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1NC---T FW
Interpretation: The affirmative should defend the desirability of a policy action that
the United States should vest legal rights and/or duties in one or more of the
following: artificial intelligence, nature, nonhuman animal species.
‘Resolved’ means to enact a policy by law.
Words and Phrases 64. Permanent Edition.
Definition of the word “resolve,” given by Webster is “to express an opinion or determination by resolution
or vote; as ‘it was resolved by the legislature;” It is of similar force to the word “enact,” which is defined by
Bouvier as meaning “to establish by law”.
‘United States’ means the federal government.
Ikuta 10 [Sandra; December 8; Circuit Judge for the United States Court of Appeals in the Ninth Circuit;
Ninth Circuit, “Transwestern Pipeline Company, LLC v. 3.42 acres of permanent easement located in
Maricopa County et al,” Lexis]
We disagree with the last step of Agua Fria's analysis. When determining statutory meaning, we look first to the plain meaning of the text. Paul
Revere Ins. Grp. v. United States, 500 F.3d 957, 962 (9th Cir. 2007). "[U]nless otherwise defined, words will be interpreted as taking their
ordinary, contemporary, common meaning." Perrin v. United States, 444 U.S. 37, 42, 100 S. Ct. 311, 62 L. Ed. 2d 199 (1979). "When determining
the plain meaning of language, we may consult dictionary definitions." Af-Cap Inc. v. Chevron Overseas (Congo) Ltd., 475 F.3d 1080, 1088 (9th
Cir. 2007). Taking
its ordinary, common meaning, the term "United States" means our nation, located primarily
in North America, which acts through our federal form of government. The dictionary definitions are consistent
with this common understanding. See, e.g., 19 Oxford English Dictionary 79-80 (J.A. Simpson & E.S.C. Weiner eds., 2d ed. 1989)
(definition 1b: "The Republic of North America"); Black's Law Dictionary 1675 (9th ed. 2009) ("A federal republic . . . made up of 48 coterminous
states, plus the state of Alaska and the District of Columbia in North America, plus the state of Hawaii in the Pacific."). 3
The Act does not define the term "United States" and does not indicate that we are to read the special definition of "Federal agency" from §
4601(1) into the term "United States." Accordingly, we decline to do so, and adhere instead to the common understanding of the term "United
States." Given our
interpretation of the term, the landowner's right to costs and fees is triggered only when the federal
government abandons a condemnation proceeding, not when a private entity such as Transwestern does so, even if that private
entity is exercising federally granted condemnation power. 4
Agua Fria contends that Tennessee Gas Pipeline Co. v. 104 Acres of Land, 828 F.Supp. 123 (D.R.I.1993), aff'd in part and vacated in part on other grounds, 32 F.3d 632 (1st Cir.1994), supports its
contention that the term “United States” includes Transwestern for purposes of § 4654(a)(2). We disagree. In Tennessee Gas, a private gas company, acting under FERC's authority to acquire
property for a pipeline, dismissed a condemnation proceedings it had brought against a landowner after FERC approved a change in the pipeline's route. Id. at 124–25. The district court held
that, under these circumstances, it would deem FERC to have abandoned the proceedings for purposes of § 4654(a)(2). Id. at 128. The court therefore concluded that the landowner was
entitled to litigation costs and fees under § 4654(a)(2) “whether or not Tennessee Gas is an entity within the term ‘United States' as used in the statute.” Id. In other words, Tennessee Gas
avoided the very point Agua Fria claims it supports.5
5 “If the plain meaning of the statute is unambiguous, that meaning is controlling and we need not examine legislative history as an aid to interpretation unless the legislative history clearly
indicates that Congress meant something other than what it said.” Greenwood v. CompuCredit Corp., 615 F.3d 1204, 1207 (9th Cir.2010) (quoting Carson Harbor Vill., Ltd. v. Unocal Corp., 270
F.3d 863, 877 (9th Cir.2001) (en banc)) (internal quotation marks omitted). Agua Fria has not pointed to any legislative history that contradicts the plain language of the statute. Rather, the
House Report on which Agua Fria relies indicates that § 4654(a) was intended to reimburse property owners for fees and costs incurred “where (1) the court determines that a condemnation
was unauthorized, [or] (2) the government abandons a condemnation.” H.R.Rep. No. 91–1656, 91st Cong.2d Sess., reprinted in 1970 U.S.C.C.A.N. 5850, 5874–75 (emphasis added). This
interpretation is consistent with the plain language of the statute and does not suggest that Congress intended to make fees and costs available when a private party abandons a proceeding.
Further, Congress made no changes to the term “United States” in § 4654(a)(2) when it changed the definition of “Federal agency” to include private persons. See Uniform Relocation Act
Amendments of 1987, Pub.L. No. 100–17, § 402, 101 Stat. 132, 246. Had Congress wished to include private persons in the meaning of the term “United States,” it clearly knew how to do so.
See Landgraf v. USI Film Prods., 511 U.S. 244, 255–56, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994).
Because we adhere to the plain meaning of the
term “United States” in § 4654(a)(2), and that term does not include private
entities, we affirm the district *1272 court's denial of Agua Fria's motion for litigation costs and fees.6
‘Vest’ requires the force of law.
Dwyer 16 [Stephen; May 16; Judge on Court of Appeals of Washington; Westlaw, “Braun v. Selig,” 194
Wash. App. 42]
23 As evidenced, “vest” is used in a variety of related ways in common parlance. Thus, “vest” means, in one respect, “to place or give into the
possession or discretion of some person or authority.” This is a right of a particular type: “a legally fixed immediate right of present or future
enjoyment.” Stated differently, the authoritative and discretionary power of the word is conveyed by the definition, “to grant, endow, or clothe
with a particular authority, right, or property.” To state that “vest”
means “to become legally vested,” although somewhat
circular, is consistent. These various definitions establish that the focus of the word “vest” is on the discretion given
to a person or group of persons to make a decision respecting a “particular authority, right, or property.” Further, the
right granted is immediate and legally enforceable, and pertains to “present or future enjoyment.” In this way, the right to control
burial circumstances that “vests” under subsection .160(3) is a perpetual right.
Topicality is key to limits and ground---redefining portions of the resolution permits
endless reclarification AND creates incentives for avoidance---only aligning research
with agent and mechanism solves.
Three impacts:
1---Fairness---an unlimited, unpredictable topic disparately raises the research burden
for the negative -- treat this is a sufficient win condition because fairness is the logical
structure that undergirds all impacts AND controls any benefit to debate.
2---Clash---forfeiting government action sanctions retreat from controversy and forces
the negative to concede solvency before winning a link -- clash is the necessary
condition for distinguishing debate from discussion, but negation exists on a sliding
scale -- that jumpstarts the process of critical thinking, reflexivity, and argument
3---Education---Our interpretation can harness legal education to understand the law’s
strategic reversibility paired with intellectual survival skills that help us navigate and
contest violent structures. This is the most plausible internal link from debate to
meaningful social and political agitation for social justice.
Archer ‘18 (Deborah N., Associate Professor of Clinical Law @ NYU School of Law, “POLITICAL LAWYERING FOR THE 21ST CENTURY,”
draft, pp. 1-43) *Edited*
Many law students are overwhelmed by injustice. When faced with the reality of systemic inequities, even the
most committed students may surrender to hopelessness, despair, and inaction. This is not because they have stopped caring
about injustice, but because they cannot envision a path from injustice to justice. Many do not have the tools to
navigate systemic injustice or respond to interwoven legal and social ills. This article contends that although clinical legal
education provides an excellent opportunity to offer students the skills, experience, perspective, and confidence to grapple with today’s complex social justice issues, it has not sufficiently
responded to the changing educational needs of our students by teaching law students how to most
effectively utilize litigation alongside other tools of systemic reform advocacy. How can clinical education prepare law students to
navigate issues of systemic discrimination and injustice? Clinical teaching’s signature pedagogical vehicle involves students providing direct representation of individual clients in straightforward, manageable cases in which students
cases train students to be creative problem solvers
for individual clients. However, this model does not effectively prepare students to address and combat
focus on discrete legal issues, take full ownership of the case, and see it through from beginning to end.1 These
structural or chronic inequality. The individualized model also provides relatively limited opportunities for
students to address the intellectual and skills-based challenges of lawyering on a larger scale.2 Complex
cases allow students to explore the complicated relationship between justice, law, and politics.3 They introduce students to many of the skills needed to integrate rebellious or political
lawyering into their practice, including working with others to brainstorm, design, and execute an advocacy
strategy; helping to build and participate in a coalition; engaging in integrated advocacy; and analyzing
the outside forces that help shape outcomes, including organizational capacity, challenges of
enforcement, and potential political backlash.4 There is a longstanding and ongoing debate within the clinical legal education community about the relative merits of small,
individual cases versus larger impact advocacy matters.5 The parameters of this debate, coupled with an influential body of clinical scholarship criticizing impact litigation and the lawyers who bring it,6 have led the clinical teaching
community to overreact to these critiques by moving farther away from impact advocacy and strategic litigation rather than working to reconcile the legitimate concerns with the critical importance of impact advocacy as a tool for
both systemic social change and legal education. Law schools also face internal and external pressures that affect their willingness to engage students in strategic litigation. The result is that important benefits of impact advocacy
Twenty years ago, social justice advocates rallied around political lawyering as
a tool for more effective advocacy on behalf of marginalized communities.7 Political lawyering employs
a systemic reform lens in case selection, advocacy strategy, and lawyering process, with a focus on
legal work done in service to both individual and collective goals.8 While litigation is central to political
lawyering, political lawyers recognize that litigation, interdisciplinary collaboration, policy reform, and
community organization must to proceed together. Litigation is just one piece of a complex advocacy
puzzle. However, clinical law professors have never fully grappled with how to employ this model.9 Law professors today seeking to train the next
generation of social justice advocates should expose students to the transformational potential of
integrated advocacy—strategic litigation, community organizing, direct action, media strategies, and interdisciplinary collaboration proceeding together—in the fight for social
change. Political lawyering can serve as a model. The NAACP strategy of building comprehensive
advocacy campaigns to challenge racial and economic injustice helped to launch the political lawyering
movement in the last century.10 But political lawyering in the 21st century needs to do more. It needs to re-embrace and
update the concept of integrated advocacy to help lawyers leverage a broad range of tools and
perspectives to generate effective approaches to issues of injustice, both nascent and chronic. Charles Hamilton
and strategic litigation have gotten lost or minimized.
Houston, the architect of the strategy to challenge the racialized policy of “separate but equal,” whose life work challenged racial injustice in novel ways, famously explained that “a lawyer’s either a social engineer or he’s a
parasite on society,” defining social engineer as a “highly skilled, perceptive, sensitive lawyer who understood the Constitution of the United States and knew how to explore its uses in the solving of problems of local communities
and in bettering the conditions of the underprivileged citizens.”11 Law schools should set as an ambition teaching students to push boundaries in diagnosing and tackling the most pressing problems facing society. The Article
proceeds in three parts. Part I discusses political lawyering and explores its potential to serve as a framework to teach students the legal and extra-legal advocacy skills necessary to tackle the complex challenges of systemic
injustice and inequity. Part I also discusses the institutional barriers that limit the ability and willingness of legal educators to exploit the pedagogical potential of a political lawyering framework, including the idea that litigation is
often harmful to the cause of justice because it puts the lawyer ahead of the community being served. Part I then examines whether the choice that clinical legal education makes to teach through small, single-issue cases rather
than through more complex vehicles offers students sufficient opportunities to develop the array of skills needed for integrated advocacy. Part II describes the ways that clinical legal education can reframe political lawyering as
political justice lawyering, both to adapt to the current environment—complicated by the current partisan political climate—and the contemporary challenges of social justice advocacy. It also explores pedagogic strategies that
clinical legal educators can employ to train effective 21st century social justice lawyers. Finally, Part III presents a case study from my own teaching to elucidate the opportunities and challenges inherent in this approach to clinical
teaching. I. POLITICAL LAWYERING AS A FRAMEWORK FOR LEGAL EDUCATION “Social vision is part of the operating ethos of self-conscious law practice. The fact that most law practice is not done self-consciously is simply a
function of the degree to which most law practice serves the status quo. Self-conscious practice appears to be less important, and is always less destabilizing, when it serves what is, rather than what ought to be.” - Gary Bellow12
In 1996, the Harvard Civil Rights-Civil Liberties Law Review published a symposium on “political lawyering”: a model of social justice advocacy that integrates legal advocacy and political mobilization by linking courtroom advocacy
to community education, mobilization, and organizing.13 The symposium, honoring Gary Bellow, a leading political lawyer of the time and one of the architects of clinical legal education, explored the potential for political
lawyering to respond to the social justice challenges of the moment.14 At the time of the symposium, progressive scholars and activists believed that America was in a period of retrenchment on civil rights and were in search of
sources of hope.15 In the face of waning public support for the poor and disenfranchised, both financially and philosophically, one of the biggest dangers social justice advocates faced was despair about the possibility of
progress.16 Bellow contended that the nation’s ideological reconfiguration created a potentially debilitating doubt among lawyer-activists who, faced with declining avenues for change, had “embraced a far too constricted
definition of both the possible and desirable in law-oriented interventions than is, in fact, dictated by the rightward turn of national and local politics.”17 With victory harder to achieve, he insisted that lawyers who embraced and
reimagined political lawyering would advance the fight for equality more effectively. The purpose of political lawyering is not to advance a particular partisan agenda: It is to represent disenfranchised communities against the
forces of oppression.18 While difficult to define precisely, political lawyers take a politicized and value-oriented approach to legal work done in service to both individual and collective goals,19 embracing “politics” in the classical
sense as a concern “with what it means to be human; what is the best life for a human being; and . . . the ways in which we can order our living together so that good human lives will emerge.”20 Practically, political lawyers use a
systemic reform lens in decisions about case selection, advocacy strategy, and the lawyering process. Political lawyers think about the relationship between law, politics, and justice21 and use the law to animate fundamental
change in society, to alter the allocation of power and opportunity, and to enable those individuals and communities with little power to claim and enjoy their rights.22 Political lawyers also take advantage of opportunities to
influence the perceptions and behaviors of those in power.23 Finally, political lawyers empower individuals and communities by providing them with competent legal advocacy,24 but do not confine themselves to one mode of
advocacy in their quest for structural change. Instead, political lawyers use integrated advocacy strategies, including litigation, legislative advocacy, public education, media, and social science research, assessing the efficacy and
impact of each tool in service to a long-term visions of equality and solidarity.25 A. A ROLE FOR POLITICAL LAWYERING IN CLINICAL LEGAL EDUCATION In his essay, Gary Bellow described several examples of his experience as a
political lawyer.26 He reflected that: Certainly, if one focuses on the strategies employed in these examples, few uniformities emerge. In some of the efforts, we sought rule changes or injunctive relief against a particular practice
on behalf of an identified class. In other situations, we pursued aggregate results by filing large numbers of individual cases. Some strategies are carried out in the courts. At other times we ignored litigation entirely in favor of
bureaucratic maneuvering and community and union organizing. Even when pursuing litigation, we often placed far greater emphasis on mobilizing and educating clients, or strengthening the entities and organizations that
represented them, than on judicial outcomes. And always, we employed the lawsuit, whether pushed to conclusion or not, as a vehicle for gathering information, positioning adversaries, asserting bargaining leverage, and adding to
parallels between the challenges social justice lawyers faced in
the 1980s and 1990s and those that law students committed to social justice 28 face today are evident. As
discussed earlier, law students’ own despair about the enormity of the fight for justice can compromise their ability to
recognize and tackle chronic injustice. Like the earlier generation of political lawyers Bellow described, many law students today find it difficult to
believe in the possibility of change let alone its likelihood. Inexperience challenging systemic legal
problems exacerbates their skepticism. They recognize that the advocacy tools they have learned are insufficient to solve today’s problems, which fuels their sense of doubt. To help
expand their understanding of what may be possible, law students, particularly those interested in continuing the fight for racial justice, should be
taught to understand and embrace the goals, strategies, and tools of political lawyering—re-imagined for current times.
