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Through the book we trace the legacy of pathologizing black corporeality in the United States, which singles out black bodies as a site of threat, danger, inferiority, criminality and excessive or aberrant sexuality. It seems to be the case that pathology is one of the concepts that accompanied the development of modern medicine and sociology, and as such is deeply imbedded in the modern discourse on health, race and society. Associated with newly discovered pathogens and denoting a serious disease or a medical condition, pathology was perceived at the beginning of the twentieth century as a thoroughly scientific notion, and came to replace the older terms “illness” in medicine and “social problem” in sociology. Indeed, the beginning of the previous century witnessed an unprecedented rise in the popularity of the term “pathology” in the US academy, in part due to a fascination within social sciences for the language of medicine. Pathology framed the discussion of sociological and racial problems in terms of medical eugenics, invoked “absolutistic connotations” (Sutherland 431, qtd. in Best 535) and saw any problem as a form of social disease (Best 534) that needed to be eradicated. However, after the Second World War the term was a subject to new scrutiny, this probably due to a great extent to its disturbing association with the radical Nazi remedy for what had been said to be social “racial” illnesses. In the American context, the harbinger of change and a marker of a period of transition was Edwin Lemert’s 1952 work Social Pathology (Best 533). As Best argues, even though the book’s title promised the study of social pathology, it in fact examined “social deviation”—the book’s purpose was indeed made clear in Lemert’s posthumously published essay (Best 534). The move away from the study of social pathology—a field well established in the late 1940s—toward the study of more ethically neutral “deviation” signaled an unavoidable shift away from thinking about social disorganization and other problems in medical terms that hence required far-reaching measures to cure such social diseases. Whereas the concept of pathology was approached with ambivalence in Lemert’s work, the verb “to pathologize” and its related nouns “pathologization” and “pathologizing” continued to circulate in academic idiom throughout the 1960s. Given their association with disease and aberration, on the one hand, and the aura of scientific authority, on the other, they have Introduction 3 become catchphrases to describe in a denigrating way those identified as constituting an alien presence in the fabric of the nation. As such, the terms have testified to the longevity of the tendency to turn “others” into a form of a social malady—a habit well entrenched in a racially divided US society. As Piotrowski argues, the ruling majority (“those in power”) decides, through the process of pathologization, what and who are socially acceptable and/or undesirable. The prevailing political, social and/or cultural authority of these actors gives legitimacy to their claims as to what can be considered social failures or wrongs, since “social pathology embraces social problems [… which] are perceived as detrimental and destructive to individuals, groups, or the entire society” (Piotrowski x, italics in original). Since “deviance is the invention of a group that uses its own standards as the ideal by which others are to be judged” (Ladner 75, italics in original), social pathology is an arbitrary concept, resting as it does on the values held and cherished by those who define reality. By contrast, those who are different are seen as lacking desirable qualities (that is, they do not share one’s own characteristics), and thus they are stigmatized by those who represent the established “norm.” As such, the process of pathologization is “normative” and reductive in nature. This assignment of “a mono-role or a uni-dimensional identity” through which people were regarded as “either deviant or normal” (Sawyer 362) served as a means of affirming the superior status of the planter class while legitimizing the need to monitor and punish their human chattel. Given that “white supremacy is rooted in pathological responses to difference” (hooks 27), the historical origins of the discourse of black pathology themselves go back to the times of slavery, when black bodies within the plantocracy were regarded as deficient and deviant,1 while white bodies were normalized. The legacy of this ideological position can still be seen in the twentieth and twenty-first centuries in the ongoing “conscious refusal of whites to accept blacks as equal human beings and their willful, systematic effort to deny blacks equal opportunity” (Gershman 33). As such, racial oppression draws on the process of pathologization, and indeed this is why, according to Clark, “the racial dehumanization Americans permit is a symptom of the deep-seated, systematic and most dangerous social disease of racism” (“The Role of Race,” qtd. in Wilson 10). Modern racial policy in the United States was founded on the widespread belief in black cultural pathology (White 27). Well into the 1940s, at a time when some sociologists, such as Lemert, were expressing their newly awakened ambivalence to the discourse of pathology, others were clinging to the concept. Gunnar Myrdal, for example, in voicing the opinions of many Americans, summarized the racial inferiority of African Americans with these words: “In practically all its divergences, American Negro culture is not something independent of general American culture. It is a distorted development, or a pathological condition, of the general American culture” (928, italics in original). Myrdal follows with a list of factors contributing to black social pathology: 4 Constante González Groba et al. The instability of the Negro family, the inadequacy of educational facilities for Negroes, the emotionalism in the Negro church, the insufficiency and unwholesomeness of Negro recreational activity, the plethora of Negro sociable organizations, the narrowness of interests of the average Negro, the provincialism of his political speculation, the high Negro crime rate, the cultivation of the arts to the neglect of other fields, superstition, personality difficulties, and other characteristic traits are mainly forms of social pathology which, for the most part, are created by the caste pressures. (928–29) Such a stance (captured in the title of Myrdal’s chapter “The Negro Community as a Pathological Form of an American Community”) was, paradoxically, seconded by leading black scholars such as E. Franklin Frazier and Kenneth Clark, and also by politicians (e.g., Daniel Patrick Moynihan), as late as the 1950s and 1960s. Referring to Franklin Frazier’s The Negro Family in the United States (1939), Ibram Kendi points out how, even though well intentioned, the book perpetuated the association of problems in black communities with a form of pathology. Frazier’s diagnosis of the ills in the African American community as being “caused by racial discrimination, poverty, cultural pathology, and the introduction of the matriarchal Black family during slavery” was, in Kendi’s eyes, deeply harmful to the cultural perception of the black man (Stamped 343). As Kendi argues, “Completely ‘stripped of his cultural heritage,’ the slave became a brute [… and thus] the slave’s emergence ‘as a human being was facilitated by his assimilation’ of his master’s culture” (Stamped 343). Frazier’s analysis of black pathology inspired Daniel Patrick Moynihan, who in his report The Negro Family: The Case for National Action (1965), written in his capacity as Assistant Secretary for Labor, saw “a tangle of pathology” in black poverty and gender imbalance in black families. Moynihan’s report, which influenced the rhetoric of President Lyndon Johnson’s commencement address delivered at Howard University, and which was later adopted by the “post-racial” narrative, identified family breakdown as a self-sabotaging factor in the black community. Rather than acknowledging the systemic forces that operated beyond the control of the black community (racism, segregation and discrimination), Moynihan believed that the vicious circle of alleged irresponsibility and a dependency on the welfare estate, as well as unhealthy gender relations in black families, posed a challenge to many black families themselves (Moynihan; Aja). On similar lines to Moynihan, Kenneth Clark, in his Dark Ghetto: Dilemmas of Social Power (1967), identified the pathology of black life in ghetto communities in female-headed, welfare-dependent households, with high rates of children born out of wedlock, unemployment, delinquency and crime. However, what sets Moynihan and Clark apart is the approach to the object of study: While Moynihan’s infamous report blamed the black community for its “self-perpetuating pathology”2 (“At this point, the Introduction 5 present tangle of pathology is capable of perpetuating itself without assistance from the white world”), Clark’s study is written from the perspective of somebody who is trying to understand the prevailing systemic injustice and offers suggestions for alleviating the situation of blacks in America. Assimilationists believed that one such way of breaking the circle of pathology was black integration, which, according to Ibram Kendi, “encourages Black adoption of White cultural traits and/or physical ideals” (Stamped 3). Prior to Clark, others had also believed in assimilation as the only choice for blacks; for instance, Gunnar Myrdal claimed that “it is to the advantage of American Negroes as individuals and as a group to become assimilated into American culture, to acquire the traits held in esteem by the dominant white Americans” (929, italics in original). However, there were others, like W.E.B. Du Bois, who encouraged scholars and African Americans in general to “regard the truth as more important than the defense of the white race” and that they should not “support a prejudice or buttress a lie” (647–48). Du Bois’s appeal to state the truth, which he had voiced as early as 1935, well illustrates the longevity of the process of pathologization. The lies about black lives that Du Bois mentions will later be referred to by Albert Murray as “fakelore of black pathology.”3 Murray explains that whites build their identity through “a folklore of white supremacy” which is contingent on fakelore, which involves inauthentic, manufactured and degrading assumptions about blacks.4 Echoing these assumptions, Joyce Ladner provides a counternarrative of black experiences in Tomorrow’s Tomorrow: The Black Woman (1971).5 Contrary to the majority of research into the black community, which deems African Americans responsible for the creation and perpetuation of alleged pathology (Ladner 76), Ladner reconceptualizes pathology and shifts the blame from individuals to systemic inequalities and institutional racism: “There has never been an admission that the Black community is a product of American social policy, not the cause of it – the structure of the American social system, through its practices of institutional racism, is designated to create the alleged ‘pathology’ of the community, to perpetuate ‘the social disorganization’ model of Black life” (77, italics in the original). Her research essentially (re)constructs black identity; thus, in praising black women’s adaptation skills, which allow them to survive,6 Ladner writes: they are able to exercise control over their futures, whereas writers have tended to view this low-income Black community as an all-pervasive force which is so devastating as to compel its powerless residents to succumb to its pressures. Their power to cope and adapt to a set of unhealthy conditions – not as stereotyped sick people but as normal ones – is a factor which few people seem to accept or even realize. (76)

