RACISM AS A FUNDAMENTAL RIGHT? A CONSTITUTIONAL CRITIQUE OF IDENTITARIAN NEO-RACISM AND THE MYTH OF STRUCTURAL RACISM

Abstract

He debate on structural racism and reverse racism taking place in the courts pits the constitutional concept of racism against neo-racist theses propagated by identitarian supremacist movements. This study aims to demonstrate that embracing the structural-racism thesis fosters an identitarian neo-racism and violates Brazil’s 1988 Constitution. This research adopts the deductive method, with both qualitative and quantitative approaches, and follows a bibliographic research procedure that critically analyzes doctrinal works, judicial decisions, and scholarly articles. Primary data were drawn from higher-court jurisprudence, while secondary data came from Brazilian and foreign constitutional doctrine on equality, anti-discrimination, and identity. The results show that when superior courts adopt the structural-racism thesis, they effectively create, on one hand, an alleged right for minorities to discriminate against majorities and, on the other, impose objective and collective liability on those majorities. Moreover, the thesis legitimizes practices that fuel so-called “benevolent hate” and “benevolent racism,” even against groups such as white people and Christians, potentially reawakening long-dormant racist movements and undermining democratic cohesion. The study concludes that the incorporation of structural-racism concepts by the Brazilian judiciary jeopardizes constitutional isonomy by establishing arbitrary distinctions among rights-bearing subjects, thereby promoting a form of revanchism incompatible with human dignity and substantive equality. It therefore calls for a critical constitutional reinterpretation that reaffirms the fundamental principles of equality and the prohibition of any form of discrimination, regardless of the group involved.