“What had an old slave to do with humanity?”
— Ralph Ellison.
“A new generation of street criminals is upon us—the youngest, biggest and baddest generation any society has ever known.”
— William J. Bennett, John J. DiIulio, Jr. & John P. Walters.
Introduction
I could begin by telling you about Nolan Brown. For starters, if Nolan and I were to get into a fight, it would be him, hard shoulders inching toward six feet tall above basketball-sized hands, against me, a pudgy five-foot-five with Harry Potter frames and a sagging JanSport bookbag full of textbooks. He would throw hands like a youthful Mike Tyson, and I would duck and weave on the cracked asphalt like an aging Muhammad Ali, dancing clumsily while admiring his gleaming Nike Air Jordan sneakers and oversized Rocawear jeans, each making far more of a fashion statement beside my creased Nike Air Force Ones and weathered green cargo pants. Smirking, Nolan would smack my bicep until its caramel hue matched his dark-brown sheen, and I would eventually give in, as I so often did, because hanging out with Nolan Brown was kind of a big deal.
I might proceed by explaining why a thirteen-year-old boy found joy in the routine submission of feeble arms to clenched fists; why he found comfort in the violent embrace of a heavy hand after that familiar, yet mundane question mediating almost every encounter in this part of the hood: “What’s good?” Yes, Nolan was physically big. Even while running from the Latina girls at recess with a stolen hair clip and a mischievous wink, even while caged in the solitary desk in the back of Mr. Miller’s seventh-grade classroom with a paper plane and a defiant smirk, even while pocketing his detention slip like a cowboy sliding his gun into the holster, even while standing in the hallway where our mostly White teachers sent their disruptive Black and Latinx students, Nolan’s outsized stature was forever at ease. But more than that, Nolan was the kind of kid every Black boy in the South Bronx wanted to become, including me. He was kind of a big deal—bigger than Michael Jordan when he dunked from the free-throw line in the 1988 Slam Dunk contest to defeat Dominique Wilkins,
maybe even bigger than B.I.G.’s Life After Death when the album dropped almost ten years later in March 1997.
Witty shooter in class, sharpshooter on the court, straight shooter around the block, even the boys in eighth grade greeted Nolan with respect.
Beginning with Nolan might clarify how the concept of a person racialized as Black—one who embodies a trendsetting popular culture celebrated by mass media—highlights the paradoxical nature of law in a society shaped by a liberal capitalist economy, a constitutional republican government, and a long history of legally sanctioned racial injustice. Black bodies are essentialized on the covers of hip-hop magazines like The Source or XXL—a swaggering cultural aesthetic embellished with the luxuries of modern society
—even as Black communities battle the undertow of socioeconomic landscapes anchored by physical decay and human carnage off the page. In political economies like the United States, the democratic ideals of liberty and equality stand clumsily alongside the underdevelopment and exploitation of impoverished communities, often largely populated by racially and ethnically minoritized people.
This juxtaposition of cultural representation and lived experience highlights the need to examine how the law interacts with these cultural narratives. The concept of the Black racial subject, unable to escape the weight of anti-Black biases and stereotypes, illustrates how cultural ideas can shape legal meaning. These ideas perpetuate specific notions of the human condition that are reinforced by law, manifesting in concepts like chronic misbehavior or disorderly conduct that cloak the shoulders of Black boys like Nolan. But perhaps I am getting ahead of myself. Perhaps my attempt to convey the complexities of Black urban culture in late twentieth-century New York City—the signs and symbols I observed growing up, the shared sociocultural mores that unite those urbanites who personify the Black freedom struggle, or what English sociologist and cultural studies scholar Paul Gilroy called the “changing same” of Blackness throughout U.S. history
—is presumptuous, or naïve at best, without first discussing the intersection of “law and culture.”
According to American legal scholar Robin West, the law and culture movement that emerged in the late twentieth century overshadowed the earlier law and literature movement.
While legal scholars have discussed the relevance of literature to the study and practice of law since at least the early twentieth century,
many cite Professor James Boyd White’s 1973 book, The Legal Imagination,
as the catalyst for the modern law and literature movement.
The 1980s saw numerous law school symposia exploring the role of literature and literary studies in interpreting legal texts,
despite critical views from scholars like Richard Posner.
While Posner argued that literature can provide a “valuable supplementary perspective” on the law and teach rhetorical techniques that enhance legal writing, he maintained that it does not enhance one’s understanding of statutes and constitutions.
Conversely, White contended that Posner’s analysis was misguided because it “denies the special character of literary discourse,” viewing textual expression as a scientific endeavor rather than as “a form of cultural, ethical, and political action, as constitutive of community and character.”
According to White, literature provides an experience that can “change one’s way of seeing and being, of talking and acting.”
Scholars of the law and literature movement, following White’s lead, have argued that literature not only reveals “the rich cultural context in which law operates,”
but also offers new frameworks for legal interpretation that might address the “moral questions or cross-cultural dilemmas” underlying many modern legal debates.
More than simply a critical response to literary-legal studies, as some scholars suggest,
West argued that cultural-legal studies emerged as an extension of the law and literature movement.
West identified three key similarities between these domains. First, the law and literature movement pursued a “literary” project, recognizing that literature often engages with law as its subject, providing insights that law itself, empirical social sciences, or analytic philosophy may not offer.
Similarly, cultural works that address legal themes, both explicitly and implicitly, can deepen one’s understanding of formal law by revealing how such laws are disseminated, perceived, and received among various societal groups.
Second, the law and literature movement engaged in a “jurisprudential” project, asserting that literature, both historically and in contemporary society, retains a “force of law” and therefore comprises part of the informal, or vernacular, aspects of law.
Both literary and legal texts possess the power to “define, generate, and preserve, as well as reflect, shared community values.”
