be rid of what logistics calls ‘the controlling agent,’ to free the flow of goods from ‘human time’and ‘human error.’The greedy algorithm of the traveling salesman still requires strategic intervention because it cannot evolve as new problems emerge, unless one counts as evolution the capacity to destroy, or the incapacity that allows the self-destruction, of the contained. It cannot solve, for instance, the Canadian traveller problem, where roads disappear under snow pro-ducing new problems for the most efficient movement of the trucks. Here is where the evolutionary and genetic algorithms enter often in more Lamarckian than Darwinian clothing. But one thing is agreed. Strategy is now blocking the road as surely as snow blocks the road to Sudbury. For logistics, the subject of whatever, as Michael Hardt calls it, must yield to the object of whatever. Logistical populations will be created to do without thinking, to feel without emotion, to move without friction, to adapt without question, to translate with- out pause, to connect without interruption, or they will be dismantled and disabled as bodies in the same way they are assembled, by what Patricia Clough calls population racism. From here, logistics is master of all that it surveys.

If the worldwide infrastructures, and the systems built on top of them, facilitate legibility of outputs and processes, the labor within those systems becomes a highly tradable com-modity in a planetary system. And with a network linking together billions of people, most of whom live in low-­ and middle-­ income countries, we have a system of planetary competition. In a variety of ways, this book shows that the fact that capital and labor can operate out of and command different scales is a fundamental driver of exploitation. In his study of the offshore outsourcing industry, Jamie Peck (2017, 10) notes that the logic of cutting and suppressing costs is the “elemental rationale” of the practice. Busi- nesses can tap into workforces with ever-­ lower labor costs. At the same time, for almost all types of digital work, there are fewer digital jobs than there are workers able and willing to do them, creating an oversupply of labor that drives an international race to the bottom (Graham and Anwar 2019). Workers are naturally rooted to the places in which they live. “Labour power has to go home every night,” as David Harvey (1990, 19) famously notes. However, while workers stay rooted and embedded in their local contexts, the lead firms that buy their labor do not have to be—­ they can search for the cheapest and most accommodating labor markets and regimes in any location across the whole surface of the globe. Despite the intense competition arising between workers suddenly thrust into a planetary market, the chapters in this book show that there is no “global homogeneous work- force” that is alienated from the fruits of its labor in one, standard way. There are instead a range of factors, including racialized and gendered inequalities, that shape why par- ticular workers in particular places are attracted to and enrolled into planetary networks. In chapter 18, Payal Arora and Usha Raman examine how the gendered nature of global value chains complicates the struggle for fairer supply chains. They specifically focus on the potential of digital storytelling campaigns to leverage the creative power of worker collectives, arguing that “we need to ask who and what determines how women workers are represented and reproduced on the Internet, how communities are formed and sustained, and whether and what kinds of change are possible.” As they remind us, race, gender, cost, language, and culture all shape how people connect in the planetary market.

Sociohistorical context is crucial when examining globalization as a racial project. Taking such a perspective illuminates several factors, which can be viewed as contributing to the role of race in globalization. First, globalization arose alongside the neoliberal era in the 1970s. Globalization and its attendant neoliberal economic policies spread throughout the world largely under the hand of global economic institutions such as the International Monetary Fund and World Bank (Ritzer, 2010). These economic policies have brought demonstrably more wealth to countries considered to be part of the global North, while the global South has suffered from exploitation and marginalization (Bosworth, Bowling & Lee, 2008). This North-South divide is deeply connected to race, with the global North connected to wealth and whiteness, while the global South is linked to poverty and non-whiteness (Winant, 2004). This divide perpetuates a global system of stratification where race is correlated with health, income and educational outcomes. Second, globalization itself is grounded in a historical legacy of racism. Globalization centers whiteness as the pillars of the world in terms of economic, social and cultural power, and may be viewed as an outlet for the imposition of white supremacy (Karenga, 2003). A hierarchical global structure is created which prioritizes the worth and status of certain people over others. Globalization embodies this racism through its imposition. Historically this imposition is demonstrated by colonialism and imperialism, which is directly linked with racism (Winant, 2004). The imperialism of the past is continued today through globalization, albeit in a new and distinct manner. Winant (2004) notes of this change that: Rather than send their troops to dictate policy, break strikes, or enforce the superexploitation of labor, they [post-imperial powers] use financial instruments: the threat to withhold credit if strikes are not broken, or perhaps if education and public health budgets are not cut. Using intermediaries like the IMF, they control commerce, finance, labor practices and social policy. (p. 134) Today, the imposition of capitalism worldwide