INTELLECTUAL property (IP) and queer theory may seem like strange bedfellows. Queer theory typically is associated with questions of sexuality, gender norms, and the performative nature of identity, while IP is typically associated with control over markets and incentivizing large-scale, typically corporately owned, creativity and innovation. Queer theory prizes indeterminacy, contingency, and social construction, while IP emphasizes stability, predictability, and the steady march toward “progress.” Yet queer theory both holds useful explanatory power for many contemporary IP disputes and pushes IP scholars to even more deeply interrogate the cultures of creativity and innovation that lie within their jurisdictions. Although queer theory is often about sex, gender, and identity, its insights can be useful in questioning and critiquing ideology more broadly : What are the norms that structure our social order? How do those norms come to be experienced as natural? How can we reveal and dismantle these constructions? A queer theoretic lens on IP provides a framework for understanding the role of IP in the production of our shared cultural norms, and the role of our shared norms in the production of the ideas, texts, and technologies protected by IP. Although neither IP nor queer theory can be collapsed into monolithic ideologies or methodologies, both nonetheless are deeply concerned about the relationship between the tangible and the intangible. Our lived experience consists simultaneously of physical, massed things that we can see, hear, feel, touch, and taste as well as of concepts, ideas, philosophies, beliefs, and other abstractions. Queer theory and, increasingly, IP scholarship understand that the organization of these intangibles can shape the distribution of wealth, happiness, and political power in the physical world. Whose beliefs are recognized and revered, whose intellectual labor is commodifed and marketed, and whose conceptions of the good life are met with state backed punishment combine to shape the tangible, physical layout of our social environment. The regulation of the intangible aspects of culture moves certain physical bodies into certain geographic spaces and certain material objects into the hands of certain groups of people. And these material distributions in turn shape the production of ideas and culture.Both queer theory and contemporary IP scholarship operate against intellectual traditions that too often sever the realm of the normative from the realm of the material. By overlooking the co-constituting role of material conditions and cultural norms, dominant conceptions of identity, innovation, and authorship all overlook the possibility of realigning systems of power through cultural and ideological intervention. This chapter examines the fusion of the tangible and intangible in both IP and queer theory, and it emphasizes the interplay among bodies, communities, and culture. IP scholars traditionally divide into two main camps: (1) utilitarians, who emphasize that IP is justifiable (if at all) as an economic incentive to engage in creative/innovative pursuits, with an eye toward e􀁽ciency and increased social welfare; and (2) deontologists, who—drawing from Enlightenment philosophies— emphasize the inherent fairness of giving creators control over the fruits of their labor and free will. In recent years, each camp has accused the other of failing to suffciently ground their claims in empirical evidence and of unduly downplaying a range of other important values, such as free speech and distributive justice.3 Against this traditional backdrop, a growing body of recent IP scholarship has increasingly eschewed big, “top-down” explanatory theories that have dominated IP, and has grounded IP discussions in the needs and experiences of everyday individuals whose social, cultural, and economic interactions are shaped by the varying presence and absence of exclusive rights in intellectual goods. Although IP scholarship is almost never framed in terms of a queer orientation, and only occasionally and hesitantly in terms of broader postmodern theories, recent shifts in IP scholarship reveal some important linkages between queer approaches to subjectivity and power and IP’s increasing interest in social norms, dissent, and cultural transmission. The following sections will sketch out the potential for some queer turns in IP theory. One of queer theory’s main contributions has been to rethink the ways in which sexuality and gender are constituted as foundational human identity categories. Rather than think of sexual orientation or gender identity as, on one hand, the product of either innate genetic makeup or deep-seated psychological characteristics or, on the other, a conscious decision to engage in certain sexual activities, queer interventions largely cast aside the nature/nurture debate to show that identity and culture are mutually constituted. In this formulation, sex and gender are performative: they are produced through patterns of activity that become tightly associated with certain social labels. From the moment of birth, human bodies run through a gauntlet of social norms that call those bodies certain things (e.g., “she”), that allow them do certain things (e.g., wear dresses), while exposing them to a tiny sliver of humanity’s many di􀁼erent ways of living. Social categories often treated as universal and presocial, such as “woman” or “homosexual,” are instead the product of a particular historical, cultural, and political context. Although the body and the identities that attach to it may be experienced as existing prior to and independent of social environments— as universal truths projecting themselves into a particular public sphere—queer scholarship has recognized that social environment and subjectivity are inextricable from each other. Contemporary IP scholarship also grapples with an intellectual tradition that severs creativity and human expression from the social contexts in which they operate. Much IP theory has critiqued the romantic, classically liberal notion of creativity and authorship—that fully formed individuals act upon the world and make something new out of the raw materials they discover in a proverbial state of nature. In this view, creators may need the law to provide some legal assurances that their labor will not be appropriated without compensation or consent, but they don’t need anything else in order to engage in their craft—creativity is purely a “personal reaction of an individual upon nature.” IP scholars, even those expressly embracing moral rights theories, recognize the limits of such a romantic view of creativity. Creativity is an inherently social activity; what a creator does is tightly wound up in the domain of culturally available ideas, images, and texts, so any limits on the “raw material” of creativity (whether due to cost, law, or technology) will shape the possibilities of creative expression. Creativity does not exist without culture, and culture is never static, and accordingly IP scholarship now almost universally recognizes that creativity and culture build upon themselves, piecing themselves together as today’s creators build o􀁼 their peers and predecessors to produce tomorrow’s cultural landscape. Although such “postmodern” turns away from the liberal subject are often dismissed among legal theorists for being overly abstract and academic, both of the above scholarly shifts have been accompanied not just by theory and jargon, but also by a pronounced focus on the experiences of individuals actually living with norms of gender and sexuality (in queer theory) and creativity and copying (in IP theory). In the queer context, drag performances, locker rooms, late-night lesbian bars, S&M clubs, and many other venues have been investigated as sites where the traditional social correlations of bodies, desires, kinship, and temporality come apart and new ways of imagining their intersections come to the surface. In the IP context, scholars have studied an incredibly diverse range of creative communities: clowns, fashion designers, stand-up comedians, chefs, open source programmers, craft brewers, roller derby contestants, and (again!) drag queens. These studies eschew grand explanatory theories of creativity and undermine the notion that encouraging creativity can ever be reduced to economic incentives. Instead, what emerges from these studies is that creativity is shaped by the very particular norms of the social environment in which they operate. Social norms (e.g., against copying jokes) can supplement or substitute for formal IP laws in regulating innovation, or the sense of belonging (e.g., to an open source community) can incentivize creative activities without any promise of financial reward. One’s identity as a clown or chef or derby girl is contingent upon a sense of being part of a particular social group and the incorporation of such norms into the creative process. IP scholarship shows that creative identity is the product of complex cultural landscape marked by particular social expectations about how one should or shouldn’t behave. Just as “one is not born, but rather becomes, a woman,” IP scholars have shown that one is not born, but rather becomes, a clown, chef, or derby girl complex cultural landscape marked by particular social expectations about how one should or shouldn’t behave. Just as “one is not born, but rather becomes, a woman,” IP scholars have shown that one is not born, but rather becomes, a clown, chef, or derby girl. These scholarly insights can have important implications for regulatory responses in each field. For law and sexuality, queer insights emphasize that sexual justice is not just about prohibiting the state and private businesses from expressly discriminating against people who already identify as lesbian, gay, bisexual, or any other sexual orientation. Instead, sexual identity development requires actual, achievable opportunities for individuals to interact with others, experiment with desires, and embody the categories they may ultimately embrace. For IP, fostering creativity is not just about providing financial incentives to get people o􀁼 their sofas but about facilitating the communities in which creativity takes place. Actual creators often want recognition and belonging—which are generally dismissed by positive IP law—and need access to a robust domain of cultural resources—which IP laws often directly foreclose. The liberal self comes into the world with all the resources they need; the situated subject feeds o􀁼 the opportunities available to them.

If we take abstraction seriously as nonrepresentational, as a ren- dering that is nevertheless devoid of signifying content or context, how does it also operate as a practice of queering without reduc- ing or essentializing difference? Benning paradoxically approaches the specificities attributed to queerness and the particularities of a historical legacy through abstract aesthetics that would seem to render them invisible. Indeed, I take the destabilizing and obscur- ing effects of abstraction to be precisely generative for queer art practice. While direct representation would seem to assert and account for minoritarian bodies and lives left out of the picture, the politics of identification also functions to classify, categorize, and control through certain historical narratives and claims to objectivity. Abstraction, then, might productively refuse to render a subject legible. Operating as a catachresis, abstraction offers queer alternatives to representation and does so specifically through the wipe in Benning’s practice. Catachresis might describe both the abstracting and queering effects of the wipe as disruptions and exposures within processes of signification, simultaneously aesthetic, linguistic, and historical. Remobilized in queer and postcolonial theory, catachresis refers to an excessive use of language, a term intentionally misapplied or perverted in order to offer a different and potentially transforma- tive description of life’s positions and conditions. Thus, catachresis offers alternative approaches to personal and historical narrative. Along these lines, David Eng has defined “historical catachresis” as a problematics of naming that works to dislodge a reified ver- sion of history by denying the possibility of any singular histori- cal context.23 This opens up a space for difference and multiplicity within the inherent slippages in language and history, where every naming is also exposed as a misnaming and history is shown to be lacking and limited despite its ideals of presence and progress. The transitional space of the wipe, temporally stalled in Benning’s paintings, serves as a sliding fault line along which these disconti- nuities are both revealed and shifted. Catachresis, then, might also refer to the strained use of an existing formal language of abstraction that shows it to be already arbitrary or brings out its perversely ambiguous features. Its own catachrestic operation, abstraction constitutes matter without ref- erence, suggesting a version of catachresis that is visible but can- not be fully grasped. Benning’s abstraction operates as a queering catachrestic displacement, gesturing to specificities without direct identification. Yet reciting and altering the gestural strategies of white male modernist masters, Benning’s work both signifies and dislocates identity. As a radical disruption within the process of naming, queering paradoxically insists on specificity while trou- bling the defining and definitive regimes of normativity. Even as forms of historical and political naming also function as shaming mechanisms—and it would seem intuitive to avoid those forms of naming now—Benning’s work puts pressure on this difficult speci- ficity through aesthetic and linguistic excess.

[Lee Edelman, prof of english at tufts university, December 5, 2022, “Bad Education Why Queer Theory Teaches Us Nothing”, Ch. 2, Duke University Press]//owen