Similarly, cultural practices can embody “the political and normative force of legal authority,”
conveying a sense of “law as culture,” as American legal scholar Naomi Mezey put it.
Third, the law and literature movement pursued a “hermeneutic” project, recognizing that both genres stem from “the world of texts” and share a “to-be-interpreted textual essence.”
Traditionally, scholars have sought to discern an author’s intention in drafting a text under the theory that the text contains one ascertainable meaning.
Structuralists derive meaning from a text’s structure, while poststructuralists view meaning as a product of the dynamic interaction between the reader and the text.
Deconstructionism, a prominent method of textual interpretation from the 1970s and 1980s, posits that the meaning of a text emerges through an analysis of what is absent or repressed.
During this era, advocates for legal reform began liberating legal texts from authorial intent, seeking to articulate fundamental meanings and contemporary applications without reliance on the drafter’s perspective.
Further, they challenged the normative assumptions embedded in legal texts, exposing “the privileging of a particular social theory or interpretation of human nature which defines the public moral vision and the common good.”
West argued that while we can “read literature for its substantive contribution to our understanding of law”
—a notion reflected in the “interpretive turn” in legal studies that emphasizes the parallels between literary and legal hermeneutics
—no analogous approach exists for cultural-legal scholars. In other words, West claimed that we have not read culture to enrich our understanding of law itself, or at least “[t]here has been no systematic treatment . . . of the possibility that cultural products . . . might actually contain insights into the nature of law that influence jurisprudential debates”
—a sense of law in culture, and culture in law.
This Piece engages with West’s claim, arguing that exploring the depths of Black culture and the breadth of Black lived experiences across U.S. history—the positive and the negative, the profane and the mundane—must be central to the project of discerning the substantive meaning and political promise of law in America. From a literary standpoint, reading Black American culture alongside law—the study of law and culture—reveals unique insights about the nature of law, from how it is formed to how it is perceived, received, and enforced in everyday life, including when it contradicts its stated aims.
From a jurisprudential standpoint, reading anti-Black cultural views (especially views rooted in White supremacy) about the vulgarity of Blackness and the precarity of Black cultural life that enjoy the force of law in society—the study of law as culture—exposes how culture shapes the symbiotic relationship between law and democratic discourse.
The central contribution of this Piece is the revelation of cultural-legal studies as a hermeneutic project. Gaining substantive insights into the essential nature of law through the study of Black American culture involves examining both law in culture and culture in law. This approach, which includes reading Black literature and interpreting Black nontextual legal discourse,
challenges the “indeterminacy” critique levied by critical legal studies. It demonstrates how culture often determines the unique application of legal rules and principles in various factual contexts.
By exploring how culture frames law, particularly through the study of Black literature, we uncover how liberal legalism—the dominant legal theory undergirding U.S. law that claims individual autonomy as a central human value
—selectively conceives liberty as a means of protecting citizens from external influences and structures human agency around individual rights.
However, recognizing this theory as a culturally specific construction underscores the importance of studying the cultural production of legal meaning throughout U.S. history.
In the case of Nolan and other Black boys who struggle against racial biases, the shadow of stereotypes like chronic misbehavior or disorderly conduct is not just a societal narrative—it is part of the cultural-legal landscape that law inscribes and reinforces. The legal system, influenced by cultural perceptions of Blackness, defines and applies rules in ways that maintain these stereotypes, cloaking Black boys in the expectations of criminality. By turning to cultural-legal studies, and in particular to law and literature, we gain the tools to unravel these dynamics, revealing how racialized legal subjects like Nolan are constructed and constrained within a broader cultural narrative. Examining law and literature—particularly through the lens of Black culture—illuminates how law operates in lived experiences, exposing the dissonance between its stated ideals of liberty and equality and the realities of racialized inequality. This deeper understanding of how law is culturally produced and interpreted is essential for reforming the legal system, enhancing democracy, and advancing justice for those, like Nolan, who are most affected by the intersection of race, culture, and law.
I. Law and Culture
Each morning in class, Nolan and I would rise from our seats, our chairs scraping the linoleum floor in unison. With our right hands pressed firmly over our chests and our eyes pointed skyward toward the wooden dowel dangling above the entryway, we pledged allegiance to the United States flag. This daily ritual was more than just a memorized recitation; it was a carefully orchestrated lesson in American patriotism. The flag, with its bold stripes and steadfast stars, symbolized a nation committed to the lofty ideals of republicanism, liberty, and justice for all. As we stood there, our voices joining those of our classmates, we were taught to feel pride swell within us, to believe in the promise of a country built on the cornerstones of equality and freedom. This sense of allegiance served as a balm, soothing the dissonance we felt when confronted with the stark realities of the South Bronx. Despite the poverty, crime, food insecurity, and inadequate education that plagued many neighborhoods around us, the ritual of the pledge convinced us that America itself was not to blame. Instead, it implied that the source of these inequities lay elsewhere—not in our law, but in our culture—reinforcing our faith in the nation’s founding ideals and the rule of law, even as we confronted law’s historic contradictions as Black Americans.
For some, cultural signs and symbols merely express mundane attempts to make sense of the social world, celebrating community values and building faith in collective hopes. For others, they can become weapons, imbuing the world with legal meanings that serve social and economic self-interests. Yet in both cases, the concept of culture has generally been treated by political leaders, lawmakers, and legal scholars alike as distinct from law. For example, when President Ronald Reagan invoked the “welfare queen” cultural trope during his 1970s presidential campaign,
it was not marketed as a critique of how law had failed to reckon with the material conditions of low-income women in the U.S. labor market.
Rather, President Reagan deployed the concept of culture to pathologize the behaviors of marginalized populations,
leading voters to believe that Black women on welfare were lazy, irresponsible, and seeking handouts.