the continuing process of definition and designation that occurs in any conflict.27 The
Clinical professors need not adopt political lawyering wholesale as the only or primary approach to teaching lawyering skills and legal advocacy. Indeed, one of the challenges social justice advocates face is unnecessarily limiting the
understanding of what it means to be a good lawyer. Rather, clinical professors should explore political lawyering as one framework they can use to help struggling law students find direction and inspiration, as well as to create a
Doubt and defeatism, the sense of overly pessimistic assessments of action possibilities, are
recurrent experiences in oppositional politics, whomever the political actors may be. They require hard-headed assessments of what works and why; a
willingness to relinquish strategies and goals born of different possibilities and particularities. . . . Doubt and defeatism produce powerful spirals that can
only be broken by acts of will and leaps of faith.29 To be an effective political lawyer, an advocate must have a “profound willingness and ability to learn about and respond to the complexity
sense of connection to the work of the social justice lawyers who preceded them. As Gary Bellow wrote:
of real human beings in ever-shifting legal, economic, and social worlds.”30 So, while political lawyering is certainly grounded in effective legal advocacy, it demands more than conventional legal skills. The political lawyer values
deep personal involvement as a necessary component in addressing and tackling legal issues. That personal engagement can take many forms, but, at a minimum, involves countless conversations, collaborative brainstorming,
comparing shared experiences, and adding empathy and commonality to enhance the legal analysis and political judgment.31
It also requires lawyers to advocate with a clear
vision of what justice looks like because effective political lawyering “reache[s] not only across large numbers of people, but from the present into some altered version of the future.”32
Learning to combine savvy legal analysis with broad engagement, a deeper understanding of the
complexity of the problems faced by impacted communities, and envisioning an altered and more just future can help lead
to real solutions and overcome passivity and paralysis.33 The Civil Rights Movement, with its blended advocacy strategies, pulling a variety of levers to enable immediate or
systemic change, offers one example of political lawyering. Visionary leaders helped give voice to the frustrations and demands of the community, while other leaders acted as tacticians to devise, plan, and
coordinate the strategy.34 There were sustained and strategic protests to draw public attention to injustices, demand change, and apply political pressure. The strategic use of litigation led
gradually to the establishment of the building blocks for systemic change. Finally, civil rights lawyers worked
to enshrine litigation victories in legislation.35 While the goal of political lawyering is to empower and advance the rights of disadvantaged communities, the lawyers who engage
in it also reap significant benefits. One scholar effectively articulated some of these benefits utilizing religious terms, asserting that political lawyering can provide hope and direction to advocates by providing a “faith”—“a story, an
account of a rational hope that provides people with an image and principles for realizing the sort of lives they ought to live.”36 Political lawyering can also provide what Christians refer to as a “gospel”—a story that explains and
inspires.37 The faith and gospel of political lawyering can help lead law students who are overwhelmed by injustice to a place of deeper understanding and more effective advocacy. But law students must learn how to understand,
Complex social justice problems offer robust
opportunities to teach students about the law and lawyering, and legal clinics serve as an important vehicle to bring that set of
issues and experiences into the classroom.38 As law schools reevaluate the nature and function of legal education in light of market forces,39 they should also give attention to
articulate, and deploy that faith and gospel in service of others. B. INSTITUTIONAL CONSTRAINTS ON POLITICAL LAWYERING
the role of justice in the curriculum and the potential for law school clinics to be centers for incubation of new and evolving models of lawyering. By embracing political lawyering and encouraging engagement on complex and novel
social justice issues, clinical legal education can operate as a “generator of new visions for legal practice” on behalf of poor and marginalized communities.40 Of course, that choice is not without hurdles or concern. 1. Ideological,
Financial, and Pedagogical Pressures When clinical and experiential learning programs have moved away from an access to justice model—with a focus on the immediate challenges facing individual clients—to a broader social
justice model focused on systemic reform and community empowerment, they have often encountered criticism from inside and outside of the legal academy.41 First, critics have raised concerns that integrated advocacy in
support of systemic reform may elevate the profile of faculty and law schools but detract from an appropriate focus on the educational goals of individual students.42 Others have identified the potential for violating the separation
between pedagogy and partisan politics.43 And still other critics have identified a risk that faculty will impose their personal political perspectives on their students.44 As discussed in more detail below, integrated advocacy
strategies can, in fact, serve as valuable clinical teaching tools that promote broader student learning and support important pedagogical goals. By contrast, exclusive reliance on individual representation offers limited
opportunities to teach essential lawyering skills, including the skills critical to identifying and challenging systemic injustice.45 Every clinical program makes a political decision in deciding which cases to take or not to take, as each
decision has political implications.46 Accepting cases in criminal justice, immigration, environmental justice, and international human rights, for example, involves political choices, regardless of whether the issues are addressed
through individual representation or systemic reform efforts.47 Clinics will continue to represent individual clients who are the victims of poverty, discrimination, and disenfranchisement. These cases do not suddenly become
inappropriate teaching tools because the lawyer aggregates those claims and utilizes complementary strategies to seek systemic, community-wide redress. Lawyers must be free to use all available means to challenge the
marginalization of their clients, including strategic litigation, legislative advocacy, and other advocacy strategies designed to achieve systemic reform. If law schools intend to fulfill their promise to prepare law students to tackle
urgent and pressing challenges, then they must teach students to identify and address interlocking legal and social problems. Still, while law schools have educational ambitions, they also face financial demands that might affect
their educational choices. In fact, those financial realities may motivate schools to avoid disputes that expose them to financial risk and to a potential loss of good will that a clinic’s involvement in controversial cases might
occasion.48 While that institutional concern certainly has merit, it is not unique to political lawyering on behalf of clients. Whenever a law school chooses to represent clients, there is the potential for someone to take issue with
the school’s choice of side or client. Similarly, law schools may experience external pressures from government, private entities, donors, and alumni to prevent the use of law school resources to challenge powerful corporate or
government interests.49 These critiques evoke the successful challenge to Legal Services Corporations engaging in class action litigation on behalf of their clients50 and the long history of efforts to limit the means through which
clinics can represent their clients.51 History is replete with examples of external attacks on law schools’ clinical efforts. From the 1968 attack by state legislators on the clinical program at the University of Mississippi School of Law
over its involvement in a school desegregation suit,52 to the early 1980s threats to limit the activities of the University of Connecticut’s criminal defense clinic after the clinic successfully challenged a provision of the state’s death
penalty statute,53 to the 2017 decision of the University of North Carolina Board of Governors to defund the law school’s Center for Civil Rights’ work to challenge systemic and racialized barriers to equality, law schools have
experienced public scrutiny and scorn for their client and case selection decisions. A clinical faculty member’s case selection decisions should not be without limits or guidelines. For example, limited resources and specific
pedagogical objectives will necessarily dictate which cases will be considered appropriate. However, making case selection decisions on the basis of pedagogical choices differs fundamentally from decisions based on ideological
pressure from outside forces. The latter raises fundamental questions of academic freedom and other professional responsibilities.54 Clinical faculty members must maintain some independence to choose cases and clients that
meet that clinic’s educational and public service goals.55 2. The Anti-Litigation Bias Political lawyers have long embraced litigation’s potential to achieve “radical extensions of democracy, equality, and racial justice” in addition to
structural and cultural change.56 Law reform and structural change are important aspects of political lawyering.57 Accordingly, impact litigation on behalf of marginalized people and communities has long been an important tool
for political lawyers.58 Indeed, the NAACP’s fight against racial segregation and inequality in the 1940s and 1950s represents an early example of political lawyering that strategically deployed litigation as part of a comprehensive
effort to resist oppression and advance equality.59 Political lawyering never embraced an exaggerated belief that litigation should be the centerpiece of the fight for equality.60 Instead, like the advocates at the heart of the
NAACP’s desegregation strategy, political lawyers “recognized that litigation, interdisciplinary collaboration, and community organization had to proceed together.”61 In the late 1990s and early 2000s, political and cultural shifts
affected the strategies many political lawyers employed. New federal restrictions on the use of impact litigation and legislative advocacy by legal services lawyers were a cause of significant concern.62 Where impact litigation
remained a possibility, many political lawyers worried that litigation offered a dangerous path. Although federal courts, in particular, had proved supportive in the fight for racial justice in the 1960s, progressive lawyers in later
years worried that a more conservative judiciary was just as likely, if not more inclined, to set back progressive movements.63 This concern proved correct, particularly in the area of racial justice. Decades of conservative
appointments to the federal bench64 led to a series of legal setbacks65 that effectively limited the federal courts as a venue for the redress of illegal discrimination.66 Many advocates also believed that while progressive lawyers
were toiling away in the courtroom and achieving only minor success, conservative advocacy groups had mastered the more efficacious strategy of building powerful grassroots constituencies.67 As courts increased their hostility
to civil rights and racial justice, making victory and progress more difficult, political lawyers turned away from litigation and began focusing on alternative methods to fight for social change.68 While the labels have changed, the
fundamental purpose of the work remained the same. Political lawyering gave way to rebellious lawyering, community lawyering, and movement lawyering.69 These models of advocacy embrace different visions of advocacy that
may vary in the emphasis placed on the law’s comparative advantage relative to other strategic methodologies and tools.70 But, they all acknowledge the bond that joins client, community, and lawyer together in a common
enterprise: empowering those without power and fighting for justice and equality. The de-emphasis on strategic litigation brought real benefits. It encouraged lawyers to work as members of a team, and challenged lawyers to
ensure that those marginalized by injustice played a central role both as the focus of the advocacy and as participants in the advocacy, a positive turn regardless of the motivation.71 This evolution came at a cost. What began as a
tactical de-emphasis on litigation evolved into a philosophical bias against litigation as a social justice advocacy tool.72 Initially, social justice lawyers turned away from impact litigation because they feared that an increasingly
conservative judiciary would use these cases as an opportunity to further roll back prior gains. However, with time, the reluctance to pursue litigation became less a reaction to circumstance and more a matter of principle. Some
writers argued that litigation is a tool through which lawyers usurp the authority of already marginalized clients by setting their priorities for them.73 And, they claimed that litigation disempowers communities because of the
unbalanced power dynamics between social justice lawyers and marginalized clients.74 An example is the dialogue around rebellious lawyering, one of the most prominent models for social change advocacy. Gerald López
conceptualized rebellious lawyering as an advocacy model that would empower poor clients through grassroots, community-based advocacy that was facilitated by lawyers.75 Rebellious lawyering emphasizes concepts of
community organization, mobilization, and “deprofessionalization.”76 It calls on lawyers to reflect on critical elements of the attorney-client relationship that may further oppress members of marginalized communities.77 Through
rebellious lawyering, Professor López advances the belief that although lawyers should help solve problems facing the poor, lawyers are not the preeminent problem solvers in that relationship and should defer to clients and
communities.78 Gerald López prefers that lawyers focus on “teaching self-help and lay lawyering” to empower communities to help themselves.79 Professor López espoused his positive vision of rebellious lawyering as an
alternative to what he calls regnant lawyering.80 Professor López asserts that regnant lawyers are convinced that they need to be the primary and active leaders in their representation of poor people. Regnant lawyers find
community education and empowerment to be of only marginal importance.81 The result is that the regnant lawyer dominates the attorney-client relationship, giving little voice to the needs or concerns of the client. Finally,
Professor López also believes that regnant lawyers have little practical understanding of legal, political, and social structures.82 Rebellious lawyering raised important questions about the role litigation should play in social justice
movements. Gerald Lopez was certainly skeptical that “legal technicians” could make a meaningful contribution83 and questioned whether lawyers turned to litigation because it was best for the client or because the lawyer
wanted to play “hero.”84 All political lawyers should ask themselves these questions when considering impact litigation as part of integrated advocacy on behalf of marginalized communities.85 But, over time, commentators
began to equate regnant lawyering with impact litigation.86 Some social justice advocates argued that impact litigation perpetuated racism because white lawyers used it as a tool to impose their views on communities of color.87
Others advanced images of litigators as outsiders who used poor communities as guinea pigs in their social justice experiments, warning that “practicing law in the community is not a tourist adventure and, therefore, we must
eschew the routine of the autonomous, interloping advocate who dreams up cases in the home office and then tests them on the community.”88 Litigation, and systemic reform litigation in particular, became synonymous with
regnant lawyering: an “enemy” of social justice and not a tool fit for people committed to fighting for enduring social change. Derrick
Bell advanced one of the most prominent
and influential critiques of litigation.89 Although he acknowledged the success of the first decade of school
desegregation litigation, Professor Bell questioned the lack of lawyer accountability to marginalized communities.
According to Professor Bell, NAACP lawyers continued to employ an advocacy strategy that focused on structural school desegregation, even while many members of the Black community preferred a strategy that would have
focused on building quality, though segregated, neighborhood schools.90 He cautioned that social justice advocates failed to acknowledge growing conflicts between what they believed were the long-range goals for their clients
and the client’s evolving interests and needs.91 In the end, many members of the impacted community were left feeling marginalized. Professor Bell also suggested that “civil rights lawyers, like their more candid poverty law
Certainly, many lawyers who
use litigation as a tool for social change are regnant and paternalistic, but these qualities are not
inherent in litigators working with marginalized communities.93 Social justice advocates should have a healthy skepticism about
the ability of the law, standing alone, to achieve lasting social change.94 They should always engage in advocacy
that moves the client from the margins to the center.95 But, advocates should also resist pressure to narrow
the definition of what it means to be a great lawyer. The discussion of social justice advocacy far too
often collapses the framework not only of political lawyering, but all advocacy on behalf of poor and
marginalized individuals and communities, into one that largely rejects the important role that
strategic litigation has played and can continue to play in the fight for social justice. The ubiquity of the
anti-litigation narrative encourages progressive law students—and many clinical law professors—to dismiss litigation and
its potential for challenging bias and discrimination. Many progressive law students are afraid to become
the professionals they envisioned they would be.96 They do not want to become the discrimination tourist derided in the literature. In response to the critique of social
justice litigation, there is a growing body of scholarship supporting the conclusion that litigation is a key
strategy for protecting and expanding the rights of marginalized communities.97 This body of
scholarship acknowledges that litigation has played a critical role in the struggle for justice and equality,
and that it continues to be “an imperfect but indispensable strategy of social change.”98 Finally, these scholars examine
colleagues, are making decisions, setting priorities, and undertaking responsibilities that should be determined by their clients and shaped by the community.”92
social justice litigation in the context of the tradeoffs of different forms of activism, evaluating its potential in relation to available alternatives and revealing a new understanding of the link between law and social justice reform.99
The demonization of strategic litigation that persists in many progressive lawyering circles not only
contributes to student paralysis, it gives them a false sense of what it means to engage in systemic
reform litigation on behalf of clients and the community. Many prominent critiques of impact litigation neither provide an
accurate depiction of the potential of that litigation, nor educate students on how to apply principles of
political lawyering to that litigation. Indeed, while Derrick Bell prominently critiqued the role of strategic litigation in social justice movements, he also believed that litigation can
be an important means of calling attention to perceived injustice; more important, . . . litigation presents opportunities for improving the weak
economic and political position which renders the black community vulnerable to the specific injustices the litigation is intended to correct. Litigation can and should serve lawyer and client, as a community-organizing tool, an
educational forum, a means of obtaining data, a method of exercising political leverage, and a rallying point for public support.100 Law students should be taught that lawyers who engage in systemic reform litigation, just like any
other lawyer, can and should work with and on behalf of those victimized by discrimination. Indeed, despite the one- dimensional picture often painted for law students, not all progressive lawyers believe that “self-help” should be
Moreover, despite the image of the “interloping advocate who dreams
up cases in the home office and then tests them on the community,” not all progressive lawyers believe
that it is inappropriate for lawyers to independently analyze social justice issues and develop ideas
about ways to use the law to bring society closer to justice. Indeed, “it is artificially constricting to conceive
of lawyers as exclusively or primarily problem-solvers. [Lawyers] are not only social mechanics who wait in [their] shops for people to come to [them] with problems to be fixed.
[Lawyers] should sometimes create problems. [Lawyers] should sometimes deliver problems by translating people’s
anger and hurt and insistence on justice into political as well as legal action.”102 Many great advocacy
ideas bubble up from the community, but equally valid ideas can come from advocates who have been
working with and for those communities (or are members of the community themselves). Progressive advocates must be prepared to provide legal assistance to clients even when
those clients do not wish to be active participants in the advocacy. That is embracing the core meaning of client-centered lawyering. Rather than being taught to avoid litigation
at all costs, progressive law students need to learn how they can partner with victims of discrimination
and be accountable to those victims in the context of litigation. They need to learn the skills of collaborative leadership in law.103 Advocates
should also be careful about advancing a one-size-fits-all model of advocacy,104 lumping everything together
under the “social justice advocacy” moniker or work on behalf of the “poor and disadvantaged” and
assuming that one advocacy approach will work to solve all problems. Sometimes using “social justice” to refer to all of the work being done on
the focus of lawyering on behalf of poor or marginalized communities.101
behalf of poor and marginalized communities is the right thing to do—it unifies all of those who are fighting injustice on varying fronts. But, it can be harmful when discussing what advocacy tools will be most effective.
Given the many forms that discrimination takes and the many communities subject to discrimination, law professors should
caution students to be suspicious about broad generalizations about what clients always need or do not
need, and what lawyers always should or should not do. There is no universal theory about how to
represent disadvantaged or marginalized people. What works in the fight for economic justice may not
be the best strategy to achieving racial justice.105 And what may be appropriate to help one victim of
racial discrimination may not work for another. There is room for all types of advocates and advocacy.
1NC---Dalit K
The Dalit is in the constant positionality of imprisonment---masked dehumanization,
exploitation and domination of the “untouchable” ordained as the “other”.
Das 17 (, S., 2017. Religious Discrimination, Conversion and Dalit Emancipation. Remarking An Analisation, 2(7),
pp.48-50. Associate Professor, Deptt.of English, Berhampur University, Odisha,
The Dalit are imprisoned by fate and their birth. Social hierarchy demanded that they live forever in the
fringes of society suffering inhuman conditions endlessly, until Ambedkar was determined to fight for Dalit rights in the
twentieth Century. This paper proposes a sociohistorical research to look into Babasaheb Ambedkar‟s endeavour, in the early twentieth
century, to revive Buddhism, and initiate mass conversion, whereby, a vision of Dalit emancipation could be ensured. Disillusioned
by the pain, pathos and ills of society Buddha had severed his links with the society and religion of his birth forming and propagating a new way
of life altogether, which was non-discriminatory and doctrinated principles of life, later known as Buddhism, which would help the practitioners
to accept the harsh reality they encountered within the dogmatic moralising of Hindu caste system and oppressive Christianity. The aspect of
Buddhism that Babasaheb Ambedkar envisioned for the Dalits was emancipation through community and participation possible only through
self knowledge and induction into Sangha or community thereby, to build a formidable post-Hindu Buddhist Sangha to face challenges towards
Dalit empowerment. This is Ambedkar‟s vision of Buddhism which would show the Dalits a path to regain their human dignity The
age old
practice of Hinduism based itself on the division of labour. The social hierarchy was formed according
to the work each individual was assigned as a means of livelihood. Individual duty gradually became a family
profession leading to the formation of guilds which later took on the nomenclature of caste. In the mainstream of
Hindu life, according to the records of the agents of history, a class of people assigned with the duty of [to] serving
others were relegated to the margins and called shudras. They were rendered untouchable. The
Untouchables or Dalits are a marginalized class victimised by the hegemonic Brahministic „ideology of
caste.‟ This Hindu upper caste ideology was used as an instrument to dehumanize, oppress, exploit and
dominate the Dalit in India. In the context of domination, Antonio Gramsci, Berreman and Althusser have rightly observed that
oppression, dominance and hegemony is an ideology through which the dominant class is able to create a faction in mainstream society and is
able to reproduce its class domination. Aim of the Study Caste politics and hegemony in India over a long period of time has pushed
Dalit into the margins of society forcing them to accept their fate as the ordained “other”. The Dalit
have suffered immensely, both physically and psychologically, under the Brahminical religious tyranny. They
passively accepted their social position and economic condition until Babasaheb Ambedkar, in the early twentieth
century, protested the religious domination of the Hindu and envisioned a better life for the Dalit through conversion to Buddhism, which was
egalitarian by nature. This problematic has been discussed in this paper which proposes a sociohistorical research to look into Babasaheb
Ambedkar‟s endeavour, in the early twentieth century, to revive Buddhism, and initiate mass conversion, whereby, a vision of Dalit
emancipation could be ensured. Siva Nagaiah Bolleddu‟s book Writing the Self (2015) analyses the Dalit movement in India. In this book while
discussing autobiography of some Dalit writers, he talks about the first radical Dalit protest movement in India which was led by Jotirao Phule
(1827-1890) in the nineteenth century. Another writer, M.K.Naik, in his book A History of Indian English Literature (1982) has discussed the
political agenda of Indian nationalists who have merely redefined Hinduism with a modern face and subtly reinforced caste hegemony by
expressing in their work that caste plays a kernel role in Indian society, yet underplaying the actual experience of the Dalit in cultural
encounters. Raja Sekhar Vundru in „Buddha as Untouchable.‟ (www.Countercurrents.org 19 October 2006), observes that the Jataka tales point
towards the fact that the only way to counter discrimination is determination and enlightenment that one could achieve through education and
communion. And that Buddhism is a way out of suffering and subjugation. [Omitted Page 49] The Outcaste, the autobiography of Sharan
Kumar Limbale, corroborates the
tale of humiliation, agony and hunger. Limbale was born in the Mahar community of
Maharashtra, and is one of the most renowned Dalit writers today. He bears the stigma of illegitimacy and in his autobiography
narrates his most shocking experience as an illegitimate child born of a Mahar mother and an upper caste Lingayet father, who, though he
enjoys sex with his mother, refuses to acknowledge that Limbale is his son. He
recounts his confusion as a Dalit illegitimate
child, when, one day the teacher decided to enrol him at school and asked him his father‟s name. He says,
“I did not know my father‟s name. Strange that I too could have a father!”(45). He worries about his mother, Masamai, who has been
mortgaging herself to one owner after another and being used as a commodity suffering the tyranny of sex. Limbale‟s humiliation multiplies
when the Sarpanch refuses to sign his application form. In agony he writes, “I
too was a human being. What else did I have
except a human body? But a man is recognized in this world by his religion, caste, or his father. I had neither a father‟s name, nor any
religion, nor a caste. I had no inherited identity at all.”(59) The anger of exclusion burns through the discourse in The Outcaste. Limbale writes, “
I was afraid of my caste because I couldn‟t claim my father‟s caste and religion. In a sense I was not a Mahar, because highcaste blood ran in
my body. Could I drain this blood out of my body? My own body nauseated me. The agony I lived through is my own as much that of my
village.” (82) Questions perplex him: “How is a person born with his caste? How
does he become untouchable as soon as he
is born? From his feet Lord Brahma gave birth to a vast low-caste community. Since then this community has been living as untouchables.
To appease their hunger they steal, beg, fetch dead animals, and eat them. What is wrong if one who has been
deprived of bread for thousands of years, steals bread just once? If one had enough why would one steal? Why would one suffer at the hands
of the police?” (82-83) Hunger is depicted as another predominant theme in The Outcaste. Limbale narrates a dehumanizing incident at school.
