In Short, What is Critical Race Theory?

[Though my attention is fixed on my series on The Front Porch, “The Christian and Critical Race Theory,” I thought it might be helpful to offer a brief answer to “What is Critical Race Theory?” in the meantime, especially given the immense attention the topic has received of late. Now, of course, “brief” and “in short” are relative terms. This is not a quick one, but it is about as condensed as I could imagine while still being faithful to the content. (A revised and expanded version is also available HERE.) Last, I don’t intend to offer any appraisal of these ideas, Biblical or otherwise, but will leave that for later in my series on The Front Porch. I pray this is of service!]

When I was a boy of eleven years—born into an all-White church, attending an all-White elementary school in all-White town, well on my way to believing that racism was in the past, that America had achieved formal equality, and that inferiority of racial circumstance simply reflected inferiority of racial “culture”—more than twenty legal scholars met in Madison, WI on July 8, 1989 to discuss how we ended up here and what should be done about it. This “Workshop” was titled “New Developments in CRT,” the first formal use of the now oft maligned acronym.[1]

1. Civil Rights Retrenchment: Why?

Just over twenty years following the passage of the 1964 Civil Rights Act, 1965 Voting Rights Acts, and the 1968 Fair Housing Act, the stated goals of this historic legislative package seemed further and further out of reach. Kimberlé Crenshaw, who spearheaded the first CRT Workshop along with Neil Gotanda and Stephanie Phillips, was sadly able to report in 1988 that,

Continuing disparities exist between African-Americans and whites in virtually every measurable category. In 1986, the African-American poverty rate stood at 31%, compared with 11% for whites. … “[B]lack median income is 57 percent that of whites, a decline of about four percentage points since the early 1970’s.” … Between 1981 and 1985, Black unemployment averaged 17%, compared to 7.3% for whites. … In 1986, approximately 44% of all Black children lived in poverty. … Blacks comprise sixty percent of the urban underclass in the United States. … The African-American socioeconomic position in American society has actually declined in the last two decades. Average annual family income for African-Americans dropped 9% from the 1970’s to the 1980’s. … Since 1969, the proportion of Black men between 25 and 55 earning less than $5000 a year rose from 8% to 20%.[2]

Etc.

Professor Derrick Bell, mentor to many of these scholars and the first tenured Black professor at Harvard Law, had already begun to diagnose the cause of this Civil Rights retrenchment. It was nothing new, according to Dr. Bell. “[E]ven a rather cursory look at American legal history,” he writes,

suggests that in the past, the most significant political advances for blacks resulted from policies which were intended and had the effect of serving the interests and convenience of whites rather than remedying racial injustices against blacks … .[3]

And, accordingly, when these White interests change, the fortunes of Black Americans are in turn reversed. For example, the Reconstruction Amendments following the Civil War were soon overwhelmed by the vast apparatus of Jim Crow laws, the KKK, and political disenfranchisement; the Brown v. Board of Education decision was quickly ameliorated by the “all deliberate speed” ruling of Brown II, putting off its substantive remedies indefinitely, while leaving the well-being of Black students and Black schools out of the equation altogether; and the achievements of the 1960’s Civil Rights Movement proved to quickly give way to mere formal, color-blind, remedy averse foot-dragging and legal indifference toward the actual circumstances of African Americans. This cycle—of which many more examples are available—is what Devon Carbado has called the “reform/retrenchment dialectic,”[4] and its diagnosis was termed “Interest Convergence” by Dr. Bell; “[t]he interest of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites.”[5]

Further, in his 1976 “Serving Two Masters: Integration Ideals and Client Interests in School Segregation Litigation,” Dr. Bell called into question the tangible benefits of the civil rights establishment’s (CRE) push for formally desegregated schools as an end in itself. Alternatively, he argued, emphasis on the quality of education received by African American children should outweigh the goal of mere “racial balance,” and that, in practice, these goals were not synonymous, as CRE lawyers (including Bell himself), had assumed. Dr. Bell redirected his students’ attention away from the steady, inevitable progress narrative of traditionalists within the CRE to focus on improving the real life circumstances of African Americans. According to some of his students, those who became the founders of CRT,

All that was necessary was a race-conscious perspective that focused on the effect of integration on the black community. That change in perspective is the intellectual starting point of Critical Race theory.[6]

Dr. Bell’s work signaled a return to the more “radical” elements of the abolitionist and civil rights tradition of, e.g., Marcus Garvey, W.E.B. Du BoisOliver C. CoxMalcom X, Stokely Carmichael, and the unsanitized Dr. King, including a renewed emphasis on race-consciousness, racial power dynamics, economic explanations for racial domination, and an emphasis on substantive over symbolic equality. Dr. Bell’s central text, Race, Racism and American Law, went beyond what had become the traditional legal scholarship of the CRE, which was almost entirely occupied with how to interrupt the status quo on behalf of disenfranchised Americans without likewise interrupting the rest of the liberal program—i.e., individual freedom, freedom of association, free markets, vested interests, property rights, etc. In contrast,

Bell’s approach diverged from this conventional orientation in at least two important ways. First, for Bell, the question was not how to justify judicial interventions on behalf of the interests of racial equality against independent, preexisting interests. These interests themselves often functioned as repositories of racial subordination. Nor, in his view, should success in achieving constitutional protection be measured solely in terms of individual rights. The point was to understand how law contributed to the systemic disempowerment of African Americans more broadly. Moreover, Bell understood that the measure of civil rights law is its concrete effectiveness in helping to contest the actual conditions of racial domination. [47]

Therefore, Dr. Bell sought to interrogate law itself as a “repository of racism” and called for reforms that would target the subordinated circumstances of African Americans rather than just their subordinated legal status.

In some tension with Bell’s “instrumental” explanation for retrenchment, “within which doctrinal developments are seen to reflect fairly directly the relative balance of social interests,”[7] Critical Legal Studies (CLS) scholar Alan David Freeman tackled the problem of civil rights retrenchment through a broader critique of the nature and function of law. According to CLS scholars such as Dr. Freeman, the law—including the legal code, court holdings, and ongoing discourse—is not best understood as a stable and transcendent arbiter of Justice which only needs to be technically and accurately applied. It is, rather (1) “an evolving statement of acceptable public morality” that, (2) “serves largely to legitimize the existing social structure,” (3) is indeterminate, “for virtually every ‘rule’ there is a counter-rule, an exception, of some other lawyerly gambit available to the legal question at issue in equipoise,” and, therefore, (4) judicial decisions’ “ultimate constraints are outside the legal system,” viz., are cultural, sociological, psychological, institutional, moral, religious, etc.[8]

In other words, the law generally reflects the changing moral commitments of a society; it does not prescribe them. Law is not neutral but is itself ideology and politics, a contingent artifact of social history. It functions in society to preserve the reigning moral code, the current power structure, and the status quo by making such systems appear natural, neutral, necessary, and ultimately just. Even antidiscrimination law, according to CLS scholars, though sold as a site of reform, is more likely to legitimate racism and racist systems than it is to remedy them, since it is only a reflection of a society’s dominant morality, existing distributive systems, and power structures. That’s just how law functions in real life. And, therefore, there should be no surprise that much of what was presented as remedy only served in the end as justification for the continuing subordinated circumstances of African Americans. Freeman writes:

