By EJ Toppin
Jan. 14, 2021
As the country continues to make sense of the storming of the US Capitol last Wednesday, the Trump administration is engaged in another form of deluge—an ongoing torrent of last minute regressive rules to lock into place right-wing policy priorities before the president’s last day in office. These rules include a rollback of nutrition standards in school meals and an easing of penalties for inadvertently or negligently killing protected bird species, among other changes. But two proposed modifications stand out for how they interrelatedly revolve around the same core premise: discrimination.
The first is a Department of Justice proposal that would reverse the use of disparate impact to determine if a person of color, woman, or member of the LGBTQ+ community had experienced discrimination. Arguing that disparate impact is a questionable concept and makes the definition of discrimination too broad, the administration is seeking to limit redress for, and even acknowledgment of, unfair and undue harm related to employment, housing, voting rights, and law enforcement. While the first rule denies that marginalized people face systemic discrimination, the second rule reserves federal anti-discrimination protection for corporate entities. As a response to a recent shift in attitude and business practices particularly among banks that have decided they no longer want to lend to companies involved in energy extraction in protected lands, assault rifle production, and predatory lending, the president’s Office of the Comptroller of the Currency (OCC) is working on a rule to designate loan denial to these types of companies as wrongful discrimination.
This position has historical precedence. Legal researcher and writer Jeffrey Kaplan, in “The Birth of the White Corporation” (2003) explains that after the passage of the 14th Amendment in 1868, meant to establish equality for the formerly enslaved, corporate power preempted the protections afforded by the amendment through the construct of corporate personhood. The 14th Amendment’s intent was to secure personhood for those whose dehumanization the American economic system depended on. Yet its purpose was reconfigured to grant the status of person, and thus rights-based redress, to the enterprises that economic system built. Kaplan points out that the Supreme Court gave its approval to racial segregation as it recognized the wrongful treatment of corporate “people,” negating Black civil rights as it served up civil rights protections to business.
The Trump rules rely on this same logic. National Public Radio’s reporting on the OCC rule makes the point that the predatory lenders that the administration aims to protect have a business model that actively takes advantage of communities of color. Their success depends on the historical and ongoing exclusion of people of color from traditional forms of credit. The securing of “civil rights” for these businesses translates into the negation of racial equality. In fact, this arrangement is a central component of how many parts of the economy function. Many business models are constructed around the entrenchment of structural racism, while the simultaneous denial that structural racism exists allows these economic opportunities to persist through the transfer of rights from marginalized people to corporate “people.” This formation is behind Trump’s effort to discredit and banish education programs meant to teach people about racism. The unjust structures and the denial can together persist, aiding the “transfer of both economic and human rights from Black people [and other marginalized groups] to those who control large-scale capital.”
What does this mean in the context of the January 6 storming of the Capitol? In the context of people stampeding the Capitol out of loyalty to a man who prioritizes corporate rights over all people, them included? Kaplan recounts the legal process that ultimately culminated in the affirmation of corporate personhood. One of the strategies that contributed momentum to this eventual legal classification was to call attention to white grievance. Lawyers for a railroad conglomerate argued to the Supreme Court that in passing the 14th Amendment, the country had betrayed and abandoned the “poor white man.” The progression of the argument goes as such: the Constitution has given an unfair advantage to Black people; it is time to restore equality for whites who are now subordinated to the special status the 14th Amendment gave Black people; since we’ve established the need to constitutionally protect white people, let’s extend those protections to corporations.
This leads Kaplan, inevitably, to the conclusion that the corporation required an implicit racialization as white to effectively access the prerogatives it desired as a legal person. This window into history holds importance because it begs consideration of how “poor whites” were positioned in this argument. Why perform concern for everyday white people, Kaplan asks, when representing a powerful railroad? The answer lies in their appearance not as an object of true concern, but as a mere, albeit necessary, prop. The idea that corporate rights could be found in the constitution needed a conceptual basis for such an idea to be produced. This happened via poor whites through a fabricated subordinate relationship to Black people. This means that white social location in terms of class was lent attention and (mis)theorized simply to lift whatever redistributional solutions could be conceived from them and to the designs of corporate actors.
Understanding this should help clarify that January 6 was about the preservation of a racial order. The Trump supporters who swarmed the Capitol experience harm from a ravenous economic system that thrives on and induces inequality. But this hardship is interpreted as a loss of status in relation to undeserving others. This perception is encouraged to instigate action that will reinforce the racial order—an order that structures the economy. As participation in actions like these produces a certain catharsis, there is an enthusiasm to engage in what feels like a reassertion of status. But this masks the underlying social role as a conduit of the upward transfer of economic and social privileges. In the midst of all eyes narrowing in on the Capitol siege, the Trump administration is focused on destructive rule-making. It would do us well not to lose sight of this—the storm raging in the background—before and after the spectacle of the squall in Washington.
Editor's note: The ideas expressed in this blog post are not necessarily those of the Othering & Belonging Institute or UC Berkeley, but belong to the author.