This cultural rhetoric not only fueled racially biased legal and public policy interventions into the so-called Black ghettoes of America
but also furthered the private interests of corporations and wealthy Americans. In some instances, it seems, the impact of culture on law depends on how those in power choose to wield it.
The weaponization of culture in politics—what the Marxist intellectual Antonio Gramsci described as an ongoing struggle for cultural hegemony
—reflects culture’s central role in the political debates within liberal democracies, particularly around legal rights, privileges, and duties of citizenship.
As Welsh socialist Raymond Williams succinctly put it, our so-called political “culture wars” are largely contestations over “a particular way of life.”
Cultural studies scholars maintain that shifting cultural beliefs about what it means to live a good life are socially “produced, performed, contested, or transformed.”
Cultural practices, therefore, express discrete meanings, values, and preferences that are communicated through everyday social signifiers and symbols, which are themselves constantly evolving.
When culture is understood in this way—that is, socially—laws, as signifying practices, symbols, and rituals, can be seen as expressions of a society’s legal culture.
Legal texts help to order shifting cultural beliefs about “the nature of things” that govern the pursuit of human well-being.
As Robin West explained, law can be oppositional—seeking to “contain, minimize, censor, or neutralize culture . . . that threatens mainstream values”—or law can be accommodational—“by protecting [subcultures] against the machinery of ordinary law, carving ‘exceptions’ to general rules so as to protect the insularity and identity of a preferred group.”
For example, the notion that the “luxuries and the comforts of life belong to the leisure class,” as American economist and sociologist Thorstein Veblen proposed in the late nineteenth century, reflects a cultural belief about who can afford the costs of “conspicuous consumption.”
Such dominant cultural beliefs about leisure were subsequently sanctioned by law, legitimating the gross wealth disparities that have long characterized the U.S. political economy.
As a result, as American political scientist Austin Sarat and American philosopher Thomas Kearns argued, the law is unique among cultural institutions because it has “meaning-making” power.
As law determines the background rules that coordinate social action and inaction, its ideological power not only reflects the social world but also “creates the social world”
—establishing owners, possessions, and distributions of power that exclude some and coerce others.
The language of law becomes a communal text, serving as “the source of its members’ conviction in the truth, rather than in mere facticity, of their moral claims.”
For instance, in the antebellum American South, law legitimized the legal fiction that Black people—many of them sixth-generation Americans—were “mere commodities with production value, who had no proper legal status, social standing, or public worth.”
Some scholars contend that culture shaped the convictions underpinning these laws, pointing to the White supremacist beliefs that dominated in colonial and postrevolutionary America.
For others, it is the law that constituted the evolving culture of early American society, citing the antebellum slave codes that set the stage for Black Codes and state-sanctioned racial terrorism after the Civil War.
Anthropologist Clifford Geertz and sociologist Pierre Bourdieu attempted to bridge this ideological divide by suggesting that law can be viewed “not so much [as] operating to shape social action,” nor as shaped by social action, “but as social action” itself.
From this perspective, law does not just oppose or accommodate various subcultures in a society; it actively disseminates contingent social norms and cultural understandings into society, shaping political discourse and influencing the law’s evolution. Both law and culture, then, function as communal languages—just as cultural practices express communal meanings, so too do legal texts “constitute and constrain [a] community’s moral commitments.”
Thus, the post–Reconstruction Era laws known as Jim Crow dictated the actions and lived experiences of emancipated Black people, embodying what Professor Cornel West called “the modern Black diaspora problematic of invisibility and namelessness.”
These laws reveal how cultural perceptions of Blackness can shape legal definitions of Black humanity.
Is it problematic that popular cultural discourse can shape both the production and interpretation of law? According to White, whether a text reflects a community’s values or can be critiqued depends on whether it originates from the shared constitutive texts of a “textual community.”
The ability to interpret and critique communal texts relies on one’s membership in the textual community. However, when the cultural views of the critic are shaped by the same shared texts they seek to critique, transforming the constitutive texts becomes the only way to bring about real change. In other words, as Robin West argued, when the cultural critic accepts the moral legitimacy of the text that they critique, the result is “social criticism [that] is constrained and stunted” by the text itself.
What does this mean for democratic discourse about legal texts? Cultural criticism falls short when certain members of society are excluded from the textual community—those who “do not participate as subjects in the process of critique and self-transformation” but instead “become literally objectified.”
Such individuals, West claimed, “do not speak, they are objects; . . . they are outside the community.”
As a result, West concluded that “if we ground our criticism in our texts, then we will not grant moral entitlement to those ‘others’ our texts objectify.”
While West highlighted the importance of including marginalized or stereotyped individuals in democratic discussions about the law, her conclusion that the objectified “other” does not participate in the production of foundational shared legal texts obscures the biases embedded in such texts. The objectification lies in the silencing of these cultural exchanges—for instance, naming Black culture as nontextual, nonliterary, or nonlegal. Instead of assuming that we must transform our foundational shared legal texts by including outsiders into the textual community, we should recognize the silenced “other” as an unrecognized member of the textual community. By doing so, we may uncover foundational shared legal texts that are simply not being acknowledged or read, our “hidden transcript.”
For example, the legal concept of the Black racial subject, rooted in colonial-era legal texts and reinforced by modern cultural discourse, embeds Euromodern ideas about the legitimacy of racial differentiation. This concept operates as a legal text in its own right, used to interpret the meaning of law and legal culture. In essence, the Black body—and the Black bodily experience—serves a foundational shared legal text in U.S. law and political economy.
