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Strict Scrutiny & The Black Body 

Creative Commons 'BY-NC' version 4.0 license

When people in law think about strict scrutiny, often they are also thinking about equal protection

law’s treatment of race.  For more than four decades, scholars have vigorously challenged that legal regime.  Yet none of that contestation has interrogated the social manifestation of strict scrutiny. This Article does that work. Its central claim is that Black people live under a social regime of strict scrutiny that treats the mere sight of Blackness as a suspect classification. This social regime trades on some of the same racial logics that underwrite the legal regime. Like its legal counterpart, the social version of strict scrutiny includes both “compelling justification” and “narrow tailoring” prongs.  And just as these prongs are used to justify, adjudicate, and regulate the use of race in the legal context, they are used to justify, adjudicate, and regulate the presence of race, and more precisely, Blackness, in the social context. The first prong requires a compelling justification for Black presence, enforcing a presumption that Black people should not be wherever they are currently located, that we are a threat or problem everywhere we go. This presumption produces the strict scrutiny Black people experience doing virtually anything while Black, including jogging in their neighborhoods, entering their homes, and picnicking in public parks. The “compelling justification” prong of the social regime of strict scrutiny is disciplinary in another sense as well: It requires a compelling justification to take Black people—and our perspectives and experiences—seriously. While the justifications we offer are deemed sufficient from time to time, the bar is meant to be exceptionally high.


The narrow tailoring prong of the social regime of strict scrutiny imposes further regulatory demands. It exerts colorblind pressure on Black people to “narrowly tailor” our race into nothing more than inert skin color—skin color that is ostensibly without social meaning. More particularly, Black people must negotiate our race so that our Blackness either does not matter to us, is racially irrelevant, or figures at most as “one factor among many” in our self-presentations. The work “narrow tailoring” performs in that regard effectuates a form of governmentality—self-monitoring, self-fashioning, and self-scrutinizing—that is designed to produce “racial comfort” and “racial palatability” in order to manage other people’s fears and anxieties about Blackness.


The operation of the legal and social regimes of strict scrutiny dictate that not only are racial remediation efforts that seek to address Black racial inequality presumptively suspect, but so is the Black body itself. Understood through this lens, Black people are suspect both in law and in social life and are thus subject to forms of regulation and adjudication that deny Black freedom and self- possession. In law, the suspect status of Blackness renders us presumptively illegitimate subjects of racial remediation: We are presumptively undeserving of interventions to address Black inequality.


In social life, the suspect status of Blackness renders Black people presumptively non-normative or non-law abiding. Therefore, we are presumptively deserving of surveillance, discipline, and social control. The combined effect of strict scrutiny’s social and legal regimes is not only that the domi- nant ways in which Black people experience marginality—their various trajectories to “premature death”—are pushed beyond the bounds of social and constitutional legibility and legitimacy; it is also that Black people become unspeakable witnesses to this subordinating arrangement.



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