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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)

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

Mari Ruti, for example, in maintaining that “the real can alter (rather than merely devastate) the symbolic,” supports her claim by pointing to the creativity with which we “generate fresh forms of signification.”27 On this ground, she declares, “we can participate in an ongoing and endlessly renewed process of becoming. The future, in other words, is never determined but inherently open ended; far from a predetermined fantasy, it is a manner of remaining alive to the utter unpredictability of existence.”28 This notion, however appealing, ignores that “generat[ing] fresh forms of signification” is the Symbolic’s normative function. Moreover, if “becoming” is an “ongoing and endlessly renewed process,” then its insistent productivity is, by definition, “predetermined” (what else could “endlessly renewed” denote?), though its specific forms are not. To that extent, it is far removed from the “unpredictability” that Ruti affirms. The bond between futurism and the order of meaning is procured by the predictable necessity of generating “fresh forms of signification.” Nothing in this process “alter[s]” the Symbolic; it merely enacts its law.29 Pursuing an argument akin to Ruti’s, Coffman also seeks to rebut what she, like Ruti, finds in No Future: an “excessively negative interpretation of Lacan.” Expanding on the notion that “an act in the Real can prompt changes in the symbolic,” Coffman proposes that unlike Edelman’s politics, “[Slavoj] Žižek’s politics of the Real offers queer theory not a release from the symbolic order but rather the possibility of changing its coordinates.”30 Her example of “changing [the Symbolic’s] coordinates”? The wedding scene from In and Out (Frank Oz, 1977, Paramount) where Howard Brackett (Kevin Kline) surprises himself and those around him by coming out as gay. Coffman credits Žižek as the source of this example, but even Žižek, when he adduces it, notes that it’s “not quite appropriate” since it fails to demonstrate “the ‘crazy,’ impossible choice of . . . striking at [one]self, at what is most precious to [one]self,” that marks the Lacanian act.31 Coming out can alter many things, but neither in nor out of In and Out is Symbolic law among them. To the contrary, by assimilating the subject to a legible identity in the signifying system, it reaffirms the subject’s defining subjection to the Symbolic law. As for genuine acts, those that “accomplish what, in a given symbolic universe, appears to be ‘impossible,’” Žižek maintains that they “change the coordinates of the situation in which the subject finds himself ” (emphasis mine), not the coordinates of “the symbolic order.”32 Such acts, as discussed in previous chapters, are not expressions of will or desire but rather of the acephalic drive whose relation to enjoyment disturbs the “the political preaching based on the good form of satisfaction” for the sake of which Ruti, Coffman, and Cole require a less “negative” Lacan.33 Ruti frames that politics plainly: “Those of us advancing this newer version of posthumanist theory tend to possess a strong commitment to matters of social survival, justice, and responsibility.”34 Wholly honorable, wholly admirable, such commitments command assent. Refusal to sign on to such a project, in Alenka Zupančič’s phrase, “would be impossible, inhuman.”35 Zupančič, however, introduces this phrase precisely to ventriloquize ideology’s resistance to “the gap opened up by an act.”36 A genuine act, as Zupančič makes clear, never registers as honorable or respectable; far from praise for its “responsibility,” it earns, Lacan tells us, “infamy” for threatening the fundamental fantasy that consolidates a world. Ruti may refer to “posthumanist theory,” but her argument repurposes liberal humanism, vaunting “social survival, justice, and responsibility” without recognizing that the split in the subject, the fracture at the core of posthumanist thought, makes those three things incompatible. How can we be responsible to the subject of desire and the subject of the drive at once? How can we do justice to a divided subject in tension not only with itself but also with the order that produced it? How can we reconcile “social survival” with the assault on the social order that condemns the authentic act to “infamy”? The answer, for Ruti, Coffman, and Cole, is to displace the constitutive division of the subject into external divisions among social subjects, thus allowing for the hope of political repair through an “endlessly renewed process of becoming.” To suggest that this process is endless because the void is incapable of repair would challenge such political hope and provoke a political rebuke. Thus, Cole waves off the Lacanian account of politics as a governing fantasy by associating defense of that argument with a “privileged social position,” and Ruti similarly describes the negativity implicit in endless “becoming”: “The kind of radical negativity and self-dissolution that Edelman (following Žižek) advocates can only be undertaken from a position of relative security,” she writes.37 But Ruti misreads No Future here in a symptomatic way. Though it repeatedly insists on the figural relation between jouissance and those viewed as queer, and though it repeatedly urges such persons to embrace their figural embodiment of the death drive, No Future never “advocates” for psychic “self-dissolution,” as if such a thing were a question of will or could constitute a political program.38 Ruti takes this misreading further: “Deprivileged subjects—some women, racially and ethnically marked individuals, and those who lead economically precarious lives (that is, subjects whose claim to symbolic identity is shaky to begin with)—simply cannot afford to abandon themselves to the jouissance of the death drive in the way that more secure subjects might be tempted (or even compelled) to do.”39 The confusions of psychic and social here are multiple and instructive. No subject, regardless of gender, race, ethnicity, sex, or sexuality, can “afford to abandon [itself ] to the jouissance of the death drive”—not if “afford” suggests it can do so voluntarily and with impunity. The drive, itself unconscious, pushes toward an emptying of the subject that has nothing to do with “temptation”; it affords that subject nothing more than an opening onto nonbeing (“dèsêtre”) that neither liberates nor redeems it but only subtracts it from sense. Just as claims to Symbolic identity are no less “secure” for “deprivileged subjects” than they are for their privileged counterparts—indeed, the very fixity of those Symbolic identities is what proves destructive to “deprivileged subjects,” making their claims to social viability, not to Symbolic identity, “shak[ier]”—so the insistence of the death drive “compel[s]” those subjects no less than it does any others. Denying those marked by oppression the psychic structures that shape us as subjects may bespeak a political belief that the “deprivileged” simply cannot “afford” them; but it might also reflect, to return to Cole’s phrase, a “privileged social position” that flattens “deprivileged subjects” into empty figures for their lack of privilege, reducing them to the status of furniture—useful objects, perhaps even chattel—in liberal humanism’s performance of its own exemplary moral conscience.