has meant that in order for countries to receive aid from global economic institutions, their economies must be structured in accordance with neoliberal ideology. It can then be seen how structural adjustment programs (SAPs) put in place globally increase economic inequality, erode social welfare and democracy, and overlook the unique needs of a country (Abouharb & Cingranelli, 2010; Babb, 2010; Glassman & Carmondy, 2010). It is through this coercive economic approach, justified by free market neoliberal ideology, that the process of “subduing ‘others’, tutoring them in the ‘higher values’ of advanced ‘civilization’, and also squeezing their resources and/or labour out of them” occurs in the global South and East (Winant, 2006, p. 992). In regard to the enduring effects of globalization, as long as capital is linked with race, so too will economic exploitation be linked to racial oppression (Leonardo, 2002). Finally, global racism is expressed through institutional arrangements (Karenga, 2003). This racism is then conveyed through ideologies that are globally transmitted and justify the acts of globalization. The role of global institutions in disseminating such ideology is closely aligned with neoliberalism and the American racial order. Indeed, discourse utilized by the World Bank showcases this through the promotion of American-centric free market economy ideologies, which are stated to support good race relations (Bonnett, 2006). The use of neoliberalism within such institutions allows for an easy incorporation of colorblind ideology, and both philosophies work to justify globalization. Harvey (2005) notes, “neoliberal rhetoric, with its foundational emphasis upon individual freedoms, has the power to split off libertarianism, identity politics, multiculturalism and eventually narcissistic consumerism from the social forces ranged in pursuit of social justice through the conquest of state power” (p. 41). The combination of colorblind ideology and neoliberalism within globalization acts as a powerful force to hide and justify globalization’s acts of racism, while also hindering anti-racist movement’s development.

The flipside of white innocence and disadvantage in affirmative action jurisprudence is Black guilt and advantage. Affirmative action jurisprudence implicitly articulates Black students as “guilty” of exploiting the unfair advantage affirmative action affords them, an advantage that produces “reverse discrimination” against whites.138 The perception of Black students as “unjustly enriched” by affirmative action rests not only on the view that Black students are beneficiaries of and advocates for a policy that is perceived to harm innocent whites, but also on the view that this beneficiary status is unearned: It derives from the failure on the part of those students to satisfy the presumptively race-neutral and otherwise legitimate merit criteria around which admissions processes are structured.139 Importantly, assumptions about white innocence and Black guilt are not peripheral notions in affirmative action cases.140 They are core normative ideas that have helped establish and sustain the strict scrutiny trigger—namely, that any time the government relies on race, even to advance racial justice, its decision is “suspect” and thus warrants “the most searching judicial inquiry.”141 As you will soon learn, concerns about white innocence and Black guilt are also central to the operation of the social regime of strict scrutiny. But that is getting ahead of ourselves. For now, we will continue to focus on the legal regime of strict scrutiny and turn our attention to “justification” and “fit.” To remind you, both “justification” and “fit” kick in once strict scrutiny is triggered. The “justification” inquiry turns on whether the government can articulate a “compelling” reason for its decision to rely on race.142 What goals does the government seek to accomplish? Constitutionally speaking, are those goals compelling?143 The “fit” inquiry turns on how the government seeks to advance those goals. Is there is a tight “fit” between the “means” and the “goals”? Asked more doctrinally, are the means the government employs to effectuate its goals “narrowly tailored”?144 C. Justification: The Compelling Interest Prong Perhaps the best case to illustrate how the Supreme Court assesses what passes muster under the compelling justification prong of strict scrutiny is Regents of the University of California v. Bakke.145 There, the Court had to decide whether the University of California Davis’s medical school’s affirmative action policy was constitutional. Justice Powell’s opinion in that case became the foundation for contemporary race and equal protection jurisprudence, including his analysis of what counts and does not count as a compelling state interest.146 The medical school advanced four justifications for its affirmative action policy that it viewed as “compelling”: combatting societal discrimination, facilitating the delivery of medical services to underserved communities, mitigating the underrepresentation in medical school of students from disadvantaged racial groups, and achieving the educational benefits of diversity.147 Justice Powell rejected the first three justifications and concluded that achieving diversity was the sole purpose for which a university could employ race as a factor in admissions decisions.148 Subsequent Supreme Court opinions have affirmed Justice Powell’s justification analysis.149 Thus, under current law, while diversity may serve as a compelling justification for affirmative action, combating societal discrimination may not. There is much that one might say about this doctrinal arrangement, including how it pushes “societal discrimination”—which Justice Powell described as an “amorphous” concept150—beyond the reach of equal protection doctrine. In Justice Powell’s opinion, Black inequality resulting