COURT IS DRAG: WHAT CITIZENS UNITED REVEALED ABOUT WESTERN IDENTITY POLITICS

COURT IS DRAG: WHAT CITIZENS UNITED REVEALED ABOUT WESTERN IDENTITY POLITICS

“The East is waiting to be understood by the Western races, in order not only to be able to give what is true in her but also to be confident in her own mission.” 

Rabindranath Tagore, “Creative Unity” (1922).

* * *

I came to law school because I seek nirvana. Because in my meditations three and four summers ago, I felt my country’s law, and indeed, its language itself, blocking my way to myself.

This conflict of mine came to a head in my theory of law class, when I was assigned to defend Monsanto’s gentrification of a poor Black community (think: Kelo v. City of New London) using a Critical Legal Studies approach. Critical Legal Studies (CLS) is a doctrine devoted to the liberation of legally oppressed peoples, especially poor Black peoples. I hope you realize my intellectual dilemma! So, I decided to use satire and parody and argued the case in drag.

My argument was this: Due to Citizens United v. Federal Election Commission(2010), in which the Supreme Court held that a corporate identity is a legitimate rights-bearing, expressive being, Monsanto has a fundamental and inalienable right to “manifest itself” even against the propertied interests of the poor Black neighborhood, because the corporation’s First Amendment rights come, well, first. To make my argument, I cited the campaigns of Bernie Sanders, Elizabeth Warren, and Alexandria Ocasio-Cortez, as proof that Monsanto was the truly stigmatized, oppressed, and unfairly censored being in this whole scenario—not the Black folk who were losing their homes and community due to gentrification. I asserted that corporations were the true minorities “numerically speaking,” and I concluded by saying, “In closing, I would like to note that I am a trans woman of color and so you should decide for me.” I then went back to my seat, took out a make-up wipe, and wiped my face off.

My performance in drag parodied Western identity politics as it operated in Citizens United, which overruled a 1990 Supreme Court decision called Austin v. Michigan State Chambers of Commerce (1990). Austin had upheld the constitutionality of a prohibition on independent expenditures by corporations. Austin held that narrowly tailored, segregated provisions for corporations to set up political funds were sufficient to protect any First Amendment issues while preventing “distortions” in the political process which arise when mammoth corporations use their treasuries to “express” their political views. In Citizens United, the Supreme Court reversed course, holding that segregating funds as such amounted to a “chilling” effect on political speech which the First Amendment fundamentally protects. The Court in Citizens United held that Austin’s “distortion” rationale interfered with America’s open marketplace of ideas, and indeed, was a form of discrimination, as “all speakers, including individuals” use their money to fund their speech, a speech which is protected by the First Amendment. Most remarkably, the Court held that “the rule that political speech cannot be limited based on a speaker’s wealth is a necessary consequence of the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.” [emphasis added]. To calcify this identity politic, Justice Anthony Kennedy, writing for the majority opinion, wrote: “The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech.”

Before we dive deeper into the ramifications of this case as it pertains to my quest for nirvana, we must first review some preliminary scholarship on the First Amendment. According to Professor Martin Redish, a leading First Amendment scholar, Self-realization is the whole point of the First Amendment (as maintained in his legendary 1982 article, “Value of Free Speech”). And if Self-actualization, or nirvana (“I am because we are”), is the natural goal of Self-realization, the so-called emancipatory ideal of “self-rule”, then Justice Kennedy’s failure to realize the categorical distinctions of personhood inherent within the First Amendment’s valuation of free speech is paradoxically the seed of all speech oppression. A corporation, of course, has no problem pretending to be a person. Its identity is wholly written. What expression does the Court have to protect there? But for the actual breathing person, being a person is still the long-sought ideal. Who amongst us is Self-actualized? Indeed, free expression is necessary for a person to become a person at all.

To take it a step further, for a Court to determine, nonetheless define, legal personhood is both a Herculean task and one which spiritually stunts the plaintiff. Renders them static. Demands that the plaintiff stopper their Self-questioning and Self-exploration in order to meet constructed notions of legal personhood (a personhood which is secular, modern, and statist). But so that we can rest assured as natural humans: such a static Self-concept, one which the corporate identity is beholden to, is false. The Shiva Mahimna Stotram describes the transcendent, ethereal, subtle nature of the Self (personified as Shiva) best when it declares, “All the Vedas say, is that You are ‘Not this, not that!’ How great You must be!” The Stotram addresses the Self through a language of identity which elevates performance as the essential act of a subjective journey to the Self, understanding identity as a thing always in progress through continual expression and performance of one’s roles and duties. As such, expression is not alienated from the subject, but is an essential act of Self-realization; it constructs an identity which is neither static nor a fixed opposite to a binaried Other.