Accordingly, the reading of literary and cultural narratives that explore the matter of Black lives can illuminate how law and culture interact as distinct, yet interrelated phenomena, both functioning as types of language. For example, the cultural notion of Black invisibility and namelessness, perpetuated by Jim Crow laws, is vividly portrayed in Ralph Ellison’s 1952 novel Invisible Man.
Published nearly a century after the abolition of chattel slavery in the United States, and two years before my mother’s birth, Invisible Man chronicles the journey of an unnamed, college-educated Black man during the 1940s and 1950s, from the Jim Crow South to Harlem, New York City.
In the novel’s opening chapter, the narrator—speaking from the perspective of a Black man in his forties reflecting on his youth—describes the challenges of pursuing personal achievement in a society dominated by the myths and rituals of White supremacy. He recounts the death of his grandfather, who pronounced on his deathbed,
[A]fter I’m gone I want you to keep up the good fight. I never told you, but our life is a war and I have been a traitor all my born days, a spy in the enemy’s country ever since I give up my gun back in the Reconstruction. Live with your head in the lion’s mouth. I want you to overcome ’em with yeses, undermine ’em with grins, agree ’em to death and destruction, let ’em swoller you till they vomit or bust wide open . . . . Learn it to the younguns . . . .
These words fill the young narrator with anxiety—not only because his parents dismiss his grandfather’s statement as the ramblings of a confused old man, but because his grandfather had described meekness “as a dangerous activity” and “as treachery.”
The words puzzle the young man since meekness and docility had already earned him praise from “the most lily-white men in town.”
Despite this, he carries a deep sense of guilt and fear, worried that one day the Black community “would look upon [him] as a traitor and [he] would be lost.”
Wrestling with his grandfather’s words like a curse, the boy concludes on his high school graduation day that “humility was the secret . . . the very essence of progress,” even though he secretly doubts its truth.
Throughout the novel, the narrator grapples with the meaning of his grandfather’s words, encountering a range of interpretations within the Black textual community.
Ultimately, in the epilogue, the narrator concludes that his grandfather was instructing him “to affirm the principle on which the country was built”
—the notion of human equality expressed in America’s founding documents, such as the Constitution and the Declaration of Independence.
I was stunned the first time I read Invisible Man, my eyes performing a death march through that first chapter toward the infamous Battle Royal scene. More than being entranced by the novel’s vivid imagery and powerful symbology which plunged me into the depths of the Black American freedom struggle, I realized that the invisible man Ellison described could very well have been me. This young Black man wrestled with the guilt of thriving in a dog-eat-dog world with his head “in the lion’s mouth,”
even as war against White supremacy raged on. Even more, Ellison’s depiction of how legal fictions are ritualized and made sacred through everyday sacrifices reminded me of stories from my own community. Reading Black literature, and the culture it described, illuminated my understanding of the nature of law.
II. Law as Culture
Some scholars, such as Mezey, have concluded that law can reasonably be considered synonymous with American culture itself.
It certainly felt that way to thirteen-year-old me. The cultural beliefs, practices, and norms that governed life in my South Bronx neighborhood enjoyed the weight of law, reflecting a world where Black boys were often on the run from trouble. At least, that’s how it seemed to me. Running from the law in search of validation and recognition echoed the journey of Ralph Ellison’s narrator in Invisible Man.
When Nolan and I broke the neighbor’s car window while playing catch in the alley behind our block, I ran home convinced I was the innocent one. It was, after all, Nolan’s wild arm that had sent our baseball out of bounds. It was his bright idea to turn a dirt road into our field of dreams within the concrete jungle where grass, trees, and public parks are few and far between.
The evidence was conclusive. Nolan took the blame and confessed to his dad. A judgment was rendered, the neighbor was paid, I was spared, and Nolan was punished with sharp words that faded into quiet sobs behind the screen door.
By the next day, we were playing again, and Nolan washed away my self-contempt with a soft smile.
“Wanna play NBA Jam?” he asked, standing at my front door, his long, lanky arms hanging by his sides like two upside-down daisies.
“You mad?” I muttered through burning cheeks, fidgeting with my shirt sleeve.
“Nah, you good,” he replied with a sparkle in his brown eyes and a light punch to my arm—just enough to remind me I was safe.
“Okay, well, I’m the Knicks,” I replied with a quiet exhale, running to the back room to turn on my Sega Genesis.
Such was a typical ending to our daily adventures in my corner of the hood. A brush with legal culture that reinforced stereotypes about the Black racial subject in his youthful deviance, followed by shared laughter that restored our self-confidence, self-respect, and self-esteem.
Truth is, I admired Nolan. At thirteen, he looked not a day shy of fifteen. Nevertheless, despite his mature looks, he chose to play with me. He was the kind of kid who knew he could win every game but took it easy to keep things interesting, to spare egos, I suppose. At the arcade, he was relentless, setting new high scores only to beat them again, all while the Peruvian store owner watched us closely from the front.
“Hey Papi, you gotta buy something if you wanna stay here all day like that,” the man shouted, his jaw tight, eyes wide.
We each bought a $1.50 slice of pizza to convince him that we meant no harm. Nolan asked the Peruvian man for eight quarters in exchange for two dollars and flicked one quarter back at the man with a quick jerk of his wrist.
“Here, amigo, go buy some Tic Tacs so we don’t have to deal with that breath all day like that.” Nolan flashed a wide grin, his perfectly straight teeth gleaming as we bounced back to the machine.
The owner shook his head, eyes briefly turned to the heavens, before moving on to another customer, seemingly convinced we were good kids.
We wanted to be good kids. The kind of Black boys who willingly knelt before the authority of law, answering the prayers of long-gone elders.
But sometimes, it felt like the rule of law forced us to kneel, pressing our knecks to the ground under the weight of history, bending our backs into a meeker version of Blackness that could be accepted as American—though it contradicted the bold cultural expressions that defined Black life under the frenetic melodies of the South Bronx.
