Critical Race Theory (CRT) is, at bottom, 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.
1. Racial Reform and 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 these historic legislative packages seemed further and further out of reach. The measurable disparity between Black and White Americans in wealth, income, education, home-ownership, and nearly every other social and economic category had not only proven persistent, but many hard-fought gains appeared to be in retrenchment. Further, with the rise of the “New Right” to national power and prominence in the 1980s, the civil rights philosophy of the majority of Americans had become clear: the work was complete, discrimination was illegal, and equality had been achieved through Brown v Board of Education and the subsequent national Civil Rights Acts. For the legislature and courts to intervene any further, it was commonly presumed, would cause more harm than would the very few remaining vestiges of racism. In fact, whatever racial inequality that remained in the 1980s would soon be understood as simply the natural fall-out of legally equal people-groups acting unequally in an open and equal society. Thus, the vast society-wide social and economic disparities seen throughout the nation were by then rationalized as legitimate, natural, and even just.
How, just twenty years following the passage of the Civil Rights Acts, had America come to such ideological and existential reversals?
2. Professor Derrick Bell
Professor Derrick Bell, mentor to many CRT scholars and the first tenured Black professor at Harvard Law, had already begun to diagnose the cause of this Civil Rights retrenchment in the 1970s. 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 … .
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,” 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.”
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’s) 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.
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 Bois, Oliver C. Cox, Malcom 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 reigning CRE, which had become almost entirely occupied with how to interrupt the status quo on behalf of disenfranchised Americans without likewise interrupting the rest of the liberal legal program—i.e., without interfering with individual freedom, freedom of association, free markets, vested interests, property rights, etc. In contrast, 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. “Bell understood that the measure of civil rights law is its concrete effectiveness in helping to contest the actual conditions of racial domination.”
3. Professor Alan Freeman and Critical Legal Studies
In some tension with Bell’s “instrumental” explanation for retrenchment, 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 itself. 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. Rather, the law is radically indeterminant, and therefore court holdings and legal reasoning generally reflect the changing moral commitments of a society. Law is, therefore, not neutral but is itself ideological, a contingent artifact of social history. Accordingly, 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, is more likely to legitimate 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. 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.
4. CRT: A Race Intervention Into CLS
As such, the CLS movement was quite attractive to the many young legal scholars of color who began to form a critical theory of race in the late 1980s, including Kimberlé Crenshaw, Mari Matsuda, Neil Gotanda, Stephanie Phillips, Richard Delgado, and many others who attended the first annual CRT Workshop in 1989. In fact, Critical Race Theory might best be understood as a “spin-off” of CLS, having been distinguished and characterized as a movement 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.
Thus, Critical Race Theory is in part defined by its many alignments, and defining misalignments, with Critical Legal Studies.
5. Broad Alignments Between CLS and CRT
a. Legal Realism
First, CLS is a direct descendent of Legal Realism, an historical attempt to treat law and legal outcomes scientifically. 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, is fundamentally indeterminate, and should be treated and employed as an object of sociological inquiry rather than a system residing in Plato’s Heaven.
b. Rejection of Marxist Instrumentalism and Essentialism
Next, CLS was highly critical of “instrumental” theories of law, particularly that of Karl Marx. To begin with, for CLS, law is simply too indeterminate to serve the interests of any class or social group. But even more importantly, law constructs and is therefore interdependent with class structure and relations of production. Consequently, law cannot be understood as mere servant of that which it also creates. Instrumentalism is viciously circular. Fundamental to this critique of instrumentalism was CLS’s rejection of essentialism, viz., the idea that any social entity or identity exists as a natural fact independent of law. And included in this “anti-essentialism” was the rejection of racialism, viz., the idea that complex legal and social phenomena can be explained as mere reflections of the independent “fact” of race. For CLS, as for CRT, much of the furniture of social reality and knowledge are imminently conditioned social constructions, and therefore do not exist independently of law and society.
c. Critical Theory
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—class essentialism, the “base”/“superstructure” paradigm, historical, material, and economic determinism, a strict labor theory of value, etc. 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., that 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.
According to early CRT scholar Angela Harris,
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.
d. Antonio Gramsci and Hegemony
CLS’s objections to Marxist instrumentalism also incorporated Neo-Marxist Antonio Gramsci’s notion of hegemony, particularly his view of social subordination by consent of the dominated. Gramsci had 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 appeared to accept the system as just, natural, and appropriate, even willing to risk their own lives for its maintenance. 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.
Further, CLS scholars employed the text critical work of poststructuralists and/or postmodernists (PS/M) like Jean-François Lyotard, Jean Baudrillard, Michel Foucault, Jacques Derrida, Gilles Deleuze, etc. For these scholars—in overly simplistic terms—language is a socio-historical artifact, a product of culture and politics, and therefore cannot serve as neutral ground to distinguish objective truth from politics, ideology, or opinion. As such, “argument” and “rhetoric” are at bottom socio-political maneuvers of power, as they are unable to dig below language to discover uninterpreted factual bedrock. From this PS/M perspective, CLS scholars sought to expose the lack of “inner logic” and presumed necessity of the law, to “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, counterintuitively, serve as a vehicle of civil rights retrenchment.
f. Tensions with Liberalism
Finally, in significant alignment with early CRT scholars, CLS was rightly critical of the civil rights establishment’s (CRE’s) ideology of “liberal integrationism” (in Gary Peller’s words), especially as it was in the 1970s and 80s. 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.
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 “color-blind 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 agitators” in exchange for liberal enlightenment.