The Stotram is not alone in such a dynamic concept of the Self; the West actually does permit this kind of “not this, not that” language of identity for some. For Justice Brett Kavanaugh did not reach his position because of the privileges afforded to him because he is a white man—he reached that position because of the privileges afforded to him because of his appeal to normalcy. Indeed, it is because a national conversation occurred about his white man-ness that his “natural authority” came into contest (and was arguably shattered) at all. The opposing culture does not grant white men power because they are white men. White men are afforded authority because they are not. Because we have so many stories of them in so many ways. Because the normative is dynamic, not static, and therefore, free from the burden of Self-identification and allowed, in turn, to identify an “other”.

Whiteness and masculinity, rather than static concepts defined in a self-contained way, are defined in such a contested way. And this politic of identity—this myth of the White American Alpha Male—indeed underlies the decisions and machinery of the Supreme Court, which I sought to reveal in my performance in drag. Western culture, through its legal systems, identifies White Man as the “Not this, not that!” by inscribing everyone else in the universe as the “this” and the “that,” leaving us to wonder how great the White Man must be! And it is this power—the power of the normative to identify themselves and otherswhich the Citizens United court warped, vis-à-vis the First Amendment, to oligarchic political ends; it is this power which I sought to reveal in my moot court performance.

This all reminds me of the story of a monk who sought both nirvana and respect from her all-male peers. Angry that she had not yet been accepted into the upper echelon of the monk hierarchy despite her years of rigorous meditation and penance, she complained to the head monk that she was being excluded because she was a woman. The head monk scolded her and sent her back to her mat, saying, “You think you are a woman?”

Similarly, the cultural struggle of a woman in Western legal theatres, a woman of color, a transgender woman of color at that, one like me at that, is to earn the dignity of legal subjecthood from her judges. Yet I did not transition to become a “transgender woman of color.” I did it to become normative. Borrowing language from my favorite article on Hinduism, I am as much a woman as I am not. Indeed, let us go further: a woman is not who I am any more than it is who anyone “is.” No, a woman is how I am. It is the source and way of my expression and feeling, and daily performance and discharge of my roles and duties, unalienable from me despite all attempts by man and myself. Womanhood is my path to nirvana. Recognizing such expressive contestations of identity as foundational to expression itself is the value which the First Amendment seeks to protect. It is synonymous with granting subjecthood and expressive agency. To not realize this is to retraumatize women like me (PTSD, and generalized anxiety and depression, to be specific); because in today’s Culture Wars, Congress seeks to turn me into a spectacle or a corpse, no matter what, even if it’s unconstitutional.

My performance in drag manifested the constant negation that characterizes a human’s attempts to articulate one’s consciousness, thereby revealing the true value of free speech.Performance became, in my hands, a practice for Self-realization and Self-fulfillment, and the generation of the need for categorical differences between the corporate and the human identity, especially when pertaining to the First Amendment. My performance, with its visual paradoxes, multi-layered tensions, and multiple affective conflicts, grounded my class and my argument while swatting Western illogics away, rupturing the class’s “false” consciousness. (I skeptically use the term “false” because I don’t know how “false” it can be when their gaze has harmful biological impacts upon my heartbeat, my breathing, my nervous system, and my confidence.) The rupture of my drag created a dark abyss from which I myself could be emancipated and revealed—and possibly even made legally substantive, possibly even “not this, not that!”—through symbolic play.

