The Constitutional Rhetoric of White Innocence


This article discusses the Supreme Court’s use of the rhetoric of white innocence in deciding racially inflected claims of constitutional shelter. It argues that the Court’s use of this rhetoric reveals that it has adopted a distinctly white-centered-perspective which reveals only a one-sided view of racial reality and thus distorts its ability to accurately appreciate the true nature of racial reality in contemporary America. This article examines the Court’s habit of consistently choosing a white-centered-perspective in constitutional race cases by looking at the Court’s use of the rhetoric of white innocence first in the context of the Court’s concern with protecting “innocent whites” in affirmative action cases and second in the context of the Court’s racialization of the Fourth Amendment’s requirements regarding the substantive content of the reasonable person standard in citizen police encounters. This article concludes that the Court’s insistence on choosing and imposing only one racialized perspective – the white-centered-perspective—in racially inflected constitutional claims is more than simply bad policy, it also constitutes an unconstitutional violation of the Due Process clause of the Fifth and Fourteenth Amendments. This article thus calls for an appreciation of the dominance and problematic character of the judicial imposition of a single arbitrarily chosen racial perspective in deciding all constitutional race cases. Thus it calls for a modification in judicial decisionmaking in which judges become conscious of the white-centeredness and racial contingency of the white-centered vantage point. In this way it urges a judicial appreciation of multiple levels of racial interpretation in an effort to loosen the hegemonic grip of the white-centered-perspective and dilute its power to both name and punish, and thereby reduce it from its current dominance into just one more option among equally respected racial perspectives competing fairly for judicial recognition and legitimization.


Civil Rights and Discrimination | Constitutional Law | Jurisprudence | Law and Society | Public Law and Legal Theory

Date of this Version

September 2005