After a picnic the teacher
asked the upper caste students to collect the leftovers and give it to the Dalit
students. The upper caste students laughed and joked but the Mahar children had their eyes on the bundle of leftovers. Limbale writes,
“Mallya carried a bundle of bhakari on his head and we, the Mahar boys, followed him excitedly like hungry vultures... Our stomachs were as
greedy as a beggar‟s sack.” (3) Hunger, humiliation
and denial of dignity and education form the saga of Dalit
existence. Bama‟s autobiography Karukku also re-states or corroborates the same theme. Bama was born in Tamil Nadu into a Dalit family
who had converted to Christianity. In Karukku she has exposed the discrimination and dehumanization that the Dalits were subjected to by the
Christian Church. Christianity operates upon the principles of love, compassion, sacrifice, humanity and equality. But the Dalits who had
converted to Christianity in India saw a different face altogether. Bama writes, “they [people in the convent] intimidated me by talking of
„obedience‟ and „faith‟. They insisted I could go only where I was sent, I must only do as I was told. They exhorted me to see with the eyes of
faith. All I could see was their authority flying high like a flag. People like me were to be sacrificed in order to maintain it.”(114) People
belonging to lower castes were demeaned and looked down upon. Bama had to camouflage her identity for the fear of being humiliated and
ostracised. She would shrink into herself as she did not have the courage to tell her peers that she was Dalit. She knew that they would then
stop talking to her. In fact she was afraid of how they might behave towards her. She was mortified by the hypocrisy of the Christian Priests and
notes some of the things they said about Dalits: How can we allow these people to come into our houses? In any case, even if we were to allow
them, they would not enter our homes. They themselves know their place.‟ „There is nothing we can do for these creatures. We shouldn‟t do
anything for them. Because to do so would be like helping cobras.‟ Even if we were to do something for them, they will never make progress.‟
115. Shocked at this casteist attitude of the Christian Priests Bama wonders, “What service can people with such tainted minds render?” (115)
The angst of the Dalit
protagonist is expressed through her experience of pain. Pain becomes an inciting and
unifying factor that binds the community together in a fight against caste discrimination and serves to
reaffirm and strengthen the link between the individual and the larger Dalit community. Sarah Beth in one of
her research papers observes the need of the Dalit to write their autobiographies. She says that it is “a form of political assertion ... giving Dalit
entrance into a public space through identity based narrative authority” (9). While dominant Indian society narrates Dalits as „inferior‟ and
„polluted,‟ the Dalit writers weild the narrative authority to describe their own life and life of their community to re-write selfhood. Critics like
M.K.Naik (An Indian Out-caste 1951) and Bolleddu (Writing the Self 2015) have cited the political agenda of Raja Ram Mohan Ray and Gandhi
who have merely redefined Hinduism with a modern face and subtly reinforced caste hegemony by expressing in their work that caste plays a
kernel role in Indian society, yet underplaying the actual experience of the Dalit in cultural encounters. Bolleddu calls Gandhi and Nehru socially
and politically conscious figures who have trivialised caste and have overlooked it. He argues that “Gandhi
has romanticised his
upper caste prestige and prejudice. He foregrounded his caste history.... Apart from his caste dominance he has revived the
Hinduism and has strongly established the modern paradigm of Hindu nationalism through his political activities”. (22) He further argues that
“Gandhi has vehemently opposed and contorted Dalits‟ interests”.(22) As a case in point he cites portions from Gandhi‟s Autobiography, My
Experiments with Truth (1927) and shows that Gandhi was against religious conversions that the Dalit resorted to by way of social
emancipation. The Dalit writers and activists reject Gandhian philosophy and accept Dr B. R. Ambedkar as a source of inspiration. Nimbalkar, a
contemporary Dalit writer, talks about Ambedkar‟s philosophy which, he claims, was not restricted to Ambedkar himself or anyone in
particular. “His thoughts contained a graph of progress of the people at the grass roots of the society”(18). Ambedkar believed that Gautama
Buddha revolted against the unjust class structure ofthe Hindus and thus, revitalised Dalit community and turned it towards self-respect.
The affs creation of relational assemblages trades off with the foundational
relationality queer Dalits have to caste-based dichotomies---"genres of humanity” are
unintelligible for the untouchable.
Upadhyay 20, Nishant, Hindu Nation And Its Queers: Caste, Islamophobia, And De/Coloniality In India,
Department of Ethnic Studies, University of Colorado Boulder, Boulder, CO, USA,
The 2018 Indian Supreme Court judgement decriminalizing homosexuality has been marked as a
“decolonial act.” Section 377, which criminalized homosexuality, was a colonial law introduced by the
British in India, which the postcolonial state maintained till 2018. The judgement may be “decolonial” in
intent, but there are other simultaneous processes at play which are not so decolonial in praxis; this
essay argues these processes are colonialism, brahminical supremacy, and Islamophobia. Caste-based
violence is integral to Hinduism and intertwined with other matrices of oppression, making caste
foundational to any claims of Hinduism as queer, trans and gender nonconforming friendly. Studying
recent Hindu nationalist responses in favour of decriminalization of homosexuality in India, this essay
traces how the Hindu Right deploys queerness to propagate its Islamophobic, casteist, and
homohindunationalist agendas. The essay argues decolonizing the law, state, and sexuality would also
mean annihilating caste and brahminical structures.
“This isn’t India becoming ‘westernised’. It’s India decolonising.” This was Shahmir Sanni’s tweet on the historic Supreme Court of India judgement decriminalizing homosexuality in September 2018. Sanni, a diasporic Pakistani from
the UK, was not alone in reading this judgement as a decolo- nial act.1 Much of Indian and global media reported the ruling as decoloniza- tion, and celebrated the ushering of India into the league of other liberal countries where
homosexuality is no longer criminalized; with the next stop gaining same-sex marriage rights.2 The judgement struck down Section 377 of the Indian Penal Code – a repressive act introduced by the British in 1861, which
criminalized sexual activities “against the order of nature with any man, woman or animal.”3 In 2013 an earlier ruling of the Supreme Court deemed the section as valid and constitutional, which went against the 2009 Delhi Court
reading down of the Section. The 2013 judgement in effect recriminalized homosexuality and stated: “both pre and post Consti- tutional laws are manifestations of the will of the people of India.” Homopho- bia was thus justified as
rooted in precolonial and postcolonial processes. The judgement may be “decolonial” in intent,4 but there are other simultaneous processes at play which are not so decolonial in praxis; this essay argues these processes are
colonialism, Islamophobia, and brahminical supremacy.
Brahminical caste structures dictate and shape all contemporary political, legal, social, cultural, and economic violence in India.5 Caste structures and violence are integral to Hinduism, and intertwined with other matrices of
oppression. However, to fight violence against queer, trans, and gender non- 6 conforming communities, Hinduism is often invoked to demonstrate how precolonial Hinduism was accepting of peoples of diverse genders and sexualities. This is used as a framework to ground queer and trans genealogies and contemporary subjectivities, and usually caste is erased from these narratives. The following works, for instance, invoke Hindu scriptures and
mythologies as a Hindu – read always as Indian – queer, trans, and gender nonconforming archive: Ruth Vanita and Saleem Kidwai’s collection of literary pieces Same- Sex Love in India: A Literary History (2000),7 Devdutt
Pattanaik’s fiction The Man Who Was a Woman and Other Queer Tales from Hindu Lore (2000), Shikhandi: And Other Tales They Don’t Tell You (2014),8 Vivek Shraya’s novel She of the Mountains (2014), and Nandini Krishnan’s
non-fiction Invis- ible Men: Inside India’s Transmasculine Networks (2018).9 Universalizing and imposing Hindu narratives provides a limited understanding of the con- temporary experiences of queer, trans, and gender
nonconforming peoples, more so for those who are further marginalized through the axes of caste, reli- gion, ethnicity, nationality, and class. Moreover, these revisionist narratives reduce homophobia to colonial legacies.
Strategically, on the one hand, it may be important for the queer rights movement to reclaim Hinduism in its quest for justice;10 on the other hand, for some on the Hindu Right,11 who were blatantly homophobic until recently,
this has become a key strategy to claim homophobia as a colonial inheritance and establish dominance of Hindu ideologies over their Others.12
What is claimed as Hindu culture is dominant caste culture. Any assertion of Hinduism as queer, trans, and gender nonconforming accepting, is not only an oxymoron, but also a normalization of caste violence. In this essay I deploy
critiques of caste to unmask brahminical and Islamophobic formations in queer India and the Indian diasporas.13 Gee Imaan Semmalar (2016) argues
relying on Hindu myths to affirm our identities gives rise to ... a regressive kind of trans identity politics that does not take into account the brutality of the caste system that finds its origin and sanction in the same Hindu religion.
Thus, dominant caste queer, trans, and gender nonconforming folks who locate their queerness through Hinduism as cultural, historical, and religious praxes are complicit in this caste violence.14 As structures of brahminical
cisheteropatriarchy predate colonialism in the Indian subcontinent, decoloni- zation is not possible in India without “annihilation of caste” (Ambedkar 1936).
This essay explores the intersections of caste, sexuality, and coloniality by focusing on the Hindu Right and its queer, trans, and gender nonconforming peoples, and the ways in which queer Hindutva discourses are mobilized to
propagate casteist, Islamophobic, and nationalist agendas.15 The first section provides a conceptual framework of homohindunationalism to theo- rize how Hindu nationalists are appropriating queer and trans struggles. The
second section studies the pro-decriminalization responses of the Hindu Right to Section 377 and how Hindu queer and trans peoples engage in homohindunationalist praxes. The examples explored are from within India as well as
from Hindu Indian diasporas to highlight how Hindu nationalism is a transnational project. The concluding section calls for the decolonizing of the law, state, and sexuality, along with annihilating caste and brahminical supremacy.
Dalit feminists have long demonstrated the critical intersections of caste, gender, and sexuality (e.g. Pawar and
Moon 2008; Stephen 2009). They show how gender and sexual relations are fundamental to the broader ideologies of caste. Caste structures are maintained through heteropatriarchal
endogamy, the practice of marrying within the same caste, to control women’s sexuality. Thus, caste and gender hierarchies are the organizing principles of the brahminical social order and
are closely interconnected. Cynthia Stephen (2009) elaborates: “Dalit woman as the OTHER is ... gener- ated by ingrained patriarchal and Brahminical values at all levels in society, which in turn
causes the high level of exclusion, invisibility and structural and domestic violence.” Rejecting dominant caste feminisms and their compli- cities within brahminical patriarchies, Stephen calls
for a Dalit womanist praxis that dismantles all structures of caste and patriarchy.
Centreing the intersections of caste, gender, and sexuality, Dalit and Bahujan queer, trans, and gender
nonconforming writers argue sexual/ queer/trans liberations are impossible without the annihilation of
brahminical cisheteropatriarchy (see Banu 2016; Jyoti 2018; Kang 2016; Vidya 2014). While many caste oppressed activists and
writers work within/alongside queer and trans movements in India, they argue these movements have main- tained dominant caste hegemony by centreing urban upwardly mobile domi- nant
caste queer cis-men identities, and invisibilizing all caste oppressed peoples. Living Smile Vidya (quoted in Ahmad 2015) writes: “Our gender identity is linked to caste in such a way that it is
impossible to separate the two at all ... We also critique Brahminism ... which is linked similarly in inse- parable ways in India.” Similarly, at the Delhi Queer Pride in November 2015, Dhrubo
Jyoti (2015) declared: “We bring caste up because caste is everywhere and in my everything ... Caste is in my sex. Caste is in my being and Caste is in every part of you too!” In other words,
homophobia, hijrapho- bia, and transphobia in India are not just a byproduct of British colonialism, but are also a manifestation of brahminical endogamic structures. Thus, addressing the
intersections of caste and colonial violence needs to be central to queer and trans struggles in India.
Similarly, caste is key to understanding the Hindu nationalist project, as it is cisheteropatriarchal,
brahminical, and Islamophobic. The main aim of the nationalist project is to create a unified Hindu
rashtra, a nation which is Hindu majority/dominant. The rashtra can be tolerant of all-Others as long as
they assimilate within the Hindu fold. The project considers Hinduism as the main religion of India, and
Christianity and Islam as “foreign” religions; and Hindi is the national language. Hindu rashtra is also
invested in the con- tinued occupation of Kashmir and Adivasi, and Tribal territories in the North East
and centre of Ind ia. Further, Islamophobia is manifested through the con- tinued oppression of Muslim
communities across India, occupation of Kashmir, commitments to the “War on Terror”, and antiPakistan national- ism; targets of all are conflated into one another and rendered as “terrorists”, while
India remains the victim.
Hindu nationalism posits itself as counter to the “official” secular national- ist discourses; however, caste unravels the commonalities between these not- so-different ideologies. Writing about
dominant caste anticolonial national- ism in colonial India, M. S. S. Pandian (2002, 1736) critiques the conflated construction of Hinduness and Indianness: “What gets encoded here as Indian
culture is what is culture to the brahmins/upper castes.” Moreover, B. R. Ambedkar (1936) argued there is not much difference between secular and practicing dominant caste Hindus because
of their shared positionalities. While it is important to see Hindutva as extremist Hinduism, following Ambedkar and Pandian, it is also critical to make clear that caste structures are inherent to
Hinduism and Hindutva, and that all dominant nationalist projects in India remain brahminical.
Paola Bacchetta (1999) argues the intersecting logics of queerphobia and xenophobia are essential to the Hindutva ideology. The Hindu right deploys “xenophobic queerphobia” to see
homosexuality as a British import to India, rendering queerness as always non-Indian and always outside of the nation (143). Further, “queerphobic xenophobia” posits Others of the nation,
specifically Muslim men, as the queer Others (144). Muslim men are rendered hyper-masculine and queer simultaneously. Else- where, Bacchetta (2013, 122) demonstrates how Hindu queers
“are found not only on the ‘They’ side of Hindu nationalism’s ‘We vs. They’ binary as might be expected, but also on the ‘We’ side as well.” I build on Bacchetta’s critiques to demonstrate the
emergent queer paradoxes within the Hindutva project and the role of brahminical supremacy and Islamophobia. While exiling queers was essential to the twentieth-century Hindutva project,
I argue that in the last few years, the Hindu nation needs its queer, trans, and gender nonconforming Hindus to increase demographic numbers. Indeed, it is welcoming back queer and trans
Hindus into the fold, quite lit- erally following the “ghar wapasi” propaganda. Ghar wapasi “produces and enforces notions of a primordial religious identity, whereby all and every- one are
declared Hindus” (Gupta 2018b, 100). It seeks to “welcome back home” those Hindus who have historically converted to Islam and Christian- ity and reconvert them. As the rahstra needs its
“ex” Hindus to come back into the fold, it also needs those whom it previously excluded due to their non- conforming identities.
In the last three decades, the Hindu Right has become mainstream, with multiple government tenures
across the country; primarily led by the Bhara- tiya Janta Party (BJP), Indian Nationalist Party, which
serves as the politi- cal/populist medium for the Hindutva agenda. During the same period, there has
been unparalleled visibility and recognition of queer and trans peoples and their struggles, culminating
in the recent judgements and bills.16 Further, within the same period, the Indian economy has also
been unprecedentedly neoliberalized. Needless to say, these three processes are deeply intertwined,
and neoliberal processes have enabled both the rise of the Hindu Right as well as the rights of the queers.17
While, arguably, the rashtra remains anti-queer, these intertwined processes have also given a platform to Hindu Right queers and trans voices. This essay explores this neoliberal queer assimilation within the Hindu nation. These paradoxes are central to the project of homohindunationalism (following Jasbir Puar’s [2007] formulation of homonationalism).18 For Puar, homonationalism is a key logic of US nationalism, whereby white queer bodies can be assimilated within the white supremacist imperial settler state. Over the last few decades, white queer subjects have become indispensable to the nation- state, while other queer bodies have been excluded through the logics of white supremacy, colonialism, Islamophobia, neoliberalism, and imperialism.
Similarly, the Zionist Israeli state uses homonationalism as a tool to project itself as queer-friendly and Palestine as queerphobic, and to erase its own illegal occupation of Palestine (Puar and Mikdashi 2012).
Drawing upon Puar, I argue certain Indian (a.k.a. dominant caste, upwardly mobile Hindu) queer and trans bodies can also be willingly included within the Hindu nationalist project to uphold brahminical supremacy and Islamophobia. This assimilation is homohindunationalism,19 and these are its four interrelated logics: first, Hinduism is projected as a queer, trans, and gender
nonconforming friendly religion. Second, Islam and Christianity are deemed as homophobic and causes for homophobia in India. More specifi- cally, Hinduism is projected as liberal, and Islam is reduced to being a homo- phobic, barbaric, and violent religion. Third, dominant caste Hindu queer, trans, and gender nonconforming folks are welcomed within the Hindutva project as long
as they partake in its brahminical and Islamophobic ten- dencies. And fourth, all Hindu/Indian Others – Dalit Others, Bahujan Others, Adivasi/Tribal Others, Muslim Others, Kashmiri Others, North Eastern Others,20 Christian Others, Sikh Others, etc. – are simultaneously rendered queer as well as queerphobic.21 On the one hand, logics of queerpho- bic xenophobia (Bacchetta 1999,
2013) render all Others as queer, that is per- petually outside of brahminical cisheteronormativity. On the other hand, simultaneously queer Hindutva discourses see all Other communities as queerphobic and Hinduism as queerphilic. Others are always queerphobic, violent, and oppressive, while Hindus are always open, tolerant, and welcom- ing. Dalit and Muslim communities are
always seen as heteropatriarchal through these logics.22
Kashmir is a prime example often marked as the queerphobic Other of the Indian state.23 In mainstream Indian media following narratives of Kashmiri queer and trans people are common: “The LGBT community in the... Kashmir Valley has almost no voice due to religious and cultural orthodoxy, which assume radical nature following the outbreak of the Islamist militancy in 1989–
90” (Singh 2018). Accounts such as these are not only deeply Islamo- phobic, they also obfuscate the ongoing occupation of Kashmir. The “Islamist militancy” is not terrorism, as the Indian state portrays it; rather, it is the resurgence of Kashmiri movement for azadi, sovereignty, from the Indian occupation. Sayan Bhattacharya (2019) warns against totalizing narratives of Hindutva
queer politics and homohindunationalism and asks for “closer attention to the complex ways in which the imaginary of the Hindu nation is also intensely resisted and contested by queer and transgender communities.” Anti-Hin- dutva queer and trans contestations are indeed critical and urgent as they defy any singular claims over queer, trans, and gender nonconforming lives in
India. In consideration of Bhattacharya’s critiques, my analysis of homo- hindunationalism is limited to those on the Hindu Right. As I expand below, while it is important to critique dominant caste-sexual formations across the political spectrum, in this essay I focus solely on Hindutva queer and trans politics. The next section explores such queer assertions from the Hindu Right.
The 2018 judgement on Article 377 was in response to petitions submitted to the Supreme Court by gay elite celebrities. These petitions marked a clear dis- juncture from the last few decades of queer activism in India. While there are many critiques of the dominant caste, cis, urban, global/English centric queer movement, the Delhi High Court judgement of 2009, the first
judgement reading down Article 377, marked a significant moment for queer rights in postcolonial India, as it was a result of decades of grassroots organizing by activists across the country. However, akin to dominant caste feminist move- ments, dominant caste queer, trans, and gender nonconforming activists often erased caste.
As I argued above, along with the more liberal, albeit mostly brahminical, queer activism of the last few decades, in recent years there has also been an escalation of dominant caste right-wing Hindu articulations of queerness and claiming of superiority to Muslims and caste Others. The Hindu Right has come a long way from its protests in the 1990s against the film Fire for its
depiction of queer intimacies between sisters-in-law in a middle-class Hindu household. The Hindu Right argued lesbianism goes against Indian values and wanted the film to be banned. The protest against the film was a pivotal moment for the Hindu Right to come out as homophobic in the open. Until recently, both the BJP and the Rashtriya Swayamsevak Sangh (RSS), National
Volunteer Organization, Hindutva parent organization of the BJP, maintained their support for keeping homosexuality criminalized. For instance, in 2013 Rajnath Singh, BJP ex-chief spoke in favour of Section 377, stating “homosexuality is an unnatural act and cannot be sup- ported” (Singh 2013). That same year, a BJP source added: “It is a flawed assumption that ratifying
homosexuality is equal to being progressive and broad-minded. The present discourse has been largely generated by a niche of the elite, which reflects the Bharat-India divide” (Ramseshan 2013). Bharat is a Sanskrit/brahminical name for India; it is often invoked to binarize between “authentic” rural India versus the “elite” mostly urban India. The above state- ment reduces
queerness as an urban, elite, and “western” issue, whereas the rural is rendered traditional and heterosexual. The RSS, in 2014, reiterated its opposition to homosexuality, and stated it would not compromise on “moral values, social system and traditions in the name of individual freedom” (Singh 2014).
In 2014 the BJP came into power at the national level under the leadership of Hindutva ideologue Narendra Modi. This was an unprecedented victory for the BJP and marked a significant ideological shift to the right. In May 2019 Modi came into power again, with a higher victory margin than 2014. This second victory has further entrenched Hindutva ideologies and escalated
violence against all oppressed communities in India. At the same time, there has been an escalation of Hindutva support for queer rights. Prior to the judgement and since, gay bhakts (supporters of Modi) have rejoiced that their great leader has “liberated” them from colonial homopho- bic clutches. Needless to say, during the court proceedings in 2018, the BJP mostly remained
silent and deferred the judgement to the court, while simul- taneously maintaining deeply heteropatriarchal, homophobic, and transpho- bic positions.24 In fact, in 2017 India rejected a UN resolution on abolishing the death penalty for queer people (Prasad 2018), and in 2018 the government dropped “sexual orientation” from workplace discrimination guidelines (Gupta 2018a).
