Post-Colonial Constitutionalism



In 1980, shortly after I was sworn in as a judge of the Family Court of the State of New York, a more senior judge of that court looked me in the eye and said, “We do things to these families that we would never do with our own.” She was a white judge speaking to a new Black colleague, and so I understood the kinship suggested by her use of the inclusive pronoun to reference our class positions. The “we” was we of the middle and upper classes, and “our own” were people who did not live in poverty and almost never appeared as respondents in the neglect, abuse, domestic violence, support, and delinquency cases we handled each day. She was also socially conscious, and I knew without her having to say it, that in the larger scheme of things she saw that the “we” who did things to others that we would not do to “our own” was predominantly white, and the families to whom we did things were almost exclusively Black and Latinx. I am looking for principles that will help us to bridge the gap between how we see “our own” and how we see “Others.”

The subject of this symposium is Black families and child protection systems. The subject of this talk is post-colonial constitutionalism. I hope to provide in the next few pages satisfactory proof that the two subjects are importantly related. Those familiar with child welfare systems might agree immediately that colonization is an apt, albeit harsh, metaphor for child welfare systems in many cities, towns, or rural areas in the United States: An entity assuming governmental authority supervises and alters the terms of life in a community—and in families—that had thought of themselves as autonomous. And it does so with a presumption of cultural or informational, if not biological, supremacy. It professes to act in the name of the long-term interests of communities and families as it undertakes a kind of cultural or educational conversion. Kidnapping of Native children to boarding schools for socialization comes to mind, as do the orphan trains of immigrant children being shipped to more “American” homes farther west.

Suggested Reading

Matthew I. Fraidin∞  This is a transcript of a speech given by Professor Fraidin at the N.Y.U. Family Defense Clinic’s 25th Anniversary Celebration Symposium, held on April 7, 2016. This is the life of a family defense lawyer: A 17-year-old