Constitutional Law and Epistemic Injustice

Abstract

The experience of racial injustice in the United States is complex. Our Constitution embodies lofty values, but the lived experience of communities of colour is much different. Equal opportunity and equal access still elude many American citizens from marginalised groups, and this is evidenced by ongoing social and economic disparities. Despite the documented inequity, policymakers continue to challenge the existence of structural racism. This chapter discusses the inconsistent treatment of speech about race within U.S. constitutional law and public policy and argues that the scholarship on epistemic injustice and on recognition theory offers valuable insights about how and why structural racism persists within the United States. In particular, the chapter discusses the ways in which epistemic violence and silencing normalise practices of exclusion, as well as the nature of recognition harm to the targeted groups. The chapter concludes that if the United States is serious about its constitutional commitments to democracy and equality under the law, the lived experience of communities of colour must be correctly seen and correctly acknowledged. Equality of opportunity is not possible in a world where epistemic violence, silencing, and misrecognition continue to operate under the surface of our stated commitments to tolerance and neutrality.