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A Working Paper on The Mask of Law: Montoya’s Mask and the Un/Masking of Legal Discourse

Nick J. Sciullo[1]

When I first read Margaret E. Montoya’s revolutionary article, Máscaras, Trenzas, y Greñas: Un/Masking the Self While Un/Braiding Latina Stories and Legal Discourse,[2] I was a young law student at West Virginia University College of Law actively seeking to expand my doctrinal readings with theoretical readings in critical race theory and critical legal studies. I came across this article by chance; it was one of those random LexisNexis searches that many law students conduct. When I read the article, I drew several connections that guided my exploration of the idea of the mask. The first was to The Fugees’s “The Mask” from The Score.[3] The second came a little later after I had seen the movie, Heading South, where one of the characters says, “Beware, sir. It’s hard to tell the good masks from the bad, but everybody wears one.”[4] In this article, I will discuss the importance of Montoya’s mask, her máscara. I first explain the importance of the mask for Montoya and in the literature that I see as necessary to comprehending the complexity of Montoya’s mask.[5] To do this I draw on several disparate sources to extract the meanings of the mask and the implications for legal scholars and activists. This piece helps position Montoya not only as contributing to LatCrit scholarship and feminist jurisprudence, but also as contributing to an intellectual tradition of theorizing the mask by expanding the rules of the game, by taking the work scholars have completed for years to theorize the intersections of performance, subjectivity, and identity and making it relevant and compassionate for current social justice struggles. Throughout this article I am also concerned with Montoya’s lasting LatCrit[6] legacy, which has been evident at the most basic level in the tremendous number of citations her article has garnered inside the legal academy and beyond. Lastly, I discuss the ways in which Montoya’s mask remains a relevant consideration for critical race and feminist legal theory. Montoya’s article is central to the pantheon of critical race/latina/o critical theory scholarship and it is an honor and indeed a necessity to take account of it twenty years later.

I. Montoya’s Mask

Montoya’s mask has its genesis in a tremendous literature base, much of which concerns (or should concern) legal scholars. By unpacking that literature base, scholars might better be able to discern the broad applicability of Montoya’s mask to a host of legal issues. In this section I consider the roots of theories of the mask and also the ways in which the mask has helpfully been applied outside academia.[7]

This exploration begins some time ago. René Descartes, the famous theorizer of existence, in his Preliminaries and Observations, wrote:

Actors, called upon the stage, put on a mask so that we cannot see blush on their faces. So, as I am about to mount the stage of the world where I have been a spectator so far, I advanced masked.[8]

I read Descartes, as one ought to, with a critical eye. I am informed by the work of Judith Butler who has discussed the importance of performativity to ontological conceptions of existing in the world as well as epistemological ways of disseminating and translating knowledge.[9] I also have in mind the complication of the traditional divide between the body and the mind where, for example, Gilbert Ryle troubles Descartes with his characterization of Descartes’s theory as the “ghost in the machine”[10] as well as Gloria Anzaldúa’s mestizaje,[11] or the blurring of binaries in favor of a “both/and” construction of subjectivity.[12] Anzaldúa is, of course, particularly concerned with the complexities of articulating a Latina identity in the matrix of gender, race, ethnicity, and class politics in the United States, which makes her a necessary voice to have in one’s mind when discussing Montoya. Montoya calls on all of these thinkers as she exposes the masks we wear daily. Although Montoya is calling into effect a specific notion of the masked Latina, her theories apply to us all as we advance upon the stage of life. Montoya’s masterful contribution may then be seen as resurrecting the insights of Descartes, despite his failings, in light of the important ideas of gender and race performance in and around the university.

Descartes is theorizing the permanence of the mask. We are always wearing one or more. The distinction between drama and life is negligible. Even in our spectatorship, when we say, “I will not participate,” we are engaged in mask-play. So, the task of making intelligible the body is finding the blush on actors’ faces. We cannot engage in the critical work necessary for change without this sort of un-masking. We must find the blush, make legible the emotional and affective.

Montoya made a similar dramatic analysis in her article when she wrote:

Throughout history, masking and unmasking concepts have been used to explore the inner self—the person hiding behind the public face. These themes can be found in works produced by Euro-American males included in the traditional academic canon. Shakespeare’s “All the world’s a stage/And all the men and women merely players,” illustrates this idea. Figuring out how to present oneself in public has elements of a theatrical performance for everyone.[13]

Here Montoya theorized the broad applicability of the mask to all. The mask is not the privilege of the few but the burden of the many. Theorizing the mask, for Montoya, is not solely about articulating feminist and Latina identities; it is about understanding the role of power relations and the dramatic cover required to cope with an aggressive and otherizing world. This important insight speaks volumes about the potential of un-masking to many critical interpretations of law as well as scholarship across disciplines and in many activist communities. Montoya has given scholars and activists a tremendous new way to put to work a theory that we know intimately, yet have theorized haphazardly.