For Derrida, of course, who famously declared, “Il n’y a pas de hors texte” (There is no outside of the text), the text, like the grammatological order, includes all its possible interpretations and all its possible disruptions, inviting, in the words of Rodolphe Gasché, “productive readings, readings that not only weave new interpretative threads into it but compose so many rewritings of it.”84 It constitutes an archive like Noah’s ark, bearing every potentiality and encompassing all that is yet to come. From Lacan’s perspective, however, there is always something “outside” the Symbolic, pressuring it from beyond the order of sense. We aim to relieve that pressure by naming it, ensnaring it in words intended to make it signify despite itself, reclaiming das Ding for the order of meaning from which “it was the first thing that separated itself ” when “the subject began to name and articulate.”85 Small wonder, then, that those names include the “incest” against which Hamlet rails, the “bin Ladenism” Derrida decries, and rubrics like “woman,” “Black,” or “queer” and all their innumerable companions, each with its distinct historical weight in the reality of human lives, but each effectively sublimating the Real by affirming that collective reality. 86 Without denying those historical differences, without scanting their toll on the persons who confront them or suggesting that any subject could, as subject, escape their reality, we can say, nonetheless, that such sublimations strip the Thing of “its absence, its strangeness,” and, in consequence, of its queerness. Bad education, by contrast, acknowledges the impossibility of realizing queerness (as opposed to figurally embodying it), and it engages the question Saidiya Hartman poses with trenchant precision after identifying those enslaved as occupying “the position of the unthought”: “What does it mean to try to bring that position into view without making it a locus of positive value, or without trying to fill in the void?”87 This framing cuts to the heart of the problem by exposing our persistent belief that even the unthought must have a “position” and that our relation to whatever the unthought “is,” to whatever refuses the “positive value” acquired through sublimation, must still conduce to “meaning.” If Hartman, for all the brilliance with which she analyzes the problem, finds herself, nonetheless, bound to its terms, that is only because those terms allow neither her nor us any choice. They write themselves on the book of our brain so we think we can think the “unthought” as merely historically contingent, the not yet thought, rather than as what remains—like the nothing, the zero, the void—unthinkable. With the specter’s commandment “Remember me,” we forget the forgetting it induces: not only of the prior records it thereby prompts us to “wipe away” but also of the Thing no record or commandment could possibly contain, the Thing not accessible through any commandment or legible in any book—not even the one called Hamlet. But as modern literature’s specimen text, Hamlet is required reading, in part, for promoting reading’s capacity to assign a place to everything, including the queerness of the “wondrous strange” (1.5.166), in a Symbolic whose hospitality can “as a stranger give it welcome” (1.5.167). Through its profligate wordplay and its speculations on the meaningfulness of words, it enthralls us with the Symbolic’s order that everything “be or not be in a particular place”: the order of differential articulation, of or, whose logic sublimates, by narrativizing, the incest it makes unthinkable. Enshrining with its mandate to memory the pedagogical principle par excellence (the transmission of wisdom or techné in the service of survival), Hamlet, by its ceaseless performance of and incitement to interpretation, stokes the fantasy of mastery implicit in reading’s anticipation of meaning—a mastery, of the text and oneself alike, inseparable from aesthetic education. What could it mean to forgo the meaningfulness of pedagogical sublimation, to take seriously teaching’s status as an impossible profession and the teacher’s relation to the student as promoting—rather than cultural survival, the commandment to remember, or archival consignation—a radical queerness, a Socratic corruption, whose assault on meaning, understanding, and value would take from them more than it gives and leave them not with Hamlet’s name, but only with “O, O, O, O”? “What is someone who has been psychoanalyzed?” asks Jean Allouch, a French psychoanalyst, in his reading of Archive Fever. And he answers without hesitation: “He is . . . someone who no longer has a future.”88 We might say, therefore, that he is someone who faces the empty page of “freedom”— freedom, first and foremost, from the illusion of “being” himself—by confronting the drive to create ex nihilo, by renouncing the guarantee of meaning, and by refusing the endless returns of the father as the archive of what is to come. Hamlet has much to teach about investing in survival through a commandment’s transmission (though the play, while exposing that investment’s cost, redoubles it by transmitting that teaching), and it may, in a given system of values, teach us to be better readers, better students—perhaps better people too, depending on how one views “the good.” But what Hamlet does not and cannot teach, and what we can never know, is how to escape the framework of meaning that its teaching reinforces; how to decline the archival commandment that sublimates the nothing it also preserves; how to allow for not saying “yes” to the father’s imperative of life; how to let the future be by being what lets the future.89 We search in vain for a teaching that could make the nothing that undoes what “is” appear “without trying to fill in the void,” without assigning it a “position” in which its unthinkability would “mean.” To succeed in such a teaching would be, as Wilderson argues, “to destroy the world,” and to do so, as it were, for Real. But that’s what a bad education, an education in queerness or Blackness, must do: endeavor, against all hope, to teach us nothing

Intellectual property citizenship is more than a description of the ties between intellectual property and citizenship discourse: it is a grid of intelligibility that reveals how the American racial episteme operates by and through the ideals of citizenship around which copyright, patent, and trademark law are imagined. For Foucault, a grid of intelligibility is a schema that helps to make sense of social orders.23 In this context, intellectual property citizenship is a grid of intelligibility that aids in understanding how intellectual property and citizenship discourse coalesce to protect whiteness in copyright, patent, and trademark spaces. Thinking about citizenship as an ordering discursive formation through which intellectual property law is constructed reveals that race continues to be not just a superficial issue that determines the outcome of legal cases but an a priori racial ordering of the structures of knowledge production. I argue that the outcome of individual legal cases involving creators of color is less important than how doctrinal standards were forged through epistemically raced conceptions of citizenship. The coalescence of intellectual property and citizenship produced doctrinal language that continues to systematically privilege whiteness even today. More specifically, America’s racial episteme is “the strategic apparatus which permits separating out from among the statements which are possible those that will be acceptable within.”24 Understanding citizenship as a “strategic rhetoric of whiteness,” 25 in the words of Thomas Nakayama and Robert Krizek, transforms the object of study from the racial outcome in individual cases to the racial 8 Introduction logics of doctrine itself. Though the race of the plaintiffs and defendants in intellectual property cases is helpful in locating moments of racial crisis, it is not dispositive in thinking about how race works in those moments. The concept of intellectual property citizenship, as I have intimated through the binary of the good citizen/bad citizen, presupposes an actor, i.e., the intellectual property citizen. The remainder of the book contemplates how American public culture tends to imagine and implicitly invoke idealized intellectual property citizens as actors in narratives about the nation and its well-being. The good intellectual property citizen is shaped by invisible Euro-American norms of white masculinity and constructed in contrast to the bad intellectual property citizen. Familiar binaries of self/ Other and good/evil transform intellectual property rhetoric into a tool for reinforcing structural inequality domestically and internationally.

The codified racial discrimination that made intellectual property law the purview of whites in the 1800s did not disappear. It persisted through the continuing racialized entanglements of the principles of Euro-American citizenship with the principles of Euro-American creatorship. Because conceptions of Americanness were and are structured through a trenchant “racial episteme,”4 a frame that a priori constrains possibilities for treating people of color as full persons, let alone full creators, the discourse of citizenship operates as a container for importing race into intellectual property law, even when the law itself purports to be colorblind. The continuing practice of thinking about copyright, patent, and trademark law through romanticized imaginings of American citizenship constrains the manner in which knowledge production/protection can be understood, managed, and adjudicated with respect to race. I do not claim that such racial investments explain the outcome in all intellectual property cases. However, I contend that intellectual property law is organized through a racial episteme that consistently protects the (intellectual) property interests of white people and devalues the (intellectual) property interests of people of color. Tracing “racial scripts” is a tangible method for understanding America’s racial episteme and how it informs citizenship and creatorship/infringement as discursive formations. Racial scripts are historically grounded and flexible racist logics about racial groups that can be accessed at any time to exclude the original or other people of color.5 They operate as shorthand mechanisms for calling upon dominant American ideals of national identity, patriotism, political economy, and personhood without necessarily explicitly invoking racial categories or colonial logics. In this way, racial scripts can be baked into the seemingly colorblind ideals of American citizenship that, in turn, inform intellectual property law. Examining how intellectual property law operates as a space of racial formation in which the meaning of racial categories evolves over time is a prerequisite to undoing entrenched white privilege and democratizing knowledge production and ownership.6 Intellectual property law is also a “racial project,”7 that reproduces particular racial orders, in which people of color are coded as lacking the capacity to create. Unspoken longings, fears, anxieties, and prejudices wrapped in economic and legal language move us to prefer certain intellectual property 4 Introduction narratives over others, predictably to the detriment of people of color. When anti-racist, anti-colonial activists grapple with the racial episteme that structures intellectual property law, they can advocate for strategies that resist the underlying drivers of unjust copyright, patent, and trademark policies. While such resistive strategies may ultimately still provide only precarious and fleeting relief, as Derrick Bell famously argues, they confront the fears and anxieties that sustain racial and colonial knowledge hierarchies.8 This book contributes to a growing body of scholarship at the intersections of race and intellectual property law through its historically situated consideration of the links among race, coloniality, and knowledge governance.9 It traces evolutions in the racial rhetorics around copyrights, patents, and trademarks that unfolded in parallel with the economic and political turns of the nation. Such an inquiry is useful in contextualizing the increasingly important legal regimes governing knowledge that mark some bodies as not only inherently incapable of creatorship but also inherently undeserving of citizenship. As the racial rhetorics of intellectual property law have changed over time, in ways that are consistent with post– civil rights era colorblindness, they have come to exclude people of color in new and different ways. Accordingly, addressing intellectual property law’s structural inequalities requires thinking about how these racial evolutions persist in a nation that claims to value all people equally. When marginalized groups are considered to be “aberrations from the ethnoclass of Man”10 contra a white ideal, as Alexander Weheliye writes, they cannot fully occupy the space of creatorship or (intellectual) property ownership until the nation attends to the contours of inequality and exclusion. While Weheliye is commenting on anti-Blackness, his statement is true for all those people of color who are considered outside of the ethnoclass of Man. In the so-called information economy, intellectual property justice is racial justice. Working through key moments in intellectual property history in the period between 1790 and 2016 reveals that even as American understandings of creatorship/infringement have seemingly evolved, they have actually remained remarkably racially conservative and consistent over time. This book will not provide an exhaustive account of race, coloniality, and intellectual property law during that period. Such a project is neither possible nor desirable. Instead, it focuses on reading some of the most important and notable historical touchstones in copyright, patent, and trademark Creating Intellectual Property, Creating Americans 5 law as examples of the continuity of racial scripts and colonial relations of domination in the context of knowledge production

IP vocabulary: lastly, examining the vocabulary used in IP legislation, scholarship, and caselaw is helpful because terminology and textual narratives exert a great deal of power in entrenching epistemologies.207 Language is heavily involved in the construction of sexual identities and desire, and queer theory “takes very seriously the significance of words and the power of language.”208 Gendered nouns and pronouns and gendered speech styles are perhaps the more obvious examples of the normative association of language with sex and gender identities, yet discursive language and the use of stereotypically male or female genderlectal descriptions construct certain words and definitions as binary objects-subjects, male-female, hetero-homo.209 A notable example in IP is the use of the word “protection” to describe IP rights or the action of asserting IP rights. The word “protection,” as indicating what IP rights do or what they are about, is widely used in domestic American law and in international IP treaties and agreements. For example, the Berne Convention for the Protection of Literary and Artistic Works indicates from the outset that it is meant to protect works;210 the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) opens by stating that the agreement was established to “tak[e] into account the need to promote effective and adequate protection of intellectual property rights”;211 U.S. patent, copyright, and trademark laws all widely use “protection” to describe the action of IP rights, as do numerous court cases and academic texts.212 Scholars have long noted that the edifice of protector-protected is based on a masculine-feminine, object-subject divide.213 “The active roles of both protector and threat are masculinized—[control] and power being the foundations of masculinity.”214 Similarly, using “protection” introduces into IP vocabulary the themes of dominance and control. From a queer perspective, this can be seen as an ideological formation creating a linguistic construction of object-subject divides.215 Furthermore, a queer analysis would ask just what the “danger” is against which “protection” is needed. Is it, as common accounts would suggest, a competitor taking unfair advantage of others’ labor, or, rather, does the law provide “protection” to the masters of popular characters against alternative voices? After all, is Alice Randall, the author of The Wind Done Gone (an alternative account narrating the story of Gone with the Wind through the eyes of one of Scarlett O’Hara’s slaves) free-riding on the labor of Margaret Mitchell (the author of Gone with the Wind), or is Margaret Mitchell’s estate attempting to use copyright law to silence marginalized voices and control historical narratives?216 A queer analysis might even go further and suggest that in fact the intellectual works themselves might need “protection” against the rightowners. A copyright holder who controls reproduction or commentary may be damaging the work in significant ways—for example, by making the work inaccessible or out of commerce or limiting its social and cultural importance.217 The Disney corporation, for instance, may have a strong economic incentive to “protect” Mickey Mouse against sexualization in Air Pirates, but by doing so the corporation may be diminishing the character’s importance in American culture. There are fair uses, of course, but that is beside the point: the language used signifies the elemental values at the basis of IP law, providing right-holders with the edifice of “protector” when in many cases they may very well be anything but. Other examples of how IP vocabulary denotes a certain social order include “piracy” to describe the act of making copyright works available without permission, “trafficking” to describe the act of providing devices