Intuitively, truth should be self-evident and One. Yet the tensions aroused by truth as a question were already evident in ancient Greek philosophy, with Plato’s eternal and objective ‘idea’ (Plato 380 bc/1871) – I call this ‘Ideal truth’ – pitted against the subjectivism implied in Protagoras’s dictum that “man is the measure of all things”.1 Aristotle’s ‘substances’ (Aristotle 350 bc/1953) in the framework of realistic epistemology offered an alternative, sense-based, anchorage for objective truth that came to be called ‘Correspondent truth’. Kant and Hegel, introducing the ideas of phenomena and ongoing dialectic, challenged the possibility of an absolute truth. They paved the way to the linguistic turn, which positioned meaning, conceptual and symbolic schemes as prior to fact (Habermas 2003), thus further challenging our ability to know objective reality or even define its basic characteristics (Russell 1961). 282 The Anxieties of Truth And yet, the linguistic turn did not end in a stoic relinquishing of ‘truth’ as a basic constituent of the mind’s work. Indeed, latter-day thinkers, for whom the linguistic turn was pivotal, also continued to debate the concept of truth and show its complex nature in novel ways (Rorty 1989). Even in the face of the wide range of epistemological, logical and ethical arguments, the quest for truth continued, defining and re-defining its status and method, taking into account its problematic nature and criticizing earlier arguments. The vital continuing search for truth begs the question of its intractability. What drives this search? What are its origins? The history of philosophical thought suggests that the answer to this question is clearly of a psychological nature: human beings have a need for certainty, security, control and the elimination of doubt. Nietzsche’s (1886/2009) critique of metaphysics is accepted as a prime modern origin of the line of thought that led to the dismantling of our naïve belief in metaphysics inasmuch as it aspires for absolute truth on the one hand and explores the immense human attachment to absolute truth on the other. In Nietzsche’s view, the quest for truth is driven by our fears. When we aim for objectivity, we buy ourselves stability and direction, but we sacrifce our integrity and the vitality of our thought (Nietzsche 1886/2009, cl. 10). The ‘Will to Truth’ is characteristic of a more general psychological tendency for self-deception. Man lacks the courage and integrity needed to contain his natural curiosity (ibid., cl. 227). Humanity, ever attached to a thoroughly flawed idea called ‘truth’, actively represses its creativity and life forces. The American Pragmatic view, influenced by Nietzsche’s thought, posited that the concern of truth was to advance the welfare of the individual. Thinkers such as Charles Sanders Peirce, William James, John Dewey and Richard Rorty saw truth as a means to an end of improving humanity’s lot (James 1907/2004; Rorty 1989). On the other side of the ocean, Heidegger (1996) saw truth as reflecting man’s need to control the world in general and death in particular. Levinas (1969) and Derrida (1978) both associated metaphysics with violence, seeing truth as a result and paradigmatic example of an illusory purity that man tried to place as a guarantee of his identity and superiority, with the result of a looming xenophobia. The postmodern critique was formulated: generalization, categorization and truth are forms of symbolic violence the subject imposes on the objects of her thought. Notwithstanding the diferences in content, all of the above views suggest that the pertinence of truth is of a psychological nature: Human beings have a need for certainty, constancy and mental control. Contrary to naïve intuition, and many philosophical positions, this implies that what truth satisfies are not states of affairs, but rather states of mind. If until now the search for truth involved three orders – reality, propositions and the constraints of human consciousness – we now add a fourth order: that of the psychological needs of the subject-as-thinker. These needs preserve the concept of truth, allowing it to rise like a phoenix from the ashes of discarded modern thought, retaining its traditional definitions and granting it contemporary meanings. Alongside the two essentialist truths – the ‘Ideal’ truth and the truth of correspondence with reality (‘Correspondent’ truth), both of which claim the existence of an order independent of consciousness – four additional conceptions of truth, which, in Hempel’s words, entailed an “essential softening of the truth” (Hempel 1935/1994), remain vital in philosophic thought. I refer to these conceptions as Coherent, Intersubjective, Pragmatic and Subjective-Existential truths. I present here brief these paradigmatic notions of truth, for clarity denoting them with capital letters (Ideal, Correspondent, etc.).2 The Correspondent conception of truth, introduced by Aristotle (Aristotle 350 bc/1953), maintains that truth values are established by correspondence between a proposition and an external mind-independent fact. Correspondent truth is anchored in a realistic epistemology, 283 Shlomit Yadlin-Gadot which maintains that the world has a mind-independent existence that the subject is able to know by means of his senses (Hetherington 2012). The Coherent conception of truth as, for example, in Spinoza’s thinking (Spinoza 1677/1989), determines truth values by examining the compatibility of a belief with a whole system of beliefs. This truth is often associated with ‘idealistic’ epistemology that posits a single, abstract and unconditional principle, unknown in itself, yet determining the unity of the world (Hetherington 2012). The Ideal conception of truth, as in Plato’s thought (Plato 380 bc/1871), determines truth values by the compatibility between particular beliefs or empirically perceived cases and their corresponding eternal decrees or forms. It is situated in the realm of ‘objective idealism’ that claims the existence of a mind-independent order inaccessible to the senses and partially known by means of laborious mental processes (Russell 1961). Subjective Idealism shares the premise of absolute and objective idealism, that all known reality resides within the mind. But whereas the latter assumes a principle external to the system that creates and unifes it, the former assumes the ‘I’ or the Ego as the constituting source of reality. Subjective and Intersubjective truths are embedded in the assumptions of subjective idealism (Orange et al. 1998). The Subjective-Existential conception of truth, seeds of which can be found in the work of Kierkegaard, perceives truth as highly personal, embodying the subject’s experienced authenticity. Here, experience is prior to any essence or generalization (Elleray 2007). The Intersubjective conception of truth regards objectivity as established by interpersonal agreement, sometimes explicit, often implicit. This truth refects the logic of intersubjective epistemologies, whereby the world achieves its true transcendence through the presence of a foreign subjectivity (Husserl 1983). Pragmatic truth concerns the usefulness and practicality of an idea in the context of the believer’s life. A true belief is one that has been proven valid by the compatibility between its predictions and its results. Here, truth is process based and tomorrow, today’s truth may be no more than an opinion (James 1912/2010, 1907/2004).

