The Primer on “Critical Race Theory”

Richard Delgado and Jean Stefancic: Critical Race Theory: An Introduction. New York: New York University Press, 2017. Third edition.

 

The authors begin with an everyday occurrence: When race “seems to play a part” in getting snubbed or ignored, this is a “microaggression.” The claim raises a question of knowing the mind of another. As a critically suspect white male (I observe the convention of introducing an observation with the approved formula, “As a…”), I am sometimes subjected to rude behavior. If the offender is a fellow white male, I may take this as an indication of bad behavior, a bad mood, a grudge, or some other such thing. But what if the offender is a member of some other race? Shall I suspect racism—wait, sorry, non-white persons cannot be racists in the United States or Europe, because racism is a prejudice of the dominant, so I shouldn’t say ‘racism,’ unless maybe I’m in a neighborhood where whites are not dominant, or is that itself a racist thought?—or rather racial prejudice? Similarly, if I behave boorishly towards a person of color, am I a racist or simply (as I rather suspect) a boor? These things can be complicated, although not in the minds of many of my fellow citizens, who prefer to cut such Gordian, or goading, knots in rhetorically advantageous ways. (Cutting the Gordian knot: a microaggression calling up images of nooses, lynchings? Mental note: stay away from metaphors.)

They continue with another example, a child who doesn’t want to tell the teacher where she’s “from” because she and her parents are “undocumented entrants [to the United States] who fear of being discovered and deported.” Notice “undocumented,” a judicious substitute for “illegal.” (Mental note: stay away from words.) The authors are law school professors, and it must be said that they are formidable at ‘arguing like lawyers’ on behalf of Critical Race Theory and “the critical race theory movement,” the latter “a collection of activists and scholars engaged in studying and transforming the relationship among race, racism, and power.” In this process of transformation, seen in such words as “microaggression” and “undocumented,” “critical race theory questions the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.” Critical, indeed, then.

The doctrine “sprang up in the 1970s” among “lawyers, activists and legal scholars” in the United States, persons dissatisfied with the moral and legal advances won by the civil rights activists of the 1960; some of these reforms “had stalled and, in many respects, were being rolled back,” thanks to “subtler forms of racism” (see “microaggression,” above) that now prevailed. Delgado, along with Derrick Bell and Alan Freeman, “put their minds to the task.” Their minds were already steeped in the thought of Gramsci, Foucault, and Derrida, stalwarts of the European Left, and, as adepts in legal reasoning, they also borrowed from the field of “critical legal studies,” which pushes the Progressivist claim that laws may be ‘interpreted’ broadly, especially if that interpretation serves the interpreter’s moral and political intention, toward the further claim that cases in law may be handled that way, too, “by emphasizing one line of authority over another or interpreting one fact differently from the way one’s adversary does.” This dovetailed well with “feminism’s insights into the relationship between power and the construction of social roles, as well as the unseen, largely invisible collection of patterns and habits that make up patriarchy and other types of domination.” Unseen! So much the better. Let political discourse ‘lawyer up’! Further, CRT borrowed from “the conventional civil rights” movement its “notions of community and group empowerment”—in a word, socialism—and from “ethnic studies” its notions of “cultural nationalism, group cohesion, and the need to develop ideas and texts centered around each group and its situation”—in two words, national socialism, although thankfully not of the Hitlerite strain.

The “basic tenets of CRT” are: racism is normal, not aberrational, but largely unacknowledged in American law, which treats everyone equally and “can thus remedy only the most blatant forms of discrimination,” but surely not anything so subtle as unseen microaggression; “interest convergence” among the dominant race, as for example when racism “advances both white elites (materially) and working-class whites (psychically)”; “social construction,” meaning that “race and races are products of social thought and relations,” not nature; “differential racism,” the practice whereby “the dominant society racializes different minority groups at different times, in response to shifting needs such as the labor market”; “intersectionality,” the observation that “no person has a single, easily stated, unitary identity” but instead embodies “potentially conflicting, overlapping identities, loyalties, and allegiances”; and finally, “voice,” the way in which writers in minority communities “may be able to communicate to their white counterparts matters that the whites are unlikely to know.” But the overarching tenet of CRT, framing all the others, is socialism. “Something inherent in the nature of our capitalist system ineluctably produces poverty and class segregation,” and that “something” is competition, with its “idea of winners and losers.” 