IP’s rules and doctrines, its categorizations, and its vocabulary create a certain legal order that generates a social and cultural order. That is, far beyond the immediate domain of producing and consuming cultural goods, IP produces social and cultural hierarchies.144 A queer analysis of IP seeks to expose how IP doctrine and vocabulary manufacture a heteronormative cultural hierarchy. Accordingly, this Part evaluates from a queer-theoretical perspective the idea-expression, proprietary-public domain, economic-moral rights, and copyrightable-non-copyrightable subject matter divides, as well as IP’s “protection” of IP rights terminology. This Part starts with a brief overview of each of these doctrines and introduces some of the current critical appraisals thereof. It then proceeds to a queer reading of each of these doctrines, exploring how these doctrines entrench certain (heteronormative) ontologies of identity in popular culture, resulting in a cultural and social hierarchy.145 The idea-expression dichotomy: The idea-expression dichotomy is a long-established principle in copyright. It limits the scope of copyright to expressions or manifestations of an idea, but not to the idea itself. While an author may enjoy exclusivity and control in their work, they cannot control the ideas abstracted from the work.146 This creates a legal divide: expressions may be subject to copyright, while ideas belong in the public domain. So, for example, while an author of a book providing gardening advice holds the exclusive rights to print or publish their book, any person may freely practice the information that the book describes or illustrates, and any person may write a (different) book providing gardening advice.147 The rationale for the uncopyrightability of ideas is said to be twofold: First, ideas are intangible and as such cannot be the basis of a property interest; for an idea to be capable of attracting proprietary privilege, it must be capable of being identified. This reasoning is reflected in multiple court decisions, as well as in the legislative hearings for the Copyright Act of 1909, which state that “there can be no property in thoughts, conceptions, ideas, sentiments, etc., apart from their association, is clear, for they are then incapable of being identified or owned exclusively.”148 Second, an idea-expression divide is said to reflect the balancing of society’s interest in the free flow of information with authors’ property interests.149 Excluding expressions but not ideas is said to adequately incentivize authors to create and disseminate their works while leaving the building blocks of communication, culture, innovation, and expression free from monopolization.150 Various IP scholars have pointed to several problems with the idea expression divide, noting, for example, the following observations: that it is amorphous and creates a chilling effect on expressions that may be constitutionally protected by the First Amendment,151 that it fails to ensure that ideas freely circulate in the marketplace,152 that in reality there are no “expressionless ideas” and no “idealess expressions,”153 or that such a distinction inherently invokes value judgments on the part of judges adjudicating copyright infringement cases.154 Yet the idea-expression divide remains the “first axiom of copyright.”155 The proprietary-public domain distinction: IP laws distinguish between creative works and inventions that enjoy IP rights and those that do not. The latter are said to belong in the public domain.156 Like the term “property,” the term “public domain” is protean. There is, as Edward Lee notes, “a firestorm of debate about the public domain in intellectual property law.”157 Legal scholarship describes the public domain in various ways, suggesting it is comprised of the residual leftovers after property rights have taken their share or expired,158 the “outside” of IP,159 a measure to correct market failure,160 a restraint on government power,161 a means and the end “to promote the progress of science,”162 or a “home” where people can find inspiration and muse.163 Regardless of exact definition, the central notion common to most definitions of the public domain is that it is free and accessible to all.164 A rich and robust public domain, the argument goes, is key to continued economic growth and social welfare.165 Several IP scholars, however, have noted that the description of the public domain as a resource that is free and accessible to all is a romantic conviction that may be far from reality. Anupam Chander and Madhavi Sunder, for example, argue that some groups—often those from powerful social and economic classes—are better positioned to exploit and enjoy the resources in the public domain.166 These scholars contend that the binary rhetoric of proprietary ownership versus the public domain creates an illusion according to which the public domain is egalitarian, free, and open to all.167 Yet this binary masks the ways in which the public domain often works in the interests of traditional property owners to disadvantage and subordinate disempowered groups, impairs efforts of disempowered groups to assert agency and personhood, and may even reduce them to “mere objects, or someone else’s property.”168 Similarly, Ruth Okediji shows that resistance to granting rights in Indigenous peoples’ knowledge is many times justified, at least partly, by reference to safeguarding the public domain.169 A queer analysis would suggest that private-public and property common distinctions produce notions of cultural citizenship centered on a heteronormative status quo. Recognizing Western and “masculine” creative expressions as the types of works that attract proprietary rights and value and placing Indigenous and “feminine” creative expressions, such as traditional knowledge or cooking recipes, in the public domain, IP law constitutes the feminine and non-Western as “abject beings” who form the constitutive outside.170 In other words, certain types of creative expression, such as Indigenous and “feminine” creativity, become categorically public, indicting these communities and individual members thereof as cultural outsiders. Equally, both sides of the private-public divide reinforce notions of heteronormative domination over queer cultural expressions. Rebecca Tushnet notes that patriarchy makes fair game of women in the public sphere and keeps them under control in the private sphere.171 The same could be said of queer bodies and queer creativity: they are, at the same time, fair game in the public sphere and kept under control in the private sphere. Queers’ and LGBT+ people’s attempts to express their sexuality, circumstances, desires, and fetishes are often regarded as “shameful and inappropriate contamination of the public with what should be kept secret.”172 Furthermore, the private-public divide is a constitutive feature of the closet.173 The closet structures queer sexuality and identity in relation to binaries of secrecy and disclosure and of private and public.174 The closet structures queer lives in a way that limits the publicity of queer voices while allowing the heteronormative majority to benefit from queer creators’ creative labor.

[Lee Edelman, prof of english at tufts university, December 5, 2022, “Bad Education

Why Queer Theory Teaches Us Nothing”, Duke University Press]//owen

[Lee Edelman, prof of english at tufts university, December 5, 2022, “Bad Education

Why Queer Theory Teaches Us Nothing”, Ch. 3, Duke University Press]//owen

[Lee Edelman, prof of english at tufts university, December 5, 2022, “Bad Education

