Valuing Identity

By Osamudia R. James. Full text here.

Popular engagement with black racial identity is steadily increasing. From the protest slogan “Black Lives Matter,” to the visibility of black racial identity on number-one-debuting visual albums like Lemonade, blackness is increasingly visible in mainstream American culture. At the same time, “Black Lives Matter” gave way to “All Lives Matter,” and American courts continue their retreat from identity, insisting on “colorblind” legal analysis to assess law and policy adopted to address inequality. This Article considers that divergence, arguing that the law’s hostility to identity is a form of dispossession, the negative consequences of which extend beyond marginalized communities. More than just a useful vehicle for anti-discrimination efforts, identity politics are also important social goods, central to a properly functioning democracy, and integral to political and social resilience among minoritized identity groups. Using black racial identity as an exemplar, the “harms” of racial identity like stigma and essentialism are reframed, clearing the path for responses to discrimination that are improved on account of more positive legal engagement with identity. Reframing black racial identity also highlights the problem with post-identity legal frameworks, like dignity, into which identity is increasingly subsumed. This conception of identity in general, and black racial identity in particular, has implications for law, policy, and American democracy.