9. Capacity and openness are not the same as ambiguity. Refuse ambiguity.30 Abstract art is often considered “ambiguous” due to its openness and capaciousness. Even though this sometimes sounds like a compliment, it is not. More often, it is used to avoid confronting the particularities and complexities proposed by an abstract form and others’ investments in it. The same intransigent form can and does mean differently for different viewers. To call this situation “ambiguous” is to fall back into hopeless subjectivism and avoidance. Instead, let’s call this situation “competing” to show how much it is in the viewer’s incomplete attempt to classify that differences emerge and that supposedly stable taxonomies unravel amidst contestations and divergences of reception. Nominations of ambiguity are nothing more than declarations of resignation. We call something ambiguous when we give up on it and when we avoid committing to learning about all that does not fit into our categories. Objects, people, texts, events, and acts are not themselves ambiguous. They are particular, inassimilable, unorthodox, unprecedented, or recalcitrant. To invoke “ambiguity” is to flee from the confrontation with something that does not easily fall into one’s patterns of knowing. This act of exhausted reading disrespects the particularity of that which is before us and instead writes it off as being at fault—as being unknowable, indiscernible, and incompletely categorizable. “Ambiguity” is safe to invoke, because it places blame for our own limitations elsewhere. It is a method of deflection and scapegoating. It enables us to throw up our hands and beat a hasty retreat from confronting how limited our categories and systems are. After all, what do we really mean when we say something or someone is ambiguous? We mean that we cannot read, cannot identify, and cannot classify. Instead, I want to uphold the particularity and inscrutability that the backhanded slur “ambiguous” attempts to manage. I want to see that particularity as a challenge to systems of knowing. “Ambiguous” as an invocation or description merely signals the limitations of the one who would deploy that term. This does not mean I want everything clear and in its place. Quite the opposite: I want to embrace the radical particularity that always exceeds and undermines taxonomies. This is a queer stance, for it denies the applicability or the neutrality of those taxonomies as adequate representations of the world’s complexity. Rather, they are artificial impositions of normativity more concerned with policing boundaries than with engagement. To take this term to task is to demand that we see the greater structural limitations that its invocations hope to mask. “Ambiguity” as a description is not just lazy. It’s chauvinistic. More to the point, its deployment keeps us from recognizing and embracing the chance to see beyond the categories that are nothing more than blinders forcing us to stay on a narrow path. Especially today, we cannot afford ambiguity. We must attempt to embrace inscrutability and particularity, and we can defiantly exceed or jam the taxonomic protocols that seek to delimit and define us. The undertow of ambiguity is complacency and surrender, and it is misapplied to acts of refusal and self-definition.

My concern with this movement centers around an issue that Sloop and Ono seem to take as a given, namely, the role of the critic. On one hand, calling for the systematic investigation of existing marginalized discourses is a natural extension both of critical rhetoric (see McKerrow 1989, 1991) and of the general ideological turn in criticism (see Wander 1983). On the other hand, the ease of transition from criticism in the service of resistance to criticism of resistance may obscure the need to address some fundamental issues regarding the general function of rhetorical criticism in an uncertain and contentious world. Beyond licensing the critic to engage in political struggle, Sloop and Ono advocate the pursuit of covert resistant discourses.

Such a move not only stretches our understanding of rhetoric and criticism, but also alters significantly the relationship between critic and outlaw. Critical interrogation of dominant discursive practices in the service of political/cultural reform is supplanted in favor of positioning covert outlaw communities as objects of investigation. Invited to seek out subversive discourses, the critic is positioned as the active agent of change and the out-law discourse becomes merely instrumental. Rather than academic criticism acting in service of everyday acts of resistance, everyday acts of resistance are put into the service of academic criticism.

