Tulane University Journal Publishing

Phillips, Harry

English

Cybersecur[ing] the Electric Grid: A Comparative Analysis of Policy Generation, Transmission, and Distribution in the U.S. and EU

Kleinman, Alexander

U.S. v. Yung: Third Circuit Rejects Overbreadth Challenge to Federal Cyberstalking Statute

Bertels, Ellen

Strengthening the Trans Franchise

JICL

Masthead

Ho, Kan Jie Marcus

Unravelling the Gordian Knot for Data Trusts—The Next Leap Forward for Equity?

Harness, Greyson

Wilson, T.

147 
And What of the “Black” in Black Letter Law?: 
A BlaQueer1 Reflection 
T. Anansi Wilson* 
If slavery persists as an issue in the political life of black America, it is not 
because of an antiquarian obsession with bygone days or the burden of a too-
long memory, but because black lives are still imperiled and devalued by a 
racial calculus and a political arithmetic that were entrenched centuries ago. 
This is the afterlife of slavery—skewed life chances, limited access to health 
and education, premature death, incarceration, and impoverishment. 
—Saidiya Hartman, Lose Your Mother2 
 We are running out of ways to request other ways to die. We are 
running out of ways to say stop killing us. We are running out of ways to 
request, demand, and demonstrate for drinkable water and livable homes. 
We are running out of ways to make separate but (un)equal a thing of the 
past. We are running out of ways to protect our children from bullets. We 
are running out of ways to birth children, safely. We are running out of 
ways to survive in food deserts. We are running out of ways to evade and 
avoid police contact, never mind search, seizure, and terror. We are 
running out of ways to make fortresses of moldy, hurricane-struck, and 
dilapidated homes. We are running out of ways to make ways out of no 
ways. We are running out of ways to make Black lives more than mere 
matter, or excess collateral. We are running out of ways to live in the wake 
of an always, already looming death. “Amerikkka”3 is running out of time, 
 
 1. TABIAS WILSON, GODLESS CIRCUMCISIONS: A RE-COLLECTING & RE-MEMBERING OF 
BLACKNESS, QUEERNESS & FLOWS OF SURVIVANCE (2016). 
 * © 2021 T. Anansi Wilson is an assistant professor of criminal and constitutional law at 
Mitchell Hamline School of Law. They received their Ph.D. in African & African Diaspora Studies 
at the University of Texas at Austin and their JD from Howard Law School. This reflection is 
original and emanates from their conception of “furtive blackness,” yet the style, concerns, and 
politics originate in the work of earlier Black and BlaQueer scholar-creator activists such as Toni 
Morrison, Pauli Murray, James Baldwin, Ida B. Wells-Barnett, Frederick Douglass, W.E.B. 
Dubois, Audre Lorde, Essex Hemphill, and other Ancestors unnamed. 
 2. SAIDIYA HARTMAN, LOSE YOUR MOTHER: A JOURNAL ALONG THE ATLANTIC SLAVE 
ROUTE 6 (Farrar, Straus and Giroux, 2008). 
 3. Preston Wilcox, White Ethics and Black Power: The Emergence of the West Side 
Organization, 19 BLACK WORLD 83 (July 1970). Though the term has a long history in the language 
of Black and African Americans, I use the term here to specifically speak about the ways in which 
racial-sexual terror is part of the alchemy of the American constitutional regime and therefore, the 
 
 
 
 
148 LAW & SEXUALITY [Vol. 30 
 
to think differently about the Black in black letter law and how Black 
living is rendered furtive and strictly scrutinized, always, already.4 
 African Americans, and other Black people in America, continue to 
exist “in the wake”—and contend with the afterlives—of slavery.5 This is 
not to say that we are in the identical position of our Ancestors but instead 
that we inhabit a similar relational floor and struggle against the remnants 
of its logics and power structures—particularly legal but also social, 
political, and economic—that operate as bulwarks against the completion 
of full emancipation. For us, emancipation has been a long, anemic, and 
never-ending sojourn; one that is often captive, at a standstill or pushed 
into a cyclical retreat. While the Civil War ended most of chattel slavery 
and ushered in the Reconstruction Amendments, an epidemic of lynching, 
as well as the Black Codes—laws regulating Black movement, stillness, 
speech, and legal pleadings—and Jim & Jane Crow rose in their wake. 
When Jim & Jane fell from public favor and were mostly retired—from 
the public eye—racial and racial-sexual profiling became innovative 
technologies of subordination and othering, providing handy public logics 
(reasons) for surveillance, search, and seizure. Black people have been 
rendered inherently furtive—of a sly or suspect character, or alternatively, 
the manifestation of criminal, violent, or corrupt intent and coming 
action—since before the Federalist Papers were written. This furtivity is 
both a lethal ascription—that transmutates much of Black life into a living, 
damning body of evidence necessitating police contact and state violence 
or neglect—and a death-defying interiority that operates as a studied, 
communal knowledge, allowing for Black people to live and operate in 
ways that obscure surveillance, search, seizure, and various forms of state-
sponsored subordination.6 Put differently, we come to learn how to exist 
as abolitionists, understanding that we are always, already marked as the 
looming threat to a public safety for  a citizenry, a notion that we lack an 
enduring claim to; the incomplete emancipation. Yet, we are not only 
furtive in the material realm, but the truths about our treatment under, 
through, and with the de facto permission of law remain furtive tales, 
almost never expressed in the musings of the court. When Black life is 
 