Why Queer Theory Teaches Us Nothing”, Ch. 1, Duke University Press]//owen

All human communication requires interpretation (Habermas, 1985). A person initiating a linguistic exchange uses mechanical processes, mainly sounds or movements, in an attempt to convey a particular message, with a certain imagined meaning. Yet, they have no control over how the audience makes meaning of the message. Individuals on the other side of a communicative relationship receive sensory stimuli that their brain makes sense of through language, which, as a symbolic representation of the world, may hide as much as it reveals to the interpreter. Moreover, both parties have their own socially and psychologically constructed desires, investments, and motives, which may or not be apparent to one another, or even to themselves. The same applies to academic research and those who engage in its discursive construction. As a venue for human communication, all educational research is interpretive. Researchers endeavor to convey the meaning they make of surveys, interviews, and bodies of research literature. They also engage in conflicts over interpretation through their studies of social and education phenomena, conflicts that drive subsequent research paradigms along with the politics of research funding and publishing. Tensions over the racial meaning of things are ever-present in the production of educational research, which takes place in academic institutions that are organizationally divided not just along racial identity lines but moreover into ideological camps that wage interpretive battles over race. For those in the educational research community, none of this is breaking news. Rather, it is the stuff of normal, everyday talk in the hallways and offices of the academy. Thus, it is quite perplexing that educational researchers, who are clearly self-aware that they are immersed in daily struggles over racial interpretation, do not place central importance on hermeneutics, which is the study of the theories and methodologies of interpretation (Morrow 8c Brown, 1994), in debates about research methodology. Broadly, hermeneutical scholars seek to reveal the presuppositions that guide interpretive processes (Gallagher, 1992). Importantly, the field of hermeneutics, particularly in more critical approaches, instructs us that interpreters are typically not conscious of their hermeneutical presuppositions (Habermas, 1989), meaning that many tend to see interpretation as little more than “common sense” or “differences of opinion.” Why is the avoidance of hermeneutics so pervasive, even among those who might benefit from a critical study of it, such as those doing work in critical studies of race? What are the consequences of avoiding the study of hermeneutics in educational research, particularly as it relates to racial power? Who benefits from the avoidance of a critical approach to the interpretation of race in a white supremacist social system? Is this part of a white supremacist academic desire to constrain racial interpretations for fear that a focus on a critical version of a racial hermeneutics might let the proverbial “cat out of the bag” in the production of educational research? This chapter traces the intellectual lineage of hermeneutics, offers critical race hermeneutics (CRH) as theory and methodology, and applies CRH to education in ways that pedagogically models how researchers can engage in educational research anew. Background: hermeneutics and education Generally speaking, the present-absence of the field of hermeneutics in educational research, a situation where hermeneutics is implicitly practiced by everyone but explicitly addressed by almost no one, is concerning since the field studies schooling, an institution predicated, consciously or not, on hermeneutical theories and activities. In other words, hermeneutics in educational research is out of sight, and out of mind, whether the research focuses on race or not. Shaun Gallaghers (1992) Hermeneutics and Education is one of the few book-length theoretical studies of hermeneutics in educational theory and practice. As Gallagher argues, schooling is fundamentally hermeneutical (see also Leonardo, 2003). The everyday activities of schooling are largely based on learning to interpret texts discursively, which can include making meaning of written passages, mathematical equations, historical narratives, classroom dialogues, or everyday social interactions. Teachers act in ways to guide, or even control, how students learn not only to interpret texts but also what counts as “proper” meanings and “correct” interpretive approaches. Although race and structural white supremacy are not Gallaghers focus, it is easy to see how educational control over interpretation is chained to white racial power. From a critical lens, domination necessarily employs a hermeneutical imposition that regulates the interpretive process, ensuring that meanings that support the interests of the dominant group are legitimated over others (Leonardo, 2003; Leonardo & Allen, 2008; Roseboro, 2008). Gallagher’s discussion of the politics of hermeneutics in the classroom is instructive, even if constrained by an inattention to structural white supremacy. For example, Gallagher argues that conservative and moderate hermeneutics are the two most common approaches used in schools. In conservative hermeneutics, the educator teaches that the meaning-making process should be focused on “accurately” arriving at the “original intent” of the author, thus ascertaining the correct or commonly accepted interpretation (e.g., the intent of the “Founding Fathers” when interpreting the U.S. Constitution through an ideology of whiteness). Conservative hermeneutics often works to persuade students to think of authors’ alleged intentions as the (racialized) “natural order of things,” thus it often supports long-standing rationalizations of social inequalities as just (e.g., rationalizing racial hierarchies). Or, educators very often employ a moderate hermeneutics rooted in a phenomenological approach that emphasizes the relative nature of interpretation. In this mode, students are taught that interpretation is perspectival, that people have different cultures and experiences that shape how they understand texts, and that the goal of interpretation is to come to a consensus understanding, or a “fusing of horizons,” for making sense of and, moreover, evaluating current social interactions and group relations. However, Gallagher fails to problematize how conservative and moderate hermeneutics operate dialectically as the interpretive norm in schools, both working together hegemonically to exclude and occlude critical approaches to hermeneutics in the curriculum. In addition to an inattention to white supremacy, Gallagher problematically supports a moderate hermeneutical approach, one that leaves students without a sophisticated interpretation of how oppressive social structures, such as white supremacy, work through the nexus of discourse, ideology, and the unconscious in classroom and social dialogues. In fact, seemingly “open” dialogues rooted in moderate hermeneutics often become sites of further repression and injury due to an intentional pursuit of “consensus” (i.e., social stability due to alleged “slow-but-steady progress”) over the more revolutionary desire to profoundly interrogate the racial ideologies that constitute racial hierarchies, whether the dominant consent or not (see Leonardo & Porter, 2010). K-12 schools are not the only ones engaged in hermeneutical politics; so are the colleges of education that research them. In the post-Civil Rights Era, students and faculty of color have challenged research interpretations mired in an ideology of whiteness, thus increasing hermeneutical conflicts over racial meaning in the ivory tower (Collins, 1998). Sometimes those caught up in interpretations driven by structural white supremacy attempt to negate those making critical racial interpretations. Other times, those who are uncomfortable with critical racial interpretations become passive aggressive by becoming an “enforcer” of the normative rules of research methodology. For example, rather than more directly discussing their disagreement with the researchers critical racial interpretations, they instead resort to pedantic attempts to discredit the work by questioning the implementation of methods, such as sample sizes, search schemes for literature reviews, interview protocol questions, etc. (see Matias, 2019). While a critical race researcher’s work could benefit at times from improved process details, the enforcer’s intense preoccupation with methods is not proportionally in step with the overall level of the detail’s importance relative to other crucial aspects of the work, such as the racial insights that are made. Also, a critical race scholar may be told by a qualitative researcher, for example, that their critical race analyses are an “imposition on the data,” and thus on their participants, and not consistent with the subjectivist orientation of qualitative methodology. In this scenario, the rhetorical move of invoking the norms of methodology is an act that conceals the deeper problem around theories of interpretation and the important role they play in maintaining white supremacy through methodological silencing. Armed with a critical race approach to hermeneutics in educational research, critical race scholars would be more empowered to engage directly and meaningfully in methodological conflicts that are fundamentally hermeneutical. Moreover, much work is needed to develop a critical hermeneutical approach to race studies. The established field of critical hermeneutics provides many insights upon which to draw (Leonardo, 2004). Critical hermeneutics developed out of the larger field of critical theory, an insightful paradigm that developed in the 1930s (mainly to understand the rise of Nazism) that synthesizes Marx’s approach to social structures, Freuds notion of the unconscious, and Webers insights into the rationalization of status hierarchies (Jay, 1996). Critical hermeneutics seeks to intervene by exposing the problematic historical (and geographical) imaginaries often deployed to mystify interpretation (Thompson, 1981). However, it suffers from an inattention to structural white supremacy (see Allen, 2001; Leonardo, 2013; Mills, 1997). Conversely, while critical race theory clearly makes structural white supremacy its focus, it has not paid explicit attention to the field of hermeneutics, even though CRT often works implicitly to systematically reinterpret the word and the world through processes similar to critical hermeneutics. So, in this chapter I introduce critical race hermeneutics (CRH), which uses critical race theory (CRT) to revise the best aspects of critical hermeneutics, creating a methodology for the theoretical study of race and white supremacy in education. In short, CRH is a study of how communication is distorted by a white supremacist social structure, turning discursive exchanges into everyday forms of racialized material, psychic, and symbolic violence. It seeks to show how language and communication is a site of conflict and domination, a place where white supremacy not only operates ideologically but also where the structure of white supremacy is, itself, reproduced. CRH works to interpret, more so, reveal the unconscious of the objective reality of white supremacy in subjective forms.

[Lee Edelman, prof of english at tufts university, December 5, 2022, “Bad Education Why Queer Theory Teaches Us Nothing”, Ch. 2, Duke University Press]//owen

For Derrida, of course, who famously declared, “Il n’y a pas de hors texte” (There is no outside of the text), the text, like the grammatological order, includes all its possible interpretations and all its possible disruptions, inviting, in the words of Rodolphe Gasché, “productive readings, readings that not only weave new interpretative threads into it but compose so many rewritings of it.”84 It constitutes an archive like Noah’s ark, bearing every potentiality and encompassing all that is yet to come. From Lacan’s perspective, however, there is always something “outside” the Symbolic, pressuring it from beyond the order of sense. We aim to relieve that pressure by naming it, ensnaring it in words intended to make it signify despite itself, reclaiming das Ding for the order of meaning from which “it was the first thing that separated itself ” when “the subject began to name and articulate.”85 Small wonder, then, that those names include the “incest” against which Hamlet rails, the “bin Ladenism” Derrida decries, and rubrics like “woman,” “Black,” or “queer” and all their innumerable companions, each with its distinct historical weight in the reality of human lives, but each effectively sublimating the Real by affirming that collective reality. 86 Without denying those historical differences, without scanting their toll on the persons who confront them or suggesting that any subject could, as subject, escape their reality, we can say, nonetheless, that such sublimations strip the Thing of “its absence, its strangeness,” and, in consequence, of its queerness. Bad education, by contrast, acknowledges the impossibility of realizing queerness (as opposed to figurally embodying it), and it engages the question Saidiya Hartman poses with trenchant precision after identifying those enslaved as occupying “the position of the unthought”: “What does it mean to try to bring that position into view without making it a locus of positive value, or without trying to fill in the void?”87 This framing cuts to the heart of the problem by exposing our persistent belief that even the unthought must have a “position” and that our relation to whatever the unthought “is,” to whatever refuses the “positive value” acquired through sublimation, must still conduce to “meaning.” If Hartman, for all the brilliance with which she analyzes the problem, finds herself, nonetheless, bound to its terms, that is only because those terms allow neither her nor us any choice. They write themselves on the book of our brain so we think we can think the “unthought” as merely historically contingent, the not yet thought, rather than as what remains—like the nothing, the zero, the void—unthinkable. With the specter’s commandment “Remember me,” we forget the forgetting it induces: not only of the prior records it thereby prompts us to “wipe away” but also of the Thing no record or commandment could possibly contain, the Thing not accessible through any commandment or legible in any book—not even the one called Hamlet. But as modern literature’s specimen text, Hamlet is required reading, in part, for promoting reading’s capacity to assign a place to everything, including the queerness of the “wondrous strange” (1.5.166), in a Symbolic whose hospitality can “as a stranger give it welcome” (1.5.167). Through its profligate wordplay and its speculations on the meaningfulness of words, it enthralls us with the Symbolic’s order that everything “be or not be in a particular place”: the order of differential articulation, of or, whose logic sublimates, by narrativizing, the incest it makes unthinkable. Enshrining with its mandate to memory the pedagogical principle par excellence (the transmission of wisdom or techné in the service of survival), Hamlet, by its ceaseless performance of and incitement to interpretation, stokes the fantasy of mastery implicit in reading’s anticipation of meaning—a mastery, of the text and oneself alike, inseparable from aesthetic education. What could it mean to forgo the meaningfulness of pedagogical sublimation, to take seriously teaching’s status as an impossible profession and the teacher’s relation to the student as promoting—rather than cultural survival, the commandment to remember, or archival consignation—a radical queerness, a Socratic corruption, whose assault on meaning, understanding, and value would take from them more than it gives and leave them not with Hamlet’s name, but only with “O, O, O, O”? “What is someone who has been psychoanalyzed?” asks Jean Allouch, a French psychoanalyst, in his reading of Archive Fever. And he answers without hesitation: “He is . . . someone who no longer has a future.”88 We might say, therefore, that he is someone who faces the empty page of “freedom”— freedom, first and foremost, from the illusion of “being” himself—by confronting the drive to create ex nihilo, by renouncing the guarantee of meaning, and by refusing the endless returns of the father as the archive of what is to come. Hamlet has much to teach about investing in survival through a commandment’s transmission (though the play, while exposing that investment’s cost, redoubles it by transmitting that teaching), and it may, in a given system of values, teach us to be better readers, better students—perhaps better people too, depending on how one views “the good.” But what Hamlet does not and cannot teach, and what we can never know, is how to escape the framework of meaning that its teaching reinforces; how to decline the archival commandment that sublimates the nothing it also preserves; how to allow for not saying “yes” to the father’s imperative of life; how to let the future be by being what lets the future.89 We search in vain for a teaching that could make the nothing that undoes what “is” appear “without trying to fill in the void,” without assigning it a “position” in which its unthinkability would “mean.” To succeed in such a teaching would be, as Wilderson argues, “to destroy the world,” and to do so, as it were, for Real. But that’s what a bad education, an education in queerness or Blackness, must do: endeavor, against all hope, to teach us nothing