[A]s the law has outlawed racial discrimination, it has affirmed that Black Americans can be without jobs, have their children in all black, poorly funded schools, have no opportunities for decent housing, and have very little political power, without any violation of antidiscrimination law.[9]

2. Critical Legal Studies and CRT

The Critical Legal Studies movement of Dr. Freeman and others was quite attractive to the first CRT Workshop’s burgeoning young race scholars, “because,” according to Mari Matsuda,

its central descriptive message—that legal ideals are manipulable, and that law serves to legitimate existing maldistributions of wealth and power—rings true for anyone who has experienced life as a nonwhite in America.[10]

Nevertheless, much early CRT scholarship was crafted in contrast to CLS. As such, CRT may best be understood as a spin-off of CLS, though distinguished and characterized by its oppositional relationship thereto. Dr. Crenshaw explains:

CRT came to life in the cracks between alignment and misalignment. Early Race Crits were situated in a dialectical loop, attracted to and repelled by certain elements of liberal civil rights discourses, and at the same time, attracted to and repelled by certain discursive elements within CLS. … CRT emerged not only as a critical intervention in a particular institutional contestation over race but also as a race intervention in a critical space, namely CLS.[11]

3. Alignment of CLS and CRT: Critique of Liberal Integrationism

First, in significant alignment with those attending the first CRT Workshop, CLS was rightly critical of the CRE’s ideology of “liberal integrationism” (in Gary Peller’s words), especially as it was in the 1970s and 80s.

Liberals take social justice to mean the right of individuals to be treated neutrally and objectively when subject to collective power (through law or any other state act). The liberal conception of justice is one of transcending bias and prejudice in the name of rationality-one of neutral and “equal rights.” The regulative ideal is to achieve neutrality in order to guarantee individual liberty.[12]

Soon after the close of the Civil Rights Era, progressive White and middle-class Black Americans were able to successfully absorb the message of the Civil Rights Movement (CRM) into White Americans’ existing ideals of liberalism. Racism, according to this analysis, is just a specie of the general mythological, backward, and irrational emphasis on the particularities of humanity, as opposed to the more enlightened, universal understanding of humanity, human nature, and the attendant ideals of transnational/transhistorical normative social relations:

The meaning of race has been grafted onto other central cultural images of progress, so that the transition from segregation to integration and from race consciousness to race neutrality mirrors movements from myth to enlightenment, from ignorance to knowledge, from superstition to reason, from the primitive to the civilized, from religion to secularism, and, most importantly, the historical self-understanding of liberal society as representing the movement from status to individual liberty. In other words, integrationist ideology comprehends the issue of racial domination by viewing race relations through stock images about the nature of progress in liberal society….[13]

As a result, rather than addressing the subordinated circumstances of Black Americans, the CRE began to center their continuing civil rights work on the liberal integrationists’ analytic of prejudice, discrimination, and segregation, thereby eschewing race-conscious remedies—those which would redistribute resources and power—in favor of “neutral standards,” like an idealized, “objective” view of “merit.” Given time, the establishment argued, through ordinary legal challenges, appeals to antidiscrimination law and court precedent, knowledge would soon overcome prejudice, “neutral standards” would overcome discrimination, and integration would overcome segregation. But “allowing race to count for anything,” even for the sake of remediation, contradicted the CRE’s liberal prescription. The terms of this coalition between White progressives and Black “elites” would prove to be the rejection of both “backward hillbillies” and “Black nationalist agitators” in exchange for liberal enlightenment. Thereby, “color-consciousness” became the hallmark of racist violation, whether “perpetrated” by White or Black Americans.

For CLS, the ideology of liberal integrationism served only to legitimate the continued subordinated circumstances of African Americans. Having outlawed segregation and discrimination, reasoned many within the CRE, the standards and policies which replaced them (or somehow persisted unscathed through them) must therefore be considered neutral and objective, and therefore “not racist.” Under this regime of “neutrality”—in the words of Alan Freeman,

the actual conditions of racial powerlessness, poverty, and unemployment can be regarded as no more than conditions—not as racial discrimination. Those conditions can then be rationalized by treating them as historical accidents or products of a malevolent fate, or, even worse, by blaming the victims as inadequate to function in the good society.[14]

But, beyond the ability of CLS to deconstruct the civil rights compromises of White liberalism, CRT scholars found many areas of misalignment as well. Some further explanation of CLS is required in order to make this alignment/misalignment clear. Bear with me.

4. CLS and “Critical Theory”

First, CLS fits properly within the critical tradition. CLS scholars openly rejected what many called “Vulgar Marxism,” i.e., the Marxism of Marx himself—class essentialism, the “base”/“superstructure” paradigm, historical, material, and economic determinism, a strict labor theory of value, etc. And most importantly for our purposes, they rejected Marx’s supposedly “instrumental” understanding of law. Richard Michael Fischl voiced a common CLS sentiment in the 1980s:

Many of us do work in an intellectual tradition in which Marx plays an important role; indeed, his core insight that human belief systems are social constructs is the starting point for much modern social theory. But that hardly makes us Marxists. Indeed, to the extent that that reckless charge suggests that we favor totalitarianism and/or thought control, it describes a set of ideological commitments that are the polar opposite of those held by CLS.[15]

Accordingly, Critical Legal scholars saw themselves as working within the “Critical Marxist” tradition of György Lukács, Karl Korsch, and the Frankfurt School, as opposed to the “Scientific Marxist” tradition of the Communists. And rightly so. Historically speaking, the enduring contribution of Karl Marx—that which places him among Weber and Durkheim as the fathers of sociology—was not his specific critique of capitalism, his communist eschatology, or his class dialectic anyhow, but rather his historical materialist critique of the whole; that is, his critical method. Rather than look to this or that injustice or social ill, Marx examined the whole social order from its material roots. As one sees poverty, war, subjugation, oppression, whatever, the cause and solutions are not ultimately to be found in ideology per se, nor even in the believed and stated motivations of social actors, but in the underlying system of relations operating at the brass-tacks level of human existence—the “ensemble of social relations.” Eating, one might say, precedes ideology. But unlike traditional Marxists, Critical Theorists rejected Marx’s specific linear, deterministic explanation of the ills of social life (viz., the means of production necessarily determine the mode of production which together necessarily produce the “ideology” or “superstructure” of social existence, all inexorably propelled along through history by an essentialist class dialectic).