public logic of power and its willful exercise by police, government officials, and deputized citizens 
alike. 
 4. See T. Anansi Wilson, The Strict Scrutiny of Black and BlaQueer Life, 48 HASTINGS 
CONST. L.Q. 181 (2020). 
 5. See CHRISTINA SHARPE, IN THE WAKE: ON BLACKNESS AND BEING (Durham and 
London: Duke University Press, 2016). 
 6. See T. Anansi Wilson, Furtive Blackness: On Blackness and Being, 48 HASTINGS 
CONST. L.Q. 141 (2020). 
 
 
 
 
2021] WHAT OF THE “BLACK” IN BLACK LETTER LAW? 149 
 
 
discussed, the long life of anti-Blackness in America—nor the race, 
gender, or sexuality of the petitioner—is rarely admitted or given standing 
in judicial proceedings, marking the most precedent as not merely “color 
blind” but elegantly white supremacist and anti-Black in effect, if not by 
design. 
 To the lawyer, law scholar, and student concerned with equity and 
social justice, Black life—and especially BlaQueer life—in present and 
memory, should and must be understood as a rich and enduring counter-
jurisprudence to the narratives of law, justice, and order we are fed as 
constitutional, historical, and national fact. Indeed, much of the rhetoric of 
“law and order” has served as a public logic to permit and make use of the 
law to disorder and disarray Black living, liberty, and loving. There are 
various truths and facts of American life, law, and lawmaking that become 
self-evident when we study and understand the law and legal process 
through the long memory of the collective Black community within the 
United States. It begins with a freedom and a self, one stolen, 
commodified, and tortured. It continues with rape, dismemberment, 
forced reproduction, starvation, penectomies, lynchings, brandings, and 
other unspeakable things considered illegal because Black people are not 
legal. Black personhood is not merely illegal—it exists outside of the will 
and possibilities of our constitution—but unspeakable. Therefore, there 
can be no crime against Black people but only crime against property. A 
crime against “a black” or “a slave” was only crime insofar as it was 
considered a harm to their putative owner, yet, of course, such an owner 
could not be held to account for harm against himself; therefore, the 
terrorization of the enslaved was merely an “owner” exercising his free 
will. Here, we can understand how Black people—who are not fully 
considered people—have come to exist as both in and outside of law, 
inside of its reach for disciplinary purposes but outside of its protective 
shield or concerns.7 The plantation, and the entire nation, come to operate 
as scenes of subjection, subordination, and surveillance for Black people. 
This fact is remade over and over again throughout space and time. The 
Fugitive Slave Law allowed for willy-nilly abduction, abuse, and sale of 
free and formerly enslaved Black people on the description of appearing 
as absconded “property.”8 Black people were fungible then, as we are now, 
 
 7. “Thinking Blackly”: State Violence, U.S. Law, and Legal Death Dealing, BLACK 
YOUTH PROJECT (Apr. 12, 2018), http://blackyouthproject.com/thinking-blacklystate-violence-u-s-
law-and-legal-death-dealing/. 
 8. See Prigg v. Commonwealth of Pennsylvania, 41 U.S. (16 Pet.) 539 (1842).  
 
 
 
 
150 LAW & SEXUALITY [Vol. 30 
 
often fitting the description. The Thirteenth Amendment abolished slavery 
“except for the commission of a crime,” allowing for the promulgation of 
the convict leasing system, and later a penal system that operates largely 
on the free labor of Black people convicted using the same policing 
strategies of post-Reconstruction era vagabond laws, where sitting, 
walking, standing, or gathering were either crimes or seen as a criminal.9 
These are the afterlives of slavery, precedents of anti-Blackness and the 
facts and cases that make up a communal Black understanding about the 
role and meaning of law (and order) in America. 
 The rupture between the normative understanding of the sanctity of 
the U.S. Constitution and American law and that of the Black experience 
is not new to Black people. Yet it appears that the killing of Trayvon 
Martin10 by a deputized vigilante, for the crime of walking with sweet tea 
and skittles; the wanton shooting of Atatiana Jefferson,11 during an 
unannounced wellness check, as she was playing Play Station with her 
young nephew; the negligent murder of Breonna Taylor;12 the 
assassination of Mike Brown;13 the point-blank murder of Philando 
Castile—after dutifully informing the officer of his registered gun, in the 
glove compartment—in front of his partner and young child;14 the actions 
of BBQ Becky, Amy Cooper;15 the repeated druggings, rapes, attempted 
rapes and murders of BlaQueer men Gemmel Moore, Timothy Dean, and 
Damar Love (among many others) by Ed Buck;16 and the arrest and 
 