On the walk home from the pizza shop, we would strut down Westchester Avenue with the kind of youthful joy one might mistake for indifference. The warm, slightly greasy aroma of pepperoni pizza mingled with the earthy scent of the city, creating an olfactory mosaic that was uniquely ours. I remember being impressed by how many people in our community knew Nolan’s name—and by extension, I assumed, must have known mine too. From the colorful graffiti splayed across brick buildings to the soulful reggaeton and hip-hop blaring from Lincoln Navigators with oversized rims, the sights and sounds of the South Bronx made it clear: To be seen or heard was to be known, and to be known meant you could become family.
“Hey son,” the bus driver would shout, motioning for us to come back to the front of the bus and show our passes. The cashier at the chicken spot would casually ask if we wanted a side of fries with that. The Puerto Rican who always wore his Timberland boots without laces and drank Heineken from the bottle while perched on a milk crate outside the barbershop would throw a head nod our way. In this close-knit neighborhood, the scent of sizzling street food mixed with the city’s array of aromas, carrying a promise of belonging and recognition, enveloping us in the warmth of community. This culture of recognition was vital to the fabric of our community and the possibility of collective democratic action.
Even the police officers, with their stern gazes and hands resting near their holsters, would make their presence known as we approached the stairwell to the elevated train at Elder Avenue Station. Their stoic presence turned our carefree strides into a cautious crawl, their bulletproof vests and visible firearms a silent reminder of the authority they wielded. Their eyes, without saying a word, conveyed a fundamental truth: In this world, recognition was a precondition for being. We were Black boys on the run from the law, stuck halfway between the debilitating tragedies of the so-called ghetto and the invigorating comedies of the hip-hop cypher, where swift metaphors and rhythmic swagger could render an unruly youth notorious. It was the empathy forged by our experiences of tragedy and the laughter borne from our daily comedies that provided tools for coping with the inevitability of sacrifice and loss in our social and political landscape. But to the men who surveilled our daily lives—bastions of a rule of law deeply suspicious of the perceived disorder of Black life,
echoing what Russian philosopher Mikhail Bakhtin called the “carnival” of modern culture
—we could be trouble.
More than expressions of unresolved racial injustice in the U.S. political economy, our bodies manifested a linguistic and even spiritual aesthetic that sought to reclaim joy amidst the sorrows of anti-Black racism. This reclamation came through the appropriation and rearticulation of European ideologies, cultures, and institutions.
Our Black cultural repertoire, as the Jamaican-born British Marxist sociologist Stuart Hall put it, was a product of “engagement across cultural boundaries . . . of the negotiations of dominant and subordinate positions, . . . [a] hybridized [form] from a vernacular base.”
In essence, our Black culture was dialogic—an ongoing democratic conversation that had been unfolding for generations. Black literature, such as Ellison’s Invisible Man, unveiled these unrecorded histories, unwritten laws, and overlooked cultural dialogues. Yet, these insights were conspicuously absent from the formal laws that governed our daily lives, which instead seemed to enshrine anti-Black notions of privacy, liberty, security, and equality.
By framing Black culture as antithetical to American cultural traditions and values—rather than as an integral expression of its plurality—the law cemented fictitious legal and political boundaries. These textual boundaries dictated what was considered “civil” modes of human engagement and distinguished insiders from outsiders, all while obscuring culture’s vital role in shaping our social reality. Formal law reflected America’s entrenched cultural belief in the presumed criminality and incivility of Black people, particularly in low-income neighborhoods.
This misrepresentation not only reinforced harmful stereotypes but also ignored the rich, complex contributions of Black culture to American society.
“You boys headed home?” one officer asked.
“Yeah, we’re going home,” Nolan replied in a shrill voice, his shoulders clenched.
“Be good,” the other officer said, responding to our unease with a stern wave and slight head nod.
We waved back and continued past the train station, our heavy book bags bouncing against our backs as we marched along in the starched white uniform shirts and clunky black shoes we wore to school each day. Nolan and I attended Catholic school about a mile away from our homes because, as we overheard one summer, the local public school was “no good.” “No discipline and no good books,” one of our parents explained to the other at the barbeque. I recall wondering if there was something beyond tattered pages and worn binders that made a book ‘no good.’ What does good mean for us? I recall thinking to myself. What’s good?
“F*ck those niggas,” Nolan muttered under his breath as the police officers moved us along.
I’m still convinced that it was Nolan who earned the officers’ approval. He was the kind of kid who got into trouble every day in school—justifying the very existence of detention—but somehow always made the teachers laugh. It was as if he had figured out that being a ‘good’ kid meant blending the tragedy of unruly behavior with the comedy of Black life in America.
He knew how to make an unfair situation funny so that the unfairness did not seem as bad to the adults who could not choose to look away. Laughter pulled even those who had not suffered into an awareness of loss, followed by concern, sympathy, and sometimes, just exhaustion. It all felt quite normal to me.
Maybe that is why I took Nolan’s punches with a smile and submitted to our Battle Royal. Our struggle to avoid trouble merely reflected the challenges we faced in making sense of urban America’s love‑hate relationship with legal culture. Like the narrator in Invisible Man—him by way of the Great Migration, and us by way of our Caribbean-born parents—Nolan and I had been lured into the ballroom of liberal capitalism and presented with a gift both enticing and alienating, exciting yet disheartening. In Invisible Man, the narrator is invited to deliver his high school graduation speech to a gathering of White male local leaders—“bankers, lawyers, judges, doctors, fire chiefs, teachers, merchants” and “[e]ven one of the more fashionable pastors”—and discovers that he is expected to participate in a blindfolded boxing match as part of the evening’s entertainment.