Once the ideology of liberal integrationism had been widely adopted, both Black nationalists and White supremacists could together be rejected as prejudiced, unenlightened, anti-liberal enemies of racial progress in America—and, more realistically, enemies of the presumed “race-neutral” status quo. Rather than racial subordination or unequal distribution of power and resources, “color-consciousness” itself 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) should 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.
This CLS critique of the civil rights compromises of White liberalism proved invaluable to race scholars in the critical tradition, presenting an important point of ideological alignment between the two movements.
6. Defining Misalignments Between CLS and CRT
So, how about the defining misalignments? Some common departures noted by CRT scholars have included the general Whiteness of CLS, both as a publishing circle and a culture of inclusion/exclusion, CLS’s claim that CRT was guilty of “racialism,” and CLS’s overemphasis on “consent” and “false consciousness” while largely ignoring the obvious history of racial coercion. But as we haven’t room to discuss each of these, the following departures have been particularly relevant for distinguishing CRT as a distinct movement.
a. Rights and Entitlements Discourse
First, the divide between early CRT theorists and CLS came into clearest view in their very public dispute over the traditional discourse of “rights” and “entitlements.” Legal “rights,” according to CLS, are mere means of social control, means of eliciting willing consent from the exploited by offering legal words of enfranchisement without the corresponding substance, thereby functioning as a tool of hegemony and legitimation of existing social inequalities.
CRT scholars, on the other hand, came to rights discourse from a much different perspective. Throughout American history, people of color have suffered and died for the cause of rights, “combatants for a terrain that people of color are now told may have been nothing more than the chimerical construct of a mystified consciousness.” It is these very real historical circumstances of very real marginalized people-groups that transforms meaning and importance of “rights discourse” from the false consciousness inducing “rights” of CLS to the liberating “rights” of the abolitionist and civil rights tradition of Critical Race Theory.
Unlike the scholars of color who would form CRT, CLS saw the topic of “rights” and “entitlements” through what Harlon L. Dalton called the “clouded prism.” CLS scholars read and interpreted the issues of rights and entitlements, even hegemony and false consciousness, with a “disengaged theoretical stance” lacking an “appreciation of the tradition” from which the ideas they sought to critique were born. In other words, unlike the scholars of color who would form CRT, CLS scholars viewed “rights” discourse through the perspective of White, male, economically privileged—categories never really in need of “rights” in America to begin with. CRT scholars, on the other hand, saw rights as those for which their fathers marched and bled and sometimes died, securing many basic social and legal accommodations, accommodations already fully enjoyed by White Americans.
Of course, this is not to argue that CRT scholars were (or are) in love with “rights” discourse either; they too see the potential legitimating dangers of formal verbiage without substantive action. Nevertheless, CRT scholar Patricia Williams brilliantly summarized the common early CRT sentiment on “rights” in this oft quoted passage:
To say that blacks never fully believed in rights is true. Yet it is also true that blacks believed in them so much and so hard that we gave them life where there was none before; we held onto them, put the hope of them into our wombs, mothered them and not the notion of them. And this was not the dry process of reification, from which life is drained and reality fades as the cement of conceptual determinism hardens round — but its opposite. This was the resurrection of life from ashes four hundred years old. The making of something out of nothing took immense alchemical fire — the fusion of a whole nation and the kindling of several generations.
b. Tensions with Post-structuralism/modernism
Another defining tension, inseparable from the above, that early set Critical Race Theory apart from CLS was its relationship with post-structuralism/modernism. Early CRT theorist Angela Harris wrote in 1994 that
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.
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.
c. Misalignment: Reconstruction
Thus, while CLS offered deconstructive prowess, helping to expose the indeterminacy of law, the oppressive ideologies contained within, and helped to explain the inevitable cycle of reform and retrenchment discussed above, the founding generation of Critical Race Theorists demanded more. They demanded a reconstruction as well, a project of liberation that would go beyond mere ideological “trashing.”
Race-crits have rejected the project of “total critique” and are committed to transforming modernist paradigms as well as criticizing them.
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.
7. The Commonplaces of CRT
So, what then is this “Critical Race Theory”? Answering this question is fraught with difficulty. Tightly defining and policing the boundaries of what should be considered proper “CRT scholarship” tends to illicitly circumscribe the internal critical dynamic that is itself a feature of the theory, threatening to calcify CRT into a particular historical contestation with diminishing applicability to ever new contexts. Nevertheless, CRT founders and scholars like Kimberlé Crenshaw, Mari Matsuda, Charles Lawrence III, Richard Delgado, Devon Carbado, and others, have offered explicit answers to “What is critical race theory?” (See Words That Wound, pp. 2 – 3, Critical Race Theory: The Cutting Edge, pp. 4 – 6, Critical Race Theory: An Introduction, pp. 8 – 10, and “Critical What What,” pp. 1607 – 1615.)
The following are their suggested “tenets”—though I prefer “commonplaces”—ordered more or less thematically to help expose the inner logic of the “theory”:
- 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.
- 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.
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.”
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.” 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.
- 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.
- 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.
For more, see: “What is Critical Race Theory? An Introduction to the Movement and its Ideas (With Further Reading).” For much more, see the series beginning here: “The Christian and Critical Race Theory, Part 1: A Survey of the ‘Traditional Civil Rights Discourse’.”
 Kimberlé Crenshaw, “The First Decade: Critical Reflections, or A Foot in the Closing Door,” p. 1347
 Kimberlé Crenshaw, “Twenty Years of Critical Race Theory: Looking Back to Move Forward,” 1287 – 1288
 Robert Williams, “Taking Rights Aggressively,” p. 120; see also, “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” by Kimberlé Crenshaw
 ibid., p. 743
 ibid., p. 756
 Kristen Intemann, “25 Years of Feminist Empiricism and Standpoint Theory: Where Are We Now?,” p. 791