With this we may seem to have wandered far from the murder of George Floyd, but Bad Education argues, to the contrary, that this is the immutable structure to which “structural racism” finally refers. While acknowledging historical differences in lived experience, socioeconomic mobility, degree of precarity, access to power, and positioning in the cultural imaginary among those read as Black, queer, woman, trans*, or any other category of social (non)“being” collectively delegitimated as other than human, this book maintains that the stigma attached to such posited identities corresponds to their inflection (in particular communities and at particular historical mo- ments) as embodiments of a negativity inassimilable to being, reflecting their figural status as personifications of ab-sens or of sex in its Lacanian (non)sense.¶ This claim may appear to privilege sex over other conceptual frameworks, like race, but only insofar as one confuses sex with the literalizations that (mis)represent it. Sex, in this context, does not refer to a conceptual formation at all but instead to what conceptual formation necessarily excludes. Lacan, to be sure, invites this confusion by naming as sex the nondifferentiation he attributes to ab-sens. But the movement from sex as negativity, as the nonbeing associated with the Real, to sex as the sexual difference on which the Sym- bolic seems to rest conforms to the logic of fantasy so rigorously theorized. ¶ in Lacanian thought—a logic that attempts to make sex make sense, to positivize its negativity, through the promise of sexual relation. Put otherwise: sexual difference, sexual relation, and the primal prohibition of incest make sex as ab-sens impossible, compelling it always to “mean” in the terms pre- scribed by sens-absexe. Those terms efface sex as the negativity of the primal nondifferentiation negated and replaced by sexual meaningfulness, which is what sexual difference “means”: the libidinized constitution of the subject through difference that libidinizes difference as such, making difference always sexual and sexual difference the Symbolic’s mandate that difference both “be” and be known.15 We come, that is, to be beings through language, which ex- tracts us from ab-sens while making ab-sens inconceivable in the topology of sens-absexe. Sex as determined by ab-sens, therefore, though catachrestically naming nonbeing, will seem to signify, nonetheless, the ontological order that means and that thereby makes sex as ab-sens unthinkable. Though refer- ring to the nondifferentiation pertaining to incest and ab-sens alike, the psy- choanalytic notion of sex, as understood by Lacan, will always be confused with sex as the name for what, in fact, absents it: the differential structure of positive differences.¶ But sex is far from singular as a catachresis of nonbeing. This book insists on the myriad names by which sex as ab-sens can go, including, but never limited to, queerness, Blackness, woman, and trans*. Like sex, these terms never wholly escape their connections to the substantive identities that appear to flesh them out: the queer, the Black, the woman, the trans person, the genderqueer individual. But they exceed these literalizations to name, or misname, that which “is” not. As the introduction explains more fully, there are two main reasons this book elaborates ab-sens through the figure of queerness . The first is its relatively loose association with any specific identity. Primarily ap- plied to something perceived as “strange, odd, peculiar, eccentric,” according to the Oxford English Dictionary, queer can refer to anything that thwarts, contradicts, or departs from a norm.16 Even where its fluidity of reference, its resistance to taxonomic specificity, allows it to serve as a general rubric for nonnormative sexualities, queer so relentlessly challenges the boundaries of sexuality and normativity that no one can ever definitively succeed in es- caping its connotative reach. Similarly, no one can fully secure it as a proper identity, either, insofar as it signifies diacritically in relation to a norm. What gets taunted as queer in a high school gym class in rural Louisiana may well look heteronormative at an academic conference in New York. By rejecting the positivity of queerness, or the prospect of owning it as an identity, I keep faith with its lexical history and its various social applications, something less easily argued, perhaps, when prioritizing Blackness or woman, for ex- ample, as catachreses of ab-sens. But this book does not shrink from that latter claim; to the contrary, it gratefully acknowledges the feminist, Black, and non-Black scholars whose theoretical boldness sustains it. But given the entanglement of Blackness and woman with histories and identities more clearly defined (to others and themselves alike) than queerness, with its de- termining indetermination, I make my argument about sex and ab-sens by way of it instead. I am mindful of the political value, or strategic necessity, of affirming the specificity of delegitimated identities and of privileging their uniqueness. But the uniqueness of the histories those identities bespeak, and the differences in how they have functioned as embodiments of negativity, does not contradict their shared positioning precisely as such embodiments.¶ This leads to the second main reason for my choice. Queerness, even when transvalued by those who assume it as an identity, implies a disturbance of order, a nonconformity to prevailing logic or law, a glitch in the function of meaning. It retains the pejorative force it confers when it nominates some- thing unusual or out of place: something not meant to appear where it does or not legible in its appearance. The negative associations of queerness speak to the subject’s investment in the system of differences that called it into being in the first place and its intolerance of anything that puts its investment in the stability of those differences at risk. Our constitution through the language of sens-absexe conscripts our thought—our conscious thought—to that differential logic and commits us to its preservation in and as that thought. By fracturing the ontological consistency of what “is,” queerness refutes the education in being—an inherently aesthetic education—that totalizes the empire of sens-absexe as a comprehensive and comprehensible unity. It insists on the outside of signification that make sens-absexe not all. Whatever asserts that incompletion by representing or embodying ab- sens, whatever appears to instantiate queerness in a given order by doing so, will be charged with promoting a bad education: one inimical to the survival and transmission of meaning required by what this book will call the pedag-archival imperative. ¶ Despite the claims advanced in support of liberationist pedagogies, education is inherently conservative. Even in countering a dominant narrative or advancing a progressive position, it enshrines, preserves, and passes on a con- struction of “what is.” Above all, it conjures the subject as an archive of sens- absexe. Whatever the content of an education, the pedag-archival law affirms the ontology of difference, ceaselessly imposing the conjoined imperatives of knowing, meaning, and being. For just that reason, as this book shows, queerness teaches us nothing in two distinct senses of that phrase. ¶ On the one hand, queerness adverts us to what ontology leaves out, if only by figuring—within that ontology—what that ontology excludes. It confronts us with a representation of what the Symbolic posits as nothing, as external to being or sense, lest ab-sens as the absence of differentiation make ontology nothing itself. The events that prompted this preface respond to an anxiety about human ontology induced by those figures whose presence insists that the world as it “is” is not all. After the Supreme Court announced its rul- ing in the case of Bostock v. Clayton County, for example, Archbishop José H. Gomez of Los Angeles, the president of the US Conference of Catholic Bishops, lamented that the court, by altering “the legal meaning of ‘sex’ in our nation’s civil rights law,” was “redefining human nature.” It did so, as he saw it, “by erasing the beautiful differences and complementary relationship between man and woman,” which is to say, by undoing the sexual difference that ab- sents ab-sens to establish meaning and, in the process, “human” being.17 Sim- ilarly, in the wake of George Floyd’s murder, when municipalities across the country authorized murals and street art meant to affirm that “Black Lives Matter,” white Americans in places as heterogeneous as New York, Cincin- nati, and Fresno defaced or attempted to deface them, often justifying their acts, when caught, with the counterclaim that “all lives matter.”18 For them, the “mattering” of Blackness seemed to violate “human nature”; they could register ontological totality only through the (literal) erasure of Blackness. Like queerness, that is, the Blackness that asserts a claim to human mattering can never enter the “all” that comes into being by excluding it. That explains why Calvin Warren, with whose thought my own work resonates, notwith- standing our serious differences, can write that “#Blacklivesmatter is only fac- tual if it can reunite black life with a valuable form, a valuation determined by political calculus. But what if reuniting black life and form is impossible? What if blackness is always already dead, the ‘perfection of death’ as David Marriott would call it, so black life-form is but a fantasy? Can we think of blackness as incontrovertibly formless?”19

Overkill is a term used to indicate such excessive violence that it pushes a body beyond death. Overkill is often determined by the postmortem removal of body parts, as was the case with both Lauryn Paige and Rashawn Brazell. The temporality of violence, the biological time when the heart stops pushing and pulling blood, yet the killing is not finished, suggests the aim is not simply the end of a specific person but the ending of trans/queer life itself. This is the time of trans/queer death—when the utility of violence gives way to the pleasure in the other’s immortality. If trans/queers, along with others, approximate nothing, then the task of ending, of killing that which is constituted as already dead must go beyond normative times of life. In other words, if Lauryn Paige was dead after the first few stab wounds, then what do the remaining fifty wounds signify? The legal theory that is offered to nullify the practice of overkill often functions under the name of the trans- or gay-panic defense. Both of these defense strategies argue that the murderer became so enraged after the “discovery” of either genitalia or someone’s sexuality they were forced to protect themselves from the threat of trans/queerness. Estanislao Martinez of Fresno, California, used the trans-panic defense and received a four-year prison sentence after admittedly stabbing J. Robles, a Latina trans woman, at least twenty times with a pair of scissors. Importantly, this defense is often used, as in the case of Gwen Araujo, J. Robles, and Lauryn Paige, after the murderer and victim had engaged in sex. The logic of the trans-panic defense as an explanation for overkill, in its gory semiotics, offers us a way of understanding the place of nothingness. Overkill names the technologies necessary for, and the epistemic commitment to, doing away with that which is already gone. Here, trans/queer life is a threat that is so unimaginable that one is forced to not simply murder but to push the dead backward out of time, out of history, and into that which comes before. Yet this overkill registers as little in the social—the double bind of inhabiting the place of both menace and void.36 In thinking the overkill of Lauryn Paige Fuller and Rashawn Brazell, I return to the ontopolitical category of nothingness—the shadow of liberal democracy. The place of nothingness reemerges in its elegant precision with each case I offer—the repetitious futility of bringing into representation that which escapes it but remains in a para-vitalist order. By resituating this question in the positive, the something more often than not translated as the human is made to appear. Here the category of the human assumes generality, This content downloaded from 141.211.4.224 on Wed, 17 Jul 2024 19:10:21 UTC All use subject to https://about.jstor.org/terms 34 Chapter One yet is activated, or more precisely weaponized, in the specificity of history and politics. To this end, the human, the something of this query, names the rightsbearing subjects or those who can stand before the law—the beneficiary of equality. The human, then, makes the nothing not only possible but necessary. Following this logic, the work of death, of the death that is already nothing, not quite human, binds the categorical (mis)recognition of humanity. The human resides in the space of life, and under the domain of Man, whereas the trans/queer inhabits the place of compromised personhood and in the zone of death. As perpetual and axiomatic threat to the human, the trans/queer is the negation, through inclusive exclusion, of democracy’s proper subject. Understanding the nothing as the unavoidable double of the human works to counter the arguments that suggest overkill and anti-trans/queer violence at large index a pathological break, and that the severe nature of these killings signals something extreme. In contrast, overkill is that which constitutes, via negation, equality’s form, which is lived by many as unfreedom. Or put another way, if the state is the enactment of a majoritarian collective unconscious, then its own intelligibility, or its own will to power, is rendered through the figure of the internal enemy and the mandatory forms of liquidation needed to face this inside/outside threat. Overkill, the calculated practice of gratuitous force, then, is the proper expression to the riddle of the trans/queer nothingness. However, the spectacular scene of overkill must not be singularly pathologized as this would, yet again, privatize violence’s epistemology under the individual while its structure remains intact. In the end, the killer never works alone. These vicious acts, therefore, must be held as an indictment of the very social worlds of which they are ambassadors. Overkill is what it means, what it must mean, to do violence to that which is nothing.