Not that CRT activist-transformer-thinkers do not compete with one another. There is “an issue that squarely divides critical race theory thinkers”—roughly the one that divides thinkers generally, namely the divide between ‘idealism’ and ‘realism.’ The idealists hold “that racism and discrimination are matters of thinking, mental categorization, attitude, and discourse.” As such, it is made and can therefore be unmade “by changing the system of images, words, attitudes, unconscious feelings, scripts, and social teachings by which we convey to one another that certain people are less intelligent, reliable, hardworking, virtuous, and American than others.” The realists “or economic determinists,” evidently Marxists, regard racism as “much more than a collection of unfavorable impressions of members of other groups” but “a means by which society allocates privilege and status.” So, for example, “antiblack prejudice sprang up with slavery and capitalists’ need for labor,” whereas “before then, educated Europeans held a generally positive attitude toward Africans, recognizing that African civilizations”—well, actually, “North Africans,” a.k.a. Egyptians—were “highly advanced,” having “pioneered mathematics, medicine, and astronomy long before Europeans had much knowledge of these disciplines.” Aside from the fact that Egyptians made considerable use of slave labor, they were never regarded as “blacks,” and so could not be subject to “antiblack prejudice,” but no matter, CRT theorist are entitled to argue like lawyers, sure in the goodness of their cause. 

Realist/materialist thinkers further “point out that conquering nations universally demonize their subjects to feel better about exploiting them” (surely a calumny against Genghis Khan, who rather delighted in forced sexual congress with women whose men he had conquered, but the authors seldom trouble themselves with counter-examples), and that material/historical “circumstances change so that one group finds it possible to seize advantage or to exploit another,” in the process “form[ing] appropriate collective attitudes to rationalize what was done.” This might raise the question of whether the same thing might be said about realist/materialists or indeed CRT folk generally, given the circumstance of ruling that they so ardently wish for themselves.

Then again, one might well charge the Great Khan with self-interest, indeed self-indulgence, and that is another complaint. Citing research by the Emory University law professor Mary Dudziak, they charge that the celebrated ruling in the civil rights case Brown v. Board of Education merely expressed the self-interest of whites during the Cold War: “When the Justice Department intervened on the side of the NAACP for the first time in a major school-desegregation case, it was responding to a flood of secret cables and memos outlining the United States’ interest in improving its image in the eyes of the Third World.” But if so, does that mean the Supreme Court justices were thinking along the same lines, ignoring the text of the Constitution in order to further U.S. foreign policy?  Such a claim falls in line with the techniques of “revisionist history,” which, in the hands of the “Crits” (as they fondly call themselves), “often strive[s] to unearth little-known chapters of racial struggle, sometimes in ways that reinforce current reform efforts.” Sometimes, indeed.

Not that Crits are entirely satisfied with the arguments in such decisions as Brown. “Admirable” at times, “color blindness” in the law can also be “perverse,” as when it “stands in the way of taking account of difference in order to help people in need.” Working on a case-by-case basis, this is usually what judicial equity is for, but the Crits are impatient with bourgeois individualism, demanding instead that groups be addressed. “Only aggressive, color-conscious efforts to change the way things are will do much to ameliorate misery.” Indeed, “crits are suspicious of another liberal mainstay, namely rights.” Rights are usually procedural, not “substantive” (meaning, a right to concrete things); they may give everyone “equality of opportunity” but fail to “assure equality of results”—another socialist aspiration against that nasty competitiveness capitalism breeds. What is more, rights “are almost cut back when they conflict with the interests of the powerful,” as when the First Amendment right to free speech is denied someone who “insults a judge or other authority figure” (order in a capitalist court being unjust at its root), or someone who “defames a wealthy and well-regarded person” (a right decidedly not curtailed when it came to former president Trump), or “divulges a government secret” (sometimes known as treason, but for the Crits there can be no treason against the capitalist state). Worst of all, rights are “alienating” in that “they separate people from each other,” saying “stay away, I’ve got my rights,” instead of “encouraging them to form close, respectful communities,” as socialists assure us they will do. But why would close, respectful communities organized along racial lines respect other communities, so organized? If social systems are constructed, then group rights are, too, and, as the authors have already advised us, what is constructed can be deconstructed. Why would one constructed community not move to deconstruct another? Or itself?

