Bradly Mason

When we presented the tenets—or, as I prefer, “commonplaces”—of Critical Race Theory (CRT) in, “What is Critical Race Theory? An Introduction to the Movement and its Ideas (With Further Reading)” (see section 16), I closely followed the order given by Mari Matsuda, Kimberlé Crenshaw, Charles Lawrence III, and Richard Delgado as found in Words That Wound. Here I would like to rearrange these same commonplaces in a way that suggests a logical development of the central ideas of CRT, somewhat in contrast to my previous presentations based more on the historical development of the movement. While it does leave the enterprise looking woefully anemic, I nevertheless believe it is a helpful path for the more analytic among us to grasp some of CRT’s basic commitments.

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 distribute protections, rights, citizenship, privileges, access, advantages, and disadvantages.[1]

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).[2]

2. Differential Racialization

Race, as an historically contingent artifact, was constructed to serve different social needs and different social desires 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 they temporally stable.

At one period, for example, society may have had little use for blacks but much need for Mexican or Japanese agricultural workers. At another time, the Japanese, including citizens of long standing, may have been in intense disfavor and removed to war relocation camps, while society cultivated other groups of color for jobs in war industry or as cannon fodder on the front. In one era, Muslims are somewhat exotic neighbors who go to mosques and pray several times of day—harmless but odd. A few years later, they emerge as security threats.

Popular images and stereotypes of various minority groups shift over time, as well. In one era, a group of color may be depicted as happy-go-lucky, simpleminded, and content to serve white folks. A little later, when conditions change, that very same group may appear in cartoons, movies, and other cultural scripts as menacing, brutish, and out of control, requiring close supervision. In one age, Middle Eastern people are exotic, fetishized figures wearing veils, wielding curved swords, and summoning genies from lamps. Later, after circumstances change, they emerge as fanatical, religiously crazed terrorists bent on destroying America and killing innocent citizens.[3]

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.”[4]

[B]ecause races are constructed, ideas about race form part of a whole social fabric into which other relations, among them gender and class, are also woven. … This close symbiosis was reflected, for example, in distinct patterns of gender racialization during the era of frontier expansion—the native men of the Southwest were depicted as indolent, slothful, cruel and cowardly Mexicans, while the women were described as fair, virtuous, and lonely Spanish maidens. … This doggerel depicted the Mexican women as Spanish, linking their European antecedents to their sexual desirability, and unfavorably compared the purportedly slothful Mexican men to the ostensibly virile Yankee. Social renditions of masculinity and femininity are inseverably a part of racial constructs, just as racial stereotypes invariably embody some elements of sexual identity. The archaeology of race soon becomes the excavation of gender and sexual identity.[5]

4. Racism is Endemic to American Life

Because race was historically constructed by, through, in tandem with, and as integral to other central formative American systems and institutions—including the formation of 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.

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.”[6]

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

Because racism is endemic to American life, concepts like neutrality, objectivity, color-blindness, and meritocracy are viewed by CRT scholars as sites of racial formation and preservation, as well as historical artifacts containing their own racial ideology and logic, and are therefore legitimate sites of racial critique. CRT lays the burden of proof on these concepts, judging them by their “effectiveness in helping to contest the actual conditions of racial domination,”[18] rather than by their formal appearance of race-neutrality or claim to objectivity.

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.[7]

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 created, even in a supposedly “post-racial” legal era.

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.[8]

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.

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.[9]

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 racially subordinated circumstances embedded within.

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. “[T]he 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.”[10] When White interests change, the fortunes of Black Americans are in turn reversed. “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.”[11]

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.”[12] “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.”[13] Further, “[t]he ‘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.”[14] 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.

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, largely as inherited from Critical Legal Studies; “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.”[15] Accordingly, CRT scholars seek to deconstruct these systems and ideologies with an eye toward reconstruction and liberation. More broadly,

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.[16]

11. CRT is Both Theory andPraxis

In the end, “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.”[17] CRT scholars understand that consistent, effective, liberative critical social theory cannot separate the construction of social knowledge from the active redistribution of social power.

In conclusion, this is the order in which I will present these ideas in my ongoing series on The Front Porch, “The Christian and Critical Race Theory.”

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[1] For a broad explanation of how this occurred, pleas see, “What Does 1619 Have To Do With 2019? A Crash Course”; for a more specific, more detailed treatment, please see, “The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, by Ian Haney Lopez

[2] Devon Carbado, “Critical What What,” p. 1610

[3] Richard Delgado and Jean Stefancic, Critical Race Theory: An Introduction, p. 9

[4] Patricia Hill Collins, “Intersectionality’s Definitional Dilemmas,” p. 1; emphasis mine

[5] Ian Haney Lopez, “The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice,” pp. 30 – 32

[6] “Critical What What,” p. 1613

[7] ibid., 1609

[8] ibid., 1608

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

[10] Derrick Bell, “Racial Remediation: An Historical Perspective on Current Conditions,” p. 6

[11] “Critical What What,” p. 1608

[12] Kristen Intemann, “25 Years of Feminist Empiricism and Standpoint Theory: Where Are We Now?,” p. 791

[13] Mari Mutsada et al., Words That Wound, p. 6

[14] Critical Race Theory: An Introduction, p. 10

[15] Angela Harris, “The Jurisprudence of Reconstruction,” p.743

[16] Words That Wound, p. 6

[17] “Critical What What,” p. 1615

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