Indicative of state-sanctioned transphobia, instead of declin- ing, violence against the trans community escalated within weeks of the decri- minalization judgement (Rastogi 2018). Further, within a few months of the judgement, the Indian government proposed a draconian Transgender Persons (Protection of Rights) Bill in December 2018, what Grace Banu called a bill “meant to kill
the trans people” (Dharmadhikari and Gopinath 2018). The Bill went against all the demands that the trans and gender non- conforming grassroots activists had been making with regard to gender self- identification and determination, reservation (positive affirmation) policies, equal punishment for sexual violence against trans people as against women, and decriminalizing sex work
and begging.25 Amidst country-wide trans-led protests against the bill, it was stalled in parliament. However, with the reelection of Modi’s government, the bill passed without much dis- cussion in November 2019.26 The gap between the BJP’s lack of support for queer and trans rights and the gay supporters of the BJP speaks to the unconditional faith of the latter towards the BJP.
Surprisingly, the RSS supported the judgement in 2018. In the last few years, different RSS leaders have supported decriminalizing homosexuality on the grounds of Hinduism’s acceptance, but with caveats such as it is still a “psychological case” and queer relations are “not compatible with nature” (Sethi 2018). After the judgement, the RSS chief declared that LGBTQ peoples are part
of society and should not be isolated. Paradoxically, this affirmation of queer desires has happened at the same time as the Hindu Right has esca- lated its attack on inter-caste and inter-religious heterosexual love.27 The con- tradictions and ambiguities between support shown by the RSS, the calculating silence of the BJP, and the unconditional support of gay Hindutva supporters all
attest to the fact that queer and trans desires can be assimilable within the Hindu fold as long as these desires emulate neoliberal, casteist, Isla- mophobic, and nationalist agendas of the Hindutva project.
Notable dominant caste Hindu queer and trans activists like Ashok Row Kavi and Laxmi Narayan Tripathi have come out vehemently in support of the Modi regime by being openly casteist, Islamophobic, and nationalist. Ashok Row Kavi, one of the first openly gay activists and founder of the NGO Humsafar Trust, has long been a supporter of the BJP and the RSS. Kavi has been known
for his Islamophobic and Hindu nationalist politics. In 2001, Bharosa, a NGO working on HIV-AIDS in Lucknow, was raided by the local police and its employees were charged under Section 377 (this incident became one of the main catalysts for the queer rights movement). In response to this incident, Kavi wrote an article against Bharosa’s partner, the Naz Foundation International
(the prime organization behind the mobil- ization that led to the 2009 decision), claiming that a Muslim of Anglo-Ban- gladeshi origin (Shivananda Khan) was the founder of Naz (Menon 2007). Over the decades, Kavi has maintained that in Hinduism, unlike Christianity and Islam, homosexuality has never been a sin. For him, Christianity and colonialism are the root cause of
homophobia in India (Singh and Rampal 2018). Thus, within the Hindu Right, both homosexuality and homophobia are simultaneously western imports. Such contradictions are an inherent part of the Hindutva project, and are deployed rather arbitrarily on the basis of varied oppositional stances to Christianity and Islam. Further, Kavi believes Muslim and Dalit queers asking for
queer rights as Muslims and Dalits are diluting the movement and stands against all pro-minority rights, except queer rights. In an interview he questioned Muslim queer activism: “Now these queer Muslims are creating their groups because they say that their religion doesn’t permit homosexuality and Hindus hate them. Where will the activism go with such belief?” (Singh and
Rampal 2018). Vikramadi- tya Sahai points out, “For people like Row Kavi, the pride is an imagination of the cis-Hindu upper class, upper caste gay male, and all the other kinds of queer people don’t exist” (Singh and Rampal 2018).
Laxmi Narayan Tripathi is a renowned Kinnar (Sanskrit word used by some Hijras) activist and celebrity. She has openly claimed that within Kinnar communities there is no caste or religion (Bhain 2016), even though her own name consists of two brahmin last names. In 2016, when Indian forces crossed the Pakistan border to attack Pakistan’s sovereignty, Tripathi appealed to the
Modi government to start a “kinnar battalion” that would help erase Pakistan from the world map. Bhattacharya (2019) notes: “While Laxmi’s proclamation chimes in with the jingoist climate currently dominating India, this invocation of nationalism as a trope to claim Indian citizenship and thus legibility in the Indian polity is similar” to other videos depicting hijras signing national
anthems and participating in drills for Inde- pendence Day marches. More recently, in 2018, Tripathi publicly supported the Hindutva call for the construction of a temple at the controversial site in Ayodhya where, in 1992, Hindu mobs destroyed a sixteenth-century mosque, the Babri Masjid. The destruction of the mosque unleashed anti-Muslim com- munal violence across India,
and since then the construction of the temple has been central to visions of Hindu nation-making. A group of trans, gender non- conforming, intersex peoples and collectives and their allies signed a statement (2018) critiquing her stance:
Tripathi, a dominant-caste brahmin trans woman, has been appealing to the Hin- dutva ideology and justifying the existence of the caste system in India ever since she began aspiring for the political position within the current ruling party. Her pos- ition negates the politics of communal harmony that is espoused by Hijras and Kinnars ... [Her] position idealizes a mythical past ...
supports the right-wing poli- tics of communal hatred in the guises of ‘we were always accepted’.
As the statement argues, Tripathi has mobilized her caste positionality to align herself with Hindutva forces and become a dominant Kinnar voice in propa- gating Islamophobic, brahminical, nationalist state violence.
In 2018 many pro-homosexuality Hindutva articles appeared online. These included a piece by an RSS member claiming: “It is a fact that ancient Indian attitudes and mores were receptive to the idea of homosexuality” (Awasthi 2018). Citing the RSS’s acceptance of homosexuality, the author asks Muslim and Kashmiri leaders to change their homophobic stances on homo- sexuality.
Calling other religions anti-queer and positioning Hinduism as a queer friendly and liberal religion is a common Hindu pinkwashing or saf- fronwashing tactic.28 Another author argues Christianity and Islam have always been against queer rights as compared to Hinduism, as the latter does not have any scriptures prescribing anti-homosexuality (Didolkar 2018b). Elsewhere, the author
blames the imposition of Christian and Islamic homophobic moralities for homophobia in postcolonial India (Didolkar 2018a). He accuses the homophobic faction of the Hindu Right for following Christian and Muslim leaders, as the Hindu Right is “actually joining hands with [Muslim and Christian] bigots and extremists” (Didolkar 2018a). Along with blatant Islamophobic and
brahminical discourses, cri- tiques of Left politics comprise another common strategy deployed by Hindutva queers. For instance, the same author critiques the Indian Left for politicizing queer rights in India, and calls for the “masses among LGBTQ to protest the political appropriation of their voices for political gains” from the left (Didolkar 2018b). He calls on the homophobic Hindu
Right to learn from the failures of the American Christian Right, as
the perception of the American right as anti-LGBT is so well-formed that in spite of the left supporting Islam, a religion equally if not more harsh on the LGBT commu- nity, the LGBT community has largely remained in the left’s fold. (Didolkar 2018a)
According to another article, published before the 2018 judgement, the reason that India, as a liberal country open to same-sex relationships, had not yet decriminalized homosexuality is “owing to the malaise of intersec- tionality” (Iyer-Mitra 2018). The author elaborates that the Left has created a “mythical enemy” and failed because of its tendency to bring together all kinds of
issues, including the Naxalite resistance and Kashmiri struggles for self-determination. Another author claims that under Modi gay Indians will feel less discriminated from “left liberal” queers as “people from the Hindu Right wing are routinely made to shut up by the ‘Left liberals’ as they would crack jokes about Modi” (Rampal 2018). These articles demonstrate what
homohindunationalism, with its saffron- washing, Islamophobic and neoliberal anti-left tendencies, looks like. Domi- nant caste queers can so easily deny occupation of Kashmir, Islamophobia, neoliberal, and brahminical caste violence, but continue to believe that the BJP and the RSS can liberate them.
Similar strategies are deployed by Hindu nationalist forces in the diaspora. In 2017 the US-based Hindu American Foundation (HAF) came out with a solidarity statement with LGBTQ communities demanding inclusive and equi- table representation in California’s school textbooks. Since 2005, the HAF has been at the forefront in seeking changes to history and social science textbooks to depict Hindus and Hinduism positively.29 The HAF contends that talking about gender, caste, religious, and class violence in India makes Hindu students vulnerable to racism and bullying in schools. Along with asking for unbiased representation of Hinduism in textbooks, it collaborated with the FAIR Education Implem entation Coalition to advocate for more LGBTQ inclusive
curricula in Californian schools. In a policy brief, “Hindu- ism and Homosexuality,” the HAF (n.d.) proclaims Hinduism is an LGBT friendly religion and allows for equal rights for people of all sexualities and genders, and is supportive of same-sex marriage. Blaming colonialism for homophobia in India, the HAF call for an acceptance of LGBT peoples within Hindu society, and “Hindus
should not reject or socially ostracise LGBT individuals, but should accept them as fellow sojourners on the path to moksha” (Venkataraman and Voruganti 2018).
Their alliance with LGBTQ groups is troubling given how the HAF has been asking for Hindu inclusion from a casteist brahminical, Islamophobic and Sikhophobic stance and seeks to sanitize Hinduism of its violent practices. Denying caste, gender, and religious violence, while propagating a myth of queer, trans, and gender nonconforming friendliness, is part of the same saffronwashing ideological framework. As discussed above, following global anti-Islamophobic homonationalist formations in the United States, Israel, and elsewhere, Hindus are also mirroring these processes. Responding to the HAF’s solidarity statement on the killing of queer activists in Bangladesh in 2016, Farhat Rahman (2017) writes: “In doing so, it cynically uses queer Muslim
deaths ... to justify and uphold American imperialism. HAF is not concerned about homophobia and transphobia as evidenced by its utter silence on the violence and extremist violence faced by minorities in India.” These alliances allow the HAF and Hindutva queers to align themselves with other Islamophobic global powers to assert their superiority to Islam.
In August 2019 India escalated its occupation of Kashmir by abrogating Article 370; the article allowed Kashmir to maintain a semi-autonomous status and to have its own constitution. For Kashmiris, this is a direct attack on their sovereignty.30 However, the government claims this was done to integrate the state into India and give Kashmiris full and equal rights as other Indians. The
state and many Indians, including those in the dia- spora,31 claim this revocation will bring rights to those oppressed within Kashmir, including queer and trans peoples. They maintain that since the Indian constitution can directly be applied to Kashmir, Kashmiri queer and trans peoples can be “liberated” like their Indian counterparts. Queer Hindu Alliance, a Hindu queer group, on
the day of the abrogation, tweeted a picture of a map with the entire Kashmir region part of India, saying: “From Kashmir To Kanyakumari, India Is One.” The Kashmir region on the map had a saffron turban tied around it. Such pinkwashing claims are false, as there are no special laws in Jammu and Kashmir’s consti- tution which criminalize homosexuality, and the Supreme Court’s
2018 decision applies to all state High Courts (Stand With Kashmir 2019). Further- more, Kashmiri queer and trans peoples continue to suffer like other Kash- miris under the communication blackout, curfew, and sustained state violence (Bhat 2019). Bund (2019) argues the Indian response always already stereotypes Kashmiris as homo/trans/phobic and terrorists, and further:
It is an attempt to dehumanize Kashmiri LGBT community by reducing their exist- ence and the human need for identity, intimacy, security and development to only sex. The motivation is to rebrand a violent masculine military state as champion of women and LGBT rights.
Thus, homohindunationalism is rooted in Islamophobia, brahminical supre- macy, and the occupation of Kashmir. The above sections demonstrate the need to study brahminical supremacy to understand queer and trans struggles in postcolonial India. Further, I contend the claims to “decolonization” need to be revaluated due to the intersections of colonialism and brahminical
supremacy. To conclude, I engage with deco- lonial and anti-caste critiques to emphasize that decolonization can only be imagined if anti-caste praxis in centred in all liberation struggles. Drawing upon Ani ́bal Quijano’s concept of the “coloniality of power”, Mari ́a Lugones (2010, 748) theorizes the “coloniality of gender” thus: “The gender system is not just hierarchical but racially
differentiated and the racial differentiation denies humanity and thus gender to the colonized.” Fol- lowing Lugones and others, we know that coloniality shapes hegemonic con- structs of race, gender, and sexuality. Within the Indian context, Aniruddha Dutta and Raina Roy (2014, 321) call to decolonize “transgender” as local nonconforming identities are rendered “as merely ‘local’
expressions of trans- gender identity, often without interrogating the conceptual baggage.” Their critique signals to the coloniality in the making of (trans)gender identity.
As agued above, brahminical supremacy has embedded caste to the logics of coloniality. Pandian, quoted earlier, critiqued dominant caste nationalism in colonial India as it was established through “valorising the inner or spiritual as the uncolonized site of national selfhood” (2002, 1736). Dominant caste leaders used this binary to construct themselves as spiritually superior to the
colonizers as well as the caste Others. Simultaneously, the elites aspired to whiteness and colonial power. For instance, in her study of the English language in colonial India, Shefali Chandra (2012) argues: “The normative gendered subject ... [was] produced in a crucible of caste-based desires that provide[d] coherence to the English-education project” (23). These processes
entrenched the caste-based gender and sexual differences between dominant caste and caste oppressed communities. In fact, these processes have been central to the ways “brahmanism came to stand in for Indian culture itself” (Chandra 2011, 148). The intersections of caste and colonialism continue to shape the postcolonial state. Chinnaiah Jangam (2017, 5) argues brahmi- nical
knowledges impose “epistemic violence ... to crush Dalits’ sense of self and to dehumanize their existence.” Challenging temporal dichotomies of colonialism and anticolonialism produced by dominant caste scholars, Jangam asserts that Dalit epistemologies rupture the ideas of an “ideal” pre- colonial Hindu past. These critiques destabilize the temporal and connect the
postcolonial/modern/secular formation of the Indian state and brahminical supremacy as interwoven and not solely as a consequence of colonialism.
As well, they point out that there was never a “true” decolonial moment in India after independence.
In a “casted state” like India,32 where logics of endogamy and blood purity have always been at stake in regulating gender, sexual intimacies and caste lines, without questioning the modalities of caste, speak to the coloniality of brahminical supremacy (Upadhyay and Bakshi forthcoming). The intersections of caste and sexuality also allow us to understand the Hindutva attack on
desires, intimacies, and love in India – not just queer intimacies but intercaste and interreligious “heterosexual love” as well. M. Jacqui Alex- ander (2005, 100–101) calls for a politics of decolonization to be rooted in erotic autonomy: “within a desire for decolonization, imagined simul- taneously as political, economic, psychic, discursive, and sexual.” Grounding the erotic in the
decolonizing erotics requires chal- lenging
homohindunationalist tactics, along with dismantling all colonial, brahminical, and Islamophobic
structures. After the 2018 judgement, we can hope, decolonizing and de-casting erotics, as moulee
(2018) writes, will “de-centralise the queer movement” to make visible “the forgotten fights” of queer,
trans, and gender nonconforming peoples in India.
decolonial praxis in the Hawaiian movement for sovereignty, J.Keh̄aulaniKauanui( 2018,198)argues, can rectify “nationalist attempts at recolonization.” Within the Indian context,
The alternative is Dalit emancipation.
Das 17 (, S., 2017. Religious Discrimination, Conversion and Dalit Emancipation. Remarking An Analisation, 2(7),
pp.48-50. Associate Professor, Deptt.of English, Berhampur University, Odisha,
Casteism, a permanently organized force of institutionalized inequality enforced by the Brahminical society,
has seen resistance and protest at all times in history. But the voices silenced and erased by hegemonic
aesthetic forums have attempted to rise aesthetically through art and literature during the Bhakti Movement and thereafter. Siva
Nagaiah Bolleddu notes in his book Writing the Self (2015) that the first radical Dalit protest movement in India was led by Jotirao Phule (18271890) in the nineteenth century. Phule was influenced and inspired by the egalitarian philosophy of the Buddha and Kabir and „struggled to
rebuild the society on the matrix of „equality,‟ „justice‟ and „reason‟‟. . . Phule believed that education was the source of emancipation and
empowerment. . . Phule‟s Gulamgiri (1873) was a revolutionary deconstruction of the Brahminical culture‟ (11). After
Phule, B.R.Ambedkar‟s role in Dalit emancipation is indisputable. He too realised that the objectives of Brahminical sacred books were designed
to give priority to graded inequality between different castes. Like Phule, after being a victim of caste discrimination, he too was influenced by
the Buddhist philosophy of dignity and equality of human beings achieved through communion. This paper proposes to look at the Brahminical
oppression of Dalits and Babasaheb Ambedkar‟s endeavour, in the early twentieth century, to revive the Sangha Doctrine of Buddhism,
whereby, a
vision of Dalit emancipation could be ensured through negotiating the political and religious
identity towards a progressive modernity. Ambedkar‟s fight for Dalit dignity and identity took the shape of
a politico-religious movement called the neo-Buddhism or Ambedkarite Buddhism. Although, the Buddha was
born in India of Hindu parents and raised as an upper caste Hindu. Disillusioned by the pain, pathos and ills of society he
severed [severing] his links with the society and religion of his birth forming and propagating a new way
of life altogether, which was non-discriminatory and doctrinated principles of life, later known as Buddhism. This
would help the practitioners to accept the harsh reality they encountered within the dogmatic moralising of Hindu caste system. The
practitioners or Shramans were recluses, who led a casteless, classless and austere life within and in the fringes of society. The Hindus, while
accepting Buddha as an incarnation of Vishnu, did not take cognizance of the Vikshus/Shramans who were not necessarily from the higher
castes of Hindu society. Buddhism never aimed at reforming the Hindu caste system; rather it had a completely different philosophy. The
aspect that Babasaheb Ambedkar, the
father of Dalit Movement in India and a great Statesman, envisioned for the Dalits:
emancipation through community and participation. It was felt that emancipation and participation
could be possible only through self-knowledge and induction into Sangha or community. Ambedkar
envisioned that Dalit intellectuals should use the community strength and property to build a formidable postHindu Buddhist Sangha to face challenges towards Dalit empowerment. This is Ambedkar‟s vision of Renaissance of
Buddhism which would show the Dalits a path to regain their human dignity. For the present purpose this paper looks into the oppressed lives
of the lower caste as depicted in the Autobiographies of Omprakash Valmiki, Joothan: A Dalit’s Life (1998); Saran Kumar Limbale, The Outcaste
(2004); and Bama, Karukku (2012), respectively. The writers in context are from three different parts of India revealing similar tales of atrocity
against humanity. [Omitted Page 50] Valmiki was born in a Chuhra community in Uttar Pradesh. In Joothan we read accounts of the atrocities
faced on a daily basis by the lower caste. The upper caste Tagas exploited the Chuhras, making them work for them without any return and the
Chuhras were not even expected or allowed to ask for payment for the labour done. Valmiki says, “We would often have to work without pay.
Nobody dared to refuse this unpaid work for which we got neither money nor grain. Instead, we got sworn at and abused”(2). As Bolleddu
notes, the practice of untouchabiliy was so rampant then „that while it was acceptable to touch dogs and cats or cows and buffaloes, but not a
Chuhra. The Chuhras were not seen as human. Their utility lasted until the work was done‟ (58). They were exploited and dehumanized.
Valmiki goes on to give more details of the dehumanising acts of discrimination of the upper castes against them. He says that the even the
teachers did not stop at humiliating him. In one incident, when he questioned a teacher about the silence in the epics about the Dalits, the
teacher flew into a rage and screamed, “Darkest Kaliyuga has descended upon us so that an untouchable is daring to talk back‟(23).In fact the
teacher thrashed him mercilessly and said, “Chuhre, you dare compare yourself with Dronacharya... Here, take this, I will write an epic on your
body” (23). Valmiki, Limbale and Bama, the three writers cited in this article, from across genders and geographical divides of India, are
representative of the Dalits who, irrespective of their religious allegiance, suffer the predicament of discrimination similar to that suffered by
the Buddha himself. The Buddhist text, Jataka1 , bears testimony to this. It is replete with tales of previous births of Buddha where he is an
untouchable. We can take as cases in point the Matanga Jataka and Chitta Sambhuta Jataka. Raja Sekhar Vundru in his article „Buddha as
Untouchable‟ notes that: In Matanga Jataka, Lord Buddha takes birth as a Chandala‟s son, Matanga. One day, Matanga goes to Benaras, and
Dittha-Mangalika, daughter of a Benaras merchant, upon seeing him cries hoarse that a Chandala has entered Benaras. The people around beat
Matanga till he becomes senseless. After he regains consciousness, Matanga realises that people beat him up for no reason because of the act
of the Dittha-Mangalika, and resolves that he will not budge till he gets her. He lay at the door of her father¹s house for seven days, his resolve
immutable. On the seventh day, the merchant brings out the girl and hands her over to Matanga... In another Jataka, Chitta Sambhuta Jataka,
the great being, born as an untouchable named Chitta goes with his cousin Sambutha to Takshashila, by camouflaging their caste to learn. But
in an incident, the two men by mistake start speaking in a dialect of untouchables. The Brahmins get to know about this and beat both of them.