[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

Intuitively, truth should be self-evident and One. Yet the tensions aroused by truth as a question were already evident in ancient Greek philosophy, with Plato’s eternal and objective ‘idea’ (Plato 380 bc/1871) – I call this ‘Ideal truth’ – pitted against the subjectivism implied in Protagoras’s dictum that “man is the measure of all things”.1 Aristotle’s ‘substances’ (Aristotle 350 bc/1953) in the framework of realistic epistemology offered an alternative, sense-based, anchorage for objective truth that came to be called ‘Correspondent truth’. Kant and Hegel, introducing the ideas of phenomena and ongoing dialectic, challenged the possibility of an absolute truth. They paved the way to the linguistic turn, which positioned meaning, conceptual and symbolic schemes as prior to fact (Habermas 2003), thus further challenging our ability to know objective reality or even define its basic characteristics (Russell 1961). 282 The Anxieties of Truth And yet, the linguistic turn did not end in a stoic relinquishing of ‘truth’ as a basic constituent of the mind’s work. Indeed, latter-day thinkers, for whom the linguistic turn was pivotal, also continued to debate the concept of truth and show its complex nature in novel ways (Rorty 1989). Even in the face of the wide range of epistemological, logical and ethical arguments, the quest for truth continued, defining and re-defining its status and method, taking into account its problematic nature and criticizing earlier arguments. The vital continuing search for truth begs the question of its intractability. What drives this search? What are its origins? The history of philosophical thought suggests that the answer to this question is clearly of a psychological nature: human beings have a need for certainty, security, control and the elimination of doubt. Nietzsche’s (1886/2009) critique of metaphysics is accepted as a prime modern origin of the line of thought that led to the dismantling of our naïve belief in metaphysics inasmuch as it aspires for absolute truth on the one hand and explores the immense human attachment to absolute truth on the other. In Nietzsche’s view, the quest for truth is driven by our fears. When we aim for objectivity, we buy ourselves stability and direction, but we sacrifce our integrity and the vitality of our thought (Nietzsche 1886/2009, cl. 10). The ‘Will to Truth’ is characteristic of a more general psychological tendency for self-deception. Man lacks the courage and integrity needed to contain his natural curiosity (ibid., cl. 227). Humanity, ever attached to a thoroughly flawed idea called ‘truth’, actively represses its creativity and life forces. The American Pragmatic view, influenced by Nietzsche’s thought, posited that the concern of truth was to advance the welfare of the individual. Thinkers such as Charles Sanders Peirce, William James, John Dewey and Richard Rorty saw truth as a means to an end of improving humanity’s lot (James 1907/2004; Rorty 1989). On the other side of the ocean, Heidegger (1996) saw truth as reflecting man’s need to control the world in general and death in particular. Levinas (1969) and Derrida (1978) both associated metaphysics with violence, seeing truth as a result and paradigmatic example of an illusory purity that man tried to place as a guarantee of his identity and superiority, with the result of a looming xenophobia. The postmodern critique was formulated: generalization, categorization and truth are forms of symbolic violence the subject imposes on the objects of her thought. Notwithstanding the diferences in content, all of the above views suggest that the pertinence of truth is of a psychological nature: Human beings have a need for certainty, constancy and mental control. Contrary to naïve intuition, and many philosophical positions, this implies that what truth satisfies are not states of affairs, but rather states of mind. If until now the search for truth involved three orders – reality, propositions and the constraints of human consciousness – we now add a fourth order: that of the psychological needs of the subject-as-thinker. These needs preserve the concept of truth, allowing it to rise like a phoenix from the ashes of discarded modern thought, retaining its traditional definitions and granting it contemporary meanings. Alongside the two essentialist truths – the ‘Ideal’ truth and the truth of correspondence with reality (‘Correspondent’ truth), both of which claim the existence of an order independent of consciousness – four additional conceptions of truth, which, in Hempel’s words, entailed an “essential softening of the truth” (Hempel 1935/1994), remain vital in philosophic thought. I refer to these conceptions as Coherent, Intersubjective, Pragmatic and Subjective-Existential truths. I present here brief these paradigmatic notions of truth, for clarity denoting them with capital letters (Ideal, Correspondent, etc.).2 The Correspondent conception of truth, introduced by Aristotle (Aristotle 350 bc/1953), maintains that truth values are established by correspondence between a proposition and an external mind-independent fact. Correspondent truth is anchored in a realistic epistemology, 283 Shlomit Yadlin-Gadot which maintains that the world has a mind-independent existence that the subject is able to know by means of his senses (Hetherington 2012). The Coherent conception of truth as, for example, in Spinoza’s thinking (Spinoza 1677/1989), determines truth values by examining the compatibility of a belief with a whole system of beliefs. This truth is often associated with ‘idealistic’ epistemology that posits a single, abstract and unconditional principle, unknown in itself, yet determining the unity of the world (Hetherington 2012). The Ideal conception of truth, as in Plato’s thought (Plato 380 bc/1871), determines truth values by the compatibility between particular beliefs or empirically perceived cases and their corresponding eternal decrees or forms. It is situated in the realm of ‘objective idealism’ that claims the existence of a mind-independent order inaccessible to the senses and partially known by means of laborious mental processes (Russell 1961). Subjective Idealism shares the premise of absolute and objective idealism, that all known reality resides within the mind. But whereas the latter assumes a principle external to the system that creates and unifes it, the former assumes the ‘I’ or the Ego as the constituting source of reality. Subjective and Intersubjective truths are embedded in the assumptions of subjective idealism (Orange et al. 1998). The Subjective-Existential conception of truth, seeds of which can be found in the work of Kierkegaard, perceives truth as highly personal, embodying the subject’s experienced authenticity. Here, experience is prior to any essence or generalization (Elleray 2007). The Intersubjective conception of truth regards objectivity as established by interpersonal agreement, sometimes explicit, often implicit. This truth refects the logic of intersubjective epistemologies, whereby the world achieves its true transcendence through the presence of a foreign subjectivity (Husserl 1983). Pragmatic truth concerns the usefulness and practicality of an idea in the context of the believer’s life. A true belief is one that has been proven valid by the compatibility between its predictions and its results. Here, truth is process based and tomorrow, today’s truth may be no more than an opinion (James 1912/2010, 1907/2004).