Lest we move too quickly, Montoya began her article artfully, “Using personal narrative, this Article examines the various masks (‘máscaras’) used to control how people respond to us and the important role such masks play in the subordination of Outsiders.”[14] From this simple beginning, Montoya alerts us to the central facets of her mask. First, it may be exposed by personal narrative, something I liken to truth-telling. This truth-telling casts aside the mask, interrogates it, problematizes it, and challenges it with a new form of subjectivity. Second, masks are multitudinous. There is never one mask, but instead people wear multiple masks as they navigate a complex world. Third, masks are imbricated in power relations, informing the way others engage us. Fourth, masks subjugate. Masks produce the conditions of possibility for Outsiders to be maligned. Masks function as a second skin, a corporeal reconfiguration masking over the real body. In essence, the mask challenges corporeality by placing the corpus with the mask as skin upon itself. This is to say that the mask becomes the corporeal body. A new visible corporeality transforms the un-masked corporeal form into a masked double-skinned creature whose insides eventually rot away.

Think of Ernst Hartwig Kantorowicz’s articulation of the relationship between the King’s two bodies.[15] What existed in this scenario, faced with the coming demise of the King’s corporeal reality, was the notion that the King lived beyond the corporeal body. This move was intentional because the King could not survive his corporeal trappings, yet the continuity of the sovereign was central to the righteousness of his monarchical power. So, the King had to exist above and beyond his corporeal body. The corporeal King mattered less and less than the mystic King that never died. The second body was an “abstract physiological fiction of a sublime, quasi-angelic body, a body of immortal flesh that was thereby seen to enjoy both juridical and medical immunity.”[16] So too do masks exist beyond the corporeal reality of Outsiders, forcing them to be outside yet in, never breaking free from the mainstream Insider corporeality. The mask is quasi-angelic in Montoya’s theory in that it is the pristine persona that we perform to be seen as pure and good, and applies to notions of the “model minority”[17] and “good Negro.”[18] Insiders need masks to fit well because the masked Outsider is one that could live even as the corporeal Outsider, the “real life person,” passes away. That oppositional relationship helps constitute the Insider. The mask is not simply a strategy the Outsider uses to avoid the microaggressions of the Insider; it is a strategy the Insider encourages to make the Outsider more like the Insider and also a constitutive strategy to validate the Insider as Insider.

Not to be outdone by his French predecessor, Friedrich Nietzsche, in The Gay Science, wrote:

What is and remains popular is the mask! So let them all continue to go their way, all those masklike elements in the melodies and cadenzas, in the leaps and gaieties of the rhythm of these operas! Ancient life, too! What can one understand about it when one does not understand the delight in the mask, the good conscience in everything mask-like![19]

Nietzsche tells us the mask is popular. We love them even as they make unintelligible our lives, as they mask subjective corporeality with an objective standard of the corporeal, rendering us objects, not subjects. In other words, the mask ossifies subjectivities into objective states of being. Nietzsche highlights the choice of wearing the mask. It is not as though the Insiders placed them on our faces and we walked away reticently. Part of the insidiousness of the mask is that Outsiders are complicit in their adornment of corporeal reality. Masks are specific performative elements of our identity.[20] We could choose not to wear them and face the consequences, which are quite often too great (being labeled as rebellious, aggressive or angry, for example, and the subsequent beatings, lynchings, and mob violence). So we choose to wear them. How can we expect to read the body, to read the subject, when the mask is always-already there? It seems that un-masking helps to destabilize the privileged position of the mask and Montoya has provided us with a clear justification for this un-masking. She wrote:

Our conceptual trenzas, our rebraided ideas, even though they may appear unneat or greñudas to others, suggest new opportunities for unmasking the subordinating effects of legal discourse. Our rebraided ideas, the trenzas of our multicultural lives, offer personally validating interpretations for the máscaras we choose to wear. My masks are what they are, in Santayana’s words, merely “arrested expressions and . . . echoes of feelings,” the cuticles that protect my heart.[21]

We must accept our masks not as impediments to our progress, but as sites of contestation. They are with us; there is no escaping them, wishing them away, or abolishing them from our lives. That knowledge is empowering. It positions us as controllers of our own destiny able to embrace the mask while also critiquing its pernicious effects. It positions us as having the ability to embrace the difficulties in front of us in our toiling for a better world. When we are able to do that, we may be able to engage in effective engagement not only with our own ideas of subjectivity, but with collective subjectivities to form meaningful political actions.

