Book Panel Discusses Question of “Rule of Law” and Race


On March 4, Paul Gowder, professor of law at Northwestern University Pritzker School of Law, spoke to the Fordham Law community about his new book The Rule of Law in the United States: An Unfinished Project of Black Liberation (Bloomsbury, 2021).

The event was moderated by Tanya Kateri Hernández, the Archibald R. Murray Professor of Law at Fordham Law School, and was held virtually.

Gowder summarized the contemporary discourse on the rule of law in the United States, which he said tends to take on two forms: those who see the United States as “the paragon of the rule of law” and those who see the rule of law as simply a cover for capitalist ideology and not reflective of observed reality in America.

“I think both of those things are true,” said Gowder. “The U.S. is both the shining city on the hill with respect to the law, and a place of deep hypocrisy. Black liberation activists, in particular, have often understood and given voice to that characteristic about the U.S. legal system. So, it seemed natural to me to write the book from this perspective.“

Gowder’s book begins with a discussion of the contradictions within the U.S. Constitution caused by its acceptance of slavery. “The framers of the U.S Constitution simultaneously understood themselves as creating a country founded on the rule of law, but also allowed the most arbitrary form of power known to humankind to exist in that system, and to corrupt their legal institutions.”

Later in the book, Gowder focuses on “the struggle for inclusion” by the Black liberation movement, “driven by claims about the right to be included within the protections of the law.” He then moves to the present day, looking at how the questions surrounding the rule of law relate to contemporary policing practices, the Black Lives Matter movement, executive power, and immigration. 

“The immigration enforcement regime deploys a number of the same techniques of lawlessness, as well as the same exploitative goals, that had previously been deployed against Black Americans, Native Americans, and other colonized peoples,” said Gowder. 

Following his presentations, a panel of discussants offered comments, analysis and questions on the topics discussed in the book. The discussants included Zenande Booi, executive director of the Center on Race, Law and Justice at Fordham Law; Neil Gotanda, emeritus professor of law at Western State College of Law; and Brian Z. Tamanaha, the John S. Lehmann University Professor at Washington University in St. Louis School of Law.

The book also touches on issues related to critical race theory, a topic that has recently attracted controversy and led to several state and local governments banning certain books from school curriculums. 

“Technically, this book is banned in Tennessee,” said Gowder. “One of the specific prohibitions in the Tennessee bill … is that you cannot teach [in K-12 schools]that ‘the rule of law does not exist, but instead is a series of power relationships and struggles among racial or other groups.’

“Did they have the abstract for this book in front of them when they wrote this law?” said Gowder. “I guess that’s how you know you’ve made it, is when you have a banned book.” 

A free digital version of Gowder’s book is available online.


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