It is Self-actualization which the First Amendment was meant to protect; and what the Shiv Mahimna Stortram suggests is that Self-actualization necessarily requires self-negation, it is accurate to say that an entity which cannot contest its identity cannot have expressive agency. So although in my moot argument, I pushed the Supreme Court’s concept of a “corporate identity” to its logical extreme by granting First Amendment rights to corporations and even subtly equating a corporate identity to the identity of a transgender woman of color, my drag subverted the potential for such an argument to truly be taken at face value. I am, surprisingly, not a corporation, and a corporation is not an identity, as in that id-entity which bridges society and Self through language and performance. But in Citizens United, corporate Boards demanded exactly that. If the Lord—sorry, Board—directs a good performance of humanity, one which is legally cognizable, the theory goes that the corporate class can manufacture a super-human colossus, a “super PAC” which has all the federal First Amendment protections afforded to ordinary citizens, but which speaks very differently: only in cash, and never against its Master (fiduciary duties, and all that). The Master being the Company, the corporate identity itself; an identity which is wholly on paper and has received the Court’s rubber stamp of approval, having past its illogics of legal personhood. But what need does a corporation have of free expression, when its essence is as frozen as the ink on its charter? Legally speaking, the corporation cannot contradict or betray itself; it is incapable of actual independent expression or contestation (fiduciary duties and all that). Most critically, a corporation cannot Self-actualize through identity–contestation. A corporation is legally beholden to its Board; it cannot resist mischaracterizations by its Board. A corporation has no mouth, no body, and no real agency to protect. It is entirely written, and cannot even breathe outside its four corners. If it does, someone gets the boot.

Citizens United was decided wrongly for the plain and obvious fact that the Court has no need to grant expressive rights to entities that are beholden to a static identity; corporations have no corpus to perform, no mouths to protest, no eyes to falter and contradict itself while reaching for one’s inner soul. There is no need to give First Amendment rights to legal fictions because the Self is not a fiction, nor is it written. It is felt, and sacrificed for. There is no need to protect the expression of an entity which does not truly express, feel, or sacrifice itself at all; but somehow, the Court missed that, and so I wonder if Citizens United is a case which could have only been decided by judges mesmerized by lawyers in masculinist drag, performing a Western identity through modernity’s suits, ties, and perfectly professional and Self-annihilating arguments, all who somehow “showed” that a corporation is, indeed, in need of Self-realization. Even if this entity speaks only in cash, it should speak as much as it wants. Even if this entity cannot contest itself, it should be protected under the First—because we, as Americans, must hold out hope for its soul.

The Supreme Court must revisit its concept of expression seriously, as a moral and legal matter. For the power which expressing and negating one’s identity holds—to actually actualize the Self—is at odds with Citizen’s United’s identity politic. This is because identity, as a natural force and since time immemorial, is a bridge between self and society which must be expressed to be actualized, while a corporate “identity” is a fictitious bridge between privileges and a Board. The corporation itself is a series of symbols performed by the Board to masquerade as life, in order to claim legal rights reserved for the People. The corporation is a cult of personality, a masculinist, anthropomorphic spectacle, a trollish legal fiction created to ward away duties of care and personal liability. It is a golden calf devoid of spirit and puppeteered by country clubs which devilishly allow for the legitimation of corporate identities while scrutinizing into oblivion the existence of transgender ones; most infuriating of all, this golden calf maintains that there is no contradiction in this.

The emancipatory way out of this pickle is to construct (and reconstruct) the very concept of identity within legal consciousness itself. This means constructing a jurisprudence by which legal personhood is not yet once again redefined, but resituated; not as the stable bedrock for standing and rights, nor as something which can be written, but as something which cannot— not as the identifiable positive-difference from White Man, but as something which is only the property of one who can expressly contest it. With such a lens, we can see more clearly that expression arises from the only meaningful agency we have: to reach for, and perform, our confusing selves. As the great Bengali poet, Rabindranath Tagore, wrote in his treatise, “Creative Unity,” “To give perfect expression to the One, the Infinite, through the harmony of the many; to the One, the Love, through the sacrifice of self, is the object alike of our individual life and our society.” Western frameworks of legality which scrutinize things into oblivion fail to realize this obvious truth of what personhood is, who it is meant for – and also fails to realize what identity is not, what expression is and what it is not; and the best way to reveal this lack of Self-realization in Western theatres of law (other than a corporate death penalty) is through expressive, dynamic, mercurial, womanist performance. Although Justice Kennedy and his kind cannot find categorical distinctions between corporate and human identity and speech in the First Amendment, all spiritual tradition—the kind which has birthed, nurtured, and destroyed America, repeatedly—and I, arising from my ownself, most certainly can. And it’s high time the West listened to the East. For this is the distinction between scattering rights to fictitious gods, and granting rights as their need arises from oneself; it is the difference between defining personhood with suffocation or with awareness, between a corpse and a spirit.