 9. See Wilson, supra note 4.  
 10. See Dan Barry et al., Race, Tragedy and Outrage Collide After a Shot in Florida, N.Y. 
TIMES (Apr. 1, 2012), http://www.nytimes.com/2012/04/02/us/trayvon-martin-shooting-prompts-
a-review-of-ideals.html.   
 11. See Derek Hawkins, Fort Worth Police Officer Fatally Shoots Woman in Her Home 
While Checking on an Open Front Door, WASH. POST (Oct. 13, 2019, 5:52 AM), http://www. 
washingtonpost.com/nation/2019/10/13/fort-worth-police-officer-fatally-shoots-woman-her-
home-while-checking-an-open-front-door/.  
 12. See Ray Sanchez & Gregory Lemos, Breonna Taylor Grand Jurors Say Police Actions 
on Night She Died Were ‘Negligent’ and ‘Criminal,’ CNN (Oct. 27, 2020, 3:12 PM), http://www. 
cnn.com/2020/10/27/us/breonna-taylor-grand-juror-interview/index.html.  
 13. See History.com Editors, Michael Brown is Killed by a Police Officer in Ferguson, 
Missouri, HISTORY (Aug. 6, 2020), http://www.history.com/this-day-in-history/michael-brown-
killed-by-police-ferguson-mo. 
 14. See Jessica Lussenhop, Philando Castile Death: ‘I Lost My Best Friend in a Police 
Shooting’, BBC NEWS (June 3, 2020), http://www.bbc.com/news/world-us-canada-52896872.   
 15. See Anna North, Amy Cooper’s 911 Call Is Part of an All-Too-Familiar Pattern,  
VOX (May 26, 2020, 4:50 PM), http://www.vox.com/2020/5/26/21270699/amy-cooper-franklin-
templeton-christian-central-park.  
 16. See Michael Harriot, Wealthy Democratic Donor Ed Buck Finally Arrested After Third 
Man ODs in His Home, ROOT (Sept. 18, 2019, 11:05 AM), http://www.theroot.com/wealthy-
democratic-donor-ed-buck-finally-arrested-after-1838216100.   
 
 
 
 
2021] WHAT OF THE “BLACK” IN BLACK LETTER LAW? 151 
 
 
harassment of Monica Jones17 for “walking while trans” have begun to 
uncover the Black experience with law and its enforcement in America, 
for white and other non-Black people who were either unaware, incapable 
or care or squeezing their eyes shut with studied commitment. As a nation, 
we have had moments of collective clarity before, but this moment offers 
a singular opportunity to revisit our foundational aspirations—particularly 
our Constitution and its interpretation(s)—to ensure that Black and 
BlaQueer life is not only included among all those deemed equal, but also 
central to the analysis and understanding of what equality is and isn’t. In 
other words, it is time that we begin to legislate, problem-solve, and 
recreate a Constitution that centers and prioritizes a Black and BlaQueer 
gaze, because when BlaQueer folk are free—in all the beauty of our 
diversity—so too, is everyone else. It is time we engendered a critical 
gaze—and a constitution and framework—that requires this much, as a 
floor. 
 
 
 17. See Kavish Harjai, Monica Jones and the Problem of “Walking While Trans,” 
INNOCENCE PROJECT (June 30, 2016), http://innocenceproject.org/monica-jones-walking-while-
trans/. 


And What of the “Black” in Black Letter Law?: A BlaQueer Reflection

Sarner, Bryn

People ex rel. Coleman v. Brann: Is Our Zest for Punishment Greater Than Our Value of Life? A Look at Incarceration in the United States During the COVID-19 Pandemic

Protecting Migratory Species of Wild Animals from Climate Chang

Ippolito, Francesca

Seatzu, Francesco

Protecting Migratory Species of Wild Animals from Climate Change

Savran v. Denmark: Denmark Distorts European Human Rights Protections, Deports Settled Migrant with Severe Mental Illnes

Ogden, Kayla

Savran v. Denmark: Denmark Distorts European Human Rights Protections, Deports Settled Migrant with Severe Mental Illness

Not a member yet

Cybersecur[ing] the Electric Grid: A Comparative Analysis of Policy Generation, Transmission, and Distribution in the U.S. and EU

U.S. v. Yung: Third Circuit Rejects Overbreadth Challenge to Federal Cyberstalking Statute

Strengthening the Trans Franchise

Masthead

Unravelling the Gordian Knot for Data Trusts—The Next Leap Forward for Equity?

Masthead

And What of the “Black” in Black Letter Law?: A BlaQueer Reflection

People ex rel. Coleman v. Brann: Is Our Zest for Punishment Greater Than Our Value of Life? A Look at Incarceration in the United States During the COVID-19 Pandemic

Protecting Migratory Species of Wild Animals from Climate Change

Savran v. Denmark: Denmark Distorts European Human Rights Protections, Deports Settled Migrant with Severe Mental Illness

2,413

2,980