They both turn into ascetics.
1NC---Implosion K
Information is dissuasive and counterproductive to communication – Hieroglyphics as
a restructuring of communication bolsters the hyperreality insofar as information is
being transferred through a medium, regardless of comprehensibility.
Baudrillard 00 (Jean Baudrillard, sociologist, philosopher and cultural theorist, Simulacra and Simulations,
http://www.egs.edu/faculty/jean-baudrillard/articles/simulacra-and-simulations-viii-the-implosion-of-meaning-in-the-media/) * WE DO NOT
We live in a world where there is more and more information, and less and less meaning. Consider three
hypotheses. Either information produces meaning (a negentropic factor), but cannot make up for the brutal loss of signification in every
domain. Despite efforts to reinject message and content, meaning is lost and devoured faster than it can be reinjected. In this case, one must
appeal to a base productivity to replace failing media. This is the whole ideology of free speech, of media broken down into innumerable
individual cells of transmission, that is, into "antimedia" (pirate radio, etc.). Or information has nothing to do with signification. It is something
else, an operational model of another order, outside meaning and of the circulation of meaning strictly speaking. This is Shannon's hypothesis:
a sphere of information that is purely functional, a technical medium that does not imply any finality of meaning, and thus should also not be
implicated in a value judgment. A kind of code, like the genetic code: it is what it is, it functions as it does, meaning is something else that in a
sense comes after the fact, as it does for Monod in Chance and Necessity. In this case, there would simply be no significant relation between
the inflation of information and the deflation of meaning. Or, very much on the contrary, there is a rigorous and necessary correlation between
information is directly destructive of meaning and signification, or that it neutralizes them.
The loss of meaning is directly linked to the dissolving, dissuasive action of information, the media, and the
the two, to the extent that
mass media. The third hypothesis is the most interesting but flies in the face of every commonly held opinion. Everywhere socialization is
measured by the exposure to media messages. Whoever is underexposed to the media is desocialized or virtually asocial. Everywhere
information is thought to produce an accelerated circulation of meaning, a plus value of meaning
homologous to the economic one that results from the accelerated rotation of capital. Information is
thought to create communication, and even if the waste is enormous, a general consensus would have it
that nevertheless, as a whole, there be an excess of meaning, which is redistributed in all the interstices of the social just
as consensus would have it that material production, despite its dysfunctions and irrationalities, opens onto an excess
of wealth and social purpose. We are all complicitous in this myth. It is the alpha and omega of our modernity, without
which the credibility of our social organization would collapse. Well, the fact is that it is collapsing, and for this very
reason: because where we think that information produces meaning, the opposite occurs. Information
devours its own content. It devours communication and the social. And for two reasons. 1. Rather than creating
communication, it exhausts itself in the act of staging communication. Rather than producing meaning, it
exhausts itself in the staging of meaning. A gigantic process of simulation that is very familiar. The
nondirective interview, speech, listeners who call in, participation at every level, blackmail through speech: "You are concerned, you are the
event, etc." More and more information is invaded by this kind of phantom content, this homeopathic grafting, this
awakening dream of communication. A circular arrangement through which one stages the desire of the audience, the antitheater of
communication, which, as one knows, is never anything but the recycling in the negative of the traditional institution, the integrated circuit of
the negative. Immense energies are deployed to hold this simulacrum at bay, to avoid the brutal desimulation that would confront us in the
face of the obvious reality of a radical loss of meaning. It
is useless to ask if it is the loss of communication that
produces this escalation in the simulacrum, or whether it is the simulacrum that is there first for
dissuasive ends, to short-circuit in advance any possibility of communication (precession of the model that calls an
end to the real). Useless to ask which is the first term, there is none, it is a circular process that of simulation, that of the hyperreal. The
hyperreality of communication and of meaning. More real than the real, that is how the real is
abolished. Thus not only communication but the social functions in a closed circuit, as a lure to which the
force of myth is attached. Belief, faith in information attach themselves to this tautological proof that the system gives of itself by
doubling the signs of an unlocatable reality. But one can believe that this belief is as ambiguous as that which was attached to
myths in ancient societies. One both believes and doesn't. One does not ask oneself, "I know very well, but still." A sort of inverse
simulation in the masses, in each one of us, corresponds to this simulation of meaning and of
communication in which this system encloses us. To this tautology of the system the masses respond with ambivalence, to
deterrence they respond with disaffection, or with an always enigmatic belief. Myth exists, but one must guard against thinking that people
believe in it: this is the trap of critical thinking that can only be exercised if it presupposes the naivete and stupidity of the masses. 2.
this exacerbated mise-en-scène of communication, the mass media, the pressure of information pursues
an irresistible destructuration of the social. Thus information dissolves meaning and dissolves the social,
in a sort of nebulous state dedicated not to a surplus of innovation, but, on the contrary, to total
entropy.*1 Thus the media are producers not of socialization, but of exactly the opposite, of the implosion of the social in the masses. And
this is only the macroscopic extension of the implosion of meaning at the microscopic level of the sign.
This implosion should be analyzed according to McLuhan's formula, the medium is the message, the consequences of which have
yet to be exhausted. That means that all contents of meaning are absorbed in the only dominant form of the medium. Only
the medium can make an event whatever the contents, whether they are conformist or subversive. A
serious problem for all counterinformation, pirate radios, antimedia, etc. But there is something even more serious, which McLuhan himself did
Because beyond this neutralization of all content, one could still expect to manipulate the
medium in its form and to transform the real by using the impact of the medium as form. If all the content is
wiped out, there is perhaps still a subversive, revolutionary use value of the medium as such. That is and this is where McLuhan's formula
not see.
leads, pushed to its limit there is not only an implosion of the message in the medium, there is, in the same movement, the implosion of the
medium itself in the real, the implosion of the medium and of the real in a sort of hyperreal nebula, in which even the definition and distinct
action of the medium can no longer be determined. Even the "traditional" status of the media themselves, characteristic of modernity, is put in
question. McLuhan's formula, the medium is the message, which is the key formula of the era of simulation (the medium is the message the
sender is the receiver the circularity of all poles the end of panoptic and perspectival space such is the alpha and omega of our modernity), this
very formula must be imagined at its limit where, after all the contents and messages have been volatilized in the medium, it is the medium
Fundamentally, it is still the message that lends credibility to the medium, that
gives the medium its determined, distinct status as the intermediary of communication. Without a
message, the medium also falls into the indefinite state characteristic of all our great systems of
judgment and value. A single model, whose efficacy is immediate, simultaneously generates the message, the medium, and the "real."
Finally, the medium is the message not only signifies the end of the message, but also the end of the
medium. There are no more media in the literal sense of the word (I'm speaking particularly of electronic mass media) that is, of a
itself that is volatilized as such.
mediating power between one reality and another, between one state of the real and another. Neither in content, nor in form. Strictly, this is
The absorption of one pole into another, the short-circuiting between poles of every
differential system of meaning, the erasure of distinct terms and oppositions, including that of the
medium and of the real thus the impossibility of any mediation, of any dialectical intervention between
the two or from one to the other. Circularity of all media effects. Hence the impossibility of meaning in
the literal sense of a unilateral vector that goes from one pole to another. One must envisage this critical but
what implosion signifies.
original situation at its very limit: it is the only one left us. It is useless to dream of revolution through content, useless to dream of a revelation
through form, because the medium and the real are now in a single nebula whose truth is indecipherable. The
fact of this implosion
of contents, of the absorption of meaning, of the evanescence of the medium itself, of the reabsorption of every dialectic of
communication in a total circularity of the model, of the implosion of the social in the masses, may seem catastrophic
and desperate. But this is only the case in light of the idealism that dominates our whole view of information. We all live by a
passionate idealism of meaning and of communication, by an idealism of communication through meaning, and, from
this perspective, it is truly the catastrophe of meaning that lies in wait for us. But one must realize that
"catastrophe" has this "catastrophic" meaning of end and annihilation only in relation to a linear vision
of accumulation, of productive finality, imposed on us by the system. Etymologically, the term itself only signifies the curvature, the
winding down to the bottom of a cycle that leads to what one could call the "horizon of the event," to an impassable horizon of meaning:
beyond that nothing takes place that has meaning for us but it suffices to get out of this ultimatum of meaning in order for the catastrophe
Beyond meaning,
there is the fascination that results from the neutralization and the implosion of meaning. Beyond the
horizon of the social, there are the masses, which result from the neutralization and the implosion of the social. What is essential
today is to evaluate this double challenge the challenge of the masses to meaning and their silence (which
itself to no longer seem like a final and nihilistic day of reckoning, such as it functions in our contemporary imaginary.
All the marginal,
alternative efforts to revive meaning are secondary in relation to that challenge. Evidently, there is a paradox
is not at all a passive resistance) the challenge to meaning that comes from the media and its fascination.
in this inextricable conjunction of the masses and the media: do the media neutralize meaning and produce unformed [informe] or informed
[informée] masses, or is it the masses who victoriously resist the media by directing or absorbing all the messages that the media produce
I analyzed and condemned the media as the
institution of an irreversible model of communication without a response. But today? This absence of a
response can no longer be understood at all as a strategy of power, but as a counterstrategy of the
masses themselves when they encounter power. What then? Are the mass media on the side of power in the manipulation of
without responding to them? Sometime ago, in "Requiem for the Media,"
the masses, or are they on the side of the masses in the liquidation of meaning, in the violence perpetrated on meaning, and in fascination? Is it
the media that induce fascination in the masses, or is it the masses who direct the media into the spectacle? Mogadishu-Stammheim: the
media make themselves into the vehicle of the moral condemnation of terrorism and of the exploitation of fear for political ends, but
simultaneously, in the most complete ambiguity, they propagate the brutal charm of the terrorist act, they are themselves terrorists, insofar as
they themselves march to the tune of seduction (cf. Umberto Eco on this eternal moral dilemma: how can one not speak of terrorism, how can
one find a good use of the media there is none).
The media carry meaning and countermeaning, they manipulate in
all directions at once, nothing can control this process, they are the vehicle for the simulation internal to
the system and the simulation that destroys the system, according to an absolutely Mobian and circular logic and it is
exactly like this. There is no alternative to this, no logical resolution. Only a logical exacerbation and a
catastrophic resolution. With one caution. We are face to face with this system in a double situation and
insoluble double bind exactly like children faced with the demands of the adult world. Children are simultaneously required to
constitute themselves as autonomous subjects, responsible, free and conscious, and to constitute themselves as submissive, inert, obedient,
conforming objects. The child resists on all levels, and to a contradictory demand he responds with a double strategy. To the demand of being
an object, he opposes all the practices of disobedience, of revolt, of emancipation; in short, a total claim to subjecthood. To the demand of
being a subject he opposes, just as obstinately and efficaciously, an object's resistance, that is to say, exactly the opposite: childishness,
hyperconformism, total dependence, passivity, idiocy. Neither strategy has more objective value than the other. The subject-resistance is today
unilaterally valorized and viewed as positive just as in the political sphere only the practices of freedom, emancipation, expression, and the
constitution of a political subject are seen as valuable and subversive. But this is to ignore the equal, and without a doubt superior, impact of all
the object practices, of the renunciation of the subject position and of meaning precisely the practices of the masses that we bury under the
The liberating practices respond to one of the aspects of the system, to
the constant ultimatum we are given to constitute ourselves as pure objects, but they do not respond at
all to the other demand, that of constituting ourselves as subjects, of liberating ourselves, expressing
ourselves at whatever cost, of voting, producing, deciding, speaking, participating, playing the game a
form of blackmail and ultimatum just as serious as the other, even more serious today. To a system whose argument is
oppression and repression, the strategic resistance is the liberating claim of subjecthood. But this
strategy is more reflective of the earlier phase of the system, and even if we are still confronted with
it, it is no longer the strategic terrain: the current argument of the system is to maximize speech, the maximum production of
meaning. Thus the strategic resistance is that of the refusal of meaning and of the spoken word or of the
hyperconformist simulation of the very mechanisms of the system, which is a form of refusal and of non-reception.
It is the strategy of the masses: it is equivalent to returning to the system its own logic by doubling it, to
reflecting meaning, like a mirror, without absorbing it. This strategy (if one can still speak of strategy) prevails today,
because it was ushered in by that phase of the system which prevails. To choose the wrong strategy is a serious matter. All
the movements that only play on liberation, emancipation, on the resurrection of a subject of history, of
the group, of the word based on "consciousness raising," indeed a "raising of the unconscious" of
subjects and of the masses, do not see that they are going in the direction of the system, whose
imperative today is precisely the overproduction and regeneration of meaning and of speech.
derisory terms of alienation and passivity.
Signs have exceeded reality – the real vanishes into the code – even attempts to
recreate communication fail in the face of the hyperreality and conclude in the same
way – hyperfinality.
Baudrillard 83 (Jean Baudrillard, sociologist, philosopher and cultural theorist, “Fatal Strategies”
More generally, visible
things do not terminate in obscurity and in silence; they vanish into what is more
visible than the visible: obscenity. An example of this ex-centricity of things, of this drift into excrescence, is the irruption of
randomness, indeterminacy, and relativity within our system. The reaction to this new state of things has not been a
resigned abandonment of traditional values, but rather a crazy overdetermination, an exacerbation, of these
values of reference, function, finality, and causality. Perhaps nature is, in fact, horrified by the void, for it is in the void, and
in order to avoid it, that plethoric, hypertrophic, and saturated systems emerge. Some-thing redundant always settles in the
place where there is no longer any-thing. Determinacy does not withdraw to the benefit of
indeterminacy, but to the benefit of a hyperdeterminacy: the redundancy of determinacy in a void. Finality does not
disappear in favor of the aleatory, but rather in favor of hyperfinality, of a hyperfunctionality: more functional than the
functional, more final than the final - the hypertelic (hypertélie). Having been plunged into an in-ordinate uncertainty by randomness, we have
responded by an excess of causality and teleology. Hypertelic growth is not an accident in the evolution of certain species, it is the challenge of
telos as a response to increasing indeterminacy. In
a system where things are increasingly left to chance, telos turns into
know all too well how to exceed their own ends, to the point of invading
the entire system. This is true of the behavior of the cancerous cell (hypervitality in a single direction), of the
hyperspecialization of objects and people, of the operationalism of the smallest detail, and of the hypersignification
of the slightest sign: the leitmotiv of our daily lives. But this is also the chancroid secret of every obese and cancerous system: those
of communication, of information, of production, of destruction - each having long since exceeded the
limits of functionality, and use value, in order to enter the phantasmic escalation of finalities. The hysteria of
causality, the inverse of the hysteria of finalities, which corresponds to the simultaneous effacement of origins and causes, is the
obsessive search for origins, for responsibility, for reference; an attempt to extinguish phenomena in infinitesimal
delirium, and develops entities that
causes. But it is also the genesis and genetics complex, which on various accounts are represented by psychoanalytic palingenesis (the whole
psyche hypostatized in prime infancy, every sign a symptom); and biogenetics (all probabilities saturated by the fatal ordering of molecules);
and the hypertrophying of historical research, the delirium of explaining everything, of ascribing everything, of referencing everything ... All this
becomes a fantastic burden - references living one off the other and at the other's expense. Here again we have an excrescent interpretive
system developing without any relation to its objective. All of this is a consequence of a forward flight in the face of the haemorrhaging of
objective causes. Inertial phenomena are accelerating. Arrested forms proliferate, and growth is immobilized in excrescence. This
is the form of the hypertelic, that which goes beyond its own ends: the crustacean that strays far from the ocean unable to return (to what
secret end?); or the increasing gigantism of Easter Island statues. Tentacular, protuberant, excrescent, hypertelic: this is the inertial destiny of a
saturated world. The
denial of its own end in hyperfinality; is this not also the mechanism of cancer? The
revenge of growth in excrescence. The revenge and summons of speed in inertia. The masses are also caught in
this gigantic process of inertia by acceleration. The masses are this excrescent process, which precipitates all growth
towards ruin. It is the circuit that is shortcircuited by a monstrous finality. Exxon: the American government
requests a complete report on the multinational's activities throughout the world. The result is twelve 1,000 page volumes, whose reading
alone, not to mention the analysis, would exceed a few years work. Where is the information? Should we initiate an information dietetics?
Should we thin out the obese, the obese systems, and create institutions to uninform? The incredible destructive stockpiling of strategic
weapons is only equaled by the worldwide demographic overgrowth. As paradoxical as it may seem, both are of the same nature and
correspond to the same logic of excrescence and inertia.
A triumphant anomaly: no principle of justice or of proportion
can temper either one; they incite one another. And worse, there isn't even so much as Promethean defiance here, no
excessive passion or pride. It appears simply that the species has crossed a particular mysterious point, where it
has become impossible to turn back, to decelerate, or to slow down.
We advocate for implosion – only a direct divestment from meaning, value, and
information can push the system to its extremes, imploding under its own weight.
Robinson 12 (Andrew, Political Theorist, Activist Based in the UK and research fellow affiliated to the Centre for the Study of Social and
Global Justice (CSSGJ), University of Nottingham “Jean Baudrillard: Strategies of Subversion” September 7, 2012
Baudrillard proposes that opponents of the system replace explosive strategies with implosive
strategies. Such strategies outbid the system in the direction in which it is already going, and/or restore symbolic
exchange. Explosion responds to the order of production. Implosion and reversal similarly respond to the order of
networks, combinations and flows. We live in an era when games of chance and vertigo have replaced competitive, expressive
games. For Baudrillard, an effective subversion today would involve becoming more aleatory than the
system. Baudrillard sees this as possible through ‘symbolic disorder’, the return of symbolic exchange. Death offers a
higher order than the code, one which can move beyond and overthrow it. Baudrillard argues for catastrophic - rather than
dialectical - responses. Catastrophic responses involve pushing things to their limit. Catastrophe is not
necessarily a negative idea - Baudrillard means catastrophe for the system, not for anyone else. Something is
catastrophic in the bad sense only from a linear mode of thought. From another point of view, it is a winding-down of a cycle to its
horizon or to a transition-point where an event happens. The catastrophe is the point of transition after
which nothing has meaning from one’s own point of view. But the rejection of the code’s demand for
meaning makes catastrophe no longer negative. Catastrophe is the passage to an entirely different
world. The challenge must now be taken up at a higher level. The challenge the code poses for us is the
liquidation of all its structures, finding at the end only symbolic exchange. Baudrillard proposes that we ‘become
the nomads of this desert, but disengaged from the mechanical illusion of value’. We should live this
space, devoid of meaning, as a return to the territory, as symbolic exchange. To become, as one writer
puts it, ‘the hunters and gatherers of the contemporary megacity’. We should reconstruct the current
space as a sacred space, a space without pathways, while rejecting the seduction of value - allowing
work, value, the dying system to bury themselves. Baudrillard was writing this before the rise of contemporary surveillance
and policing practices, which make it far harder to live in the system’s spaces as if they were territorial. It seems the system has somehow
gained a reprieve from death, as it has several times before.
It has done this by further deepening and expanding the
code, and by drawing on reactionary and fascistic energies. According to Baudrillard, the challenge is to avoid
fascination with the death throes of the system, to avoid giving it our energies in this way - to simply leave it to
die. The system keeps itself alive by staging the ‘ruse’ of its death, while leaving the subjects it has
created intact. It is, rather, through our own ‘death’ (or metamorphosis) that the system collapses. With
the social failing, it seeks new energy, drawing on the marginal rebellions of excluded groups. For this reason, Baudrillard is
suspicious of attempts to recreate marginal systems of meaning, instead calling for the logical
exacerbation of the system’s logic. One part of this revolt is the recreation of direct relations. The code depends on
everything being segmented and reduced to it, hence separated from others. Where exchange happens - for instance,
direct communication in a liberated area - the finality of the code is shattered. Any kind of social practice or language
which does not rely on the distinctions made by the code is revolutionary. Connections between people which don’t depend on
their social status, solidarity across social borders, is revolutionary. Baudrillard also calls for the expansion of ‘pataphysics‘
- the formulation of imaginary solutions and problems in parody of science, similar to Situationist detournement
and post-Situationist subvertisement and culture jamming. One might also see phenomena such as Internet memes as pataphysical. For
Baudrillard, pataphysics is a
further stage beyond simulation, which raises the stakes on it. This leads to
particular implications. The revolutionary aspect of emancipatory movements (say, of Tahrir Square or the Argentinazo or
Occupy) [ that ]do not reside in their demands or significations, but in their existence beyond these , as
direct connection. The real struggle is always against the code. But the system defuses or recuperates
struggles by redirecting them from the code to reality. This turns them into struggles within the system.