The death drive is beyond linguistic expression, it is ‘the inarticulable surplus that dismantles the subject from within’ (9). Queerness, for Edelman, is inextricably linked to the death drive. Let me return to the epigraph that frames this chapter in which Edelman proclaims that ‘the death drive names what the queer, in the order of the social, is called forth to figure: the negativity opposed to every form of social viability’ (9). Although queerness is not reducible to homosexuality and in fact ‘could never constitute an authentic or substantive identity’ (24) because it ‘is never a matter of being or becoming’ (25), the Queer as a category configured by homophobic and heterosexist discourses is invariably aligned with same-sex desire (Bersani 1987; Dollimore 1995; Hanson 1991; Coviello 2000). While the Child is understood as the apotheosis of life, the Queer is set up as the epitome of death. Indeed, same-sex desire has become synonymous with death in the homophobic imagination: death understood as the foreclosure of reproduction in sexual acts performed by same-sex couples, the death of civilisation as a consequence of the ‘ills’ of ‘the homosexual lifestyle’, or same-sex desire leading to actual physical death with references to HIV/AIDS as ‘the gay plague’. So while heteronormativity is caught up in a continuous cycle of refusing to acknowledge its own internal lack by forever desiring the ‘realization of the subject’s authentic presence’ (Edelman 2004, 10) through the ‘sacralization of the Child’ (28), the Queer is feared as a threat to the completion of this compulsive practice. Thus, the death drive signifies both the position that is conferred on the Queer by the social as well as the trace of the anxious social’s projections of the death drive and everything it signifies onto the Queer, who becomes a repository of negativity. In a sense, queerness is a creation of the social, its abject Other, a constant reminder of the social’s incompleteness and vulnerability. Reproductive futurism imposes, according to Edelman, ‘an ideological limit on political discourse as such, preserving in the process the absolute privilege of heteronormativity by rendering unthinkable, by casting outside the political domain, the possibility of a queer resistance to this organizing principle of communal relations’ (2). Reproductive futurism absorbs all challenges and translates them into more of the same. It operates in a similar way to Monique Wittig’s concept of the straight mind in that ‘when thought of by the straight mind, homosexuality is nothing but heterosexuality’ (1992, 28). Reproductive futurism is a more specific term than heteronormativity in that it describes the process through which heterosexuality becomes heteronormative. Heteronormativity is thus a term to describe a conglomerate of effects while reproductive futurism signifies the process through which such effects are wrought. It is all-encompassing, operating at the level of ideology so that it sets limits on, not just what we think or do, but also on what and how we desire. Desire itself becomes reproductive futurism in its ‘translation into a narrative’, ‘its teleological determination’ through politics which ‘conforms to the temporality of desire’, ‘the inevitable historicity of desire’ (Edelman 2004, 9). Reproductive futurism is, what I call, ‘heterocycloptic’, bound up with the desiring gaze and the setting-out of a developmental trajectory of ‘progress’ moving endlessly towards a ‘better’ future, in the process imposing a panopticonlike self-surveillance: ‘It’s a machine in which everyone is caught, those who exercise power just as much as those over whom it is exercised’ (Foucault 1980, 156). It is apocaloptic in the sense that desire itself becomes a trap, a disciplining device in which the norm becomes inextricable from the natural. This technology of power – a ‘coercive universalization’ (Edelman 2004, 11) – operates at the level of fantasy and through the figure of the Child: ‘the Child has come to embody for us the telos of the social order and come to be seen as the one for whom that order is held in perpetual trust’ (11). In this, the Child becomes inextricably linked to the future and in turn to politics, and is thus reduced to a trope delimiting what will get to count as the future in advance. Reproductive futurism I believe exercises power contradictorily through a web, a net, a grid. It encourages, perhaps contradictorily, the proliferation of desires – a looking-out as opposed to a gazing-within – in the service of repressing any conscious self-awareness of the death drive. Reproductive futurism is therefore, what I term, ‘hetero-prophetic’ in that it tries to set out programmatically what will transpire in the future; a future ‘endlessly postponed’ (13), thus holding the present to ransom. If it is invested in eschatology, it is only as a veneer to discipline those into enslavement to its ideals. For Edelman, reproductive futurism presents ‘an always impossible future’ (11), ‘a fantasmatic future’ (31) which translates queerness, I think, into heteronormativity’s aggressor – the Queer – a repository for displaced feelings of anxiety. This anxiety arises because of the existence of the death drive within (Klein 1997/1946, 4) and the subject’s resultant fear of death (Klein 1997/1948, 28, 29); the fear that the future will never arrive or that the subject will not be alive to experience in it. Thus anxiety arising from the presence of an internal threat (that is, the death drive) is deflected outwards to become the fear of an external threat (that is, the Queer). This internal object of fear is displaced onto the Queer who then ‘becomes the external representative of the death instinct’ (Klein 1997/1948, 31). Through a denial both of the existence of the death drive and the social’s narcissistic investment in the Child as the wish fulfilment of its desired immortality, heteronormativity projects the death drive onto the figure of the Queer who comes to stand in for everything that is considered to be dangerous to the Child and thus the future. It is my contention that reproductive futurism operates by first denying the presence of the death drive through the inauguration of a fantasy of self-fulfilment at the same time that the anxiety of heteronormativity’s own internal shortcomings and disciplining mechanisms are displaced onto the Queer (A. Freud 2000/1937, 69–82). The instantiation of this fantasy arises, in the words of Anna Freud, because ‘the mere struggle of conflicting impulses suffices to set the defence mechanisms in motion’ (69). idealised, the Queer is marked out as the persecutory Other (Klein 1997/1946, 1–24; Klein 1997/1955, 141–75).6 I argue that this idealisation of the Child is a direct corollary of the fear of the Queer which itself is in response to the outward projection of the death drive. Klein’s thoughts are instructive in this regard: ‘Excessive idealization denotes that persecution is the main driving force … idealization is a corollary of persecutory anxiety – a defence against it – and the ideal breast [that is, the Child] is the counterpart of the devouring breast [that is, the Queer]’ (1997/1957, 193; see also 1997/1960, 273; 1997/1963, 311). Queerness, Edelman insists, pits itself against reproductive futurism in