Max Horkheimer, in his 1937 essay “Traditional and Critical Theory,” captures well this sense of the ongoing “critical” tradition, without the trappings of Vulgar or Scientific Marxism, coining the phrase “Critical Theory” in the process:

[T]here is a human activity which has society itself for its object. The aim of this activity is not simply to eliminate one or other abuse, for it regards such abuses as necessarily connected with the way in which the social structure is organized. Although it itself emerges from the social structure, its purpose is not, either in its conscious intention or in its objective significance, the better functioning of any ele­ment in the structure. On the contrary, it is suspicious of the very categories of better, useful, appropriate, productive, and valuable, as these are understood in the present order, and re­fuses to take them as nonscientific presuppositions about which one can do nothing. … [T]he critical attitude of which we are speaking is wholly distrustful of the rules of conduct with which society as presently constituted provides each of its members. The separation between individ­ual and society in virtue of which the individual accepts as natural the limits prescribed for his activity is relativized in critical theory. The latter considers the overall framework which is conditioned by the blind interaction of individual activities (that is, the existent division of labor and the class distinctions) to be a function which originates in human action and therefore is a possible object of planful decision and rational determina­tion of goals.[16]

I would argue that for any theory or system of ideas to be considered properly “critical,” it must at least see (1) group-wide inequalities, hierarchical social stratification, and social ills generally as not simply the product of individual policies and individual actors, but deeply ingrained in the socio-historical development of institutions, norms, values, cultural expressions, and relations of power which operate thereby, (2) that these “pathologies” develop through historical processes of social creation and change, and that much of the furniture of social life and knowledge are therefore constructed and conditioned imminently, (3) that remedies require critique of the whole, and that the transformative action required to dismantle the systems and ideas which embody social dominance and pathology is inseparable from knowledge production itself, and, finally, (4) the theory or system of ideas ought to display a “radical reflexivity,” i.e., “reflective accountability concerning critical theory’s own practices.”[17] It is this sense of “critical” of which CRT scholar Angela Harris wrote in 1994:

CRT inherits from CLS a commitment to being “critical,” which in this sense means also to be “radical”—to locate problems not at the surface of doctrine but in the deep structure of American law and culture.[18]

5. CLS and “Hegemony”

Second, CLS was greatly influenced by Italian Neo-Marxist Antonio Gramsci. As noted above, CLS scholars rejected Marx’s view of law. According to Dr. Crenshaw,

Traditional Marxist accounts present law as a tool of oppression serving to pacify the working class. … The Critics argue that this instrumental view is inadequate because it fails to account for the considerable support that the state and the legal system enjoy from the dominated classes.[19]

That is, the law cannot simply be an “instrument” of the “bourgeoisie” used to oppress the “proletariat.” Why? There is visible buy-in from most all social and economic classes. Further, according to CLS, the law should not be understood as a mere reflection of class interests existing concretely outside the law. Rather, the law itself should be understood as constitutive of these classes and their asymmetrical social, economic, and political relations.

Gramsci, as a Marxist, himself struggled to see how Marx’s view of law could explain the capitalist exploitation he’d experienced in late 1920s Italy. Even those laboring in the worst conditions, earning a starving wage, appeared to accept the system as just, natural, and appropriate, even willing to risk their own lives for its maintenance. From this awareness, Gramsci developed his concept of “hegemony,” “which is the social, cultural, or economic influence exerted by a dominant group over other groups.”

This influence stems from the perception of legitimacy afforded the dominant group by the subordinate groups. Hegemony is an active process whereby legitimacy is sought and maintained by the dominant group through the balancing of consent (that is, tacit support for the dominant group) and coercion (that is, the threat or use of forms of force).[20]

It became clear to Gramsci that the ruling class did not maintain control over their subordinates primarily through force, but through ideas, norms, and customs supposing and reinforcing the legitimacy of the current social order. This legitimating system permeated school, church, family, politics, art, economic life, etc.—Marx’s “ensemble of social relations” writ large—thereby eliciting “common sense” support for the dominant group. In short, the ordinary artifacts of social life proved also to be repositories of social power and means of social control. And the law is among these artifacts. The dominated, thereby, willingly granted consent even to social orders which manifestly worked against their own interests. As Critical legal historian Robert Gordon puts it,

the most effective kind of domination takes place when both the dominant and dominated classes believe that the existing order, with perhaps some marginal changes, is satisfactory, or at least represents the most that anyone could expect, because things pretty much have to be the way they are.

Law, according to CLS scholars, should be seen as integral to hegemony, as constitutive rather than reflective of external class interests, and therefore as an integral aspect of legitimating the status quo—not by physical coercion, but by the general consent of both dominant and subaltern groups, making it difficult for either to “even to imagine that life could be different and better.”[21]

6. CLS and Postmodernism/Poststructuralism

Another prominent aspect of CLS scholarship is its reliance on the text critical work of poststructuralists and/or postmodernists (PS/M), like Jean-François Lyotard, Jean Baudrillard, Michel FoucaultJacques Derrida, Gilles Deleuze, etc. CLS scholar Gary Peller summarizes PS/M (at least as used by Critical Legal scholars) well in his 1987 article, “Reason and the Mob: The Politics of Representation.” First, according to Peller, PS/M theorists

share the commitment that there is no possibility of a neutral or objective interpretative practice or of merely representing (as opposed to interpreting) the world. When we attempt simply to represent, free from bias or distortion, we must always do so through language, broadly conceived as a socially created way to categorize perception of and communication about the world.

But language necessarily mediates perception and communication by shaping ways of thinking about the world that are themselves not necessary and natural, but social and contingent.[22]

That is, language itself is a socio-historical artifact, a product of culture and politics, and therefore cannot serve as neutral ground to determine “truth from ideology, fact from opinion, or representation from opinion.” As we attempt to peal away the “representations” to get to the neutral ground of the “represented,” we find only more language.

Second, PS/M suggests that “argument” and “rhetoric” are at bottom socio-political maneuvers of power. There is simply is no “deeper logic,” “no grand organizing theory or principle with which to justify our social choices as neutral and apolitical, as the products of reason and truth rather than of passion or ideology” (p.29). Therefore, PS/Ms

suggest that what has been presented in our social-political and our intellectual traditions as knowledge, truth, objectivity, and reason are actually merely the effects of a particular form of social power, the victory of a particular way of representing the world that then presents itself as beyond mere interpretation, as truth itself.

In fact,

the deconstructionist wants to challenge reason on its own ground and demonstrate that what gets called reason and knowledge is simply a particular way of organizing perception and communication, a way of organizing and categorizing experience that is social and contingent but whose socially constructed nature and contingency have been suppressed.[23]

From this PS/M perspective, CLS scholars sought to expose the lack of “inner logic” and presumed necessity of the law, “unmask” the political ideology contained within legal discourse, and demonstrate the law’s ultimate indeterminacy—a legal critique eloquently entitled “trashing.” This, of course, proved useful to race scholars seeking to understand how even antidiscrimination law itself could aid in civil rights retrenchment.