It also deflects them back to the field of political economy. But the reality we experience is a product of the code, and political
economy is now an illusion. What seems to most people as a fulfilment of a movement - the realisation of its particular project - is for
Baudrillard a recuperation, a loss of the alternative forms of sociality it produces. A thoroughgoing revolution would
keep up
constantly the intense connections of a liberated zone. It would thus become something akin to a new indigenous group,
constructed through symbolic exchange.
Vote neg on presumption:
1---There’s no internal link between voting AFF and the “end of man.” The lack of a
stable theory of political advocacy means they need to win an in round impact, but
they have established no threshold for that. Voting AFF to affirm already existing
scholarship is a feel-good recirculation that doesn’t solve.
2---Ballot---no reason it solves their offense---creates externalizable change or solves
any portion of the aff---and if it does it flips their offense and proves its parasitic in
ballot based verification.
1NC---AT: Weheliye/Method
Weheliye is wrong and the Habeas Viscus fails.
1---It’s a metaphor at best.
2 arguments
---The notion of habeas viscus is incoherent because there can be no shift to the exterior of law if a state
of exception calls into being the notion of law---its an incomplete theory
---Their argument breaks down into a serial use of metaphors which doesn’t allow us to think
David Marriott 15. Professor of History, UC Santa Cruz. “Black Critical and Cultural Theory.” Years
Work Crit Cult Theory 23(1): 190-206. Emory Libraries.
I suppose Habeas Viscus must be read very differently depending on whether it is approached as a contribution to the theory of bare life or as a
contribution to the social death theory of blackness. Yet, as both it succeeds in showing why the reader of the one needs to become the reader
of the other. If
the biopolitical can never have done with the problem of black social death and the language of
any philosophical engagement with that problem and language finds itself implicated and at
issue in how race informs the notion of exception, then it is important to know how bare life and
biopolitics ‘misconstrues how profoundly race and racism shape the modern idea of the human’ (p. 4). If
Weheliye’s underlying thematic encourages us to read that opening question as fundamental, if the eight chapters that
race; and
compose the book—on blackness, bare life, assemblages, racism, law, depravation, deprivation and freedom—thus beckon towards a future
focus for Black Studies in the light of that question, then it
matters whether Weheliye offers a persuasive answer to this
the critique of bare life and politics is an important one, the need to rethink blackness as a
refusal of the exception is not entirely convincing and thus the risk of incompleteness is not only
methodological. At risk is the overall coherence of the book, and this risk is never quite resolved.
question. While
Moreover, how are we to take this reference to ‘flesh’ when it is made without reference to the alterations it has already wrought on feminist
theories of black abjection, on, say, the sexual reproduction of chattel slavery? What is it that saves the flesh from suffering if not Spiller’s
reference to a symbolic yay-saying to the law (of the mother) rather than the father’s name? Perhaps it is because black flesh in being so
quickly removed from law, and placed in parenthetical abjection, is always the trace of violent dejection, that its freedom belongs in
formulating itself in relation to law’s obliteration? Weheliye describes his notion of habeas viscus as more radical than Spillers insofar as it does
not ‘obey the logic of legal possession’ but nonetheless also inhabits a language of future anteriority (that is, an ending or catastrophe that has
already happened, but one that can also only be borne in a messianic now). Weheliye, like Scott, refers to Benjamin’s theory of messianic time
in which time is restituted neither through ontology or ethics nor some amalgam of the two, but through revolutionary acts of the oppressed
(p. 133).
Perhaps what Weheliye and Scott (and Benjamin) have in common is the thought that at a certain time and in a variety of ways, a future can be
thought as a point of redemption or transformation or irrevocable encounter that can never be read, or written as such. Unlike Scott,
Weheliye will not say that time and history are out of joint, for what revolution requires is ‘a real state
of exception’ (!) which he describes as a ‘prehensive shift’ in time (p. 134). In one of its guises, habeas
viscus will name and be the name of this real state in the very possibility of a non-racializing emergence
of the human. But how can this shift be both ‘exterior to the jurisdiction of law’ and be a real state of
exception if the exception is what calls into being both law and sovereignty? (p. 136) Habeas Viscus rarely
goes beyond a language of metaphor and lyricism when describing this shift to future anterior freedoms
and, in his readings of Benjamin (and other thinkers and texts), his theorizing quickly breaks down into a serial use of
metaphors but one which singularly fails to open up ‘flesh’ as a space of thinking the beyond of
sovereignty, capitalism, and of law. As such, Habeas Viscus represents, in my view, a somewhat tenuous,
inconclusive attempt to think a future from the ‘enfleshed parenthetical present of the oppressed’ (p.
2---It fails---laundry list.
Meagher, 18—University of Connecticut (Thomas, “Maturity in a Human World: A Philosophical
Study,” https://opencommons.uconn.edu/cgi/viewcontent.cgi?article=8155&context=dissertations,
Of course, these
reflections take as their point of departure not a universal and ahistoric form of patriarchy, misogyny, or
sexism, but rather a historically particular form instantiated through Euro-modern colonialism (Wynter, 1990;
Oyèwùmí, 1997; Lugones 2007). What is it at issue is not so much the intersection of standalone forms of racism and sexism, but rather their
mutual co-constitution through an imperial and colonial matrix of power. Following Sylvia Wynter, we may then raise the issue that the
problem of maturity may be linked to what she terms “the over-representation of Man as if it were the human”
(2003). “Man” takes as its point of reference a white, European or Euro-American bourgeois male, a “global breadwinner” whose economic
mastery is attributable not to illegitimate regimes of appropriation and exploitation but rather to Man’s intrinsic virtue. The
episteme, Wynter contends, is premised on elevating Man to the status of an a priori ideal of humanity.
A consequence is that modern forms of knowledge are shrouded in a logic of “biodicy” (Wynter, 2006), in
which whatever ills humanity confronts can be attributed not to the misdeeds of Man but rather to the intrinsic lack of value to be found in
those human beings who are not Man – women, people of color, the global poor, etc. As such, the imperative lurking behind Euro-modern
conceptions of maturity, as well as their enshrinement and naturalization within Euro-modern institutions, may be not only “be a man” but
simply “be Man.” “Man,” of course, stands ambiguously at the heart of many modern discourses. On the one hand, “man” can be taken to refer explicitly and particularly to adult males. On the other hand, “man” and
“mankind” are taken to refer to humanity in general, with similarly gendered pronouns and suffixes serving as generic referents. Feminist thought has long had to reckon with the ripe conditions for equivocation that this
engenders, and Wynter and other thinkers confronting problems of racism and coloniality have gone further in establishing that for Euromodernity, “man” equivocates between references to all human beings and references
merely to European peoples (and perhaps the occasional “honorary white”). Yet receiving much less attention is another central ambiguity: if “man” has an equivocal relation to categories of race and gender, what of its relation to
age and adulthood? If Euromodern discourses on man over-represent a racialized, gendered, classed subject as if it represented humanity writ large, is there a similar error in over-representing the adult as if it were all humanity?
Clearly, it would be an error to say, for instance, that human rights are rights by virtue of one’s having attained adulthood; the “rights of man” often refer to rights that would appear to be the human rights of children as well as
adults. Indeed, there may be some human rights that are distinctly owed to children – consider, for instance, S. Matthew Liao’s argument that children have a right to be loved (Liao, 2015). Yet here the issue of paternalism
emerges, a source of recurring debates in Euro-modern thought due to its imbrication in colonial and patriarchal modes of power. If children have a right to have guardians, then the debate rages as to whether the child-like should
likewise have some form of protectorate imposed upon them. Here a critical response emerges: if paternalism functions as a Trojan horse for colonization and patriarchy, then perhaps it simply ought to be rejected wholesale.
Hence, what if decolonizing values requires discarding the notion of maturity altogether? In other words, maturity is woven into the fabric Euro-modern values, and it is therefore a medium for the propagation of coloniality. Where
efforts to value maturity are present, it seems, the valorization of “Man” and devalorization of women, people of color, etc. lurks in the shadows. If Wynter’s call is for “the human after Man,” then it might follow that what is
The notion that any values associated with colonialism or
coloniality ought to be discarded, however, is fraught with problems. The apt metaphor here pertains to the folly of
throwing babies out with the bathwater. Colonialism is an effort to instrumentalize land, people, culture, values,
and knowledge; it invariably makes use of that which is valued prior to colonization. This is not to say
that colonialism does not introduce new values of its own, but even where this is the case, colonialism
often seeks to impose these through projects of cooptation that are established in reference to the
values that precede them. In brief, the issue is that efforts to value maturity are by no means original or exclusive
to Euro-modernity and coloniality. Consider here Ifeanyi Menkiti’s contention (1984, 2004) that it is typical of African conceptions
needed is the achievement of the human after maturity. b. The Problem of Naïve Decolonization
of personhood that one must mature in order to become a person. Full personhood is not a product of birth alone but is rather achieved
through the acts and influences that make one meaningfully a member of a community. The claim, then, is not simply that it is better to be
mature than not, but rather that a type of maturity is requisite to attain an ontological status of personhood: “passage through time helps
create not only a qualitative difference between young and old, but also an ontologically significant one” (Menkiti, 2004: 325). The
of maturity as bearing normative significance and even the notion of maturity as constitutive of the difference
between those who are fully human and those who are not are not purely European or colonial
inventions. This is not to say that Europe did not re-invent notions of maturity or bring to them a significance
that was distinctly colonial and not indigenous to a pre-colonial context. Nor is it to claim that it was African
societies’ normative attachment to forms of maturity that made them more susceptible to efforts of European colonization. The point is
simply that maturity refers, ultimately, to ideals about which many societies have had constructive ideas prior to
colonization, and the fact that there are colonial ideals of maturity, as well as precolonial conceptions of
maturity that have been colonized and transformed in the process, does not imply that maturity ought to be
discarded wholesale on the grounds that it is no more than a colonial artifact. The effort to reject
whatever is associated with colonizers or epochs of colonization can be termed “naïve decolonization.”
I do not mean to suggest that decolonization is itself naïve but rather that one can distinguish between
forms of decolonization that are naïve and forms that are mature. Naïve decolonization often works
according to the logic of guilt by association. Under this framework, decolonization’s chief responsibility
becomes to repudiate whatever happens to be associated with the colonizers. The problem with such an approach
is one that Aimé Césaire raised in Discourse on Colonialism (2000): that to oppose colonialism, to maintain that it
dehumanizes both colonized and colonizer, does not mean that one can go back to a pre-colonial world.
Frantz Fanon, likewise, issued the call to “Leave this Europe where they are never done talking of Man, yet murder men everywhere they find
them” (1963: 311), but this “leaving” meant to refuse the claim that Europe was an adequate model, that its “successes” made it worthy of
imitation. “It is a question,” Fanon wrote, “of the Third World starting a new history of Man, a history which will have regard to the sometimes
prodigious theses which Europe has put forward, but which will also not forget Europe’s crimes, of which the most horrible was committed in
the heart of man, and consisted of the pathological tearing apart of his functions and the crumbling away of his unity” (1963: 315). In short,
the imperative to build a world no longer suffering from colonial pathologies may require that one not
discard all European thought in much the way that European intellectuals often claimed that all nonEuropean thought could be discarded. Naïve decolonization regards repudiation of the colonial as
sufficient for decolonization; mature decolonization confronts a responsibility to build a world that is
genuinely after colonialism, a world, as Fanon called for, in which tools would not possess human beings and enslavement would be
brought to a permanent end, and wherein it would be possible for human beings to discover and love each other, wherever they may be
(1967a: 231). In that sense, we
may issue a warning that Wynter’s call for “the human, after Man” may not
mean, as such, the death of Man. The obvious points of reference here are Michel Foucault’s vision that man could be erased “like
a face drawn in the sand at the edge of the sea” (Foucault 1994: 387) and Friedrich Nietzsche’s “God is dead. … And we have killed him”
(Nietzsche 2001: §125). The
problem with a call for Man’s death is that the death of Man is not necessarily the
end of Man’s power. That Man should have hegemonic power in shaping the world, in organizing it in such a
fashion so that each of its part serves Man’s ends, is an acute concern. But the death of Man does not guarantee the
diminishment of such power. Foucault had expressed a similar concern in warning that having literally cut off the king’s
head does not ensure that one will have done likewise in the realm of political theory (Foucault, 1978: 88-9);
the question can remain, though, as to whether even cutting off the king’s head in political theory would eradicate the king’s power over how
politics is thought about. Here African ontologies suggest a relevant point of consideration: the death of ancestors does not eradicate their
power with regard to present and future generations (Gyekye, 1995: 68–84; Henry, 2000: 26–43; L.R. Gordon, 2006: 58–61). Wynter, in
building off of and beyond Foucault’s framework, discussed
these matters in terms of “transumptive chains” that
govern the shift from one episteme and epoch of power to another. The symbols and modes of
knowledge production put into effect to undergird one regime of power, do not “resume” so much as
“transume” – that is, their interruption by revolutions and epistemic breaks yields their continuation in
altered forms. The “death of God” at issue for Nietzsche and others was less an issue of God’s absence and more an issue of how God had
been replaced; could science, philosophy, or Man really serve the knowledge- and world-orienting roles that God had? To ask of humanistic
institutions that they replace God is, in its own way, a continuation of the power of God: it is to impose a demand that is exogenous to those
institutions and that may transcend their capacities quite drastically. The
degodding of the Western episteme, Wynter
contends, moved it out of a Christocentric framework of knowledge production into a partially secularized episteme of
Man-1, premised on the centrality and ideality of “homo politicus,” which in turn was further degodded
and begot Man-2, the episteme of “homo oeconomicus” (Wynter, 2003, 2006). But the structure of the
argument implies that present efforts toward decolonization could, simply, beget Man-3, and simply
because one takes as one’s aim that one will kill Man-2 does not negate the possibility that one’s efforts
will culminate in the hegemony of Man-3. A further reference point of relevance, then, is Sigmund Freud’s notion of the
Oedipus complex (Freud, 1977: 207–8, 328–38). Human beings enter into a world in which they are cared for, but their maturation facilitates
the diminution of that care. Confrontation with an adult world, though, may spark forms of resentment that engender an anxious or
oppositional relation to those by whom one has been nurtured. The notion of the Oedipus complex suggests a desire to displace and replace
those sources of care, and the structure of such desire would be to persist without reflective awareness: e.g., I want to spite my father by
surpassing him and reincarnate my mother’s love through another, but I may fail to understand that this desire is implicitly manifest in my acts.
The psychoanalyst, then, can point to the structural tendency of human existence to produce Oedipal desires, and for the patient under
analysis, this can facilitate reflection on how one’s behavior may ultimately be the symbolic expression of the Oedipal. Fanon (1967a), though,
by taking this method seriously, saw that a rigid interpretation of it would have to be transcended, for in a colonized society, the sociogenesis of
Oedipal structures would be quite different than it would be in the European context that stimulated Freud’s explorations. If in both France and
Martinique it was Man that was symbolically produced as paragon of value, then the investment of Oedipal desire in one’s father could be
typical among white children in France and atypical among black children in Martinique. The tragic consequence is that many black people
would, in turn, act upon these desires unreflectively, pursuing dreams of integration and white acceptance that were simply unrealizable.
Hence, the Oedipal could, in the colonial context, be an extension of colonial power, part of the array of psychological tools that undergird
domination. A further problem, then, is evident even in opposition to the colonizer: pursuing
the death of the colonizer, to
passionately seek the death of Man, could be to fail to confront the causes of one’s debilitation and,
indeed, to exacerbate them. Psychoanalysis hinges on the importance of moving from a naïve understanding of one’s desires to a
mature one. Ironically, this point is often lost on many of those who repudiate Freudian psychoanalysis. Indeed, both
in positivist and post-structuralist psychologies there is much evidence of an Oedipal relationship to Freud, an over-investment in, as it were,
cutting off his head in psychological theory. This may take pathological expression where it means that one recapitulates the worst of Freud’s
mistakes and discards his most prescient insights. An example is illustrated by Emma Perez’s criticism of Félix Guattari and Gilles Deleuze’s AntiOedipus. If Guattari and Deleuze are correct that the Oedipal does not arise in the pre-colonial kinship structures of the non-West, it does not
thereby follow, Perez contends, that colonization has not imposed the Oedipal on them. To
resist the Oedipal diagnosis, in short, does
not combat the “Oedipalization” that coloniality puts into place (Perez, 1999: 102–110). The “anti-” of antiOedipus may, ultimately,
betray an Oedipal anxiety at the heart of post-structuralist efforts to hasten the death of their forbears. So, too, for positivist approaches that,
repelled by the limitations of the “talking cure” approach of psychoanalysis, beget an uncritical and at times fetishistic relationship to
neurophysiological reductionism. That
there are limitations to the early articulations of psychoanalysis does not entail
that one ought to overlook its strengths, in the same way that the psychoanalyst may recommend that the patient respond to the
influence of a flawed parent by at least attempting to grasp and understand the parent’s genuine virtues and accomplishments; otherwise,
the disdain may become pathological. The point of examining structures of Oedipal desire is not to discover
an inevitable fate – to find that one is doomed to pathology and catastrophe – but rather to help one
take responsibility for reflecting upon what one really wants and needs and, to use Fanon’s term, to be
actional in the face of powers one cannot fully eradicate. What Fanon and Perez point to, then, is a model of mature
decolonization for which the mere acceptance and application of European ideas and concepts is inadequate but for which the wholesale and
uncritical repudiation of those ideas and concepts is undesirable and irresponsible. Hence, the
maturity of decolonization
involves heeding both Audre Lorde’s warning that it would be naïve to expect the master’s tools to dismantle the master’s house (Lorde,
1984: 110–3) as well as Jane and Lewis Gordon’s warning that the effort to dismantle the master’s house is
necessary but insufficient for projects of decolonization (Gordon and Gordon, 2006). The master is, indeed, wellversed in how to use his tools to maintain his house; for this reason, decolonization that limits itself to
immanent critique of the Euro-modern intellectual canon is likely doomed to tilt at windmills, for this canon was
by and large erected in order to facilitate enduring modes of coloniality. But the diminution of the
master’s power is not merely a matter of dismantling his house, and tools that the master has sought to
employ might nonetheless be useful to construct other houses, to create alternative possibilities and
futures. In short, naïve decolonization takes its responsibilities as delimited by the need to overthrow the
master, but mature decolonization encounters an expanded responsibility which demands the creative
and critical apprehension of the resources and inventions that can build a new world and set afoot a
new humanity. As such, it needs to be wary of naïve decolonization, for, among other issues, naïve
decolonization is a tool that masters can manipulate, have manipulated, and may even at times
appropriate as their own. Think, for instance, of the many ways in which the ideal of a color-blind society,
offered up initially as an anti-colonial idea, has been turned into an asinine but effective tool for
passing and upholding policies with racist effects, or the ways in which the expansion of U.S. colonial
power drew upon exploitation of the so-called “Black Legend” to replace Spanish colonial power
without eradicating the colonial standing of the locales thus “liberated.” To speak of “naïve decolonization” at all,
though, is to raise a thorny linguistic issue, for “naïve” shares its etymological roots with the term “native.” The notion that its articulation in
modern French and English vernaculars is completely unrelated to conceptions of “natives” in the colonies strains credulity. To decolonize the
concepts that shroud intellectual production and normative life requires critical reflection on the relationship between the concepts as
inherited and the greater conceptual scheme of which they are parts. So, for instance, we may speak of the efforts of those like Kwasi Wiredu
(1997: 136–144) or Ngũgĩ wa Thiong’o (1986) toward decolonization by way of rethinking concepts from the perspective of languages not
imposed by colonizers and, indeed, to be able to think enmeshed in these languages rather than as a merely occasional visitor to them. But it
does not follow that one is in all cases better off by having abandoned terms that appear in the language
of the colonizer, and the imperative of crosscultural communication – both in general and in the particular case of
projects of decolonization – may require being able to critically and reflectively employ language that is neither
purely innocent nor purely colonizing in its pragmatic effects. “Naïve” may simply refer to a cultural universal with
transcultural validity, whereas the peculiar sense of “native” in Euro-modern languages may be the cultural particular of a cultural formation
guided by the telos of colonization.4 And where “naïve” is used in such a way as to implicate this “native” baggage, one
need not throw
one’s hands up and abandon the term, since the alternative of distinguishing better and worse uses of it
3---Cant actualize into action.