The codified racial discrimination that made intellectual property law the purview of whites in the 1800s did not disappear. It persisted through the continuing racialized entanglements of the principles of Euro-American citizenship with the principles of Euro-American creatorship. Because conceptions of Americanness were and are structured through a trenchant “racial episteme,”4 a frame that a priori constrains possibilities for treating people of color as full persons, let alone full creators, the discourse of citizenship operates as a container for importing race into intellectual property law, even when the law itself purports to be colorblind. The continuing practice of thinking about copyright, patent, and trademark law through romanticized imaginings of American citizenship constrains the manner in which knowledge production/protection can be understood, managed, and adjudicated with respect to race. I do not claim that such racial investments explain the outcome in all intellectual property cases. However, I contend that intellectual property law is organized through a racial episteme that consistently protects the (intellectual) property interests of white people and devalues the (intellectual) property interests of people of color. Tracing “racial scripts” is a tangible method for understanding America’s racial episteme and how it informs citizenship and creatorship/infringement as discursive formations. Racial scripts are historically grounded and flexible racist logics about racial groups that can be accessed at any time to exclude the original or other people of color.5 They operate as shorthand mechanisms for calling upon dominant American ideals of national identity, patriotism, political economy, and personhood without necessarily explicitly invoking racial categories or colonial logics. In this way, racial scripts can be baked into the seemingly colorblind ideals of American citizenship that, in turn, inform intellectual property law. Examining how intellectual property law operates as a space of racial formation in which the meaning of racial categories evolves over time is a prerequisite to undoing entrenched white privilege and democratizing knowledge production and ownership.6 Intellectual property law is also a “racial project,”7 that reproduces particular racial orders, in which people of color are coded as lacking the capacity to create. Unspoken longings, fears, anxieties, and prejudices wrapped in economic and legal language move us to prefer certain intellectual property 4 Introduction narratives over others, predictably to the detriment of people of color. When anti-racist, anti-colonial activists grapple with the racial episteme that structures intellectual property law, they can advocate for strategies that resist the underlying drivers of unjust copyright, patent, and trademark policies. While such resistive strategies may ultimately still provide only precarious and fleeting relief, as Derrick Bell famously argues, they confront the fears and anxieties that sustain racial and colonial knowledge hierarchies.8 This book contributes to a growing body of scholarship at the intersections of race and intellectual property law through its historically situated consideration of the links among race, coloniality, and knowledge governance.9 It traces evolutions in the racial rhetorics around copyrights, patents, and trademarks that unfolded in parallel with the economic and political turns of the nation. Such an inquiry is useful in contextualizing the increasingly important legal regimes governing knowledge that mark some bodies as not only inherently incapable of creatorship but also inherently undeserving of citizenship. As the racial rhetorics of intellectual property law have changed over time, in ways that are consistent with post– civil rights era colorblindness, they have come to exclude people of color in new and different ways. Accordingly, addressing intellectual property law’s structural inequalities requires thinking about how these racial evolutions persist in a nation that claims to value all people equally. When marginalized groups are considered to be “aberrations from the ethnoclass of Man”10 contra a white ideal, as Alexander Weheliye writes, they cannot fully occupy the space of creatorship or (intellectual) property ownership until the nation attends to the contours of inequality and exclusion. While Weheliye is commenting on anti-Blackness, his statement is true for all those people of color who are considered outside of the ethnoclass of Man. In the so-called information economy, intellectual property justice is racial justice. Working through key moments in intellectual property history in the period between 1790 and 2016 reveals that even as American understandings of creatorship/infringement have seemingly evolved, they have actually remained remarkably racially conservative and consistent over time. This book will not provide an exhaustive account of race, coloniality, and intellectual property law during that period. Such a project is neither possible nor desirable. Instead, it focuses on reading some of the most important and notable historical touchstones in copyright, patent, and trademark Creating Intellectual Property, Creating Americans 5 law as examples of the continuity of racial scripts and colonial relations of domination in the context of knowledge production.

IP’s rules and doctrines, its categorizations, and its vocabulary create a certain legal order that generates a social and cultural order. That is, far beyond the immediate domain of producing and consuming cultural goods, IP produces social and cultural hierarchies.144 A queer analysis of IP seeks to expose how IP doctrine and vocabulary manufacture a heteronormative cultural hierarchy. Accordingly, this Part evaluates from a queer-theoretical perspective the idea-expression, proprietary-public domain, economic-moral rights, and copyrightable-non-copyrightable subject matter divides, as well as IP’s “protection” of IP rights terminology. This Part starts with a brief overview of each of these doctrines and introduces some of the current critical appraisals thereof. It then proceeds to a queer reading of each of these doctrines, exploring how these doctrines entrench certain (heteronormative) ontologies of identity in popular culture, resulting in a cultural and social hierarchy.145 The idea-expression dichotomy: The idea-expression dichotomy is a long-established principle in copyright. It limits the scope of copyright to expressions or manifestations of an idea, but not to the idea itself. While an author may enjoy exclusivity and control in their work, they cannot control the ideas abstracted from the work.146 This creates a legal divide: expressions may be subject to copyright, while ideas belong in the public domain. So, for example, while an author of a book providing gardening advice holds the exclusive rights to print or publish their book, any person may freely practice the information that the book describes or illustrates, and any person may write a (different) book providing gardening advice.147 The rationale for the uncopyrightability of ideas is said to be twofold: First, ideas are intangible and as such cannot be the basis of a property interest; for an idea to be capable of attracting proprietary privilege, it must be capable of being identified. This reasoning is reflected in multiple court decisions, as well as in the legislative hearings for the Copyright Act of 1909, which state that “there can be no property in thoughts, conceptions, ideas, sentiments, etc., apart from their association, is clear, for they are then incapable of being identified or owned exclusively.”148 Second, an idea-expression divide is said to reflect the balancing of society’s interest in the free flow of information with authors’ property interests.149 Excluding expressions but not ideas is said to adequately incentivize authors to create and disseminate their works while leaving the building blocks of communication, culture, innovation, and expression free from monopolization.150 Various IP scholars have pointed to several problems with the idea expression divide, noting, for example, the following observations: that it is amorphous and creates a chilling effect on expressions that may be constitutionally protected by the First Amendment,151 that it fails to ensure that ideas freely circulate in the marketplace,152 that in reality there are no “expressionless ideas” and no “idealess expressions,”153 or that such a distinction inherently invokes value judgments on the part of judges adjudicating copyright infringement cases.154 Yet the idea-expression divide remains the “first axiom of copyright.”155 The proprietary-public domain distinction: IP laws distinguish between creative works and inventions that enjoy IP rights and those that do not. The latter are said to belong in the public domain.156 Like the term “property,” the term “public domain” is protean. There is, as Edward Lee notes, “a firestorm of debate about the public domain in intellectual property law.”157 Legal scholarship describes the public domain in various ways, suggesting it is comprised of the residual leftovers after property rights have taken their share or expired,158 the “outside” of IP,159 a measure to correct market failure,160 a restraint on government power,161 a means and the end “to promote the progress of science,”162 or a “home” where people can find inspiration and muse.163 Regardless of exact definition, the central notion common to most definitions of the public domain is that it is free and accessible to all.164 A rich and robust public domain, the argument goes, is key to continued economic growth and social welfare.165 Several IP scholars, however, have noted that the description of the public domain as a resource that is free and accessible to all is a romantic conviction that may be far from reality. Anupam Chander and Madhavi Sunder, for example, argue that some groups—often those from powerful social and economic classes—are better positioned to exploit and enjoy the resources in the public domain.166 These scholars contend that the binary rhetoric of proprietary ownership versus the public domain creates an illusion according to which the public domain is egalitarian, free, and open to all.167 Yet this binary masks the ways in which the public domain often works in the interests of traditional property owners to disadvantage and subordinate disempowered groups, impairs efforts of disempowered groups to assert agency and personhood, and may even reduce them to “mere objects, or someone else’s property.”168 Similarly, Ruth Okediji shows that resistance to granting rights in Indigenous peoples’ knowledge is many times justified, at least partly, by reference to safeguarding the public domain.169 A queer analysis would suggest that private-public and property common distinctions produce notions of cultural citizenship centered on a heteronormative status quo. Recognizing Western and “masculine” creative expressions as the types of works that attract proprietary rights and value and placing Indigenous and “feminine” creative expressions, such as traditional knowledge or cooking recipes, in the public domain, IP law constitutes the feminine and non-Western as “abject beings” who form the constitutive outside.170 In other words, certain types of creative expression, such as Indigenous and “feminine” creativity, become categorically public, indicting these communities and individual members thereof as cultural outsiders. Equally, both sides of the private-public divide reinforce notions of heteronormative domination over queer cultural expressions. Rebecca Tushnet notes that patriarchy makes fair game of women in the public sphere and keeps them under control in the private sphere.171 The same could be said of queer bodies and queer creativity: they are, at the same time, fair game in the public sphere and kept under control in the private sphere. Queers’ and LGBT+ people’s attempts to express their sexuality, circumstances, desires, and fetishes are often regarded as “shameful and inappropriate contamination of the public with what should be kept secret.”172 Furthermore, the private-public divide is a constitutive feature of the closet.173 The closet structures queer sexuality and identity in relation to binaries of secrecy and disclosure and of private and public.174 The closet structures queer lives in a way that limits the publicity of queer voices while allowing the heteronormative majority to benefit from queer creators’ creative labor.