7. CLS and Legal Realism

Last, CLS is a direct descendent of Legal Realism, an attempt to treat the law and legal outcomes scientifically. The law, Legal Realist argued, was to be treated like any other social artifact, not as a transcendent inscription of right and wrong whose internal logic produced determinate answers for jurists willing to stick to the text and think rationally. Like any other social artifact, the law contained many practically produced contradictions, is subject to multiple interpretations, and should be treated and employed as an object of sociological inquiry rather than a system residing in Plato’s Heaven. These ideas are foundational to the CLS approach. According to one of the most popular CLS proponents, Mark Tushnet,

The legal realists taught us … [t]here were and always are rules and counterrules, rules with exceptions of such scope as to threaten the rule itself, rules whose force can be eliminated by drawing creatively on analogies to apparently unrelated areas of law, and so on. Statutes too have to be interpreted and fit into a whole legal universe, and cannot be understood as a series of words whose meaning is fixed at the time of enactment.[24]

(It’s also interesting to note that CLS scholars used both these ideas and the ideas of PS/M discussed above as further counterpoints to Marx’s instrumental view of law and class essentialism. Marxism simply cannot withstand postmodernist critiques.)

8. The Misalignment of CRT and CLS

We have, to be sure, spent much of this article so far walking through the ideas of CLS. This, I assure you, is not without warrant. These ideas tell us much about Critical Race Theory, as it is, according to Dr. Crenshaw, an “intervention” into Critical Legal Studies. She and fellow CRT founders explain further, reflecting on the formation of their movement:

For our purposes, the chief theoretical advantage of this [CLS critique] of law was that it made it possible to argue that the legal system is not simply or mainly a biased referee of social and political conflict whose origins and effects occur elsewhere. On this account, the law is shown to be thoroughly involved in constructing the rules of the game, in selecting the eligible players, and in choosing the field on which the game must be played.

Drawing on these premises, we began to think of our project as uncovering how law was a constitutive element in race itself: in other words, how law constructed race. Racial power, in our view, was not simply—or even primarily—a product of biased decision-making on the part of judges, but instead, the sum total of the pervasive ways in which law shapes and is shaped by “race relations” across the social plane. Laws produced racial power not simply through narrowing the scope of, say, of antidiscrimination remedies, nor through racially biased decision-making, but instead, through myriad legal rules, many of them having nothing to do with rules against discrimination, that continued to reproduce structures and practices of racial domination. In short, we accepted the crit emphasis on how law produces and is the product of social power and we cross-cut this theme with an effort to understand this dynamic in the context of race and racism. With such an analysis in hand, critical race theory allows us to better understand how racial power can be produced even from within a liberal discourse that is relatively autonomous from organized vectors of racial power.[46]

But how about the misalignment? The most common departures noted by CRT scholars are (1) the general Whiteness of CLS, both as a publishing circle and a culture of inclusion/exclusion,[25] (2) that CLS offers no plan of “reconstruction” to follow its “deconstruction,”[26] (3) CLS’s rejection of “legal rights” language, justly held dear by activists in the Civil Rights tradition,[27] (4) CLS’s claim that CRT essentializes “race” as Marx had essentialized “class,” (5) CLS’s overemphasis on “consent” and “false consciousness” in the face of centuries of racial coercion,[28] and (6) largely explaining (2) – (5), the tension between modernism and postmodernism/poststructuralism at the heart of Critical Race Theory. We will here focus on the last, though I will include readings for the other five in the corresponding section of “Further Reading” below.

According to early CRT scholar, Angela Harris,

Even while it exposes racism within seemingly neutral concepts and institutions, however, CRT has not abandoned the fundamental political goal of traditional civil rights scholarship: the liberation of people of color from racial subordination. Although, like crits [CSL scholars], race-crits [CRT scholars] have questioned concepts of neutrality and objectivity, they have done so from a perspective that places racial oppression at the center of analysis and privileges the racial subject.

This commitment to antiracism over critique as an end in itself has created rifts between CRT and CLS.[29]

From the beginning, Critical Race Theorists have consistently noted the tension between their own set of ideas and the post-structuralism/modernism (PS/M) of Critical Legal Studies. She writes,

a comparison of CRT work with … CLS work … indicates a … serious tension. In its commitment to the liberation of people of color, CRT work demonstrates a deep commitment to concepts of reason and truth, transcendental subjects, and “really-out-there” objects. Thus, in its optimistic moments, CRT engages in “modernist” narratives.

She goes on to explain her meaning of “modernism” as opposed to the “postmodernism” briefly discussed in Section 6 above:

Modernist narratives assume three things: a subject, free to choose, who can be emancipated or not; an objective world of things out there (a world “the way it really is” as opposed to the way things appear to be in a condition of false consciousness); and “reason,” the bridge between the subject and the object that enables subjects to move from their own blindness to “enlightenment.”[30]

She continues:

CRT inherits from traditional civil rights scholarship a commitment to a vision of liberation from racism through right reason. Despite the difficulty of separating legal reasoning and institutions from their racist roots, CRT’s ultimate vision is redemptive, not deconstructive. Justice remains possible, and it is the property of whites and nonwhites alike. In its “modernist narratives,” CRT seems confident that crafting the correct theory of race and racism can help lead to enlightenment, empowerment, and finally to emancipation: that, indeed, the truth shall set you free.[31]

CRT’s commitment to the liberation of people of color … suggest[s] a faith in certain concepts and institutions that postmodernists lack. When race-crits tell modernist stories, they assume that “people of color” describes a coherent category with at least some shared values and interests. They assume that the idea of “liberation” is meaningful-that racism is something that can one day somehow cease to exist, or cease to exert any power over us. Modernist narratives assume a “real” reality out there, and that reason can bring us face to face with it. And modernist narratives have faith that once enough people see the truth, right action will follow: that enlightenment leads to empowerment, and that empowerment leads to emancipation.[32]

Political modernism, more generally, has been a powerful force in the lives of subjugated peoples; as a practical matter, politically liberal societies are vastly preferable to the alternatives. A faith in reason has sustained efforts to educate people into critical thinking and to engage in debate rather than violence. The passionate and constructive energy of modernist narratives of emancipation is also grounded in a moral faith: that human beings are created equal and endowed with certain inalienable rights; that oppression is wrong and resistance to oppression right; that opposing subjugation in the name of liberty, equality, and true community is the obligation of every rational person. In its modernist moments, CRT aims not to topple the Enlightenment, but to make its promises real.[33]

Even CRT godfather Derrick Bell concurred:

[C]ritical race theory scholarship is … often disruptive because its commitment to anti-racism goes well beyond civil rights, integration, affirmative action, and other liberal measures. This is not to say that critical race theory adherents automatically or uniformly “trash” liberal ideology and method. Rather, they are highly suspicious of the liberal agenda, distrust its method, and want to retain what they see as a valuable strain of egalitarianism which may exist despite, and not because of, liberalism.