As Tagore explains:

“The one question before all others that has to be answered by our civilisations is not what they have and in what quantity, but what they express and how. In a society, the production and circulation of materials, the amassing and spending of money, may go on, as in the interminable prolonging of a straight line, if its people forget to follow some spiritual design of life which curbs them and transforms them into an organic whole. For growth is not that enlargement which is merely adding to the dimensions of incompleteness.


[…] Our activities of production and enjoyment of wealth attain that spirit of wholeness when they are blended with a creative ideal. Otherwise they have the insane aspect of the eternally unfinished; they become like locomotive engines which have railway lines but no station; which rush on towards a collision of uncontrolled forces or to a sudden breakdown of the overstrained machinery.

Through creation man expresses his truth; through that expression he gains back his truth in its fullness. Human society is for the best expression of man, and that expression, according to its perfection, leads him to the full realization of the divine in humanity. When that expression is obscure, then his faith in the Infinite that is within him becomes weak; then his aspiration cannot go beyond the idea of success. His faith in the Infinite is creative; his desire for success is constructive; one is his home, and the other is his office.”

So in my moot court argument, I used performance as an expressive tool to express my own agency in the midst of such a cultural disconnect; to resist and cannibalize efforts to similarly submit me, or otherwise direct me, to legitimizing the modern Court’s Self-concept. The risks of performing as I did—risks including ‘losing’ this mock case, social shame, or dropping a few grades—were no risks at all if, in consequence, I helped win the Culture Wars which rage across America. Don’t forget: they are being waged within the law school halls right now, perhaps even more acutely than outside them. It is important to convey that from the chaos of the abyss, while arguing my case in front of my professor and class for ten minutes, I felt, finally, in a strange way, at peace for the first time in the law school; because I knew in my perpetual elusion, I was expressing myself to the fullest. There is a great relief and power, as my past therapist said [not the (white) one who (mis)diagnosed me as “other psychotic”] in letting your hands fall to your sides and saying, “This is me.” Performing was like watching from the eye of a storm—except my storm shed laughs, light, healing, peace, and above all, emancipation from the illogical demands of legal personhood to those around me. A Peace greater than peace, one beholden to, and transcendent to—not antagonistic to, or fearful of—the proximate Other. Above all, it spread holistic feeling, freed at least a little from the legal commodification of our souls.

* * *

Thank you for your time. I end with words penned by Professor Susan Stryker, a white, transgender, “Harley-straddling, dildo-packing leatherdyke from hell,” in her seminal article: “My Words to Victor Frankenstein Above the Village of Chamounix: Performing Transgender Rage.”

To encounter the transsexual body, to apprehend a transgendered consciousness articulating itself, is to risk a revelation of the constructedness of the natural order. Confronting the implications of this constructedness can summon up all the violation, loss, and separation inflicted by the gendering process that sustains the illusion of naturalness. My transsexual body literalizes this abstract violence. As the bearers of this disquieting news, we transsexuals often suffer for the pain of others, but we do not willingly abide the rage of others directed against us. And we do have something else to say, if you will but listen to the monsters: the possibility of meaningful agency and action exists, even within fields of domination that bring about the universal cultural rape of all flesh. Be forewarned, however, that taking up this task will remake you in the process.

By speaking as a monster in my personal voice, by using the dark, watery images of Romanticism and lapsing occasionally into its brooding cadences and grandiose postures, I employ the same literary techniques Mary Shelley used to elicit sympathy for her scientist’s creation. Like that creature, I assert my worth as a monster in spite of the conditions my monstrosity requires me to face, and redefine a life worth living. I have asked the Miltonic questions Shelley poses in the epigraph of her novel: “Did I request thee, Maker, from my clay to mould me man? Did I solicit thee from darkness to promote me?” With one voice, her monster and I answer “no” without debasing ourselves, for we have done the hard work of constituting ourselves on our own terms, against the natural order. Though we forego the privilege of naturalness, we are not deterred, for we ally ourselves instead with the chaos and blackness from which Nature itself spills forth.

Ishani Chokshi is a J.D. candidate (’22) at Northwestern University Pritzker School of Law. She graduated from Brown University with a degree in Visual Arts.

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