Oscar Wilde, in “The Artist as Critic,” an essay in his collection Intentions wrote, “Give him a mask, and he will tell you the truth.”[22] Perplexing as this is, Wilde reveals the subtly complex relationship between truth and falsity. The relationship between masked-ness and truth-telling is significant in that in falsity, in the wearing of masks, truth may not only be maintained, but also fostered. If, as Wilde suggests, one tells the truth when protected by the mask, what happens when one removes the mask? If the only way we get at truth is when masked, we must take account of the complex relationship between truthfully presenting the self and engaging in truth-telling. This of course suggests that there is a link between the mask and truth-telling.

Online forums, anonymous blogging, and comments on websites all evidence this masking procedure and the complexity of truth to our mask-wearing personas. We are afraid of truth and truth-telling, but our quest for truths is not helped by our mask-wearing, it is only impeded by it.[23] In a world where truth comes masked, truth does not come at all. Montoya may be read then as complicating these notions of truth-telling by encouraging a politics that is about truth, yet recognizes the ways in which the ever-present mask mediates truth. This is no small insight indeed.

Walter Benjamin, in Berlin Childhood around 1900, wrote of the “arsenal of masks” one wields as a child to enact specific subjectivities through the presentation of the subjectivity sought to be experienced.[24] Benjamin emphasizes the multiplicity of masks just as Montoya does.[25] Compare Montoya who wrote, “This image with its dichotomized character fails to capture the multiplicity, fluidity and interchangeability of faces, masks and identities upon which we rely.”[26] Montoya takes a Benjaminian twist here, articulating the multiplicity of masks as the latticework of identity construction.

Masks are ways for us to be comfortable in the uncomfortable. They are tools. No matter what misgivings we may have about masks, they have utility. Childhood makes this all too clear as we grapple with a confusing world and evolving and uneasy impressions of the self. Making legible the body, un-masking, removing the corporal mask in favor of the corporeal body, is a work against utility. It is not easy. It demands hard work. Montoya’s narrative is a touching testament to the importance of such revolutionary subjective change. We cannot seek to understand the body without an un-comfortableness that will be very likely foreign to us. Masks allow us to imagine the world we want, but they also inhibit the realization of that world. This double function makes the mask self-referential. It affords us experience while blocking that experience. In this sense, then, masks seem inescapable, but through work like Montoya’s and Anzaldúa’s we can begin this work. We can wrestle control from our masks.

Benjamin also described philosophical works as masks, writing “each complete work is the death-mask of its intuition.”[27] If this is true, what possible hope can there be for un-masking and for reclaiming subjectivity? Benjamin need not be read so tragically. It is true that the work we do is often not as wonderful as we had hoped—that our grand revolutions fall victim to the pragmatic considerations of family, career, and safety. We cannot right all wrongs. We cannot challenge every oppressive system, and we cannot expect to radically break from a system that is so interwoven in the very fiber of our being. Putting into action our ideas makes those ideas something else. Our masks forever alter our identity. Masks render our ideas unlike the kernel of their origin. They are death-masks. Montoya again echoed Benjamin in her analysis of an Aztec sculpture. She described the sculpture in this way:

I have a clay mask made by Mexican artisans that captures this idea but from a different perspective. The outermost mask is a white skeleton face wearing a grimace. The second layer shows a face with an aquiline nose and a goatee suggesting the face of the Spaniard, the colonizer of indigenous Mexico. This second mask parts to show the face of a pensive Aztec. This clay sculpture suggests the indigenous Indian preserved behind the false masks, the death mask, the conquistador mask. In other words, the sculpture represents all of us who have been colonized and acculturated—who have succeeded in withholding a precious part of our past behind our constructed public personas.[28]

Something new is born, but the original intent is dead. In Montoya’s statue, there is no more Aztec, only masked Aztec and masked colonizer. There is no reclaiming of the original, no getting back to some essential notion of Outsider-ness. We would be wise to recognize Benjamin’s idea because it describes both the importance of realizing our world is mediated by the process of putting ideas and identities into action as well as finding hope for new beginnings in our struggles. After all, the death-mask is only a mask, not the central tenet of our corporeality, nor the final word on our theorizing or activism. Montoya positions us to reclaim life, to challenge the death-mask, not because our intuitions can be reclaimed, but because the death-mask gives us opportunities for new braiding opportunities. This is where the trenzas can help us.

