Academic journal article Constitutional Commentary

Dog Whistling, the Color-Blind Jurisprudential Regime, and the Constitutional Politics of Race

Academic journal article Constitutional Commentary

Dog Whistling, the Color-Blind Jurisprudential Regime, and the Constitutional Politics of Race

Article excerpt

DOG WHISTLE POLITICS: HOW CODED RACIAL APPEALS HAVE REINVENTED RACISM AND WRECKED THE MIDDLE CLASS. By Ian Haney Lopez. (1) New York, N.Y.: Oxford University Press. 2014. Pp. ix + 277. $24.95 (cloth).

Ian Haney Lopez's new book, Dog Whistle Politics: How Coded Racial Appeals Have Reinvented Racism and Wrecked the Middle Class, has a provocative thesis. Lopez contends that dog whistling, that is, coded racial rhetoric, "explains how politicians backed by concentrated wealth manipulate racial appeals to win elections and also to win support for regressive policies that help corporations and the super-rich, and in the process wreck the middle class" (p. xii). Lopez does not ignore other factors that led to the rise of the New Right political regime, but to him, dog whistling is first among equals (pp. 7-8, 29-30). If this thesis holds up to scrutiny, it has much explanatory purchase, not only for understanding ordinary or "low" politics, but perhaps for helping us navigate the Court's turn to racial conservatism over the past 40-plus years.

Lopez's argument is consonant with the relevant literature. "Many white Americans hold negative views of African Americans, and these racial predispositions are powerful predictors of opinions on a host of political issues." (3) Or as Rogers Smith and Desmond King put it in their elegant study: "on issue after issue involving a wide range of the most foundational structures in American life, almost all of the same actors have lined up on one side or the other of positions framed by support for or opposition to race-conscious policies designed to alleviate material racial inequalities." (4) However, when one digs down further, Lopez's argument cannot carry all the water he claims. As we will see, dog whistling has perhaps given politicians a new way to talk about race, but dog whistling has not "wrecked" the middle class. What is more, Lopez does not advance the ball in understanding the Supreme Court's latest iteration of racial conservatism. (5)

But this hardly obviates the interest with which we should engage Lopez's argument. Lopez has identified an interesting aspect of contemporary politics, and has ably told a story integral to understanding the politics of race. When one party is as racially homogenous as the modern Republican Party--eighty-eight percent of the people who voted for Republican presidential candidate Mitt Romney were white (p. 1)--surely race must have some explanatory factor. Moreover, as Jack Balkin recently noted, the two major political parties have not been this polarized since the Civil War. (6) Lopez has then perhaps identified one of the culprits--dog whistle racism.

The careful reader will have noticed that Lopez's explicit thesis is about politicians, but the Court plays a role in his story as well. However, Lopez's analysis of the Court is discursive. This is unfortunate. To fully vet Lopez's thesis, we need to include the Supreme Court--a political actor (high politics, yes, but a political institution nonetheless)--as a central player. That is, if we are to fully understand Lopez's claim and finger the dog whistling coming from all relevant political actors, we need to look at what the Supreme Court has been doing to support the policies of racial conservatives. As Cornell Clayton and J. Mitchell Pickerill have put it: "[r]ather than a check on majority power, the federal courts often function as arenas for extending, legitimizing, harmonizing or protecting the policy agenda of political elites or groups within the dominant governing coalition." (7)

What is more, perhaps some of the justices engage in dog whistling of a jurisprudential sort. Recall that Justice Scalia, in 2011, writing in dissent in Brown v. Plata (the California prison case) stated: "many [of the released prisoners] will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym." (8) This rhetoric was pointless to any legal issue presented in the case and was both anachronistic and largely inaccurate. …

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