the refusal to deny the presence of the death drive or accede to social respectability by projecting that queerness onto someone else: ‘To figure … the death drive of the dominant order, is neither to be nor to become that drive … Rather, acceding to that figural position means recognizing and refusing the consequences of grounding reality in denial of the drive’ (2004, 17). This process of projective identification (1997/1959, 252) leaves heteronormativity in a weakened state, dependent for succour on its idealisation of the Child and its demonisation of the Queer (1997/1946, 9). Whole parts of the heteronormative subject are split off and invested in its fantasmatic relationship with its objects (1997/1955, 143). Excessive splitting can, in Klein’s view, conclude in feelings of disintegration and loss (1997/1946, 9–10). In this, heteronormativity needs its abjected queerness because without it there would be nothing against which it could define itself as the normal. Edelman recognises the power in this heteronormative reliance, thus his insistence that queerness must oppose the very ‘logic of opposition’ (2004, 4). In other words, those relegated to the category of the Queer need to cease playing the role of the persecutory Other for heteronormativity by refusing to engage in such heteronormative object relations, the stakes of which are always set out in advance. Edelman’s proposal, far from securing the end of queerness in a nihilistic act of self-destruction, urges queers to stop facilitating the system of heteronormativity and watch it unravel. The death drive is, after all, referred to by Freud as carrying out its business quietly.7

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

Consider, as a minor—and far from disinterested—example of such distrust, a response to No Future by Merrill Cole, a critic whose his essay’s title announces what he purports to expose and resist: “The Queer Repression of Jacques Lacan.” After describing No Future as “the most controversial attempt to bring Lacan into queer theory” since Tim Dean’s Beyond Sexuality, Cole writes, “Queerness, for Edelman, should involve not ‘an oppositional political identity,’ but ‘opposition to politics as the governing fantasy’ of imaginary closure. It is perhaps only from a privileged social position that one could dismiss politics as fantasy for however unreal politics may seem, it directly affects people’s lives and well-being. Rather than holding itself aloof, I argue that queerness should engage in the struggle to change people’s lives for the better.”9 Leaving aside the vacuity of that final “political” appeal—“changing people’s lives for the better,” after all, is the radically empty program that everyone from Adolf Hitler to Mahatma Gandhi, from Maximilien Robespierre to Martin Luther King Jr., can readily get behind—I would note Cole’s strange response to Edelman’s characterization of politics. For it requires no “privileged social position” to identify (which is hardly the same as to “dismiss”) the structure of politics as a fantasy, only a Lacanian one. “Fantasy dominates the whole reality of desire, which is to say, the Law,” Lacan observes in The Other Side of Psychoanalysis. 10 Rather than something “unreal,” as Cole puts it, fantasy, Lacan maintains, “gives reality its frame.”11 Lacan lays out, moreover, the specific shape this political fantasy takes, evoking it as the Imaginarization of what refuses Imaginary totality: It’s an idea . . . that knowledge could produce a totality, which, if I can put it this way, is immanent, immanent in politics as such. The Imaginary idea of the whole, such as it is given by the body, is part of the political preaching based on the good form of satisfaction, on that which makes a sphere; taken to its limit, what is more beautiful, but also what is less open, what more closely resembles the self-enclosure of satisfaction? The collusion of this image with the idea of satisfaction: that’s the thing we run into every time we encounter something knotted in this work [i.e., psychoanalysis] that entails bringing something to light by the paths of the unconscious.12 This “political” idea, associated with the coherence of a totalized enclosure that expresses “the good form of satisfaction”—where “good” is no simple term of praise but rather an acknowledgment of the complicity between moral discourse and Imaginarization—impedes the analytic labor that undoes such fantasmatic consistency.13 The resistance to analysis, like the resistance to negativity, springs from the “satisfaction” afforded by the image “of the whole,” which Lacan identifies, or—to borrow Cole’s term—dismisses, as political “preaching.”14 Cole’s argument, directly correlated with his own indulgence in such preaching (“queerness should engage in the struggle to change people’s lives for the better”), becomes more interesting and more telling when he concedes, after correlating politics with a reality not to be confused with fantasy (“however unreal politics may seem”), that fantasy, in Lacanian theory, structures reality after all. Referring to an essay by Chris Coffman, he writes, “Traversing the final fantasy is the endpoint of Lacanian psychoanalysis, where we dispossess ourselves of the unconscious fantasies structuring our reality, an evacuation that, as Coffman argues, ‘clears the ground for a future that could be lived otherwise.’ Clinical Lacanian analysis aims at radical change: ‘traversing the fantasy’ is futurally oriented” (emphasis mine).15 Attempting to make “traversing the fantasy,” a concept popular in Lacanian circles though barely theorized by Lacan, coincide with the sort of “satisfaction” Lacan mocks as “immanent” in politics (the satisfaction promised by some “radical change” toward “a future that could be lived otherwise”), Cole turns traversing the fantasy into the very fantasy it’s supposed to traverse. He imbues it with the heroism of a “struggle to change people’s lives for the better” without interrogating whose desire is at stake or who determines what makes those lives “better.”16 So fully “Americanized” a version of Lacan, in which analysis secures a “better” future by traversing a fantasy that Lacan invokes as “radical” (le fantasme radical) or “fundamental” (cette expérience du fantasme fondamental) and not, as Cole says, “final” (as if it were the ultimate veil beneath which, at last, we encounter the truth), bears little relation to Lacan’s own texts.17 Coffman, on whose work Cole’s essay leans, may identify “traversing the fantasy” with an opening onto “a future that could be lived otherwise,” but Lacan says no such thing. In his seminar of June 24, 1964, the only time he refers to (and even then only once) traversing the radical fantasy (or, more precisely, to having traversed it), he does so by questioning how one lives, or how one lives on, in its aftermath. “What becomes of someone who has passed [or who has undergone the pass] by way of this experience concerning the relation, utterly opaque at its origin, to the drive? How can it be lived, by a subject who has traversed the radical fantasy, how, from that point on, is the drive lived?”18 Instead of a futural orientation or an assurance of change for the better, Lacan lingers here in uncertainty before the question of survival: “This is the beyond of