As this description suggests, critical race theory scholarship exhibits a good deal of tension between its commitment to radical critique of the law (which is normatively deconstructionist) and its commitment to radical emancipation by the law (which is normatively reconstructionist). Angela Harris views this tension—between “modernist” and “postmodernist” narrative—as a source of strength because of critical race theorists’ ability to use it in ways that are creative rather than paralyzing.[34]

And nearly 30 years after Harris’s article, CRT scholar’s Devon Carbado and Cheryl Harris explain much the same, noting the same tension that has continued from CRT’s beginnings:

CRT’s early repudiation of a certain kind of anti-essentialist critique [provided by PS/M] cleared the ground for the articulation of a range of important ideas, among them these: There is something irreducible that we might call race (though the meaning of race shifts over time and place, is historically contingent, and intersects with and is shaped by other axes of social differentiation). There are people we might call “Black” (though the content and experiences of blackness are not static but a function of particular social, legal, cultural, and ideological processes). There is a social force we might call “racism” (though its content and effects, and the technologies through which it is expressed, are neither transhistorical nor predetermined). And there is a phenomenon that we might call whiteness (though its boundaries are never fixed or fully articulated but are constituted and reconstituted in the service of racial power).[35]

Thus, while CLS offered deconstructive prowess, helping to expose the indeterminacy of antidiscrimination law, the oppressive ideologies contained within, and helping to explain the inevitable cycle of reform and retrenchment, CRT demanded a reconstruction as well, a project of liberation that would go beyond mere ideological “trashing.” And while CLS rejected the concept of rights—even civil rights—as “undermin[ing] efforts to change things by absorbing real demands, experiences, and concerns into a vacuous and indeterminate discourse,”[36] CRT understood “the concept of rights, both positive and negative, [as] the marker of our citizenship, our participatoriness, our relation to others.”[37] And while CLS accused CRT of “vulgar racialism,” as they had accused Marxism of “vulgar classism,” CRT advocated for real life change in the real-life circumstances of real, though socially constructed, racialized and oppressed people-groups.

Race-crits have rejected the project of “total critique” and are committed to transforming modernist paradigms as well as criticizing them.[38]

In short, the “race intervention in a critical space” that is Critical Race Theory was deeply and inescapably informed by the tension between the (literal) life and death commitment to traditional Civil Rights ideology and the postmodern critique inherited from Critical Legal Studies.

9. The Harvard Law Affair

But not only was CRT a “race intervention in a critical space” according to Dr. Crenshaw, it was a “critical intervention in a particular institutional contestation over race,” specifically within the academy.[39]

The eruption that served as a point of departure in CRT’s trajectory was the institutional struggle over race, pedagogy, and affirmative action at America’s elite law schools.[40]

Many CRT scholars, Dr. Crenshaw predominately, point to the student protests at Harvard Law, beginning in 1981, as that which materially set the stage for the first Workshop on Critical Race Theory mentioned at the opening. Following the departure of the school’s then only tenured Black professor in 1982, Derrick Bell, students demanded greater African American representation among the Law School’s faculty. (Professor Bell later reported little change upon his return to the law school: “According to Harvard’s Affirmative Action Plan, during the 1988-89 school year only 15 of the 957 tenured faculty (1.6 percent) were black. And there were only 26 blacks (1.1 percent) among the 2,265 tenure-line faculty positions.”[41]) Students had rightly argued that, following Bell’s departure, there were no longer any courses like his available, dealing with discrimination law and critical interpretation of legal precedents relating to race; “’Constitutional Law and Minority Issues’ had simply been dropped from the curriculum.”[42]

Further, students argued that voices from marginalized communities were a necessary component of guiding and educating those who had come with the intention of pursuing Civil Rights advocacy and social justice. Last, they complained that, though the school had somewhat diversified its student body, it had failed to bring about similar changes in its own power structure, decision making, and educational commitments. In short, the disproportionate dearth of Black professors suggested that Harvard may have had a commitment to diversification of customers, but had little commitment to diversification of faculty, leadership, or content—arguably the most important measure of an institution’s Civil Rights commitments.

The dean of the school at the time, Dr. James Vorenberg, argued in response that the pool of qualified Black professors was simply too small to fill the void at Harvard, that it was racist to suggest that a White professor could not teach the desired courses, that the students should logically prefer an excellent White professor to a “mediocre Black professor,” and that the qualifications were entirely race-neutral and appropriately “color-blind” anyhow.

What was revealed through this struggle, many would later argue, is that it was considered perfectly just—even according to liberal academia—to have entirely unequal representation within the halls of leadership, so long as the “standards” were considered race-neutral, color-blind, and accorded with the traditional liberal conception of “merit.” In fact, an institution serving a diverse set of educational “customers” could justly retain an entirely White faculty and still claim to have honored the goals of the Civil Rights Movement just 25 years prior. If the pool was too small, this reasoning inexorably implied, it was a problem falling entirely in the lap of African Americans themselves; bootstrapping was the correct solution. The dean, and even many traditional Civil Rights lawyers, appeared to fully endorse a system whose terms of entry were considered entirely objective and could operate fairly and effectively, despite hinging candidate preference on entrenched, historically created, and complex social networks, including professorships at prestigious universities, an acceptable number of publications, law clerk experience, aligned educational interests, etc., all of which were themselves sites of justifiable racial critique.

The only way to maintain these claims of objectivity and race neutrality was to assume that racism, or even racialized differential access, was an occasional event, was only perpetrated by ill-willed individuals, was an irrational aberration from the social norm, and, finally, that people of color who had not met Harvard’s “standards” had only themselves to blame, unless specific discriminatory events could be cited and proven causal. In short, one must assume that the playing field was already neutral, that every player began with zero points, and that cheaters would be addressed if caught explicitly breaking the rules. The hierarchical creation of race in America, its holistic effects on law, common ideas, common consciousness, and even the very exemplars of universal fairness—merit, neutrality, and objectivity—were either ignored or treated as unimportant to the calculus.

In the end, Harvard offered a “mini-course” to fill the void left by Bell’s full courses; the students rejected this sop, and created their own “Alternative Course,” inviting race scholars from schools around the nation to give lectures more in line with the Black activism of Dr. Bell. Again, Dr. Crenshaw:

The themes and ideas that emerged from this collective engagement between students and young professors would eventually cohere as a set of texts that would become part of the Critical Race Theory canon. The Alternative Course also lit a fuse that would explode into a national debate, exposing the hidden fault lines that had long existed within the civil rights constituency. While many in the CRE saw the students’ protest as an embodiment of black power politics that they sought to discredit, the students saw meritocracy as the new lunch counters in the struggle over law, knowledge, and power.[43]

10. CRT Commonplaces

So, what is Critical Race Theory? Answering this question is fraught with difficulty. Some might even argue that there simply is no good answer. I’m a bit more optimistic, so long as we heed Dr. Crenshaw’s corrective:

CRT is not so much an intellectual unit filled with natural stuff—theories, themes, practices, and the like—but one that is dynamically constituted by a series of contestations and convergences pertaining to the ways that racial power is understood and articulated in the post-civil rights era. In the same way that Kendall Thomas reasoned that race was better thought of as a verb rather than a noun, I want to suggest that shifting the frame of CRT toward a dynamic rather than static reference would be a productive means by which we can link CRT’s past to the contemporary moment.[44]

Thus, tightly defining and policing the boundaries of what should be considered proper “CRT scholarship” tends to prescribe in advance the internal critical dynamic that is itself, supposedly, a feature of the theory, threatening to calcify CRT into a particular historical contestation with diminishing applicability to ever new contexts. It also has proven, at times, to create unnecessary conflict with ideological kin, such as LatCrit and AsianCrit Theory. But I tend to agree with Devon Carbado, that

[a]t the same time, in any given moment, there should be a set of (even provisional) ideas and frames that are available for mobilization and that are themselves re-constituted in the process.[45]

And I think Dr. Crenshaw agrees as well, as she, along with Mari Matsuda, Charles Lawrence III, and Richard Delgado, has offered her own answer to “What is critical race theory?,” even calling the list they produced “defining elements” (Words That Wound, pp. 2 – 3). Likewise, Richard Delgado and Jean Stefancic answer the same question in both Critical Race Theory: The Cutting Edge and Critical Race Theory: An Introduction, calling their lists “prime critical themes” and “basic tenets” respectively (see pp. 4 – 6 and pp. 8 – 10). Last, in one of my favorite treatments, “Critical What What,” CRT scholar Devon Carbado answers, “What are (or should be) some of CRT’s core ideas?” (see pages 1607 – 1615).