Frantz Fanon succinctly names this mask White in his careful consideration of the Black psyche in an oppressive White world in Black Skin, White Masks.[29] Fanon makes most explicit the connection between race and mask-play. His analysis demonstrates the psychic torment of advancing masked, of struggling to make the corporeal something beyond the mask. His work informs Montoya’s application by grounding the theory of the mask in the larger expanse of race and postcolonial critique.[30] Montoya’s masks seem qualitatively different, however. What she seems to see is a different world than the overtly racial world in which Fanon is writing. Montoya described a world where racism functioned more subtly and admittedly more dangerously, making racism pass as non-existent or solved. Outsiders and Insiders ought not forget that while racism was more overtly violent and indeed even extolled in earlier years, the more subtle forms of racism that manifest themselves in racially coded rhetoric, wry stares, and jokes, are dangerous all the more because of their ability to circulate in society without the critical attention overt racism receives.

The permanence of masks bears further consideration. André Berthiaume, in Contretemps,[31] wrote, “We all wear masks, and the time comes when we cannot remove them without removing some of our own skin.”[32] Montoya echoed Berthiaume when she wrote:

For Outsiders, unmasking is a holistic experience: I do not have separate masks for my female-ness and Latina-ness. The construction of my public persona involves all that I am. My public face is an adjustment to the present and a response to the past. Any unmasking resonates through the pathways of my memory. For Outsiders, the necessity of unmasking has been historical. Strategies are passed on from one generation to another to accommodate, to resist, to subvert oppressive forces. Involuntary unmasking is painful, it evokes echoes of past hurts, hurts one has suffered, and hurts one has heard stories about.[33]

Both indicate the difficulty of un-masking. For Berthiaume, the mask tears away the skin when removed. For Montoya, the forced un-masking is holistic and dangerous. Un-masking, while productive, carries with it a concomitant risk of harm to the subject. It is painful on a metaphorical, spiritual, and psychological level. In this passage, it would be fair to read the influence of Patricia Williams and Adrien Katherine Wing who have described a theory of spirit injury that seems to mirror the trauma of being masked and the affective confusion of un-masking.[34] Un-masking is valorized, but the act of being un-masked is disdained. Un-masking is a self-imposed act. Being un-masked is a perpetration of the Insider on the Outsider. Here, Montoya reveals an important space of agency. If the self can take control of the masking process, then the self can engage in a positive activist politics.

In 1999, the blockbuster movie adaptation of Washington Irving’s The Legend of Sleepy Hollow[35] was made and entitled Sleepy Hollow.[36] In the movie, Johnny Depp, playing the starring role of Ichabod Crane says, “Villainy wears many masks, none of which so dangerous as virtue.”[37] Tim Burton may seem like a strange addition to the scholars mentioned above, yet we must consider the weight of his words and not simply the panache of his multi-million dollar movie full of decadent costumes and unrealistic scientific gadgetry.

One might logically worry that after a string of fairly prominent literary and philosophical figures, a Tim Burton movie magically made its way onto the page. I take this movie, and the tale upon which it was based, very seriously. Virtue is the mask of the Right, the mask of the bankers, the mask of White supremacists, the mask of capitalist oppression, the mask of colorblindness, the mask of the patriarchy. We fall victim to masks when we mis-read them or when we simply read them as infallible truth, genuine subjectivity. When we accept that the mask is what the mask purports to be, we accept the villainy of first impressions and surface appearances. We should heed the warnings of Jean Baudrillard[38] and Jacques Lacan,[39] who warn us about the complexities of language and the ways in which language may obfuscate the truth just as masks may. Montoya gives us hope still. Through un-masking, Outsiders can challenge the villainy of the dominant order, the status quo, the complacent masses. Through a praxis of un-masking, we make intelligible our world of symbols, preventing villainy from doing its dastardly work. Montoya is an agent writ large, a true revolutionary. There may be no greater pursuit than un-masking villainy at every turn so as to bring subjects closer to an understanding of truth.

Outsiders need not look to French theory[40] for eruditions on the mask however (nor Tim Burton). Tom Robbins, in his biting satirical style wrote, in Jitterbug Perfume ,[41] “There are people in the world who can wear whale masks and people who cannot, and the wise know to which group they belong.”[42] Robbins is describing the important self-awareness necessary to understand mask-play, a notion that echoes Montoya clearly. Outsiders must do work to understand how they and others wear masks. We know masks are out there. We know we wear them. But, we do not spend much time thinking about these questions. Montoya contributes to a complex intellectual trajectory of theorizing the mask, a trajectory not yet complete. Robbins suggests that there are some people, those who are most wise, who know and understand the ways masks function and how they are put to work. In this way, Robbins suggests a reading of Ichabod Crane’s mask as villainy in light of wisdom as well as the wisdom inherent in Montoya’s critical approach.