Annie Menzel 16. Assistant Professor of Political Science, Vassar College. “And the Flesh Shall Set You
Free: Weheliye’s Habeas Viscus.” Theory & Event 19(1). Emory Libraries.
These exhilarating evocations of other humanities are occasionally undercut by moments of critical
carelessness. While the general thrust of the critique of Foucault’s Eurocentricity is on target, it can be frustratingly
fast and loose in the details, culminating in the mystifying claim that “Foucault positions hybridity as a
panacea for racial difference.”27 Given that the Society Must Be Defended lecture series—the target of
Weheliye’s critique here—ends with the assertion that racism appears inevitable for biopolitical states,
this is an odd misconstrual. More troubling is the assimilation of Ann Laura Stoler’s 1995 Race and the
Education of Desire28 to the most problematic aspects of Foucault’s conceptualization of biopolitics,
representing her as amplifying its more baldly racist accents,29 when many of her own criticisms of
Foucault’s colonial blindnesses—as well as her attention to the instabilities, contradictions, and failures
of whiteness/Europeanness projects—in fact prefigure some of Weheliye’s own revisions. The initial
three-part schema of racializing assemblages’ classificatory function as producing “human, not-quitehumans, and non-humans” has by the end collapsed without explanation into Man versus everyone
else.30 Moreover, in its initial formulation, it bears more than a passing resemblance to Frank Wilderson’s
“structure of US antagonisms” that partitions the population into White (“master”/“settler”/“human”),
the Red (“savage”/“half-human”), and the Black (“slave”/“non-human”),31 yet Wilderson is not cited.
This omission is striking given that Wilderson, though he emphasizes less the fecund subversions of the
flesh than its violent ongoing production as humanity’s constitutive other, is one of Spillers’ most
alacritous interlocutors. Likewise, Ewa Ziarek’s recent deployment of Spillers and Moten to radically rework Agamben’s notion of bare
life as a ground for politics,32 a project with clear parallels to Habeas Viscus, gets a single commentless citation.33 What seems to be a
substantial implicit engagement with Afrofuturist theorizations in contemporary Black Studies,
moreover, is never explicitly developed. And while the book is nominally built around the titular notion of habeas viscus, it
doesn’t entirely hang together as a concept album. Unlike, within related literature, Wilderson’s and Jared Sexton’s explanatorily forceful
concept of the political ontology of race or Hartman’s notion of fungibility as the crux of Black expulsion from the Human, the
meaning of the term (variously characterized as a racializing assemblage, a mode of conceptualizing
racializing assemblages, and identical with the hieroglyphics of the flesh) remains elusive—as does, in
consequence, its potential for fruitful redeployment.
1NC---AT: Law Bad
Racial hierarchies are socially constructed and malleable---over-deterministic analyses
of race occlude other social dimensions that predated and informed hierarchies
Zack 18—Professor of Philosophy at the University of Oregon [Naomi, 2018, Philosophy of Race An
Introduction, Chapter 6: Social Construction and Racial Identities, pgs 123-5, Palgrave, DOI: 10.1007/9783-319-78729-9] AMarb
Before the construction of race in science, there were ideas of different human groups but no conceptual system of difference applying to all
humankind. The construction
of race in science drew on existing societal ideas and created abstract typologies
that in turn became the cognitive ele- ment of race in society. However, at this time, after typologies of race have been
discarded in the biological sciences, racial constructions in society endure and continue to be reconstructed.
Socially constructed race has a momentum of its own that people live out, and social scientists, scholars, and
those in the creative arts continue to study and suggest ways to change. The construction and reconstruction of race
in society has legal, social, economic, and cultural components, all of which taken together, in different combinations, or in isolated experience, make it seem to individuals that race is natural and
inevitable, instead of human-made and historically and geographically contingent. Individuals have different
physical traits that have already been selected as racial traits before their birth and that prior selec- tion forms a reality to be experienced—
lived with compliance or resistance, or both. Such compliance reproduces or maintains and furthers preexisting social race, over time.
Resistance has the potential to change the background of racial construction, although any particular
act of resistance has unpre- dictable consequences, because it has to be interpreted, supported, and
duplicated by other people, in order to be effective. Individuals belong to or are associated with racial groups that are
imagined to have general traits and the individual herself comes to have pat- terns of behavior, expectations, and beliefs that pertain to how
she regards and presents herself in racial terms. That is, although race is already present in the social world that a child and adult live in, the
child and then the adult has the task of forming a racial aspect of the self and presenting that racial identity to others. Society identifies people
racially and people come to have racial identities, both as single units and as parts of the groups with which they identify and to which they
belong. Thus, to
say that race is socially con- structed may refer to only one side of the process of social
construction. Society, which is to say, other people, have constructed ideas about race and systems regulating behavior based on race. But
human individuals are not mere mirrors of social institutions and the thoughts and actions of other
individuals. A complete account of the social construction of race, therefore, includes its construction on
the level of individual identities. The social construction of race and racial identities affect many aspects of human life in societies
with racial systems, often in profound, unin- tended, and unpredictable ways. There are social constructions that are benign or neutral, for
example, the money system and weather reports. Such benign and neutral social constructions usually do not purport to be caused by different
underlying physical facts about members of distinct groups, which determine their nature. Race, however, is not a benign social con- struction,
because it purports to be based on real biological differences that do not exist. Human
aptitudes and capabilities are
randomly distributed within different social racial groups, so that differences in achievement are not
caused by those traits that society continues to consider racial traits— there are no biological racial
traits in the scientific sense and no differences in human value or moral worth based on biological
race. Rather, differences in achievement between racial groups are the result of the fact that social racial
systems are hierarchical. Racial identities come with predetermined social status and differences in power. Another way of describing
this is to say that disadvantaged racial groups and their members are oppressed by more advantaged racial groups and their members.
Oppression is unjust treatment or control and when the objects of oppression are racial groups and their members, it is usually called racism.
Racism will be the subject of Chapter 7, but it can be difficult to separate racism from the construction of race itself. One clear difference is that
even though racial hierarchy is in itself oppressive, not everyone who bene- fits from a system of
constructed race or racial hierarchy is necessarily a racist person. There are also aspects of oppression
that do not begin from within positions of racial hierarchies, but originate in other hierarchies, such as
wealth or gender. In order to account for the emergence of race as an idea and system in modernity, it is necessary to
understand the non-racial forms of oppression that preceded race and led to the construction of race.
Because racial
systems are not caused by natural aspects of race—which do not exist—the underlying
motivations for constructing those systems may be masked to participants, by ideology. Racial ideology
is a false sys- tem of claims and beliefs about racial differences and racial groups that jus- tifies racial
oppression, as well as racial disadvantage. After systems of race have been constructed, racial ideology may be used to justify the actions of
oppressive groups and individuals. But racial ideology is psychic and sym- bolic, a form of discourse. To implement racial ideology
and serve underly- ing powerful economic and political interests, social technologies of race are
necessary (for example, new racial identifications). Ideology and social technologies of race may lead to new
constructions of race and with them, new racial identities. The sections of this chapter address several aspects of the
social construc- tion of race and identity. First, racial construction for economic reasons will be explored in terms of colonialism and global
development. This will be followed by subjects pertaining to processes that occur inside of functioning systems of race: social technologies of
race and racism; individual racial iden- tities; models for resisting and deconstructing race.
Targeted legal advocacy can cause harm reduction of legal power and resist bad norm,
Section 240.37 is the key example from the Campbell 2022 (1ACs Author)
Campbell 2022, Maya Campbell, “Perceived to be Deviant”: Social Norms, Social Change, and New
York State’s “Walking While Trans” Ban, https://californialawreview.org/print/perceived-to-be-deviantsocial-norms-social-change-and-new-york-states-walking-while-trans-ban/
Throughout the nearly fifty years of the statute’s existence, multiple lawsuits challenged the
constitutionality of Section 240.37.[117][117]
See, e.g., Smith, 378 N.E.2d at 1036 (holding that Section 240.37 is not unconstitutionally vague as the statute does not grant officers “an impermissible measure of discretion”); D.H., 309 F. Supp. 3d; People v. Martinez, 34 N.Y.S. 3d 558 (N.Y. App. Div. 2016); People v. Butler, 443
N.Y.S.2d 40, 42 (N.Y. City Ct. 1981) (finding that the language of the statute was too ambiguous to be constitutional as Section 240.37 gave police “sole discretion in determining who is or who is not to be arrested . . .”), rev’d, People v. Uplinger, 449 N.Y.S. 2d 916 (N.Y. Cnty. Ct. 1982);
People v. Burton, 432 N.Y.S.2d 312, 315 (N.Y. City Ct. 1980) (denying to find Section 240.37 in violation of the equal protection clause of the Fourteenth Amendment as there are “good and sufficient reasons” for why police focus on arresting female sex workers rather than male johns).
... One of the most recent and high-profile lawsuits was the Legal Aid lawsuit, which challenged the law for violating the First and Fourth Amendments. The complaint detailed specific instances of the law’s disparate impact on trans women of color and the myriad restrictions that Section
240.37 placed on their freedom of movement and association. However, the case did not survive a motion to dismiss.[118][118]
D.H., 309 F. Supp. 3d at 70–74.
Although the court found that the class had suffered an injury due to the discriminatory application of the statute, it also found that the statute was not unconstitutionally vague.[119][119]
But efforts to overturn the statute were not strictly cabined to the judiciary. Community groups and
organizers attempted to leverage public support to overturn Section 240.37. In 2019, as a result of a
broader push to decriminalize sex work,[120][120]
See, e.g., Jessica Ramos & Julia Salazar, Decriminalize Sex Work in New York, N.Y. Daily News (Feb. 25, 2019), https://www.nydailynews.com/opinion/ny-oped-decriminalize-sex-work-in-ny-20190221-story.html [https://perma.cc/8KEY-TET5]; see also Fitzgerald et al., supra note 72, at
4 (“The criminalizing and stigmatizing of sex work in the United States can worsen the discrimination and marginalization that transgender people already face in society. Trans sex workers experience harassment and violence, often at the hands of police, and these experiences are
heightened for transgender people of color, especially women.”).
... state legislators introduced Assembly Bill A3355[121][121]
A parallel bill, Bill S1351, was also introduced in the Senate. As the language between the two bills is the same, I will be referring to the bill by its assembly name. See S.B. S1351, State S., Reg. Sess. (N.Y. 2021), available at https://www.nysenate.gov/legislation/bills/2021/s1351
... to formally overturn Section 240.37.[122][122]
David Klepper, Sex Workers Seek End of ‘Walking While Trans’ Loitering Law, Associated Press (May 7, 2019), https://apnews.com/article/2eb3876a208d48929db1c2dae769129f [https://perma.cc/4YRK-2MLL].
... The bill was explicit in its purpose: it sought to repeal Section 240.37 due to its “arbitrary and discriminatory enforcement by targeting women from marginalized groups that are at high risk for sex trafficking and other exploitation and abuse.”[123][123]
Memorandum, A.B. A3355, 2021 State Assemb., Reg. Sess. (N.Y. 2021), https://nyassembly.gov/leg/?Actions=Y&Memo=Y&Summary=Y&Text=Y&Votes=Y&bn=A03355&term [https://perma.cc/5BXG-U8MJ]. The memorandum lists “concerns about the law’s constitutionality” as a key
reason for the overturn of Section 240.37. The memorandum specifically mentions Section 240.37’s disparate impact on transgender and cisgender women of color.
... A3355 struck much of the vague language from Section 240.37, eliminating “loitering for the purpose of engaging in a prostitution offense” and narrowing the scope of the provision to specifically address and protect sexually exploited youth.[124][124]
A.B. A3355, 2021 State Assemb., Reg. Sess. (N.Y. 2021), https://nyassembly.gov/leg/?Actions=Y&Memo=Y&Summary=Y&Text=Y&Votes=Y&bn=A03355&term [https://perma.cc/5BXG-U8MJ]. “Sexually exploited youth” are defined as “persons under the age of 18 who have been
subjected to sexual exploitation because they are (a) are the victim of a crime of sex trafficking . . . ; (b) engage in any act as defined in section 230.00 of the penal law; (c) are a victim of the crime of compelling prostitution as defined in section 230.33 of the penal law; (d) are a victim of the
crime of sex trafficking of a child as defined in section 230.34-a of the penal law; or (e) engage in acts or conduct described in two hundred sixty-three of the penal law.” A3355(d).
A3355 was one of many attempts to overturn Section 240.37. An earlier version of the bill was introduced in 2016 but made no progress in the New York Senate.[125][125]
By the end of 2020, the New York City Council passed a series of resolutions to repeal Section 240.37.[126][126]
Matt Tracy, City Council Passes Walking While Trans Repeal Resolutions, Gay City News (Dec. 10, 2020), https://www.gaycitynews.com/city-council-passes-walking-while-trans-repeal-resolutions/ [https://perma.cc/23T6-3H89].
... Although the resolutions carried only symbolic rather than legal effect, they placed additional pressure on the state senate to act. And they were successful.
On February 2, 2021, then-New York Governor Andrew Cuomo signed legislation to overrule Section
240.37.[127][127]Supra note 74.
Asserting that the law’s “extremely broad definition of loitering” led to its disparate impact on trans
women of color and commending the advocacy of community organizers, Governor Cuomo proclaimed
that the “‘walking while trans’ policy is one example of the ugly undercurrents of injustices that
transgender New Yorkers—especially those of color—face for simply walking down the
IV. The Lasting Legacy of Section 240.37
Section 240.37’s longevity and the endurance of similar bans nationwide are a consequence of the role that these statutes play in the national norm-making effort. These bans solidified the boundaries around who and what is acceptable, and in doing so, played a critical role in upholding the
cis-heteronormative national identity. Traditional civil rights discourse, particularly the idea that full justice and equality can be reached through the same systems that have been deployed to deny deviant groups full humanity, would suggest that overturning Section 240.37 should have
brought an end to the state’s abuse and bias against trans women of color and other impacted marginalized groups.[129][129]
See Memorandum, A.B. A654, 2019 State Assemb., Reg. Sess. (N.Y. 2019), https://nyassembly.gov/leg/?default_fld=&leg_video=&bn=A00654&term=2019&Summary=Y&Memo=Y [https://perma.cc/H84D-8ZLR].
... Further, multiple advocacy and civil rights groups called for the statute’s overturning as part of the movement to decriminalize sex work.[130][130]
See Decrim NY, https://www.decrimny.org/ [https://perma.cc/82MS-MRX7]; Fitzgerald et al., supra note 72, at 26–29.
... And this activism ultimately led to Section 240.37’s repeal,[131][131]
Governor Cuomo, other New York legislators, and activists all cited to the work of grassroots advocates, largely trans women of color, who played an essential role in building support and awareness about Section 240.37. See, e.g., Press Release, Carl E. Heastie, Assembly Passes Repeal of
the Walking While Trans Ban (Feb. 2, 2021), https://nyassembly.gov/Press/?sec=story&story=95254 [https://perma.cc/6KZZ-DBHG] (“We thank grassroots advocates, led by the Repeal Walking While Trans coalition, for their strong advocacy on this bill and we look forward to the day
when the repeal takes effect.”); Office of Children and Family Services, Legislation Repeals the ‘Walking While Trans’ Ban (Feb. 2, 2021), https://ocfs.ny.gov/main/news/article.php?idx=2200 [https://perma.cc/JY6S-A4KB] (“[W]e thank all the advocates, led by Black and [B]rown trans
women, for all the sweat equity, dedication, passion, pain, and work we put into this campaign.”).
... which, on its face, seems to be sufficient to end the fight against Section 240.37’s harms.
However, given the nation’s interest in cis-heteronormativity and White supremacy, Section 240.37’s underlying goals cannot be fully eradicated, because the national identity is not so easily removed. Though Section 240.37 has been overturned, its removal does not solve the wider
structural issue of law enforcement employing the same discriminatory, norm-based judgments and stigmas to make arrests.[132][132]
Consider, for example, the fact that the NYPD continued to use condoms as a pretext to arrest people suspected of violating 240.37 even after the statute was amended to forbid this. See Mogulescu, supra note 108, at 84.
... The criminal justice system, the legal system, and by extension, the prison industrial complex,[133][133]
Spade, supra note 8, at 3 (“‘Prison industrial complex’ suggests that multiple, connected processes and forces determine how certain populations get labeled as ‘criminal,’ how certain behaviors and actions come to be classified as crimes, how racist ideas are mobilized to justify an expansion
of imprisonment systems, how various financial interests are implicated in motivating law enforcement expansion, and how criminalization and imprisonment filter through every aspect of how we live and understand ourselves and the world.”).
... function as a form of regular violence and systemic removal of non-normative individuals. As long as these systems exist and the same normative framework persists, trans women of color will always be seen as aberrant. As stated by one Legal Aid attorney, even “[a]s we continue to chip
away at [those] undeserving of arrest . . . trans women will always fall in the criminalized and vilified category.”[134][134]
Whitford, supra note 113.
While overruling the “Walking While Trans” Ban and decriminalizing sex work more broadly will have
immediate and positive effects on the lives of the people that it victimized,[135][135]
See Decrim NY, https://www.decrimny.org/ [https://perma.cc/82MS-MRX7]; Fitzgerald et al., supra note
... the Ban was only part of the broader national system crafted to maintain the division between
normative and non-normative and to define our body politic. Thus, that the New York legislature has
overturned Section 240.37 is only a small fraction of the necessary progress. There is still an entire
apparatus—legal and otherwise—that exists to marginalize, remove, and aberrate trans people,
particularly trans people of color.[136][136]
States across the nation continue to pass legislation to remove trans people from public life. In just the past four months, at least thirteen bills have introduced seeking to create a felony ban on providing gender-affirming treatment for trans youth. See Chase Strangio’s tracker of anti-trans
legislation, Chase Strangio (@chasestrangio), Twitter (Nov. 12, 2020, 7:35 AM), https://twitter.com/chasestrangio/status/1326911594215989248?s=20 [https://perma.cc/V3NE-FFG4]; see, e.g., H.B. 1, 2021 H.R., Reg. Sess. (Ala. 2021),
http://alisondb.legislature.state.al.us/ALISON/SearchableInstruments/2021RS/PrintFiles/HB1-int.pdf [https://perma.cc/4H48-WB4G]; S.B. 331, 58th Leg., 1st Sess. (Okla. 2021), http://webserver1.lsb.state.ok.us/cf_pdf/2021-22%20INT/SB/SB331%20INT.PDF [https://perma.cc/8YNWQALM]. In addition to these harms, many of these bills also force the unconstitutional disclosure to the parents of trans youth who are seeking medical care or to otherwise participate in public life. See, e.g., S. B. 2171, 2021 Leg., Reg. Sess. (Miss. 2021)
http://billstatus.ls.state.ms.us/documents/2021/pdf/SB/2100-2199/SB2171IN.pdf [https://perma.cc/D58J-BQ4S].
... And as shown in the preceding Parts, Section 240.37 is just a part of a long legacy of norm-enforcing laws; laws that depended not just on the police and criminal justice system to enforce, but also on community participation to make and reaffirm these norms as real.[137][137]
See supra Part III.
To undo the damage and unravel the nation’s property interest in the maintenance of normative identity,
community-based efforts need to play just as central of a role in efforts to eradicate harmful
In her examination of the Movement for Black Lives organizational platform, Amna Akbar described the Black-led movement’s animating question as “what if law reform was not targeted towards seeing what kind of improvements we can make to the current system, but was instead geared
toward building a state governed by different logics . . . ?”[138][138]
Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. 405, 479 (2018).
... Here, I am posing a similar question: what if reform was not targeted toward seeing what kind of improvements we can make to the current system, but was instead geared toward building a non-bordered state, free from normative governance?