In what follows, I will quote verbatim from each of these treatments, thematically organizing them into eleven “commonplaces,” with my own description preceding each commonplace. I’ve chosen to refer to them as “commonplaces” to make clear that, while these ideas enjoy fairly broad endorsement throughout the CRT community—particularly among its founders, neither I nor they would consider them, taken together, a proper definition. Last, I’ve taken the treatment in Words That Wound, given its authorship, to be normative throughout, with the other treatments used merely to add, expand, or clarify. And to be clear, these are simply statements of ideas, not arguments for them; they should draw you into the “Further Reading” section at the end, not send you away satisfied.

1. Race is Socially Constructed

Race is not a natural, biological, “out there” entity such that it exists independently of law and society. Rather, it is a product of human social interaction, a construction of social reality. Further, race and racial categories were historically created to justify and maintain social hierarchy, slavery, and other forms of group-based exploitation, as well as to distribute rights, citizenship, privileges, access, and disparate advantages/disadvantages.

CRT also weighs-in directly on the very idea of race, rejecting the conception of race as a biological fixed social category and arguing instead that race is socially constructed. (Carbado, “Critical What What”)

[T]he “social construction” thesis, holds that race and races are products of social thought and relations. Not objective, inherent, or fixed, they correspond to no biological or genetic reality; rather, races are categories that society invents, manipulates, or retires when convenient. People with common origins share certain physical traits, of course, such as skin color, physique, and hair texture. But these constitute only an extremely small portion of their genetic endowment, are dwarfed by what we have in common, and have little or nothing to do with distinctly human, higher-order traits, such as personality, intelligence, and moral behavior. That society frequently chooses to ignore these scientific truths, creates races, and endows them with pseudo-permanent characteristics is of great interest to critical race theory. (Delgado & Stefancic, Introduction)

2. Differential Racialization

Race, as an historically contingent artifact, was constructed to serve different social needs for differing social purposes at different times and in different places throughout history. Therefore, not all “races” were historically constructed along the same lines, nor imbued with the same set of characteristics, nor are these constructions particularly stable through time.

Another, somewhat more recent, development concerns differential racialization and its consequences. Critical writers in law, as well as in social science, have drawn attention to the ways the dominant society racializes different minority groups at different times, in response to shifting needs such as the labor market. (Delgado & Stefancic, Introduction)

Critical Race Theorists pursue this project across racial groups, and in the context of doing so try to avoid what Angela Harris might refer to as the pitfalls of essentialism.” While some would say CRT scholars are anti-essentialist, it would be more accurate to say that we aspire to be antiessentialist. The distinction is important. Because to invoke any social category is already to essentialize, the question is not whether we engage in essentialism but rather the normative work we deploy that essentialism to perform. (Carbado, “Critical What What”)

3. Intersectionality

Further, because race has been socially constructed to serve different purposes for different groups at different times, race is inextricably linked with other social constructions and/or social arrangements developed by dominant groups to distribute protections, rights, citizenship, privileges, access, advantages, and disadvantages. As such, “race, class, gender, sexuality, ethnicity, nation, ability, and age operate not as unitary, mutually exclusive entities, but rather as reciprocally constructing phenomena” (Patricia Hill Collins).

No person has a single, easily stated, unitary identity. … Everyone has potentially conflicting, overlapping identities, loyalties, and allegiances. (Delgado & Stefancic, Introduction)

Critical race theory works toward the end of eliminating racial oppression as part of the broader goal of ending all forms of oppression. Racial oppression is experienced by many in tandem with oppression on grounds of gender, class, or sexual orientation. Critical race theory measures progress by a yardstick that looks to fundamental social transformation. The interests of all people of color necessarily require not just adjustments within the established hierarchies, but a challenge to hierarchy itself. This recognition of intersecting forms of subordination requires multiple consciousness and political practices that address the varied ways in which people experience subordination. (Matsuda, Lawrence, Delgado, & Crenshaw, Words That Wound)

The theory is thus committed to what Crenshaw has called “intersectionality”—and, more specifically, to an intersectional engagement of structural hierarchies. This engagement endeavors not only to “look to the bottom,” to borrow from Mari Matsuda; it also seeks to “look to the top.” In other words, the theory seeks to make clear that there is a “top” and a “bottom” to discrimination and that, historically, racism has been bi-directional: It gives to whites (e.g., citizenship) what it takes away from or denies to people of color. (Carbado, “Critical What What”)

4. Racism is Endemic to American Life

Because race was historically constructed by, in tandem with, and as integral to other central formative American systems and institutions—including American law, government, nation, politics, religion, human geography, economic structure, and distributive schemas—the attendant racial hierarchies and ideologies are likewise integral to American life and its institutions.

Critical race theory recognizes that racism is endemic to American life. Thus, the question for us is not so much whether or how racial discrimination can be eliminated while maintaining the integrity of other interests implicated in the status quo such as federalism, privacy, traditional values, or established property interests. Instead we ask how these traditional interests and values serve as vessels of racial subordination. (Matsuda, Lawrence, Delgado, & Crenshaw, Words That Wound)

It is, to put it the way Daria Roithmayr might, “locked-in.” This locked-in feature of racism is linked to our very system of democracy. Which is to say, historically, racism has been constitutive of, rather than oppositional to, American democracy. This does not mean that racism is an expression of American democracy. That would be putting the point too strongly. It is more accurate to say that racism was built into the constitutional architecture of American democracy. As Rachel Moran and I explain elsewhere, “[t]he drafters of the Constitution took a sober second look at the rhetoric of radical egalitarianism in the Declaration of Independence, and they blinked. The adoption of the Constitution in 1787 and its ratification one year later depended on a compromise, one that integrated slavery into the very fabric of American democracy.” The lingering effects of this foundational moment—or the ongoing relationship between racial inequality and American democracy is precisely what Gunnar Myrdal referred to as an “American dilemma.” (Carbado, “Critical What What”)

5. CRT is Skeptical of Claims to Neutrality, Objectivity, Color-Blindness, and Meritocracy

Because racism is endemic to American life and institutions, concepts like neutrality, objectivity, color-blindness, and merit are viewed by CRT scholars as sites of racial formation and preservation, as historical artifacts containing their own racial ideologies, racial logics, and racial preferences, and are therefore legitimate sites of racial critique. CRT judges decision procedures not by their facial neutrality or objectivity, but by their remedial effectiveness in addressing the subordinated circumstances of people of color.