II. The Mask as Part of the Crit Canon

Montoya’s mask has resonated far outside the legal academy.[43] Given the importance of the mask to the larger project of critical legal studies, not to mention literature, sociology, and philosophy, Outsiders should continue to think critically about the mask as a way to regain the agency lost while being pushed to the outside. Agency will not come without active revolutionary agents. Montoya has given us this tremendous toolbox with which to work. She has described the central role of the mask to Outsiders. We need not restrict mask-work to LatCrit, feminist, or Critical Race projects. The growing discipline of ClassCrit[44] may as well be interested in theories of the mask to describe the ways in which economic forces shape existential realities and articulate and inhibit subject positions.

Because Montoya has intelligently and compassionately brought to life the complexities of Latina identity in a way that resonates not only for Latina/o communities, but also for all communities of disadvantage, we ought to include her article in the canon of critical race literature. Perhaps this has been done. Perhaps including it in some mythical, constructed canon will reduce the appeal of its discussion of Outsider-ness—for how can one be an Outsider and in the canon at once? I am willing to take that risk. Montoya has taught us that we need more narrative, more combinations and braiding, and more un-masking. To critics who might say that Montoya’s struggles of 20 years ago are struggles long past, let us not forget about the lack of diversity in the legal academy, corporate boardrooms, and our law schools. We have come a long way, but we have a long way to go. Let us not forget that there are struggles yet to be fought and that these struggles will demand complex solutions not simple ones. They will demand tremendous braiding of existing theory with new theory, activism and scholarship, as well as a host of subject positions.

III. The mask today and tomorrow

So where does this leave us? The first answer must be that we are left indebted and privileged to be able to call forth the revolutionary spirit of Margaret Montoya to inform our un-masking of dominant discourses. Indeed, without Montoya the LatCrit and feminist jurisprudences we know today would be different, indeed worse off but for her important contribution. Without her clear, powerful voice our masks would remain firmly affixed to our faces. Our corporeality would be in question. With Montoya’s masterful article we are now in a better position to do the un-masking and braiding necessary to navigate a complex world that still holds fast to the necessity of the Outsider as object not subject. Without Montoya our masks would remain as second skins, corporealities of subjugation, embodiments of master discourses, masks so onerous that our subjectivities would still ache for the opportunity to be set free. We honor Margaret Montoya’s crucial work because we must. It is our responsibility to continue her project all the while recognizing precisely what it afforded us in our pursuit of this tremendous responsibility.

[1] Ph.D. student (Department of Communication), Georgia State University; M.S., Troy University; J.D., West Virginia University College of Law; B.A., University of Richmond. Parts of this paper were presented at the College of Education and Human Ecology at The Ohio State University at the Hip Hop Literacies: Pedagogies for Social Change Conference in February 2013. Thanks, as always, go to my father, Rick Sciullo.

[2] Margaret E. Montoya, Máscaras, Trenzas, y Greñas: Un/Masking the Self While Un/Braiding Latina Stories and Legal Discourse, 17 Harv. J. L. & Gender 185 (1994).

[3] The Fugees, The Mask, on The Score (Columbia 2006) (“’M’ to the ‘A’ to the ‘S’ to the ‘K’ / Put the mask on the face just to make the next day / Brothers be gaming, Ladies be claiming / I walk the streets and camouflage my identity / My posse Uptown wear the mask / My crew in the Queens wear the mask / Stick up kids with the Tommy Hill wear the mask / Yeah everybody wear the mask but how long will it last.”). From this song, and indeed this album, I further explored the role of complex matrixes of identity on law and the ways in which racialized minorities attempt to navigate the intersecting planes of identity and legality. Nick J. Sciullo, Conversations with the Law: Irony, Hyperbole and Identity Politics or Sake Pase? Wyclef Jean, Shottas, and Haitian Jack: A Hip-Hop Creole Fusion of Rhetorical Resistance to the Law, 34 Okla. City U. L. Rev. 455 (2009).

[4] Heading South (StudioCanal 2005).

[5] See generally Eugene C. Rollins, The Masks We Wear (2010) (discussing masks from a psychological perspective).

