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Hastings Constitutional Law Quarterly




Constitutional law scholar Laurence Tribe once described due process and equal protection as “a legal double helix.” By this, he meant that protections for substantive liberties coupled with principles of equal treatment created “a single, unfolding tale of equal liberty and increasingly universal dignity.” In his view, equality and liberty were mutually constitutive and “center[ed] on a quest for genuine self-government of groups small and large.” Although this optimistic account of the nation’s constitutional DNA is reassuring, Professor Sahar Aziz’s new book on “The Racial Muslim: When Racism Quashes Religious Freedom” reminds us that the double helix can unravel, so that freedom and equality become mutually destructive. Far from enjoying self-government, some minority groups have seen that “racism intersects with religion to racialize a religion’s followers and consequently exclude them from the panoply of religious freedom."

Professor Aziz’s book raises important questions about whether a narrative rooted in race and racialization fully captures the complexity of the Muslim experience. It is not clear why race—as opposed to traits like national origin, immigration status, and religion—should be the dominant force that drives government policy, private bias, and Muslims’ self-conceptualization. This is especially true given the tremendous internal heterogeneity of the Muslim population as well as the rise of powerful new ways to surveil and control many of its members through immigration enforcement. Framing the Muslim community in racial terms potentially obscures the complicated dynamics associated with proliferating differences and the anxiety around pluralism they engender. That anxiety in turn can prompt a retreat into individualism. As a result, Americans “hunker down” in the face of growing diversity, even as courts retreat from equality jurisprudence and turn to seemingly universal principles of personal liberty. The challenge is to find a way to restore a sense of shared purpose that remains respectful of distinct histories and identities.

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University of California Hastings College of Law

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