Toussaint on American Fragility: Public Rituals, Human Rights, and the End of Invisible Man @EtienneT_Esq

Etienne Toussaint, UDC School of Law, is publishing Of American Fragility: Public Rituals, Human Rights, and the End of Invisible Man in the Columbia Human Rights Law Review. Here is the abstract.

The COVID-19 pandemic has exposed the fragility of American democracy in at least two important ways. First, the coronavirus has ravaged Black communities across the United States, unmasking decades of inequitable laws and public policies that have rendered Black lives socially and economically isolated from adequate health care services, educational resources, housing stability, environmental security, stable and living wage jobs, generational wealth, and other institutional structures necessary for resilience. Second, government-mandated social distancing in response to the coronavirus has failed to dampen America’s racially biased, violent, and supervisory policing culture, reigniting demands from the Movement for Black Lives for police abolition and, more generally, the dismantling of white supremacy in sociopolitical life. In response, scholars have called for a radical (re)imagination of American democracy. This Article argues that resolving the fragility of American democracy amidst the terrors of COVID-19 warrants a renewed commitment to the emancipatory language of human rights.

In recent years, scholars have sharply critiqued human rights law as a tool for social transformation. Accordingly, this Article grounds its assertion on three claims, using the issue of housing insecurity as a guiding explanatory thread. First, the geography of health inequity in Black communities across America embodies not merely discrete instantiations of historical governmental neglect, but more poignantly, the collective rituals of white supremacy that create and reconstitute the racial social order. As a result, beyond coordinated public health measures and short-term economic stimulus plans, the future of American democracy demands new tools to confront the embeddedness of racial ritualization in everyday life. Second, human rights discourse challenges the normative underpinnings of contemporary public policy, too often tinged with liberal assumptions about the human condition that enshrine structural inequality and contain economic power. Third, human rights discourse expands the social imaginary, fostering innovation in lawmaking by deconstructing antiquated valuations of equality and reconstructing contextual notions of liberty. Taken together, these insights reveal human rights discourse as a project of reimagining legal subjectivity and state responsibility.

To further elucidate the benefits of human rights discourse in view of compelling arguments to move beyond rights-based framings of equality and discrimination, this Article places Martha Fineman’s theory of vulnerability in conversation with Ralph Ellison’s articulation of the Black American experience during Jim Crow segregation in his novel, Invisible Man. This dialogue reveals the erasure of ‘sacrifice’ from ongoing discussions of social and economic inequality, a critical dimension of democratic citizenship that has been rendered invisible in contemporary rights-based discourse and emergent strategies for poverty alleviation. Even more, drawing insights from the Movement for Black Lives and contemporary theorists of political philosophy, this dialogue clarifies the central role of ‘dignity’ in establishing the preconditions for an engaged citizenry in the context of American racial capitalism.

Download the article from SSRN at the link.