Before the Battle Royal begins, the audience of drunken men is first entertained by the erotic dance of a naked White woman, and by no choice of their own, the Black boys are entertained too.
The narrator recounts:
We were rushed up to the front of the ballroom, where it smelled even more strongly of tobacco and whiskey. . . . A sea of faces, some hostile, some amused, ringed around us, and in the center, facing us, stood a magnificent blonde—stark naked. . . . I felt a wave of irrational guilt and fear. My teeth chattered, my skin turned to goose flesh, my knees knocked. Yet I was strongly attracted and looked in spite of myself. Had the price of looking been blindness, I would have looked.
Here, Ellison uses the erotic dance of a naked White woman to depict the distorted values of America’s legal culture, with her as its symbol. The woman’s belly is tattooed with a small American flag above her thighs that curve into a capital “V,” suggesting America as a land of victory and freedom.
Yet her face is “heavily powdered and rouged, as though to form an abstract mask,” with eyes “hollow and smeared a cool blue, the color of a baboon’s butt,” signifying an attempt to hide the bitter truth of her sexual exploitation, rendering her cold, indifferent, and empty.
In other words, Ellison presents the law in the United States as a culture driven by an erotic lust for materialistic self-interest and fleeting self-gratification. Hey body, described as having breasts “firm and round as the domes of East Indian temples,”
obscures the underlying sadness of gross inequality and unfreedom experienced by marginalized populations. She is objectified and commodified, stripped of her subjectivity, while simultaneously serving as a representation of the U.S. legal culture. This eroticized image of the White woman is central to establishing “the relationship between white power, male power, and (hetero)sexual power” in the room.
These legal fictions are sanctified through the ritual of her symbolic sacrifice.
The narrator struggles to reconcile a dignified Black masculinity within the discordant roles thrust upon him in the ballroom. On the one hand, he feels a sense of kinship with the objectified White woman. Yet, on the other hand, he is consumed with paralyzing fear over the possibility of being seen as the stereotypical Black male aggressor toward the innocent White women—an image that has historically justified lynchings whenever the mere suspicion of interracial sex became a dogged belief.
“I wanted at one and the same time to run from the room,” he says, “to sink through the floor, or go to her and cover her from my eyes and the eyes of the others with my body . . . .”
Much like the residents of the South Bronx and other urban enclaves across the United States, where aspirations for social mobility must contend with persistent social stigma and labor exploitation, the narrator in Invisible Man faces an existential identity crisis. As he gazes upon Ellison’s symbol of American democracy—embodied by this eroticized figure of legal culture—he is torn: He wants “to caress her and destroy her, to love her and to murder her, to hide from her, and yet to stroke” the places that evoke America’s dream.
However, the narrator is not free to resolve the contradictions of America’s color line that define his world—to “affirm the principle on which the country was built.”
He must conform to the coercive power of law and order, which demands his submission rather than his liberation.
Similarly, the struggles that Nolan and I faced in the South Bronx—trying to experience liberty and equality in a landscape marked by socioeconomic inequality, inadequate educational opportunities, and heavy-handed supervisory policing—often left us with a crippling sense of futility. Much like the Battle Royal in Invisible Man that follows the blonde woman’s exotic dance, we had been thrown into a rigged game. In Ellison’s narrative, the protagonist is forced into a boxing ring with other Black men, “blindfolded with broad bands of white cloth . . . tight as a thick skin-puckering scab.”
The rules of boxing do not apply in this chaotic space where the “smoke [is] agonizing” and “there [are] no rounds, no bells at three minute intervals to relieve [their] exhaustion.”
The White men shout at the young Black boxers—“Slug him, black boy! Knock his guts out!”—and the narrator realizes that submission is his only option.
“The harder we fought the more threatening the men became.”
While some of the White men show a degree of sympathy, trying “to cheer [the Black boys] up as [they] stood with [their] backs against the ropes,”
these gestures offer little relief. Like Martin Luther King Jr.’s critique of the White moderate who prefers “the absence of tension” over “the presence of justice,”
such overtures are hollow and do nothing to change the underlying injustice.
Ellison uses the chaos and violence of the Battle Royal to convey the struggle that Black Americans must face in confronting the anti-Black racism embedded in Jim Crow America, a cultural system of racial oppression baked into the language of law. White supremacy imposes conditions upon Black subjectivity that not only obscure the pathways toward individual flourishing but also render such efforts futile, forcing the oppressed to turn upon one another for mere survival.
As Ellison’s narrator explains:
Blindfolded, I could no longer control my motions. I had no dignity. I stumbled about like a baby or a drunken man. The smoke had become thicker and with each new blow it seemed to sear and further restrict my lungs. My saliva became like hot bitter glue. A glove connected with my head, filling my mouth with warm blood. It was everywhere. . . . Everyone fought hysterically. It was complete anarchy.
Although the winner of the Battle Royal is promised an economic prize, the real beneficiaries are the White men in attendance placing bets on the outcome. As one White male attendee declares, “I got my money on the big boy,”
making it clear that the Black participants’ struggle is ultimately for the entertainment and profit of others. Similarly, within the competitive culture of capitalism, those in positions of economic privilege exploit marginalized and disinvested communities by betting on market trends like gentrification and urban development—playing a different game altogether.
At thirteen, it often felt like Nolan and I were also playing a different game altogether. As we watched local neighborhoods, from Co-op City down to Harlem, undergo urban development that pushed out low-income Black and Latinx families while attracting wealthy young professionals,
we were told that the law promised fair housing opportunities for everyone.
As we watched police officers swarm our streets, stopping and frisking young Black teenagers who looked like us,
as wealthier suburban neighborhoods enjoyed routine serenity with little police presence, we were told that the law protected us from “unreasonable searches and seizures” by law enforcement.
