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Privilege as Property

Publication Title

Washington University Journal of Law & Policy

Abstract

In 2008, after the election of President Barack Obama, voices throughout the nation rose up to declare the beginning of a new epoch in U.S. history: We have now moved beyond race. The vocabulary of colorblindness dates back to at least the nineteenth century, when Justice John Marshall Harlan first declared, “[o]ur constitution is color-blind, and neither knows nor tolerates classes among citizens.” Entering the third millennium, rhetoric now focuses on our “postracial America.” In the second term of our seemingly racially transcendental president, however, this symposium looks backwards, all the way to the distant 1990s, to revisit Stephanie M. Wildman’s Privilege Revealed: How Invisible Preference Undermines America.

In reassessing the continuing salience of these works, the nation appears not as “post” as some might like to imagine. To the contrary, the call to “move beyond race” highlights the materiality of Wildman’s demand that “privilege must be made visible.” Indeed, we must talk about privilege—in particular, about the law and privilege—if we are to ever halt its perpetuation. In this quest, my Essay employs Cheryl Harris’s Whiteness as Property alongside Wildman’s text. Written four years prior to Privilege Revealed, Harris’s germinal work exposes the tangible property implications of whiteness, ones created from legal texts and embedded in legal actions. The coupled insights of these two scholars illuminate the continued impact of discrimination and discriminatory privilege in the legal world.

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