analysis, and it has never been approached. It has only, to the present moment, been approachable at the level of the analyst, insofar as it would be required of the analyst precisely to have traversed in its totality the cycle of the analytic experience.”19 The claim that this beyond has been approachable only “at the level of the analyst” refers to the moment in the training analysis (“la psychanalyse didactique”) when analysts-in-training, no longer mistaking the analyst for the subject supposed to know, still desire to occupy the analyst’s place, now perceived as “the place of nonbeing” (la place du dèsêtre).20 If the fantasy of the subject supposed to know, of the one who has what the analysand seeks, makes “the logic of the analyst . . . the agalma which integrates itself into the radical fantasy that the analysand constructs,” then the dissolving of that fantasy reduces the analyst to the status of any signifier whatsoever (“au signifiant quelconque”).21 Far from producing the promise of “a future that could be lived otherwise,” this divestiture of the analyst’s agalma coincides with the analysand’s “subjective destitution,” an emptying-out sufficient, Lacan maintains, “to sow panic, horror, curses, even attacks.”22Lacan goes further. Whoever, at the end of the training analysis, would assume the analyst’s nonbeing (“dèsêtre”) “roots himself in what most radically opposes everything by which it is necessary and sufficient to be recognized in order to ‘be’: respectability, for example.”23 Having confronted the lack in the Other and no longer pursuing, therefore, the Other’s recognition or good opinion, such a person embraces, according to Lacan, “the true import of the constitutive negation that infamy signifies.”24 By linking this “constitutive negation” to “infamy,” the opposite of those communal values (i.e., respectability or honor) that earn recognition in the realm of being, Lacan implicitly opposes it to pedag-archivalization and posits its centrality to the movement into the “beyond of psychoanalysis.”25 Underscoring its importance, he calls this negation bound up with infamy “a connotation it is very much necessary to restore to psychoanalysis.”26 No one could fault Cole or Coffman for refusing the negativity of this negation or for trying to keep themselves far removed from the infamy it bestows. But for just that reason no one should confuse their arguments with Lacan’s. Their refusal coincides with the fantasy of achieving the unity, the aesthetic coherence, inseparable from the subject of desire and inseparable, therefore, from the fantasy in which everyone believes, whether they know they believe it or not. But Cole and Coffman align their refusal with a progressive political engagement founded on a diluted version of Deleuze’s positivization of nonbeing, taking every variation in the status quo as indexical of “becoming.” In doing so they mistake transformations in the contingent expressions of Symbolic law for fundamental transformations of Symbolic law as such. Nor are they alone in this regard.

“Onticide,” for all its conceptual power, positions the “black queer” as uniquely the catachresis of this “nothing.” Warren supports this claim by noting that the “black queer” doubles “the black’s” exclusion from being while also facing exclusion from “the queer’s” “incorpor[ation] . . . into the fold of humanity.”114 He develops this argument through Eric Stanley’s observation that “the overwhelming numbers of trans/queer people who are murdered in the United States are of color.”115 This prompts him to reflect on the “differential relationship to violence” of “people of color” and “non-people of color” among “those who might identify as ‘queer.’ ”116 Based on the disproportionate representation of the former among “trans/queer people” killed in the United States, Warren argues that the Blackness of “black queers” denies them “symbolic placement, differentiating flesh, and a grammar of suffering”—all of which remain possibilities, if only marginally, for “queers” not “of color.”117 Construing “the black,” through reference to Fanon, as outside “symbolic placement,” Warren asserts that “black suffering” is unintelligible in any “grammar of suffering” (which he now associates with “queer theory”), precisely to the extent that Black suffering “lacks a proper grammar of enunciation.”118 As heir to “the violence of captivity [that] expelled the African from Difference, or the Symbolic,” “the black-as- object,” for Warren, “is situated outside of space, time, and the world,” which is also to say, outside of the human as “the order of differentiating subjects.”119 Blackness and queerness, in other words, have not only different relations to violence but also, as Warren puts it, “a differential relationship to ‘nothingness,’ where ‘nothingness’ is the symbolic designator of the incomprehensible remainder or exclusion. The fact that the overwhelming majority of those murdered are ‘of color’ and the position of blackness in the antagonism is one of non-ontology (negative existence) is no mere coincidence.”120 Underlying this analysis, though, is the conflation of ontological impossibility with entities represented as ontologizing this very impossibility. If, that is, the overrepresentation of people of color among trans/queer murder victims and the “position of blackness . . . [as] one of non-ontology” is, indeed, “no mere coincidence,” then either “the black” must essentially coincide with Blackness as nonontology or the “the black” must be understood as one of its highly charged catachreses. But what could it mean, and how could we know it, if “the black” were essentially bound to the “blackness” that remains, not like but as the Real, excluded from representation? Can an experience historically correlated with African captivity in the Atlantic slave trade uniquely define “the Real of ontology” that, in Warren’s own phrasing, “ruptures and preconditions symbolization”?121 “The black,” no less than “the queer” or “the woman,” is subjectified through language, but what Warren rightly characterizes as the “unresolvable problem for blackness”—the fact that it remains “the ‘unthought’ and the incommunicable,” “outside of life and its customary lexis”—leads him, despite his own warning against it, to slide “between identity and structure” by conflating the ontological exclusion that is “blackness” with the social exclusion of Blacks.122 He thus presents as noncontingent, nonhistorical, and a priori—in other words, as ontological—“ the black’s” relation to the structural position of ontological impossibility.123 Warren himself sounds a warning about the dangers of such a conflation when responding to Zakiyyah Iman Jackson’s analysis of David Marriott’s On Black Men.124 Jackson, he argues, errs in her effort to “think race and sexuality together”: It is here that we seem to slide between blackness as a structural position of non-ontology and the sociology of race (as an identity). In this analysis, blackness becomes a “type” much like sexologist [sic] created the “homosexual” as a type. Instead of thinking about blackness as the ontological horizon that fractures epistemology, we locate blackness within the Symbolic Order of scientific discourse and sexology. Blackness, then, oscillates between an identity, a marker of