A Race So Different. Joshua Chambers-Letson

US law are built on the “all-too-familiar” juridical architecture designed to contain the threat posed by Asian-immigrant and Asian American difference throughout US history. This is the chief reason that I begin this book with the example of Lidless. Lidless allows us to open up a discussion of the significant points of connection between the racialization of Muslim and brown bodies (including Middle Eastern, South Asian, Southeast Asian, and Central Asian subjects) in the GWOT and the racialization of Asian immigrants and their descendants in the century and a half prior.³⁷ In anticipation of this argument, however, a brief discussion of the ways in which bodily difference was initially accounted for in US law is necessary in order to establish the unique role that exception plays in US racial formation.

      From the inception of the republic, it attempted to articulate its ideal body politic as universally equal while at the same time defining it as racially homogeneous (white, colonial, Anglo-Saxon, Protestant), landed, and male. It was thus paradoxically founded on the simultaneity of Enlightenment ideals of egalitarianism and the stratified hierarchies of a settler-colonialist order structured by the interactive logics of bourgeois, white-supremacist patriarchy.³⁸ As disruptive but necessary presences, women, African slaves, free African Americans, bonded European servants, and Native Americans could not simply be wished away or ignored. As such, their political subjectivity was legally fragmented away from them, disaggregated from their bodies and placed back in the hands of their fathers/husbands, owners, and wards.³⁹ Legal fragmentation was central to the design of the Constitution and intended to settle the crisis that differently gendered, racialized, and classed bodies posed to the integrity of the state. As Supreme Court Justice Thurgood Marshall once observed,

      I [do not] find the wisdom, foresight, and sense of justice exhibited by the framers particularly profound. To the contrary, the government they devised was defective from the start. . . . When the Founding Fathers used this phrase [“We the People”] in 1787, they did not have in mind the majority of America’s citizens. “We the People” included, in the words of the framers, “the whole Number of free Persons.” On a matter so basic as the right to vote, for example, Negro slaves were excluded, although they were counted for representational purposes—at three-fifths each. Women did not gain the right to vote for over a hundred and thirty years. These omissions were intentional.⁴⁰

      Women, African Americans, bonded servants, and Native Americans were thus divided away from “the whole Number of free Persons” by virtue of their legally fragmented status. The legal fragmentation of racialized subjects continues to play a role in the maintenance of the state in the present day. As J. Kēhaulani Kauanui demonstrates, for example, Native Hawaiians are fragmented through the imposition of blood-quantum classification schemes that categorically decrease the number of “authentic” native subjects as “a condition for sovereign dispossession in the service of settler colonialism.”⁴¹ Legal fragmentation is thus inextricable from the identity of the United States as both a constitutional republic and a colonial empire.

      In mapping out the definition and immediate effects of legal fragmentation, I mean to differentiate this form of subjection and racialization from what I am describing as exception. While fragmentation and exception are compatible, are structurally similar in some respects, and have shared outcomes (subordination, disenfranchisement, and/or genocide), fragmentation and exception function differently from a legal standpoint. Fragmentation is accounted for, written into, and even constitutive of the established legal order. In turn, the exception is invoked to manage subjects who are not otherwise accounted for or even anticipated by US law.

      Historically, invocation of the exception allowed for the maintenance of the racial and social hierarchies put into place in the early law of the republic. In the nineteenth century, the emergence of global labor markets alongside US imperial expansion into and beyond both the Atlantic and Pacific introduced subjects who posed a threat to the US legal order in the form of Asian and Latino/a waves of migration. As Schmitt observed, “The exception, which is not codified in the existing legal order, can at best be characterized as a case of extreme peril, a danger to the existence of the state, or the like. But it cannot be circumscribed factually and made to conform to a preformed law.”⁴² While the US government initially experimented with the expansion of “preformed law” already in place for the management/subjection of Native Americans and African Americans, such attempts were fraught and often incomplete. New legal techniques had to be developed in order to manage the threat that Asian and Latina/o racial difference posed to the myth of a uniform and united “We the People.”⁴³ Rather than simply doing away with the law, however, jurists began to strategically suspend certain provisions as applied to racialized subjects. This is what Giorgio Agamben describes as a legal ban, when the law is “in force without significance.”⁴⁴ As I show throughout this book, Asian immigrants and Asian Americans from the nineteenth century to the present have often been drawn into the regulative sphere of US law at the very moment that its protections and assurances are suspended.

      Racial exception was not reserved for Asian America alone, as it largely began to replace fragmentation as a legal technology for regulating racialized subjects after Reconstruction. The fragmented civic subjectivity of African Americans and women was arguably relinquished with the passage of the Fourteenth, Fifteenth, and Nineteenth Amendments. As is clear in the majority’s ruling in Plessy, black bodies also began to meet with techniques of legal suspension.⁴⁵ And, like Asian Americans, Latino Americans and Latino immigrants were regularly met with a regime of legal suspension. Thus, as racialization often occurs within a comparative framework, much of my analysis throughout this book attends to the comparative racialization of different ethnic and racial groups in the United States. For minoritarian populations within the United States, the permanent possibility of the suspension of the universal assurances of the law is no longer the exception but the rule.

      The question that animates this book is thus not whether racial exception exists for racialized subjects in the United States. What is of interest is the question of how exceptional racialization occurs: what technologies produce racial knowledge in and on the racialized body, and how might the historicization of this process help us understand the ongoing significance of the exception in contemporary racial formation? I submit that the key to this answer is a focus on the interplay of performance, performativity, and the law, because it is through the collapsing of these phenomena that racial knowledge takes hold of (inhabits, choreographs, and shapes) the raced body and makes it into a racialized subject. As such, this book is about the power of performance aesthetics insofar as performance is that which transforms legal performatives into embodied realities, as much as it can be the means through which the body disrupts the interpellative trajectory of the law in order to posit and present other alternatives. The remainder of this introduction thus attempts to break down the space between performance, performativity, aesthetics, and law in the context of Asian American racialization.

      Timorous Fiction: Legal Performativity and the Making of Asian Americans

      So far, I have discussed the relationship of the law to performance, but I have only peripherally discussed the performativity of the law. The law is performative. It is composed of linguistic utterances and acts (statutes, policies, executive memos, judicial opinions) that do more than describe the world, because they produce a doing in it through their very utterance or inscription. In the language of J. L. Austin, Justice Harlan’s declaration that the Chinese are “a race so different” is not constative; it is performative.⁴⁶ That is, Harlan did not in fact “‘describe’ or ‘report’ or constate anything at all,” because in the uttering of the phrase, he achieved the doing of something.⁴⁷ Agents of the law do more than determine facts; they produce subjects through their performative utterances. As Austin observed, “a judge’s ruling makes law; a jury’s finding makes a convicted felon.”⁴⁸ Harlan’s declaration must thus be understood as part of a network of performative utterances that produced and confirmed the exceptional legal status of Asian Americans by naming and simultaneously “making” them into a “race so different.” Although legal discourse masquerades as factual and descriptive, it is in fact central to the production of social meaning and reality through its enunciation.

      Legal discourse forgets its own performative power, transforming