[6] See Margaret Montoya, Foreword: LatCrit at Ten Years, 26 Chicano-Latino L. Rev. 1 (2006); Margaret Montoya, Essay: Religion and Spirituality in Outsider Theory: Toward a LatCrit Conversation: Religious Rituals and LatCrit Theorizing, 19 Chicano-Latino L. Rev. 417 (1998); LatCrit V Symposium: Class in LatCrit: Theory and Praxis I: A World of Economic Inequality: Foreword: Class in LatCrit: Theory and Praxis in a World of Economic Inequality, 78 Denv. U. L. Rev. 567 (2001); Charles Lawrence, III, Listening for Stories in All the Right Places: Narrative and Racial Formation Theory, 46 Law & Soc’y Rev. 247 (2012); Jean Sefancic, Latino and Latina Critical Theory: An Annotated Bibliography, 85 Calif. L. Rev. 1509 (1997); Keith Aoki and Kerin R. Johnson, Symposium: Latinos and Latinas at the Epicenter of Contemporary Legal Discourses: Latinos and Latinas in the Legal Academy: An Assessment of Lat Crit Theory Ten Years After, 83 Ind. L. J. 1151 (2008); Berta Esperanza Hernandez-Truyol, The LatIndia and Mestizajes: Of Cultures, Conquests, and LatCritical Feminism, 3 J. Gender Race & Just. 63 (1999); Alfredo Mirande, Alfredo’s Caribbean Adventure: LatCrit Theory, Narratives, and the Politics of Exclusion, 26 Chicano-Latino L. Rev. 207 (2006); Devon W. Carbado and Cheryl I. Harris, Symposium: Taking Initiative on Initiatives: Examining Proposition 209 and Beyond: The New Racial Preferences, 96 Calif. L. Rev. 1139 (1008); Francisco Valdes, Outsider Jurisprudence, Critical Pedagogy and Social Justice Activism: Marking the Stirrings of Critical Legal Education, 10 Asian L. J. 65 (2003); Foreword: Foreword Poised at the Cusp: LatCrit Theory, Outsider Jurisprudence and Latina/o Self-Empowerment, 2 Harv. Latino L. Rev. 1 (1997); Elvia R. Arriola, Symposium: Difference, Solidarity and Law: Building Latino/a Communities Through LatCrit Theory: Foreword: March, 19 Chicano-Latino L. Rev. 1 (1998); Multiplicities and Intersectionalities: Exploring LatCrit Diversities: Welcoming the Outsider to an Outsider Conference: Law and the Multiplicities of Self, 2 Harv. Latino L. Rev. 397 (1997).

[7] Often times in this article I will use the word “we.” I do so to express solidarity with Outsiders and as a reflection on my own experiences of Outsider-ness as an Italian-American. The history of Italian-Americans has been marred by racial and ethnic tensions and an unfortunate forgetfulness about our radical past. See Marcella Bencivenni, Italian Immigrant Radical Culture: The Idealism of the Sovversivi in the United States, 1890-1940 (2011); Phillip Cannistraro and Gerald Meyer (Eds.), The Lost World of Italian-American Radicalism: Politics, Labor and Culture (2003); Stephen J. Fortunato, Jr., The Historical Amnesia of Samuel Alito: A Review of The Lost World of Italian American Radicalism: Politics, Labor and Culture, 2 Harv. Unbound 19 (2006).

[8] René Descartes, Philosophical Essays and Correspondence 1 (1619-20) (Roger Ariew, Ed.) (Hackett Publishing 2000).

[9] See Judith Butler, Bodies That Matter: On the Discursive Limits of Sex (1993).

[10] Gilbert Ryle, Descartes’ Myth, in Gilbert Ryle, The Concept of the Mind 11-24 (1949). For an example of how this theory can be put to work, see Nick J. Sciullo, The Ghost in the Global War on Terror: Critical Perspectives and Dangerous Implications for National Security and the Law, 3 Drexel L. Rev. 561 (2011).

[11] See Gloria Anzaldúa, Borderlands/La Frontera: The New Mestiza (1987).

[12] Gloria Anzaldúa, To(o) Queer the Writer—Loca, escritora y chicana, in Gloria Anzaldúa, The Gloria Anzaldúa Reader 166 (2009) (“Identity is not a bunch of little cubbyholes stuffed respectively with intellect, race, sex, class, vocation, gender. Identity flows between, over, aspects of a person. Identity is a river—a process.”); see also Andrea A. Lunsford, Toward a Mestiza Rhetoric: Gloria Anzaldúa on Composition and Postcoloniality, 18 JAC: J. Rhetoric, Culture, & Politics 1, 2 (1998).