Critical race theory expresses skepticism toward dominant legal claims of neutrality, objectivity, color blindness, and meritocracy. These claims are central to an ideology of equal opportunity that presents race as an immutable characteristic devoid of social meaning and tells an ahistorical, abstracted story of racial inequality as a series of randomly occurring, intentional, and individualized acts. (Matsuda, Lawrence III, Delgado, & Crenshaw, Words That Wound)

One way the theory does so is by challenging two dominant principles upon which American anti-discrimination law and politics rest—to wit, that colorblindness necessarily produces race neutrality and that color consciousness necessarily produces racial preferences. By historically contextualizing existing racial inequalities, CRT is able both to contest the [colorblindness/race-neutrality]/[color-conscious/racial preferences] alignments and to reverse them. The theory effectuates this reversal by demonstrating how colorblindness can produce racial preferences and how color consciousness can neutralize and disrupt embedded racial advantages. (Carbado, “Critical What What”)

CRT rejects the view that race precedes law, ideology, and social relations. Instead, Critical Race Theorists conceptualize race as a product of law, ideology, and social relations. According to CRT, the law does not simply reflect ideas about race. The law constructs race: Law has historically employed race as a basis for group differentiation, entrenching the idea that there are “in fact” different races; law has helped to determine the racial categories (e.g., Black, White, Yellow) into which institutions and individuals place people; law sets forth criteria or rules (e.g., phenotype and ancestry) by which we map people into those racial categories; law has assigned social meaning to the categories (e.g., Whites are superior; Blacks are inferiors; Japanese Americans are disloyal); law has employed those meanings to structure hierarchical arrangements (e.g., legalized slavery for inferior people (Blacks) and legalized internment for people who are disloyal (people of Japanese descent)); and those legal arrangements, in turn, have functioned to confirm the social meanings that law helped to create (e.g., the people who are enslaved must be inferior; that is why they are enslaved; the people who are interned must be disloyal; that is why they are interned). (Carbado, “Critical What What”)

6. Racism is a Structural Phenomenon and Explains Current Maldistributions

As such, racism is primarily a problem of historically racialized systems—created for the distribution of social, political, and economic goods—continuing to perform as it was historically created, even in our supposedly “post-racial” legal era.

Critical race theory challenges ahistoricism and insists on a contextual/historical analysis of the law. Current inequalities and social/institutional practices are linked to earlier periods in which the intent and cultural meaning of such practices were clear. More important, as critical race theorists we adopt a stance that presumes that racism has contributed to all contemporary manifestations of group advantage and disadvantage along racial lines, including differences in income, imprisonment, health, housing, education, political representation, and military service. Our history calls for this presumption. (Matsuda, Lawrence, Delgado, & Crenshaw, Words That Wound)

CRT repudiates the view that status quo arrangements are the natural result of individual agency and merit. We all inherit advantages and disadvantages, including the historically accumulated social effects of race. This racial accumulation—which is economic (shaping both our income and wealth), cultural (shaping the social capital upon which we can draw), and ideological (shaping our perceived racial worth)—structure our life chances. CRT exposes these inter-generational transfers of racial compensation. Building up over time to create racial shelters (hidden and protected racial privileges) and racial taxes (hidden and unprotected racial costs), racial compensation profoundly shapes and helps to support the contemporary economies of racial hierarchy. (Carbado, “Critical What What”)

Each of these efforts is part of a broader CRT project to articulate racism as a structural phenomenon, rather than as a problem that derives from the failure on the part of individuals and institutions to treat people formally the same. (Carbado, “Critical What What”)

7. CRT is Discontent with Liberalism and the Standard Racial Progress Narrative

On the other hand, liberalism conceptualizes racism as an aberration, a departure from the social norm. Therefore, liberalism tends to idealize the problem of racism as (1) prejudice, bias, and stereotype, (2) discrimination, or “allowing race to count for anything,” and (3) mere physical separation of races. Liberal answers to racism, accordingly, are (1) increased knowledge, (2) color-blindness, and (3) racial “mixing”; and, of course, plenty of time to allow “enlightenment” to run its natural course.

CRT scholars, alternatively—due to the contingent history of racial construction and the embedded nature of racism—view such liberal diagnoses and remedies as means of preserving the status quo, viz., preserving and legitimating the current maldistribution of social power and the racially subordinated circumstances embedded within.

Virtually all critical race theory is marked by a deep discontent with liberalism, a system of civil rights litigation and activism characterized by incrementalism, a faith in the legal system, and hope for progress, among other things. (Delgado & Stefancic, Cutting Edge)

CRT rejects the standard racial progress narrative that characterizes mainstream civil rights discourse—namely, that the history of race relations in the United States is a history of linear uplift and improvement. (Carbado, “Critical What What”)

8. Interest Convergence

Because of the embedded nature of racism, due to the historical nature of racial construction, racial progress is often ephemeral, and always prioritized in contrast with the rest of the traditional liberal program—i.e., individual freedom, freedom of association, free markets, vested interests, property rights, etc. Significant change normally occurs only when the latter interests are threatened by racist policy and thereby converge with the interests of people of color. When these interests change, the fortunes of Black Americans are in turn reversed. The dialectic of racial reform and retrenchment is a central CRT analytic.

“[I]nterest convergence” or material determinism, adds a further dimension. Because racism advances the interests of both white elites (materially) and working-class whites (psychically), large segments of society have little incentive to eradicate it. Consider, for example, Derrick Bell’s shocking proposal … that Brown v. Board of Education—considered a great triumph of civil rights litigation—may have resulted more from the self-interest of elite whites than from a desire to help blacks. (Delgado & Stefancic, Introduction)

The broader point is that one of CRT’s key claims is that racial reform and racial retrenchment are defining aspects of American law and politics. (Carbado, “Critical What What”)

9. Unique Voice of Color Thesis

Those who have been, and continue to be, marginalized through social identification with historically constructed groups are thereby uniquely placed to address their unique social, legal, political, and economic subordination, as they “are more likely to have had experiences that are particularly epistemically salient for identifying and evaluating assumptions that have been systematically obscured or made less visible as the result of power dynamics” (Kristen Intemann). In this manner, embedded, seemingly invisible, systems of racism can be made more visible to those who have been socialized as members of other historically constructed groups.