the Symbolic order, and an ontological position, the “Real” that ruptures and preconditions symbolization. This sliding between identity and structure is a symptom of what Wilderson would call “the ruse of analogy.” Whenever we equate an ontological position with an identity formation, we perform the very violence that sustains the antagonism.125 Notwithstanding the care with which he makes these distinctions, Warren himself, I have argued, identifies Blackness (as the ontologically excluded Real) with “the black” (as the sociological identity of particular Symbolic subjects). He reads “the black” not only as a “being fallen off the map of conceivability,” as one who “ ‘does not exist’ in the world because lacking symbolic placement,” but also as a social identity whose visibility enables the statistical analysis of murdered trans/queer persons of color.126 This conflation seems to spring from his resistance (rooted in solid political ground) to viewing “the black” and “the queer” as equivalent in their social or historical positions—a resistance reinforced by the preponderance of violence against “trans/queer” people of color. But it results in a less sustainable resistance to the “equivalence” of “blackness and queerness.”127 As “ontological position[s]” that gesture toward what the order of being leaves out, Blackness and queerness would name catachrestically the unnameable void in reality and the enjiety aroused whenever a subject comes too close to the Real. Though certainly inflected by unconscious motivations and by my own position as a subject, my focus on queerness as an organizing term wagers that its indeterminacy of reference (in contrast to the fungible “black-objects” to which Blackness for Warren is essentially fixed) might slow, if not prevent, the slide from ontological position to fixed social identity, thus permitting the negativity of queerness to supplement—rather than to supersede—the ongoing historical and political efforts to read “the queer” and “the black.”128 The work of queer theory thus coincides with interrogations of woman, Blackness, or trans* as ontological exclusions, a point reinforced by David Marriott’s insight “that blackness has no locatable referent or unequivocal name, but is something that escapes all attributes, including the unity of an ontic-ontological fugitivity or again the hypostatized name of ‘absolute dereliction.’ ”

Bioessentialism, or suggesting that social constructions are inherently biological, has contributed to stigma and discrimination of the queer community (Llorin & Zayhowski, 2023). This perpetuates the narrative that people who do not fit binary categories are “disordered.” Homosexuality was in the DSM-II until 1973 (American Psychiatric Association, 2013) and in the International Classification of Diseases (ICD-10) until 1990 (Cochran et al., 2014). The way that homosexuality has been treated as a “disorder” parallels the way race has been inappropriately pathologized. Racism, not race, leads to the different medical outcomes seen (Newman, 2022; Roberts, 2011), yet race continues to inappropriately guide various aspects of medical care leading to medical mistreatment (Vyas et al., 2020). Similar to the larger medical field, the genetics field has explored queerness as a pathological trait. Research studies looking for genetic associations with homosexuality by Hamer et al. (1993) have been heavily criticized as a tool for pathologization (Petersen, 1999; Schüklenk et al., 1997). Yet, we see an increase in this research (Bentz et al., 2008; Foreman et al., 2019; Ganna et al., 2019; Hamer, 2011; Polderman et al., 2018; Theisen et al., 2019), such as large genome-wide association studies being published to study genes associated with sexual orientations and transgender identities (Ganna et al., 2019; Theisen et al., 2019). While some LGBTQ+ people have expressed that this type of genetic testing could be validating or increase societal acceptance of queer identities, others have expressed concerns about how the testing has serious ethical concerns and could be used with malicious intent, including pathologizing queer identities, undermining reproductive rights, gatekeeping healthcare, and informing eugenic practices (Hammack-Aviran et al., 2022; Rajkovic et al., 2022). Anti-queer bias permeates clinical genetics and the larger medical field. We posit that providing just care for the queer community requires us to examine the anti-queer foundations endemic in genetics practices. Throughout this piece, we will explore how genetics contributes to the perpetuation of pathologization of queer identities and call for systemic changes in the genetics field. 1.1 Cisheteronormative norms embedded into the genetic counseling field Anti-queer biases have been integrated into the genetic counseling field since its inception. The first genetic counseling program was founded by Melissa Richter at Sarah Lawrence College in 1969. Sarah Lawrence College, an all-women's school until 1968, was chosen in order to “appeal to its core constituency, married women in their 30s with two to four children living at home” (Stern, 2009). Over half a century later, the demographic makeup of the field continues to be predominantly white, heterosexual, cisgender women (National Society of Genetic Counselors, 2022). In general, queer communities are underrepresented in the medical field and experience microaggressions and isolation similar to students of racial and ethnic minorities (Marcelin et al., 2019). Queer genetic counseling students have reported cisheteronormative training environments and admissions practices, and a hesitancy to discuss their queer identities with program faculty and peers (Chu et al., 2023; O'Sullivan et al., 2023). One study demonstrated genetic counselors' and genetic counseling students' have an implicit preference for heterosexual over homosexual people (Nathan et al., 2019). Queer patients have reported experiencing discrimination in genetics clinics, despite genetic counselors reporting comfort in working with them (Valentine et al., 2023). Eugenic sentiments were embedded into the conception of genetic counseling. Melissa Richter articulated that the creation of genetic counseling was needed to address “the increase of illnesses by inherited diseases; the sizable proportion of our population suffering from mental or emotional disturbances; and the problems created by overpopulation” (Richter, 1968). These justifications mirror eugenic ideologies which propagandized the need for sterilizations to mitigate overcrowding in institutions, targeting immigrants, Black people, Indigenous people, poor people, and disabled people (Lombardo, 2011). Eugenicists weaponized biology to deem homosexuality and gender nonconformity as traits needing to be fixed. In a speech given in 1970, renowned geneticist H.B. Glass noted the need to end congenital defects including “sex deviation” (Ordover, 2003). Medical practices have attempted to eliminate homosexuality through castration, conversion therapies, brain implants, and lobotomies (Ordover, 2003). The eugenic roots of genetic counseling must be understood in order to examine how practices are still perpetuated within the field today through its focus on eradicating disease.

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