A. The Maintenance of Harms
Even in a climate where a law has been overturned, harm towards those deemed deviant persists. As Amna Akbar stated: “law is not fair, it does not treat people equally, and its violence is lethal and routine.”[139][139]
Amna A. Akbar, Law’s Exposure: The Movement and the Legal Academy, 65 J. Legal Educ. 352, 355 (2015).
... Law scholar and sociologist Ryan Goodman explained the symbiotic relationship between law and society, writing that “laws arise from a culture” and culture fr om laws.[140][140]
Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 795 (2007) (Kennedy, J., concurring) (cited in john a. powell, Law and the Significance of Plessy, 7 Russell Sage Found. J. Soc. Sci. 20, 26).
... In his comparative analysis of sodomy laws in the United States and South Africa, Goodman argued that sodomy laws, even when unenforced, are “an expression of public sentiment (without recognizing that the laws, in fact, also help to generate that sentiment) [which] obscures the
complexity of law’s dynamic relationship with society and systems of social control.”[141][141]
Goodman, supra note 47, at 663.
Relying on empirical evidence, Goodman asserted that “even in a climate of nonenforcement, considerable harm still results.”[142][142]
Id. at 664.
In short, what our society has come to view as acceptable and aberrant is, in large part, due to the laws that dominant political forces have passed. Yet, though these historical laws have long been overturned, their damage remains. While Goodman’s research engaged with history “only
insofar as [it] inform[s] individuals’ current sensibilities,” as argued in Part I, theoretical frameworks all emphasize the inherent importance of history as an essential norm-building platform.[143][143]
See generally Spade, supra note 8.
Take, for example, john a. powell’s examination of the historical and current legacy of Plessy v. Ferguson. Powell argued that though Plessy has been long overturned, the question of how to delineate public state action and private activity—Plessy’s central tension—has never been clearly
Powell, supra note 140, at 26. Powell continues “[I]n fact the sharp distinction has been rejected by some leading jurists.” In effect, this is still an open question and a continual tension in civil rights and anti-discrimination law.
... Powell charted this anxiety through Plessy’s desegregation progeny, arguing that Plessy is a “continuing stain” through which our current jurisprudence shields “de facto segregation from a mandatory constitutional remedy.”[145][145]
Id. at 30, 27.
Plessy’s legacy has lived on well past Brown through the War on Drugs, Jim Crow, police brutality, mass incarceration, and redlining to name a few examples. As a result, despite the impact of Brown and other cases, Black Americans are still excluded from full citizenship and White
Americans continue to reserve state privileges for their own benefit and thus preserve their property interests.[146][146]
Id. at 26–27.
Just as powell drew a line from the long-overturned Plessy to continued, present-day segregation, it is possible to draw a through line from older laws weaponized against trans and gender non-conforming people to the rampant social stigmatization and every day violence endured by trans
women of color. Like powell pointed out with Plessy, though Section 240.37 has been overturned, the continuing stain of the underlying history and stigma that accompany the law will persist. Once formed, a normative concept has its own inertia and only through multiple forces can the
stigmas that have been embedded in our social fabric be erased.
The lasting stigma[147][147]
For a discussion of stigma and (de)criminalization, see Julia Hughes, Perfectly Legal, but Still Bad: Lessons for Sex Work from the Decriminalization of Abortion, 68 U. New Brunswick L.J. 232, 234 (2017) (“Destigmatization may follow decriminalization . . . or precede it.”).
... that these bans have placed on trans women of color is a key example of one such concept. The very existence of the laws has created and reaffirmed the notion that trans women of color are aberrant and that their very existence is non-normative. Each part of the foundational structure of
the United States—our laws, how violence and injustice are meted out and rectified, our social ordering—has been constructed to maintain the nation’s foundation and to preserve the norms and interests that are embedded within it.
Even without Section 240.37 and its kin, trans women—particularly trans women of color—experience higher levels of discrimination than the broader U.S. population. The 2015 United States Transgender Survey reported that trans people of color were “more than three times as likely as the
U.S. population (12%) to be living in poverty” and that the unemployment rate for trans people of color was four times higher than that of the general population.[148][148]
Sandy E. James, Jody L. Herman, Susan Rankin, Mara Keisling, Lisa Mottet & Ma’ayan Anafi, Executive Summary of the Report of the 2015 U.S. Transgender Survey 6 (2016).
... These statistics are a direct result of the normative goals of the United States.
However, despite the feedback loop of laws and the normative national identity, the work that
community-based organizations do outside of the law provides insight into how norms can be challenged
by the collective power of those considered deviant. The story of the push to overturn Section 240.37 is a
key example of trans women of color organizing to chip away at the normative boundaries that actively
harm them. Organizations like the Movement for Black Lives and actions like Brooklyn’s June 2020
March for Black Trans Lives, which was organized by trans women of color and their allies specifically
to spread awareness about the everyday violence and police brutality faced by trans women of color, are
prime examples of this work.[149][149]
Anushka Patil, How a March for Black Trans Lives Became a Huge Event, N.Y. Times (June 15, 2020), https://www.nytimes.com/2020/06/15/nyregion/brooklyn-black-trans-parade.htm [https://perma.cc/NZL3-WV9T].
... With over fifteen thousand people in attendance, the “Brooklyn Liberation” march was one of the largest organized marches in New York history.[150][150]
Organized by trans women of color and allies, the march was a type of calling-in, asking the nation to recognize all the ways that society has harmed trans people.[151][151]
Described by its organizers as a “‘new, grander version’ of the power of community that queer and trans people of color have always had,” the June 2020 march was a visible challenge to community commitment to the maintenance of normative borders.[152][152]
Rather than attempting to shift the normative national identity, these movements push against the idea that those perceived to be deviant must be rendered invisible from public space. Instead, they propose a new logic: reimagining how assigned deviance, though still antithetical to normative
national identity, can and should exist in public space.
In effect, the June 2020 march is only one example of decades of work, both legal and otherwise, done by trans activists—particularly trans women of color— to push against our nation’s normative borders.[153][153]
I am thinking particularly of pioneering trans activists such as Sylvia Rivera and Marsha P. Johnson who were both seminal figures in the queer and trans rights movements. See, e.g., Tourmaline, Sylvia Rivera and Marsha P. Johnson’s Fight to Free Incarcerated Trans Women of Color is Far
From Over, Vogue (June 29, 2019), https://www.vogue.com/article/tourmaline-trans-day-of-action-op-ed [https://perma.cc/99XM-R48F]; Jason Wu, Look to Queer and Trans Leaders to Reclaim Revolutionary Possibilities, Thirteen (Oct. 26, 2021), https://www.thirteen.org/blog-post/queertrans-leaders-reclaim-revolutionary-possibilities/ [https://perma.cc/GJ5W-AURJ].
... The march is but one in a long legacy of public resistance. Each instance is an example of imagining how our nation could reorient itself in building a non-bordered state, free from normative governance. But to make this reimagination complete, power and property interests need to be
reoriented—ceded from the “normative” to those categorized as deviant. It requires a wider dismantling of categories and allowing those who have been dispossessed to reorient the national image.
In his critique of the liberatory potential of the administrative state, Dean Spade argued that the only way to understand the relationship between power and “transphobic harm” is to shift attention away from traditional framings of individual rights and instead to consider “how gender
categories are enforced on all people in ways that have particularly dangerous outcomes for trans people.”[154][154]
Spade, supra note 8, at 9.
The same refocusing must continue to be employed here. To overrule Section 240.37 is not enough to eradicate the harmful divisions between normative and deviant that have stigmatized queer and trans women of color.
The goal of this Note is to articulate the fact that the United States and the systems it has crafted will not—by reason of self-preservation—be able to act in the best interest of all the people who are present within the nation’s physical borders. As a result, changing the law on the books is not
work affirms that those that who are perceived to be deviant still exist and belong within the national
sufficient and will likely not do enough to reimagine the divisions between normative and deviant. However, despite our nation’s normative borders, radical community-centered work led by those perceived to be deviant pushes against state forces of social removal.
1---Colonialism DA---The aff locks in colonialism---their cited authors.
Byrd 11 [Jodi A., Associate Professor of English and American Indian Studies at the University of Illinois
at Urbana-Champaign, The Transit of Empire: Indigenous Critiques of Colonialism, 2011, p 11-17] //
And while Deleuze
and Guattari’s thought requires what Shapiro describes as “uncommon sense” and, as a result, positions
mapping and frontiers within the rhizome as the process through which to proliferate dominant and
resistant overlapping deterritorializations and reterritorializations into motion, and ultimately smooth
space out of striated hierarchical order, such processes, it must be acknowledged, are also colonialist even in
non-cartographic form.45 The maps of settler colonialism were always already proliferative, the
nation-state’s borders were always perforated, and the U.S. lines of flight across the treaties with
indigenous nations were always rhizomatic and fluid rather than hierarchical, linear, and coherent,
located not just in the nation-state but within the individual settlers and arrivants who saw
indigenous lands as profit, fortune, and equality. In many ways, that is their point. Deleuze and Guattari re/deterritorialize
America as the world, coming full circle to find its west in its east and its east in its west, a worlding anew, in GayatriSpivak’s terms, that
decenters all static, grounded belongings and locates them instead in becomings: becoming-Indian, becoming-woman, becoming- America. At
the least, it can be said that A Thousand Plateaus answers Cherokee, Choctaw, and Irish American scholar Louis Owens’s concerns with the
geographic homonym of “Indian” in his critique of postcolonial theory in “As If an Indian Were Really an Indian” with a “Yes they are!”46 But
the matter of the rhizomatic American West’s “Indians without ancestry” still lingers alongside Derrida’s “tattooed savages." If they have no
genealogy and exist sui generis, how might we account for the historical and colonialist traces that accompany their appearance in Deleuze and
Guattarri’s theory as sign, while retaining sympathy for the impulse to nonrepresentational philosophy that aligns in a multiplicity of regimes of
signs? Elsewhere, Gilles Deleuze writes: The pharaoh’s tomb, with its inert central chamber at the base of the pyramid, gives way to more
dyabnamic models: from the drifting of continents to the migrations of peoples, these are all means through which the unconscious maps the
universe. The Indian model replaces the Egyptian: the Indians pass into the thickness of the rocks themselves, where aesthetic form is no longer
identified with the commemoration of a departure or an arrival, but with the creation of paths without memory.47 The Indian
like the nomad, assembles for Deleuze the site of movement, escape, difference—it is a stateless war
machine, existing outside of and rupturing the state. The rhizome, which is described as an orchid in
relation with the wasp, their becomings and unbecomings, is transversal scramble, antigenealogical
and always proceeding through re/deterritorializations by both the orchid and the wasp.48 The rhizome, for Deleuze and Guattari, stands in
Eastern, Oceanic counterpoint to the linear tree— arborescence—of descent, seed, and Western agriculture, and is short-term rather than long
historical memory.49 One must remember, though, that GayatriSpivak’s question “Can the Subaltern Speak?” was first posed as a critique of
Deleuze and Michel Foucault, who seemed in their theorizations to suggest that the subaltern already was speaking through them, through the
ventriloquism of the left intellectual.50 In an aside about the “ferocious motif of deterritorialization in Deleuze and Guattari” Spivak adds, “we
have already spoken of the sanctioned ignorance that every critic of imperialism must chart.”51 The
Indian model, which disappears into
rocks and creates paths without memory, serves as an ontological trap within theorizations that follow those paths to articulate
alternative spaces outside processes of recognitions and states, arrivals and departures.
2---Archive DA---The aff’s reach into the archive repeats the very violence against
blackness they uncover. Refuse this enumerated repetition of death as it permanently
affixes blackness into a state of pain and suffering.
McKittrick, Associate Professor of Gender Studies at Queen’s University, ’14 [Katherine,
“Mathematics Black Life”, The Black Scholar, 44:2, 2014,RSR]
In Saidya Hartman's "Venus in Two Acts," she returns to the deaths of two young African girls who were
both violently and brutally killed on the middle passage. Raped, strung up, whipped to death, dying alone: This is the information
Hartman pieces together from the ship's ledger and financial accounts, the captain's log book, and the court case that dismissed the charges of murder against
Captain John Timber, the 16 man who caused the deaths of the girls. The
archive of black diaspora is, as Hartman rightly suggests,
"a death sentence, a tomb, a display of a violated body, an inventory of property, a medical treatise ...
an asterisk in the grand narrative of history." 1 The asterisked archives are filled with bodies that can only come into being vis-a-vis
racialsexual violence; the documents and ledgers and logs that narrate the brutalities of this history give birth to new world blackness as they evacuate life from
blackness. Breathless,
archival numerical evidence puts pressure on our present system of knowledge by
affirming the knowable (black objecthood) and disguising the untold (black human being). The slave's status as
object-commodity, or purely economic cargo, reveals that a black archival presence not only enumerates the dead and dying,
but also acts as an origin story. This is where we begin, this is where historic blackness comes from: the
list, the breathless numbers, the absolutely economic, the mathematics of the unliving. Recall then, aboard the
ship Peggy, aboard the ship Prosperous Amelia, aboard the brig Nancy. The ledgers read: Samuel Minton, 60 years, nearly worn out ... Formerly slave to Thomas
Minton, Norfolk, Virginia ... Gilbert Lafferts, 21 years, likely lad, Mr. James Henderson's possession, proved to be the property of Mr. James Henderson ... Master &
Bill of Sale produced ... Anny Bolton, 42, stout wench, Uames Alexander). Formerly the property of Thomas Bolton, Nansemond, Virginia ... Jenny Frederick, 32
years, ordinary wench ... Certified to be free by Jonah Frederick of Boston, New England ... Betty Rapelje, 21, stout wench, (Peter Brown) ... Says she was born free
at Newtown, Long lsland.2 Worn out, bill of sale produced, certified to be free, ordinary wench, proved to be the property of, formerly slave to, formerly the
property of, all with parenthetic possessors. New
world blackness arrives through the ordinary, proved, former,
certified, nearly worn-out archives of ledgers, accounts, price tags, and descriptors of economic worth
and financial probability. The list of slaves upon these ships is a list of propertied commode ties. The
slave is possession, proved to be property. Yet a voice interrupts: says she. It follows that black freedom is
embedded within an economy of race and violence and unfolds as an indeterminate impossibility:
wench, property of, likely lad, nearly worn out; certified to be free, says she was born free, formerly
slave to. Says she was born free. The brutalities of transatlantic slavery, summed up in archival histories that give us a bit of (asterisked-violated)
blackness, put meaningful demands on our scholarly and activist questions. While the tenets and the lingering histories of slavery
and colonialism produced modernity as and with and through blackness, this sense of timespace is
interrupted by a more weighty, and seemingly truthful (truthful and truth-telling because iterated as
scientific, proven, certified, objective), underside-where black is naturally malignant and therefore
worthy of violation; where black is violated because black is naturally violent; where black is naturally unbelievable and is therefore naturally empty and
violated; where black is naturally less-than-human and starving to death and violated; where black is naturally dysselected, unsurviving, swallowed up; where black
is same and always and dead and dying; where black is complex and difficult and too much to bear and violated.3 The
tolls of death and violence,
housed in the archive, affirm black death. The tolls cast black as impossibly human and provide the
conditions through which black history is currently told and studied. The death toll becomes the source.
The tolls inevitably uncover, too, analyses of histories and narratives and stories and data that honor
and repeat and cherish anti-black violence and black death. If the source of blackness is death and
violence, the citation of blackness-the scholarly stories we tell-calls for the repetition of death and
violence. The practice of taking away life is followed by the sourcing and citation of racial-sexual death
and racial-sexual violence and blackness is (always already and only) cast inside the mathematics of
unlivi ngness (data/scientifically proven/certified violation/asterisk) where black comes to be (a bit).4
Indeed, if blackness originates and emerges in violence and death, black futures are foreclosed by the dead
and dying asterisks. And if the dead and dying are the archival and asterisked cosmogonies of blackness,
within our present system of knowledge-a system, to paraphrase Frantz Fanon, where the subhuman is
invited to become human on terms that require antiblack sentiment-scraps and bits of black I ife and
death and narrative are guaranteed to move toward, to progress into, unlivingness and anti-blackness. 5
With this in mind we would do well to notice that scholarly and activist questions can, at times, be so
tightly tied to bits and pieces of narratives that dwell on anti-black violence and black racial deathseeking out and reprising "terrible utterances" to reclaim and recuperate black loss and somehow make
it all the less terrible-that our answerable analytical futures are also condemned to death.6 Put differently,
historically present anti-black violence is repaired by reproducing knowledge about the black subjects
that renders them less than human. It is a descriptive analytics of violence. The cyclical and death-dealing numeration of the condemned
remains in tact, at least in part, through analytical pathways that are beholden to a system of knowledge that descriptively rehearses antiblack violences and in this
necessarily refuses decolonial thinking. How
then do we think and write and share as decolonial scholars and foster a
commitment to acknowledging violence and undoing its persistent frame, rather than simply
analytically reprising violence? How do we ethically engage with mathematical and numerical certainties that compile, affirm, and honor bits and
pieces of black death? In order to underscore the urgency here, it is worth thinking about the ways in which slave ship and plantation ledgers unfold into a series of
crude and subjugating post-slave accounts: The rule in the courts was that a drop of blood made you black; just walking around looking about/This guy looks like he
is up to no good or he is on drugs or something; the accusation was beginning to take on a familiar tone ... EmmettTill ... Scottsboro ... Armed with his new political
powers Diluilo came to have access to billions of dollars in public funds to launch a program to reform the superpredators by exorcising the evil he saw in them;
three-quarters of the persons arrested for such crimes were Negro ... in Detroit, the same proportions held .... Negro males represent 2.1 percent of all male
technicians while Negro females represent roughly 10 percent of all female technicians .... It would appear therefore that there are proportionately 4 times as many
Negro females in significant white collar jobs than Negro males; these assholes, they always get away; it would come to be based on degrees of selected genetic
merit (or eugenics) versus differential degrees of the dysselected lack of this merit: differential degrees of, to use the term made famous by The Bell Curve,
"dysgenicity."7 We can think of more accounts, more numbers, more math. In
Demonic Grounds, I suggest that the markers of
captivity so tightly adhere to the black body that seeing blackness involves our collective willingness to
collapse it into a signifier of dispossession.8 While I certainly suggest there, as I do here, that black dispossession reveals the limits of our
present geographic order and opens up a way to imagine new modes of black geographic thought, it is challenging to think outside the interlocking data of black
erasure, unfreedom, and anti-black violence.
Putting pressure on archive numbers that, particularly in the case of the
middle passage and plantation life, are the only documents that tell us about the ways in which the
practice of slavery set the stage for our present struggles with racism, is difficult. So, what do we do with
the archival documentation that displays this unfree and violated body as both naturally dispossessed
and as the origin of new world black lives? How do we come to terms with the inventory of numbers and the certain economic brutalities
that introduce blackness-the mathematics of the unliving, the certification of unfreedam-and give shape to how we now I ive our lives? And what does it mean that,
when confronting these numbers and economic descriptors and stories of murder and commonsense instances of anti-black violence, some of us are pulled into
that Fanonian moment, where our neurological synapses and our motor-sensory replies do not result in relieved gasps of nostalgia or knowing gasps of present
emancipation (look how far we have come/slavery is over/get over slavery/ post-race/look how far) but instead dwell in the awfulness of seeing ourselves and our
communities in those numbers now?9 This is the future the archives have given me. Yet, the Fanonian moment also disturbs to ask not how we get over the
awfulness and brutality, but rather how do we live with it, differently, right now and therefore imagine what Sylvia Wynter describes as "being human as
In what follows, I move with the numbers and begin to work out how the uncomfortable
mathematics of black life can inform current and future formations of black studies. I suggest that black
studies not only names and posits the violent arithmetics of the archive, but that this citation of violence
also can and should no longer ethically repeat this violence. Indeed, while not always honored, the intellectual
project of black studies-with its long history of citing and surviving racial violence in numbers-provides a
deliberate commentary on the ways in which blackness works against the violence that defines it. Thus,
across a range of thinkers-! note Dionne Brand, Sylvia Wynter, Audre Lorde, Frantz Fanon, but there are more and many to add-there is a careful effort to show that
if we are to name the violent displacement of black cultures, this must be done by both noticing and undoing the compulsion to inhabit safe and comfortable places
within the very system that cannot survive without anti-blackness. Indeed, the research of W. E. B. Du Bois, who turns knowable racial numbers in on themselves to
ask how the race is both fixed and unfixed by social conditions, is especially notable here. 11