LITMIR.BIZ

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of law unless and until a higher authority intervenes to overturn this determination. As Austin warned, “Of all people, jurists should be best aware of the true state of affairs. Perhaps some now are. Yet they will succumb to their own timorous fiction, that a statement of ‘the law’ is a statement of fact.”⁴⁹ But the United States has a stare decisis system, whereby a decision in a given case will determine future application of the law. In such a system, a jurist may never have to succumb to this timorous fiction because a court that makes a factually erroneous determination transforms this error into a legal fact just by uttering it. Stare decisis allows a statement of law to retroactively become a statement of fact at the exact moment that a judge’s ruling exceeds the constative function of a legal declaration in order to make law, to make a convicted felon, to make an enemy combatant, or to make Asian Americans into a race so different.

      The law’s misrecognition of Bashir as an “enemy combatant” in Lidless may well have been a fiction, but this was cold comfort to the man as he suffered in his Guantánamo cell. In many ways, little has changed since Thomas Hobbes issued his famous maxim, auctoritas non veritas facit legem (authority, not truth, makes the law), and this has grave consequences for racialized subjects when they are caught up within and misrecognized by the law. Because a legal declaration announces itself as the articulation of an established legal fact at the same time that it makes the law, the legal production of subjects is neither purely constative nor purely performative but both. As Jacques Derrida argued in his analysis of the US Declaration of Independence, it is precisely the “undecidability between, let’s say, a performative structure and a constative structure, [that] is required in order to produce the sought-after effect” of giving simultaneous birth to a nation and the national subjects (“We the People”) that authorize this event.⁵⁰ The law makes We the People, but, at the same time, it only comes into being as We the People play their properly cast role as We the People. In chapter 3’s analysis of performances of patriotism in the Japanese American concentration camps of World War Two, I further demonstrate how it is in performance that the people realize the constitutional being and constitutive power of the state. This occurs through embodied acts that correlate with the formal ideals of the state, such as the Constitution or the law. Performance makes the nation. It is also what makes national and racial subjects.

      The juridical performative can only go so far in making us into We the People or transforming Asian America into “a race so different.” As a result, the interplay between legal performativity and embodied acts, or performances, is key to understanding how racialization occurs. By now the reader has hopefully noticed that we are gliding across the slippery ground between performativity and performance, or what Eve Kosofsky Sedgwick and Andrew Parker describe as a “generalized iterability, a pervasive theatricality common to stage and world alike.”⁵¹ The mechanisms productive of national and racial subjects are inherently theatrical, an assertion that I can best explicate through a close reading of a classic and paradigmatic example of subject production, Louis Althusser’s “Ideology and Ideological State Apparatuses.”

      Describing “ideological state apparatuses” as the means by which the state reproduces a population’s “submission to the ruling ideology,” Althusser suggests that the state does not simply force itself on the subject but is most effective when it can seduce large masses of the people into willing submission.⁵² Tellingly, he defines the law as both a repressive state apparatus and an ideological state apparatus (it is the only state apparatus that enjoys this dual status).⁵³ And as his paradigmatic example, he famously describes a “theoretical scene [la scène théoretique]” in which a police officer shouts out “hey you there,” and the hailed person turns around.⁵⁴ Submitting to the recognition of the hail, “he [or she] becomes a subject” for the law.⁵⁵ The word scène in Althusser’s description of interpellation translates as both “scene” and “stage,” figuring the act of interpellation as a dramatic act, or a staged encounter between the law and the subject. Later, he even describes his illustration as “my little theoretical theater [notre petit théâtre théoretique].”⁵⁶ If we are to take seriously the metaphors by which he explains the process of interpellation, we see that “one becomes” or is “made” a subject through theatrical protocols.

      Althusser is situated in a long tradition of Marxist criticism that relies on metaphors of performance. Marx himself describes commodities as circulating between “dramatis personae”; he refers to the market as a “stage,” narrates the tale of a table that is “dancing of its own free will,” and states that “the great events and characters of world history” occur as either “high tragedy” or “low farce.”⁵⁷ But Althusser does more than simply invoke a rhetoric of theatricality to explain subject production; he shows us how subjection is itself a dramatic ritual. Elsewhere he even suggests that theatrical spectatorship can be a means for the making of a revolutionary, class-conscious form of subjectivity. In a short and oft-overlooked essay on the playwrights Carlo Bertolazzi and Bertolt Brecht, published in the decade before he wrote the essay on ideology, Althusser claimed that theater has the capacity for inspiring “the production of a new consciousness in the spectator” and, in the making of a new consciousness, a new mode of political subjectivity: “the play is really the production of a new spectator, an actor who starts where the performance ends, who only starts so as to complete it, but in life.”⁵⁸ Through the experience of a truly revolutionary theater, Althusser’s spectator becomes an “actor” who carries the momentum of the play out into the world, performing in a fashion that will realize the play’s revolutionary ambitions, “but in life.” The language of theatricality in the process of subjection conjures a similar image, as one is made a subject for the law by performing in response and accordance to its hail. Thus, subjection is both a legal and political process as well as a theatrical and aesthetic one. Subjection occurs through performance as the legal, the political, and the aesthetic mix together across the body.

      But what is it that compels the subject to perform submission to the hail of the law? In Lidless, the law’s misrecognition of Bashir as an “enemy combatant” because of his racial and religious difference tautologically results in a situation in which Alice (and, by extension, US law) treats him as if he were an enemy combatant. Fifteen years after leaving Guantánamo, the only way for him to become recognizable to Alice is by playing the role of the enemy combatant—that is, the torture victim. And, as he admits, this is a role that he has come to love in order to keep “from going crazy.” Bashir’s case exemplifies the ways in which legal interpellation can be perversely seductive. As Judith Butler remarks, in her assessment of the Althusserian scene, “This turning toward the voice of the law is a sign of a certain desire to be beheld by and perhaps also to behold the face of authority. . . . [It is] a mirror stage . . . that permits the misrecognition without which the sociality of the subject cannot be achieved.”⁵⁹ In Bashir and Alice’s twisted exchange, the Lidless audience is privy to Cowhig’s restaging of this “theoretical scene.” We watch as Bashir is made a subject for the law after his dominated body is seduced into performing the very subject position for which he was misrecognized in the first place.

      Bashir describes the simultaneously seductive and coercive process of his interpellation as an “enemy combatant” by Alice thus: “When you were hard—when you screamed, ordered boards and chains—that was simple. I could go somewhere else. But when you were soft—when you touched my ears, my neck—my body had a will of its own. My own flesh, my own muscle, betrayed me.”⁶⁰ Unwilling to hear more, Alice begs him, “Stop. No more. Please.” Demonstrating the way in which the language of domination often finds its way into the mouth of the dominated, Bashir repeats her phrase but echoes it back to her with the urgency of a Guantánamo detainee during the act of torture: “Stop. No more. Please. I swear I’m an innocent man. I don’t know Osama or Saddam or Khalid. I was studying at a mosque. I just wanted to be a good Muslim. Please, I beg you. Believe me.”⁶¹ He throws a bag onto the floor before asking once more, “Please.” There is a long silence and then, as if something triggers a switch inside of her, she grabs him and wrenches his arms behind his back. She orders him, “Drop to your hands and knees. Now crawl. Go! There’s a plastic bag by your

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