The authors quite rightly say that laws derive from a “system” or, as Plato and Aristotle have said before them, a regime. From this insight flow four criticisms of American law. First, it is based on the writings of William Blackstone, a Lockean upholder of capitalism in whom such notions as intersectionality, interest convergence, microaggressions, anti-essentialism, hegemony, hate speech language rights, black-white binary, and jury nullification (about which more, later) hold no place. Second, American law exhibits the “empathetic fallacy,” that is, “the belief that one can use words to undo the meanings that others attach to these very same words,” when prejudicial stereotypes “are embedded in the minds of one’s fellow citizens and, indeed, the national psyche.” (“Try explaining to someone who has never seen a Mexican, except for cartoon figures wearing sombreros and serapes, that most Mexicans wear business suits.” [If so, they dress better than most Anglos.]) Third, the lawyers within the American legal system often serve two masters, (for example, a civil rights lawyer may not have the same ‘agenda’ as his client, wanting to set a precedent when the client only wants to secure a benefit). Finally, the legal system moves too deliberately, with “all deliberate speed,” as the phrase goes, because it is designed to serve as a homeostatic device, “ensur[ing] racial progress occurs at just the right slow pace”—one convenient for the oppressors. 

How to counter such enormities? “Critical race theorists have built on everyday experiences with perspective, viewpoint, and the power of stories and persuasion”—sometimes known as ‘rhetorical devices.’ These devices will induce “a greater understanding of how Americans see race,” an understanding in accordance with socialist regime change, one begins to suspect. The sentiment animating socialism, probably the psychological agent that (the Crits hope) will prevent the dissolution of the newly constructed regimes of the future into a war of all against all, is “empathy.” “Engaging stories can help us understand what life is like for others and invite the reader into a new and unfamiliar world.” Possibly so, but can’t tyrants tell stories, too—socialist realism, and all that? Stories also serve “a valid destructive function,” dissolving beliefs that are “ridiculous, self-serving, or cruel” but “not perceived to be so at the time.” But cannot narrative destruction work against empathy as easily as it can work for it? “If race is not real or objective but constructed, racism and prejudice should be capable of deconstruction”; if it should be, will it be, or will it only be reconstructed with the former bottom rail now on top? “Even the conservative judge Richard Posner has conceded that major reforms in law often come through a conversion process or paradigm shift” of the sort described in Thomas Kuhn’s famous book. (Even a conservative! Russell Kirk would nod in concurrence.) In politics, a “paradigm shift” is a regime change, a revolution. Currently, under the capitalism system or regime, a person deemed guilty of a crime before a judge may “not subscribe to the foundational views of the regime that is sitting in judgment of him or her.” Quite so, but what criterion, beyond “empathy”—itself an undirected sentiment, as easily directed at a Nazi as at a Communist as at a liberal—will the foundational views of the regime themselves be judged? The authors do not say. They are reduced to a historicism ungrounded by any Absolute Spirit: “law has been slowly moving in the direction of recognizing the legitimacy and power of narrative.” By their own admission, however, neither lawfulness nor power amounts to a moral principle.

Morality inheres in persons, and “because politics has a personal dimension, it should come as no surprise that critical race theorists have turned critique inward, examining the interplay of power and authority within minority communities, movements, and even selves.” The authors begin with “intersectionality,” “the examination of race, sex, class, national origin, and sexual orientation and how their combination plays out in various settings.” If politics has a personal dimension, and since the examiners in this case are the Crits themselves, it is obvious that tensions between or among those several elements (or rather “sites of oppression”) will trouble communitarians more than they trouble liberals, although any regime will regard the more extreme forms of factionalism threatening. (In some respects, the problem presents itself in its truly ineluctable form for a person of mixed race.) Crits hope that “perspectivalism,” defined as “the insistence on examining how things look from the perspective of individual actors,” will aid in understanding “the predicament of intersectional actors,” e.g., a person who is both black and a woman, Native American and homosexual. This, along with the empathy mentioned earlier, “can enable us to frame approaches that may do justice to a broad range of people and avoid oversimplifying human experience.” “Justice” remains undefined.