As technology evolved and new industries emerged, we were told that higher education was our pathway to success, despite ongoing legal battles over affirmative action threatening existing diversity, equity, and inclusion programs at universities.
The contradictions within law confounded our understanding of American culture. As a result, like the narrator in Invisible Man, I found myself dancing around trouble in the Bronx like an anxious boxer in a crowded ring, eagerly awaiting my opportunity to deliver my speech and prove to the powerful people in the many rooms I would enter that I too belonged.
III. Law in Culture
Legal culture shaped how I understood the world around me. When I was accepted as one of only two kids from my seventh-grade class into an exclusive summer enrichment program at Fordham Preparatory School, just weeks after Nolan and I had our brief encounter with the police at the Elder Avenue train station, Nolan wouldn’t mention it. Instead, he asked if I wanted to grab a chopped-cheese sandwich at the corner store or play handball against the government building down our block. Around the same time, President George W. Bush declared that “too many . . . children are segregated into schools without standards, shuffled from grade to grade,”
introducing the No Child Left Behind Act of 2001 to demand more from the law.
Yet, the law in our hood reserved the best schools, teachers, and resources for the best students (or those who could afford to pay).
As a result, the top educational opportunities went to the kids who knew how to stay out of trouble, master the rules, and whose parents could afford weekend trips to the bookstore and private education—kids like me.
When twenty-three-year-old Amadou Diallo—a West African immigrant and street peddler of bootlegged tapes and cheap tube socks mistaken for a serial rapist—was shot forty-one times by four plainclothes New York City police officers outside his apartment doorway,
Nolan wouldn’t mention it. Instead, we hurried home past the heavyset preacher with permed hair shouting into a megaphone at the protest near the bus stop, only three blocks from the place where Nolan and I had broken my neighbor’s car window.
Later, Nolan would ask if I wanted to play basketball in the back driveway, where my father had hammered a rim to the porch railing, or if I wanted to play Metal Gear Solid on my PlayStation One, which I had gotten the previous year for Christmas. Even though NYPD Commissioner William Bratton had pledged in the 1990s to “reclaim the streets” and make everyone feel safe,
the law in our hood reserved supervisory policing for working-class immigrants and Black folks hustling to make ends meet.
It felt safer to keep our eyes glued to video games and to confine our hands to hoop dreams. Our innocence flourished behind chain-linked fences where passive smiles greeted patrolling officers,
even though they had already judged us guilty by association,
rendering our concrete playground a holding cell in disguise. The legal fiction of reasonable suspicion was reaffirmed with Diallo’s sacrifice, justified by the perceived threat of his presence. Consequently, our Black legal culture of fearing and avoiding the police became our law.
That same year, when I was selected from hundreds of eighth-grade applicants to attend Regis—the prestigious all-boys Jesuit high school in Manhattan’s Upper East Side, and the only all-scholarship private school in the country—Nolan wouldn’t mention it. Instead, he asked if I had heard about Jay-Z’s upcoming album, Vol. 3 . . . Life and Times of S. Carter, and later told me about the girls who came to football games at his more diverse Catholic high school in the Bronx. Although HUD’s Moving to Opportunity Program helped thousands of low-income families transition from high-poverty public housing projects across New York City into nearby low-poverty neighborhoods with more resources,
the law in our hood reserved the most prestigious opportunities for those select few chosen to leave the hood altogether.
For those left behind—kids like Nolan—it often felt like they had been deemed unworthy.
As an adult, I now wonder if kids like Nolan are essential to the American Dream, not merely because their social status breathes life into the idea of upward mobility, but because their cultural association with disorder conjures “the illusion of power through the process of inventing an Other,” enabling the privileged few to pretend that those left behind in the game of capitalism are strangers, rather than “versions of ourselves.”
Black boys like Nolan and me were told that a culture of poverty plagued our neighborhood, the segregated spaces where low-income folks strived to turn substandard apartments and row houses into homes. Figures like Daniel Patrick Moynihan loomed large in our history books, particularly his 1965 report The Negro Family: The Case for National Action.
In the 1970s, New York Times warned that a “social cancer” threatened to destroy the Bronx and the rest of New York City.
Moynihan described it as a “tangle of pathology,” a product of broken families.
Other public intellectuals, such as James Q. Wilson, argued that the broken windows in places like the Bronx were early warnings of criminal activity,
setting the stage for New York City’s “Zero Tolerance” policing strategy.
These cultural theories about the supposed brokenness of urban life—ideas meant to explain why poverty persists and what liberal democracy can do about it—shaped debates about law and public policy. Yet these debates were saturated with racial stereotypes, cultural biases, and Malthusian views on the role of law.
Much like how President Reagan called for slashes to social welfare programs in the 1980s,
English economist T.R. Malthus had argued two centuries earlier in his Essay on the Principle of Population that laws aiding the poor only worsened their plight by encouraging irresponsible population growth, diminishing their industriousness, and undermining the needs of those who struggle without assistance.
Then, as now, culture found its way into the law, determining who deserved rights and privileges based on dominant cultural beliefs.
But our voices—the Black counternarratives expressed through the Civil Rights and Black Power movements; the prophetic witness of Black jazz musicians; the blues sentimentality of hip-hop artists; the communal ethos of DJs, breakdancers, and graffiti artists—were often missing from such debates. Hip-hop culture, in particular, was more than just an expression of the joys and sorrows of the mundane. More poignantly, it embodied the persistence of Black radicalism in American life and its creative engagement with democratic cultural discourse about the meaning of law.
Yet, hip-hop’s message was often crowded out of the political arena and ultimately commodified by the market. Laws and policies that criminalized and suppressed Black culture highlighted the hegemony of anti-Black cultural beliefs and the failures of political liberalism to address the realities of low-income communities across the United States.