[Lee Edelman, prof of english at tufts university, December 5, 2022, “Bad Education Why Queer Theory Teaches Us Nothing”, Ch. 1, Duke University Press]//owen

Good education serves the social good by negating whatever refuses that good and thereby endangers the Child, even if that danger inheres in the very nature of children themselves. Education, like heterosexuality, becomes a compulsory reproduction, procuring the Child for an order of truth that denies the foundational negativity, deficiency, perversion on which it rests. In the aftermath of such education, as Israël concludes, “one no longer knows anything about the universe of the drive, because the only small way to safeguard something of it is in knowing nothing about it.” This is the context in which he defines “education as antidrive.”27 Education effectively seals the drive off from the logic of comprehension as if recognizing the drive’s expression of ab-sens within the world of sens-absexe. Not reducible to the mere inversion of either knowledge or sens-absexe, ab-sens as negativity inheres in the knowledge sens-absexe affords. Insofar as that knowledge requires the subtraction or absenting of sex as ab-sens, it preserves the primal cut of division (the psychoanalytic referent of sex) in the ab of subtraction that makes sensabsexe the equivalent of sens-ab(ab-sens). Adorned with innocence as privileged nonknowledge, the Child perpetuates, through its sublimation, the enforced nonknowledge as and in which the “universe of the drive” insists. It reenacts, by way of allegory, the sublimation of the Thing—the creation of something out of nothing—as the dialectical negation of negativity that generates futurity. Allegory, sublimation, and dialectic, then, share a logic with one another, each naming a mode of production that displaces into systematic knowledge a negativity impossible to comprehend and at odds with all totalized forms.28 It follows that a fourth term, education, must take its place beside them: the education that perfectly complements the Child as the promise of coherent totality—the education that is always, in Friedrich Schiller’s formulation, an aesthetic education. For humanity to attain its proper moral state requires, for Schiller, the realization of an aesthetic self-totalization: “Every individual man, it may be said, carries in disposition and determination a pure ideal man within himself, with whose unalterable unity it is the great task of his existence, throughout all his vicissitudes, to harmonize.”29 The process of this harmonization, as effected by the “cultivation of Beauty,” constitutes “the education of humanity” and depends on the coordination of life in time (the life of the individual) with the development of moral possibility through and as the State.30 Schiller writes, “The great consideration, therefore, is that physical society in time may not cease for an instant while moral society is being formed in idea, that for the sake of human dignity its very existence may not be endangered. When the mechanic has the works of a clock to repair, he lets the wheels run down; but the living clockwork of the State must be repaired while it is still in motion. . . . We must therefore search for some support for the continuation of society.”31 The Schillerian aesthetic, as Paul de Man notes, links sensory content and abstract form—the “sensuous world to a world of ideas,” as Schiller writes—for reasons that have everything to do with the future that the Child is meant to secure.32 “The necessity of this synthesis,” de Man remarks, “is made in the name of an empirical concept, which is that of humanity, of the human, which is used then as a principle of closure. The human, the needs of the human, the necessities of the human are absolute and are not open to critical attack.”33 Needless to say, this “human,” whose continued survival the Child guarantees, constitutes a central site of ideological contestation. But insofar as “we are all Schillerians,” according to de Man—adherents, whether we admit it or not, of an aesthetic ideology intimately bound up with reproductive futurism— such contestation concerns the definition, not the value, of the “human.”34 Though the regime of aesthetic ideology protects that value from “critical attack,” queerness refers to whatever poses the threat of such attack, to whatever opens a wound within the logic of the aesthetic by exposing the negativity from which Schiller and the Schillerian tradition retreat.35 To confront such negativity would dismantle the foundation supporting the “empirical concept” of “humanity”—the fantasy of self-authorizing sovereignty. As Schiller writes, “The person must therefore be its own ground, for the enduring cannot issue from alteration; and so we have in the first place the idea of absolute being grounded in itself, that is to say of freedom.”36 To clarify the stake in this aesthetic ideology—and in the sublimation that gives birth to the Child—let us focus briefly on de Man’s account of an even more rigorous effort to establish a self-grounding philosophical system. In “Pascal’s Allegory of Persuasion,” de Man looks at what happens when Blaise Pascal, having noted that geometry refuses to define its principal objects (movement, number, and space), asserts that this “lack of definition is rather a perfection than a fault” (le manque de définition est plutôt une perfection qu’un défaut) and claims that these principal objects have a “necessary and reciprocal relation” (une liaison nécessaire et réciproque) in which he implicates time as well (“le temps même y est aussi compris”).37 To exemplify this reciprocity, he explains the homology among these “first objects” with reference to the “two infinities” of enlargement and contraction. Just as a movement can be made faster or slower, and numbers can be made larger or smaller, so space can always be increased or diminished, and temporal duration extended or reduced. Movement, number, space, and time are thus, for Pascal, always infinitely distant from their radical extremes: nothingness and infinity (“le néant et l’infini”).38 But the demand that these realms remain perfectly homologous encounters a certain difficulty when Pascal confronts the status of the “one” (which, according to Euclid, is and is not a number) and then tries to correlate the one with something that cannot be included in the realm of space because it is characterized as “indivisible” and therefore as lacking spatial extension. Pascal writes, “The only reason that the one is not included in the ranks of the numbers is that Euclid and the first authors who dealt with arithmetic, having several properties to give it that were common to all the numbers other than one, excluded the one from the meaning of the word number, so as not to have to say all the time we find such and such a condition in all numbers other than one.”39 At the same time, however, according to Pascal, Euclid recognizes that the one, insofar as it cannot be conceived as a nothing (“un néant”), belongs to the same “genre” as number. As soon as they are added together, after all, two ones will produce a number. Two indivisible spatial entities, by contrast, each lacking spatial extension, could never yield a spatial expanse by virtue of being combined. In the absence of this homology between the one (in the realm of number) and an indivisible entity (in the realm of space), Pascal, in de Man’s analysis, has to “suspend this separation while maintaining it—because the underlying homology of space and number, the ground of the system, should never be fundamentally in question.”40 So Pascal finds a corollary for the indivisible entity by introducing the zero, which, while not a number itself, is presupposed by number and has equivalents in the registers of motion, space, and time: “If you want to find a comparison in the realm of numbers that accurately represents what we are considering in the realm of extension, it would have to be that of zero to numbers. Because zero is not of the same genre as numbers, . . . it’s a veritable indivisible of numbers just as the indivisible is a veritable zero of extension.”41 As Ernesto Laclau describes it, “The zero is radically heterogeneous with the order of number” but “crucial if there is going to be an order of number at  all.” It allows, moreover, “the homology between number, time and motion . . . to be maintained” insofar as it provides “the equivalent of ‘instant’ or ‘stasis’ . . . in the order of number.”42 Much as the aesthetic, in de Man’s words, restores for Schiller “equilibrium, harmony, on the level of principles,” so the zero, for Pascal, as de Man observes, recovers “the homogeneity of the universe.”43 De Man locates the zero’s importance, however, in its allegorical relation to the arbitrariness of linguistic definition—the arbitrariness that lets Euclid exclude the one from definition as a number while defining magnitudes in such a way that it belongs to the “genre” of number. The zero, as de Man expands on its brief appearance in Pascal’s text, correlates with geometry’s nondefinition of its own initial principles and the lack of any demonstrable ground to undergird its logic; “all these truths,” Pascal writes, “are incapable of demonstration, and yet they are the foundation and the principles of geometry.”44 This allows de Man to characterize Pascal’s project in these terms: The continuous universe. . . is interrupted, disrupted at all points by a principle of radical heterogeneity without which it cannot come into being. Moreover, this rupture. . . does not occur on the transcendental level, but on the level of language, in the inability of a theory of language as sign or as name . . . to ground this homogeneity without having recourse to the signifying function . . . that makes the zero of signification the necessary condition for grounded knowledge. The notion of language as sign is dependent on, and derived from, a different notion in which language functions as rudderless signification and transforms what it denominates into the linguistic equivalent of the arithmetical zero. It is as sign that language is capable of engendering the principles of infinity, of genus, species, and homogeneity, which allow for . . . totalizations, but none of these tropes could come about without the systematic effacement of the zero and its reconversion into a name. There can be no one without the zero, but the zero always appears in the guise of a one, of a (some)thing. The name is the trope of the zero. The zero is always called a one, when the zero is actually nameless, “innommable.”45 The value of this account for my argument lies in its evocation of the zero’s “effacement” and its concomitant “reconversion” into, its representation as, a positivized and enumerable entity, which is to say, a “one.”46 This “systematic” effacement of the zero as the disruptive and heterogeneous principle on which the “continuous universe” depends enacts a logic that underlies the aesthetic for Schiller, the supplement for Derrida, education for Rousseau, and sublimation for Lacan. Not that these terms are interchangeable or that they signify the same thing, but each reinforces the social imperative toward the “marriage” of “mind and world,” toward a unified system, a comprehension, that strives to efface its internal rupture, its structural impossibility, through repetitive tropological substitutions that turn the zero into a one—substitutions that make the ontological negations articulated as queerness or Blackness (for example) assume the positivized form of social identities: “the queer” or “the Black.”47 Consonant with such a logic, though, the negativity of this repetition and its underlying drive experience “reconversion” into the “truth” of reproduction, redescribing the stasis of its iterations as a movement toward futurity.48 This, of course, is the function of the Child and the stake in its education. Could teachings at odds with this logic add up to anything at all, having nothing at all to add but the persistence of nothing in the “guise” of the one—nothing to add but the negative sign that signals a primal subtraction: the negativity added to the sign as such in order to show, as de Man writes above, that “language as sign is dependent on, and derived from, a different notion”? If sublimation, aesthetics, and logic turn the zero into one, this “different notion” reverses the process by making the one, the referential entity, into something unintelligible: the “linguistic equivalent” of zero. Such a “different notion” may echo what Brian Rotman has in mind when he discusses the insistence of Simon Stevin, a sixteenth-century Flemish mathematician, “on a semiological account of number, . . . which transferred zero’s lack of referentiality, its lack of ‘positive content,’ to all numbers.”49 Like queerness as ontological negation, this notion leads to nothing in the social order of meaning: which is to say, to the nothing of the “zero of signification” that always subtends that order. Andrzej Warminski associates this zero with the “stutter of sheerly mechanical enumeration,” a phrase that echoes the words of de Man in “Hegel on the Sublime” and so might gloss the zero as well: “Like a stutter, or a broken record, it makes what it keeps repeating worthless and meaningless. . . . Completely devoid of aura or éclat, it offers nothing to please anyone.”50 How could the nothing of the zero, with its machine-like repetitions, ever generate value or make a positive contribution to life? Simply put, it cannot. The very concept of “value” requires the zero’s sublimation insofar as it privileges the framework of meaning, the universe of sens-absexe, that requires the absenting of ab-sens to turn a profit on negativity by swelling the world into sense. A teaching that profits no one and that “offers nothing to please”: to what could that teaching amount if not a radical threat to the one, to the Child, to the good, and so to the future? In an aesthetic order based on the harmonization of sign and meaning, that teaching could serve as nothing more than the sign of a bad education.

Under no scenario is Russia’s armed invasion of Ukraine legal under contemporary international law and norms.

Self-defense is the only justification for use of force against another country, according to international law. This condition is found in the  and is binding for all 193 U.N. member countries.

Finally, the latter set of supposedly existential normative or ideological threats consists of many elements, including Beijing’s possible overturning of the so-called global liberal international order, Chinese influence operations aimed at U.S. society, the export of China’s political values and state-directed economic approach, and its sale of surveillance technologies and other items that facilitate the rise or strengthening of authoritarian states. These threats all seem hair-raising at first glance. But while significant, they are greatly exaggerated and do not rise to the level of constituting an existential threat.

Beijing has little interest in exporting its governance system, and where it does, it is almost entirely directed at developing countries, not industrial democracies such as the United States. In addition, there is no evidence to indicate that the Chinese are actually engaged in compelling or actively persuading countries to follow their experience. Rather, they want developing nations to study from and copy China’s approach because doing so would help to legitimize the Chinese system both internationally and more importantly to Beijing’s domestic audience.