[13] See Montoya, supra note 2, at 198–99 (citations omitted).

[14] Id. at 185 (citations omitted).

[15] Ernst Hartwig Kantorowicz, The King’s Two Bodies: A Study in Mediaeval Political Theology (1957) (Princeton University Press 1997).

[16] Eric L. Santner, The Royal Remains: The People’s Two Bodies and the Endgames of Sovereignty 35 (2011).

[17] See Chris K. Iijima, Reparations and the “Model Minority” Ideology of Acquiescence: The Necessity to Refuse the Return to Original Humiliation, 19 B.C. Third World L. J. 385 (1998); Selena Dong, “Too Many Asians”: The Challenge of Fighting Discrimination Against Asian-Americans and Preserving Affirmative Action, 47 Stan. L. Rev. 1027 (1995); Frank H. Wu, Essay: Changing America: Three Arguments About Asian Americans and the Law, 45 Am. U. L. Rev. 811 (1996); Neil Gotanda, The Racialization of Islam in American Law, 637 Annals 184 (2011); Neil Gotanda, New Directions in Asian American Jurisprudence, 17 Asian Am. L. J. 5 (2010); Cynthia Lee, Cultural Convergence: Interest Convergence Theory Meets the Cultural Defense, 49 Ariz. L. Rev. 911 (2007); Shawn Ho, Co-Synthesis of Dynamics Behind the Dearth of Asian American Law Professors: A Unique Narrative, 18 Asian Am. L. J. 57 (2011); Sharon S. Lee, The De-Minoritization of Asian Americans: A Historical Examination of the Representations of Asian Americans in Affirmative Action Admissions Policies at the University of California, 15 Asian Am. L. J. 129 (2008); Nancy Chung Allred, Asian Americans and Affirmative Action: From Yellow Peril to Model Minority and Back Again, 14 Asian Am. L. J. 57 (2007); Jean Shin, The Asian American Closet, 11 Asian L. J. 1 (2004); Harvey Gee, A Review Essay: Race, Rights, and the Asian American Experience by Angelo N. Ancheta, 13 Geo. Immigr. L. J. 635 (1999); Harvey Gee, Expanding the Civil Rights Dialogue in an Increasingly Diverse America: A Review of Frank Wu’s Yellow: Race in America Beyond Black and White, 20 Touro L. Rev. 425 (2004); Sumi K. Cho, Converging Stereotypes in Racialized Sexual Harassment: Where the Model Minority Meets Suzie Wong, 1 J. Gender Race & Just. 177 (1997); Pat K. Chew, Asian Americans: The “Reticent” Minority and Their Paradoxes, 26 Wm. & Mary L. Rev. 1 (1994); Carlos Hiraldo, Arroz Frito with Salsa: Asian Latinos and the Future of the United States, 15 Asian Am. L. J. 47 (2008).

[18] See Carter G. Woodson, The Mis-Education of the Negro (1933), available at (last visited Feb. 27, 2013) (“When a Negro has finished his education in our schools, then, he has been equipped to begin the life of an Americanized or Europeanized white man, but before he steps from the threshold of his alma mater he is told by his teachers that he must go back to his own people from whom he has been estranged by a vision of ideals which in his disillusionment he will realize that he cannot attain. He goes forth to play his part in life, but he must be both social and bisocial at the same time. While he is a part of the body politic, he is in addition to this a member of a particular race to which he must restrict himself in all matters social. While serving his country he must serve within a special group. While being a good American, he must above all things be a ‘good Negro’; and to perform this definite function he must learn to stay in a ‘Negro’s place.’”); Louis R. Harlan, Booker T. Washington and the Voice of the Negro, 1904-1907, 45 J. S. Hist. 45, 50 (1979); Roland Barthes, Mythologies 123 (Jonathan Cape, Ltd., Trans) (1972) (Farrar, Strauss & Giroux 1991) (“And it is again this duplicity of the signifier which determines the characters of the signification. We now know that myth is a type of speech defined by its intention (I am a grammatical example) much more than by its literal sense (my name is lion); and that in spite of this, its intention is somehow frozen, purified, eternalized, The French Empire? It’s just a fact: look at this good Negro who salutes like one of our own boys). This constituent ambiguity of mythical speech has two consequences for the signification, which henceforth appears both like a notification and like a statement of fact.” (emphasis in original)).

[19] Friedrich Nietzsche, The Gay Science 78 (1882) (Cambridge University Press 2001).

[20] See Butler, supra note 9.