from societal discrimination has no legal cognizability. Indeed, the opinion effectively constitutionalizes societal discrimination, rendering the existence of the phenomenon consistent with rather than anathema to the commands of equal protection. Instead of treating societal discrimination as a pressing racial reality that the government must remedy, Powell refashions it as an “amorphous” concept that the government must ignore.151 I will not, in this Article, elaborate on the preceding critique of Powell’s opinion, since I am pursuing that project elsewhere.152 For present purposes, it is enough to understand that: (a) any time the government relies on race for whatever reason it must satisfy the compelling state interest standard, and (b) the Court’s application of that standard significantly limits the terms on which the government can promote and defend progressive race conscious interventions. To put a finer point on the preceding two takeaways, whether governmental race consciousness takes the form of affirmative action, voting rights, voluntary integration efforts in K-12 schools, or employment antidiscrimination measures, the Court treats it as presumptively suspect and therefore presumptively unconstitutional.153 D. Fit: The Narrow Tailoring Prong Let’s now turn our attention to “fit.” To do so, we will assume that the government has a “compelling” reason to incorporate race into its decisionmaking. Would a court rule that the government’s decision to rely on race is thus constitutional? Not necessarily. Recall that under strict scrutiny, the government must satisfy the requirements of not only justification, but also fit. Accordingly, the government must demonstrate that the means by which it seeks to advance its “compelling” goals are “narrowly tailored.”154Once again, Bakke is a useful case for demonstrating how the Court employs this prong of strict scrutiny. In Bakke, Justice Powell concluded that the medical school’s affirmative action policy was not narrowly tailored because the school used quotas in its admissions policy. Justice Powell reasoned that quotas are not a “narrowly tailored” way to realize the university’s “compelling interest” in diversity.155 According to Justice Powell, in the context of affirmative action, “narrow tailoring” means treating race as one factor among many in deciding which students to admit.156 Reserving a specified number of seats for particular students on the basis of race violated this race-as-one-factor-among-many standard.157 Twenty-five years later, the Supreme Court would affirm Justice Powell’s strict scrutiny framework in a pair of cases: Grutter v. Bollinger, 158 which implicated the affirmative action plan of the University of Michigan’s law school; and Gratz v. Bollinger, 159 which implicated the affirmative action policy of the University of Michigan’s undergraduate program. With respect to justification, the Court concluded that the affirmative action policies in both Grutter and Gratz met the compelling state interest requirements of strict scrutiny because both polices were structured to advance diversity.160 The Court reached a different conclusion with respect to fit, ruling that whereas the plan in Grutter satisfied the fit requirement of narrow tailoring,161 the plan in Gratz did not.162 The Court reasoned that the Gratz policy failed to employ race as one factor among many in deciding which students to admit.163 Instead, it allocated a predetermined number of points to students on the basis of race.164 That approach, the Court reasoned, did not evidence a close fit between the goals of the affirmative action policy (diversity) and the means the university chose to realize those goals (a racialized point system).165 One way to redescribe what the Court is doing when it performs “narrow tailoring” analysis in the context of affirmative action jurisprudence is ascertaining whether the government is relying “too heavily” on race or, to put the point the way David Simson has, whether race is “too much” of a factor.166 While the Court has not quite said that colleges and universities must employ race only as a last resort to advance diversity—meaning that they should exhaust all formally race neutral approaches to achieving diversity before implementing race conscious affirmative action—it has grown increasingly concerned with how much of a factor race plays in affirmative action admissions.167 The Court has defended this concern as an effort to make race “irrelevant.”168 But it is more accurate to say that the Court’s “narrow tailoring” approach makes race relevant and useful—which is to say, fungible—in a particular kind of way: as a technology through which to elide or delegitimize social relations, or a group-based understanding, of racial power. Central to “narrow tailoring” is the individual, ostensibly unraced. Over and over again, the Court has insisted that it is the individual who matters, not his membership in a racial group.169 Indeed, as Justice Scalia argued, “we are just one race here. It is American.”170 This atomizing, colorblind approach to race—an approach that is not race neutral but deeply racially invested in ignoring or explicitly dismissing contemporary manifestations of racial injustice—helps to explain two core features of the Court’s “narrow tailoring” analysis: (1) why quotas do not satisfy the requirements of “narrow tailoring” (because they are a group-based form of racial remediation); and (2) why the race-as-one-factor-among-many approach does (because it limits the “means” by which the Court may use race as a remedial tool).171 As with my discussion of justification (the “compelling state interest” prong of strict scrutiny), there is far more one might say about fit (the “narrow tailoring” prong). But, here, too I have sidestepped broader critiques of “narrow tailoring” to focus your attention on the rough contours of the doctrine.