“Intersectionality” points to the question of “essentialism and anti-essentialism,” specifically, “Do all oppressed people have something in common,” other than their oppression? The forms of oppression vary, requiring a variety of political strategies. “This tension seems inherent in our mode of existence,” the authors wisely observe. They complain that “classical liberalism also has been criticized as being overly caught up in universals,” although they too have had recourse to (let’s call it what it is) prudential reasoning in order to act better in accordance with those “universals.” It must be said that in general “liberals” have done a better job at that than Leftists, but presumably this book is an attempt to smarten up social-change activists and theorists alike.

In their self-examination, Crits also wrestle with the question of nationalism versus assimilationism: Should minority persons work for integration within American civil society or hold themselves apart—insisting on, for example, “all-black inner-city schools, sometimes just for males, on the grounds that boys of color need strong role models and cannot easily find them in the public schools”? Nationalists “question the majoritarian assumption that northern European culture is superior,” while (it should be noted) demanding rights and benefits that look suspiciously like what northern Europeans enjoy. Nationalists often describe themselves as “a nation within a nation,” insisting “that the loyalty and identification of black people, for example, should lie with that community and only secondarily”—if at all—with “the United States.” The authors prefer “a middle position”: “minorities of color should not try to fit into a flawed economic and political system but transform it” into some form of socialism. 

In the effort to revolutionize the American regime, the authors eschew what they call the “Black-White Binary,” the claim of some black activists and academics that the experience of African Americans is the paradigmatic form of oppression in the country, “so distinctive that placing it at the center of analysis is, in fact, warranted.” Other minority groups should “compare their treatment to that of African Americans to redress their grievances.” Mexican Americans and Indians have suffered in ways not identical to those in which blacks have suffered and, more to the political point, “pitting one minority group against another” will result in the rule of whites over a divided set of victims. It can also “induce a minority group to identify with whites in exaggerated fashion at the expense of other groups,” as when the League of United Latin American Citizens “reacted to rampant discrimination against their members by insisting that society treat Latinos as whites.” Not nationalism and its corollary, “binary thinking” must be “put aside” if minorities will “work together to confront the forces that suppress them all”—a variation of the Popular Front strategy of the 1930s, revived also by some contemporary white socialists. [1] 

A further danger to socialist regime change might come from whites. After all, Critical Race Theory might inspire “Critical White Studies”—studies undertaken by whites, for whites. Whites, too, can pursue a Popular Front strategy, and indeed have done so, as such ethnic groups as the Irish, Jews, and Italians, once classified by whites as non-whites, have long been brought into the tribe. “Whiteness, it turns out, is not only valuable; it is shifting and malleable.” But “white solidarity presents problems and dangers that black solidarity does not,” inasmuch as it inclines to support the regime the authors want to get rid of. Whites are “privileged”; for example, “store clerks won’t follow them around” and “people will not cross the street to avoid them at night” (your reviewer inexplicably being an exception to those practices). Just as bad, “whites do not see themselves as having a race but as being, simply people”—another surprising revelation to this writer, who has extensive experience with whites who “see themselves” as members of both categories. 