Critical race theory insists on recognition of the experiential knowledge of people of color and our communities of origin in analyzing law and society. This knowledge is gained from critical reflection on the lived experience of racism and from critical reflection upon active political practice toward the elimination of racism. (Matsuda, Lawrence, Delgado, & Crenshaw, Words That Wound)

Minority status, in other words, brings with it a presumed competence to speak about race and racism. The “legal storytelling” movement urges black and brown writers to recount their experiences with racism and the legal system and to apply their own unique perspectives to assess law’s master narratives. (Delgado & Stefancic, Introduction)

10. CRT Aspires to be Interdisciplinary and Eclectic

Further, since race is not a natural entity but a social construct, and since racism is thereby embedded in American society through its historical construction, race and racism are particularly amenable to fruitful interrogation by aspects of both Critical Theory and post-modernism/structuralism. Accordingly, CRT scholars seek to deconstruct these systems and ideologies, but with an eye toward reconstruction and liberation. More broadly, CRT seeks to incorporate a wide range of traditions and disciplines in order to address the various and sundry ways racialization is embedded throughout society.

Critical race theory is interdisciplinary and eclectic. It borrows from several traditions, including liberalism, law and society, feminism, Marxism, poststructuralism, critical legal theory, pragmatism, and nationalism. This eclecticism allows critical race theory to examine and incorporate those aspects of a methodology or theory that effectively enable our voice and advance the cause of racial justice even as we maintain a critical posture. (Matsuda, Lawrence, Delgado, & Crenshaw, Words That Wound)

11. CRT is Both Theory and Praxis

In the end, CRT seeks not only to understand race and racial subordination, but to change the subordinated circumstances of marginalized peoples. CRT scholars understand that consistent, effective, liberative critical social theory cannot separate the construction of social knowledge from the active redistribution of social power.

Even our most celebrated constitutional frameworks, such as “equal protection” and “due process,” can function as repositories of racial power. CRT reflects “a desire not merely to understand . . . [these and other] vexed bond[s] between law and racial power but to change … [them].” The theory is both pragmatic and idealistic. It grapples with the immediacies of now without losing sight of the transformative possibilities of tomorrow. (Carbado, “Critical What What”)

At bottom, I might suggest, Critical Race Theory is the radical abolitionist and Civil Rights tradition critically transformed to address a post-Civil Rights legal era rooted in the liberal ideology of “color-blindness” and “equal opportunity,” which have together preserved and legitimated the continuation of racially subordinated circumstances.

Further Reading

These readings are directly related to what’s been covered in this article and, unfortunately, represent only what I personally am familiar with. Thus, these resources are both limited by my own familiarity and also by the specific scope of this article. Feel free to contact me with requests for recommendations on specific topics not covered in this piece.

1. Civil Rights Retrenchment: Where are we? Why?

2. Critical Legal Studies

3. Alignment of CLS and CRT: Critique of Liberal Integrationism

4. CLS and “Critical Theory”

5. CLS and “Hegemony”

6. CLS and Postmodernism/Poststructuralism

7. CLS and Legal Realism

8. The Misalignment of CRT and CLS

9. The Harvard Law Affair

10. CRT Commonplaces


[1] See, e.g., “Celebrating Critical Race Theory at 20,” by Angela Onwuachi-Willig

[2]Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” pp. 1332-1333

[3]Racial Remediation: An Historical Perspective on Current Conditions,” p. 6

[4]Critical What What,” p. 1607

[5] Brown v. Board of Education and the Interest Convergence Dilemma,” p. 523

[6] Critical Race Theory: The Key Writings That Formed a Movement, p. 2

[7] ibid., p. 3

[8] For points 1, 2, and 4, see “Legitimizing Racial Discrimination Through Antidiscrimination Law,” p. 1051; for point 3, see “Some Realism About Critical Legal Studies,” p. 513

[9] ibid., p. 1049

[10] “Looking to the Bottom: Critical Legal Studies and Reparations,” Critical Race Theory: The Key Writings That Formed a Movement, p. 3

[11]Twenty Years of Critical Race Theory: Looking Back to Move Forward,” 1287 – 1288

[12] Gary Peller, “History, Identity, and Alienation,” p. 1483

[13] Gary Peller, “Race Consciousness,” p. 774

[14]Legitimizing Racial Discrimination Through Antidiscrimination Law,” p. 1103

[15]Some Realism About Critical Legal Studies,” p. 82

[16]Traditional and Critical Theory,” pp. 206-207

[17] Patrica Hill Collins, Intersectionality as Critical Social Theory, Location 1314

[18]The Jurisprudence of Reconstruction,” p.743

[19]Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” p. 1350

[20] Bradley Levinson, Beyond Critique, pp. 52-53)

[21]Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” p. 1351).

[22]Reason and the Mob: The Politics of Representation,” p. 29

[23] ibid., p. 30

[24]Marxism as Metaphor,” pp. 281 – 282

[25] See, e.g., “The Imperial Scholar: Reflections on a Review of Civil Rights Literature,” by Richard Delgado

[26] See, e.g., “The Clouded Prism: Minority Critique of the Critical Legal Studies Movement,” by Harlon L. Dalton

[27] See, e.g., “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” by Kimberlé Crenshaw; “The Jurisprudence of Reconstruction,” by Angela Harris; “The Alchemy of Race and Rights,” Critical Race Theory: The Cutting Edge, by Patricia J. Williams

[28] See, e.g., “Intersectionality at 30: Mapping the Margins of Anti-Essentialism, Intersectionality, and Dominance Theory,” by Devon Carbado and Cheryl Harris

[29]The Jurisprudence of Reconstruction,” p. 750

[30] ibid., p.751

[31] ibid., p. 743

[32] ibid., p. 753

[33] ibid., pp. 753 – 754

[34]Who’s Afraid of Critical Race Theory?,” p. 78

[35]Intersectionality at 30: Mapping the Margins of Anti-Essentialism, Intersectionality, and Dominance Theory,” pp. 2214 – 2215

[36] Kimberlé Crenshaw, “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” p. 1353

[37] Patricia J. Williams, “The Alchemy of Race and Rights,” Critical Race Theory: The Cutting Edge, p. 88

[38] Angela Harris, “The Jurisprudence of Reconstruction,” p. 765

[39]Twenty Years of Critical Race Theory: Looking Back to Move Forward,” p. 1288

[40] ibid., p.1264

[41] Faces at the Bottom of the Well, p. 129

[42]Twenty Years of Critical Race Theory: Looking Back to Move Forward,” p. 1264

[43]Race Liberalism and the Deradicalization of Racial Reform,” pp. 2312 – 2313

[44]Twenty Years of Critical Race Theory: Looking Back to Move Forward,” p. 1261

[45]Critical What What,” p. 1607

[46] Critical Race Theory: The Key Writings That Formed a Movement, p. XXV

[47] “The First Decade: Critical Reflections, or A Foot in the Closing Door,” p. 1347

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7 thoughts on “In Short, What is Critical Race Theory?

  1. Stephen Matlock December 28, 2020 / 2:41 pm

    Goodness, my friend. This is extraordinary and helpful. Thanks for doing all this work–and when do you find time for carpentry, let alone the responsibilities and joy of being a family man?

    Liked by 1 person

    • Brad Mason December 29, 2020 / 8:53 am

      Thank you so much, brother! Thankfully, much of this material has come out of writing my series over on The Front Porch.

      Like

  2. Mexia Jackson Jr December 30, 2020 / 2:19 am

    Awesome observation and commentary.

    Liked by 1 person

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