File: powell final for Darby 786 Created on: 3/15/2009 12:55:00 PM Last Printed: 4/3/2009 10:11:00 AM DENVER UNIVERSITY LAW REVIEW [Vol. 86.Obama the socio-political environment, varying from location to location, as well as throughout different periods in history.2 These processes are not just uniformly present or static. They respond to what we collectively do and think and are therefore highly contested.3 However, this is not typically how we as a society think about race and racism. Rather, we see them as well defined and a limited set of discrete practices that remain constant over time, in spite of social changes. Even as we use the term ‘racialization’ to connote the fluid nature of the phenomenon we are describing and the broader context in which racial outcomes manifest and are understood, the use of this term will not automatically break us from our reflexive thinking and mental habits around race and racism. In this country, the cultural understanding of racism is most closely associated with Jim Crow, and in the individual context it is imagined as the conduct of racist individuals consciously engaging in discriminatory activity directed at a particular victim. This is the point at which most Americans became self-conscious of ‘racism’ as a problem.4 Issues of race and racism came to be understood as an explicit set of laws and policies by institutional actors such as school boards or municipal governments, or explicit action on the parts of individuals.5 This overly individualistic approach to race, racism, and racialization fits well with our overall individualistic approach to many life issues. Consequently, issues of race are likely to be seen primarily as deliberate psychosocial events, instigated by institutions managed or directed by bad actors, or individual actors themselves.6 Even though the Jim Crow system was a highly institutionalized and extensive formal regime of racial oppression, a system that was only partly legal, in the popular imagination much of this system is reduced to the individual 2. Much of this could be said about a proper understanding of race and racism. These terms have a long history that is also sensitive to location and socio-political conditions. But this is not how most Americans think of these terms. Most Americans would be surprised to learn that the term “racism” did not come into use in the United States until the 1930’s. For a good discussion of changing meaning and practices of race, see generally GEORGE M. FREDRICKSON, RACISM: A SHORT HISTORY (2002); STEVE MARTINOT, THE RULE OF RACIALIZATION: CLASS, IDENTITY, GOVERNANCE (Temple Univ. Press 2003); DAVID R. ROEDIGER, HOW RACE SURVIVED U.S. HISTORY: FROM SETTLEMENT AND SLAVERY TO THE OBAMA PHENOMENON (Verso 2008); john a. powell, The Race Class Nexus: An Intersectional Perspective, 25 LAW & INEQ. 355 (2007). 3. MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960S TO THE 1990S 66-68 (1st ed. 1986) (describing racial formation as a function of the interaction between micro- and macro-levels of social relations). 4. AUDREY SMEDLEY, RACE IN NORTH AMERICA: ORIGIN AND EVOLUTION OF A WORLDVIEW 332 (Westview Press 3d ed. 2007). 5. Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, in CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVEMENT 29, 29-30 (Kimberlé Crenshaw et al. eds., The New Press). 6. Compare Washington v. Davis, 426 U.S. 229, 242 (1976) (establishing the Court’s discriminatory purpose doctrine, which requires the plaintiff to prove discriminatory intent), with Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 373-78 (1987) (critiquing the Supreme Court’s discriminatory purpose doctrine and proposing an alternative test that would take unconscious racism into account).