[21] See Montoya, supra note 2, at 220 (citing George Santayana. Soliloquies in England and Later Soliloquies 131–32 (1924) (“[M]asks are arrested expressions and admirable echoes of feeling, at once faithful, discreet, and superlative. Living things in contact with the air must acquire a cuticle, and it is not urged against cuticles that they are not hearts; yet some philosophers seem to be angry with images for not being things, and with words for not being feelings. Words and images are like shells, not less integral parts of nature than are the substances they cover, but better addressed to the eye and more open to observation.”).

[22] Oscar Wilde, The Artist as Critic, in Intentions 389 (1891) (University of Chicago Press 1969).

[23] Here I have in mind the Marxist notion of false consciousness or what Terry Eagleton has termed “ideology.” See Terry Eagleton, Ideology: An Introduction (1991).

[24] Quoted in Gerhard Richter, Walter Benjamin and the Corpus of Autobiography 50 (2000).

[25] See Montoya, supra note 2, at 185–86, 193, 196–98.

[26] See Montoya, supra note 2, at 198.

[27] Walter Benjamin, Selected Writings, Volume 1, 1913–1926 (2004).

[28] See Montoya, supra note 2, at 194.

[29] Frantz Fanon, Black Skin, White Masks (1952) (Grove Press 1967).

[30] See Montoya, supra note 2, at 189–90.

[31] André Berthiaume, Contretemps (1971).

[32] Id. (quoted in Michigan State University Museum, Mask: Quotations, available at (last visited Feb. 27, 2013)).

[33] See Montoya, supra note 2, at 197.

[34] Patricia Williams, Spirit-Murdering the Messenger: The Discourse of Fingerpointing as the Law’s Response to Racism, 42 U. Miami L. Rev. 127, 129 (1987); Adrien Katherine Wing, Brief Reflections Toward a Multiplicative Theory and Praxis of Being, 6 Berkeley Women’s L.J. 181, 186 (1991).

[35] Washington Irving, The Legend of Sleepy Hollow, in The Sketch Book of Geoffrey Crayon, Gent. (1820).

[36] Sleepy Hollow (Paramount Pictures 1999).

[37] Id.

[38] See Jean Baudrillard, Simulacra and Simulation (Sheila Faria Glaser, Trans.) (1995).

[39] See Jacques Lacan, Écrits (Bruce Fink, Trans.) (2005); Slavoj Žižek, How to Read Lacan (2007); Slavoj Žižek, Looking Awry: An Introduction to Jacques Lacan through Popular Culture (1992).

[40] See Francois Cusset, French Theory: How Foucault, Derrida, Deleuze, & Co. Transformed the Intellectual Life of the United States (Jeff Fort, Trans.) (2008).

[41] Tom Robbins, Jitterbug Perfume (1990).

[42] Id. at 152.

[43] Lindsay Pérez Huber, Discourses of Racist Nativism in California Public Education: English Dominance as Racist Nativist Microaggressions, 47 Educational Stud. 379 (2011); Joshua M. Price, Participatory research as disruptive?: A report on a conflict in social science paradigms at a criminal justice agency promoting alternatives to incarceration, 11 Contemp. Just. Rev. 387 (2008); Francisca E. González, Formations of Mexicananess: Trenzas de identitades múltiples: Growing up Mexicana: Braids of multiple identities, 11 Int’l J. Qualitative Stud. Educ. 81 (1998); Stacey Sowards, Rhetorical Agency as Haciendo Caras and Differential Consciousness Through Lens of Gender, Race, Ethnicity, and Class: An Examination of Dolores Huerta’s Rhetoric, 20 Comm. Theory 223 (2010); Daniel G. Solorzano, Critical race theory, race and gender microaggressions, and the experience of Chicana and Chicano scholars, 11 Int’l J. Qualitative Stud. Educ. 121 (1998); Theresa Montano and Joyce Burstein, Maestras, Mujeres y Mas: Creating Teacher Networks for Resistance and Voice, J. Latinos & Educ. 169 (2006); Daniel G. Solorzano and Dolores Delgado Bernal, Examining Transformational Resistance Through a Critical Race and Latcrit Theory Framework : Chicana and Chicano Students in an Urban Context, 36 Urb. Educ. 308 (2001).

[44] For one take on the ways in which ClassCrit can blend with RaceCrit, see Nick J. Sciullo, Social Justice in Turbulent Times: Critical Race Theory and Occupy Wall Street, 69 Nat’l Lawyers Guild Rev. 225 (2012). See also ClassCrits, available at

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