This Article describes a new model of the relationship between racial ascriptions on an individual level, private racial bias, social disadvantage, and state action, called the cognitive hierarchical model. It argues that racial hierarchy in the wider culture affects our individual cognitions, and vice versa. Status evaluations turn out to be built deep into our racial perceptions. Because the state exercises a continuing influence on our culture and the cognitions it generates, this Article defends new grounds for constitutional challenge to state complicity in racial hierarchy. To be ascribed a stigmatized racial identity is to be subject to continuing harm, which this Article calls ascriptive injury. The state, by participating in the continual creation and reinscription of stigmatized racial identities, contributes to such ascriptive injuries, which for that reason must be subject to a constitutional remedy.
The following diagram summarizes the entire cognitive hierarchical model, including the key dynamic, the bidirectional relationship between racial identities and hierarchical status evaluations. Arrows indicate causal relationships.
Conventional American presumptions about our individual, day-to-day references to race are incorrect. In the legal system as in ordinary life, we talk as if racial categories track mostly clear biological and hereditary divisions, and using such categories merely means observing and referring to these divisions. This Article will call that presumption the “naive concept of race.” Even sophisticated observers view racial categories as socially constructed, but do not always identify those categories as normative. But the evidence from history, demography, sociology, and psychology shows otherwise. In fact, our everyday acts of racial classification—assigning racial categories to the persons we observe—are acts of hierarchical social stratification. The latest research reveals that we even assign racial identities in part based on nonracial status information and that those assignments change as status information changes.
Moreover, those status evaluations are built into our low-level perceptual processes: neuroscientific evidence reveals that hierarchical status evaluations occur even at the level of visual processing, as we observe and place persons into racial categories.
Consequently, persons ascribed racial categories in the contemporary United States are subjected to hierarchical social identities. Those at the bottom of the hierarchy are subjected to a tainted (or stigmatized) identity. In the United States, the stigma particularly falls on those ascribed the identity “black.” This Article primarily focuses on this racial category for two reasons. First, it describes the victims of the starkest hierarchy in our history and contemporary politics. Second, it has been the subject of the most extensive investigation in social science and history (although where evidence is available with respect to other categories I have drawn on it).
Our racial categories acquire legal implications because the state supports them. The stigmatized racial ascriptions we suffer under today are constructed in substantial part out of implicit and explicit stereotypes and implicit affective biases, which are in turn facilitated by physical isolation and by social disadvantage visibly associated with racial divisions. The state, with its laws, props up both of these phenomena.