Perhaps this treatment of Black culture by law, as American literary critics Peter Stallybrass and Allon White have suggested,
says less about the social deviance and low status of the so-called Black “Other,”
and far more about the cultural production of legal meaning. Perhaps the eroticized fantasies of Black culture that exist at the social periphery—or in the hidden ballrooms of White supremacy, as Ellison portrayed in his famous Battle Royal scene—are in fact central, symbolically, to the constitution of law in the United States, alongside the many efforts by Black Americans throughout U.S. history to overcome subjection and oppression.
As American literary scholar Shelly Jarenski argues,
Bodies cannot be thought to have matter (or to matter) outside of the regulatory norms and practices that produce them. Regulatory norms make certain discursive identifications possible, but disavow others. Therefore, the process of bodily materialization produces, and even requires the production of, a realm of nonnormative, nonidentifying and thus nonidentifiable bodies—a realm of the abject.
Perhaps the Bronx was, and maybe still is, for Nolan, and for me and the world outside our borough, a realm of abjection—a place where, in the eyes of some, Black lives do not matter. If this is true, then the very existence of Black culture plays a role in the construction of subjectivity, enabling a “conflictual fusion of power, fear, and desire.”
This psychological dependence on the “others” who are socially excluded might explain the tension between freedom, justice, and equality in the law—concepts that remain meaningless without the historic and ongoing contestations of Black life that embody key aspects of Black culture.
As American legal scholar T. Anansi Wilson beckoned more bluntly, “What of the ‘Black’ in Black Letter Law?”
Is Black culture central to the constitutional ideals of liberty and equality that undergird law in America? This understudied and often overlooked question, and its manifest tensions, has resulted in tragedy for politically disempowered and socioeconomically excluded groups throughout U.S. history. Still, despite this, folks like Nolan always found a way to make everyone in our hood laugh. I will forever cherish his comedy. Eventually, I left the South Bronx in search of meaning. I would even leave the United States altogether for a few months as a college student, hoping to gain new perspectives on community development and racial justice. But I would soon realize that law and political economy, both at home and abroad, remain deeply entrenched in rituals of capitalist production that normalize crisis, neglect, and abjection.
Like the narrator at the end of Ellison’s Battle Royal scene in Invisible Man, I was often told that I was among “the smartest boy[s] we’ve got out there” and celebrated for knowing “more big words than a pocket-sized dictionary.”
Yet, I similarly struggled to reconcile this praise with the moral legitimacy of America’s culture of individualism in a world rife with collective inequities and climate crises. In the ballroom scene, the narrator recites a passage from Booker T. Washington’s 1895 Atlanta Exposition, declaring:
And like him I say, and in his words, “To those of my race who depend upon bettering their condition in a foreign land, or who underestimate the importance of cultivating friendly relations with the southern white man, who is his next-door neighbor, I would say: ‘Cast down your bucket where you are’!—cast it down in making friends in every manly way of the people of all races by whom we are surrounded . . .”
Yet, most of the White men in the ballroom ignore Ellison’s narrator, even as he tells them what he believes they want to hear. It is only when he inadvertently shouts the phrase “social equality,” a phrase feared by the White men present, that the White men finally give him their rapt attention, laughter suspended “smokelike in the sudden stillness.”
In fear, the narrator quickly corrects his mistake. “You weren’t being smart, were you, boy?” one of the White men rebukes. “You sure that about ‘equality’ was a mistake?” The narrator replies in fear, “No, sir!” and one of the White men concludes, “We mean to do right by you, but you’ve got to know your place at all times. All right, now, go on with your speech.”
The narrator finishes his speech to thunderous applause, and one gentleman declares, “He makes a good speech and some day he’ll lead his people in the proper paths.”
Finally, the narrator is awarded a briefcase with a scholarship to attend “the state college for Negroes,” and he is filled with joy.
Yet, his happiness fades as he dreams that night that he is at a circus with his grandfather who tells him to open his briefcase and read what is inside. When he does, the narrator finds an endless series of envelopes, each containing another envelope, until he discovers a note, which reads: “To Whom It May Concern . . . Keep This Nigger-Boy Running.”
He finally awakens with his grandfather’s laughter ringing in his ears, the same grandfather who had told him, “life is a war,” and recommended, “let ’em swoller you till they vomit or bust wide open.”
The narrator is forced to confront the bitter truth that his scholarship—a symbol of progress within the confines of Jim Crow law—might actually be a tool of subjection. I, too, have come to realize that there is a part of my story that feels inherently devious. I carry with me a lingering awareness that Black culture, at times, is merely the hopeful attempt to conjure uncontrollable laughter amidst the tumultuous circus of America until crying eases the pain and sorrows of Black letter law.
Conclusion
I would eventually leave the South Bronx to attend college, and later law school, in Cambridge, Massachusetts—a fugitive in search of law’s promise.
Nolan would choose to stay, eventually settling into a career as a community organizer, working to preserve and celebrate Black culture, even as the law consistently offers fear and defeat. In our own ways, we both strive to keep America’s dream alive, for better or for worse, each of us gesturing toward a progressive vision of liberal democracy, both reflections of the intertwined relationship between Black culture and the law. Perhaps West was right: “Law’s very positive commands cannot be fully understood unless we include in our understanding of what law is a substantial space for cultural reality.”
We will never fully understand Black American culture without U.S. law. Nor will we ever fully understand U.S. law without Black American culture.
Nolan and I remain bound by the existential crises of our age, tragedies shaped by the enduring salience of race in the modern era. Some days, I lose myself in the bowels of that age-old question, What’s good? On other days, all I can do is laugh, my stomach an earthquake unsettling the land where dry bones lie waiting. We were once boys. Now, I can only wonder if our teachers are proud.