In their final chapters, the authors shift to the question, ‘What is to be done?’ With respect to CRT itself, they find that it “has yet to develop a comprehensive theory of class” as a supplement to its racial analysis—yet another of their efforts to emphasize a socialist program. After all, the number of whites on public assistance exceeds the number of “people of color.” Socialists should continue to press for such “redistributive measures” as the progressive income tax, public education, and “a welfare safety net,” all now “command[ing] much less support than they did formerly” among Americans. Being advocates of a regime and not only an economic system, socialists also will address the criminal justice system, in which a substantial percentage of minority men are “enmeshed.” One way to counteract “the disproportionate incarceration of young black men” is jury nullification, ignoring the instructions of a judge at trial and acquitting a young man whom jury members consider “of more use to the community free than behind bars.” If the rule of law derives from the regime, and the regime is bad, then use to the community ought to trump the rule of law—this, despite the fact that utilitarianism is a doctrine formulated by white and indeed Anglo-Saxon males in the late seventeenth century.) But utilitarianism alone may not suffice; “one scholar, Paul Butler, proposes that the values of hip-hop music and culture could serve as a basis for reconstructing the criminal justice system so that it is more humane and responsive to the concerns of the black community.” 

After delving into laws against “hate speech”—that notoriously ‘malleable’ new crime—and laws favoring the use of “non-English speakers to use their native languages in the workplace, voting booth, schoolhouse, and government offices” (nationalism being okay, if rightly, that is, Leftishly, applied) the authors take up “CRT’s critique of merit.” Merit “is far from the neutral standard that its supporters imagine it to be,” inasmuch as scores on standardized school admissions tests “are coachable and reward people from high socioeconomic levels” who can pay coaches. Such tests “do not measure other important qualities such as empathy, achievement orientation, or communication skills”—which may be why schools seldom use them as the sole criterion for admission. It may be that the elimination of standardized tests altogether in favor of immeasurable moral virtues may help to elevate budding socialists to more prestigious schools. After all, “if one defines the objective of a law school as turning out glib lawyers who excel at a certain type of verbal reasoning, then one group would appear to have a virtual corner on merit”—a sentence that appeals to the antisemitic stereotyping to which the contemporary Left has not been entirely resistant. With empathy firmly in hand, “lawyering skills” might be redefined to include “the ability to craft an original argument for law reform”—quite likely, along the regime lines the authors prefer.

Since Crits “will need to marshal every conceivable argument, exploit every chink, crack and glimmer of interest convergence to make these reforms palatable to a majority that only at a few times in its history has seen fit to tolerate them,” one such glimmer that may be exploited in the effort to form One Big Left is globalization, which “removes manufacturing jobs from inner cities (often to other countries), creates technology and information industry jobs for which many minorities have little training, and concentrates capital in the pockets of an elite class, which seems little inclined to share it”; this “offers opportunities for minorities to form coalitions with American blue-collar workers and unions,” as “the materialist wing”—the Marxists—of CRT would predict. 

CRT Socialists face a political problem. Not only do “aggressive policing and incarceration create”—a fascinating verb selection—large numbers of “civilians who are ex-cons and unable to vote,” but minorities are, well, minorities and thus disadvantaged in democracies. Therefore, “efforts must continue to counter minority underrepresentation” in government by instituting cumulative voting, whereby voters faced with a slate of ten candidates for one office would have not one but ten votes, all of which he could “place” on one candidate. “If one of the candidates is, say, an African American whose record and positions are attractive to that community, that candidate should be able to win election.” But why? Why would those race-prejudiced, mean old white voters not do the same thing for a candidate who attracts them—unless, of course, only the black citizen gets ten votes, and the white citizen is restricted to one.

The authors conclude by confirming their intention to effect regime change in the United States toward socialism or, as they prefer to call it, “economic democracy.” They are well aware that a regime consists not only of rulers, ruling offices or institutions, and purposes, but of a way of life, aiming at “assuring that minority viewpoints and interests are taken into account, as though by second nature, in every major policy decision the nation makes.” In this, they have already achieved a substantial victory. Critical Legal Studies, CRT’s legal arm, has “embedded itself so thoroughly in academic scholarship and teaching that its precepts became commonplace, part of the conventional wisdom.” Moreover, “consider how in many [academic] disciplines scholars, teachers, and courses profess, almost incidentally, to embrace critical race theory.” “Might critical race theory one day diffuse into the atmosphere, like air, so that we are hardly aware of it anymore?” Or might it come to resemble shadow-images projected on the walls of the sociopolitical cave? Beware of metaphors.

 

Note

1. See “The Popular Front Reconstituted?”, a review of Harvey J. Kaye: The Fight for the Four Freedoms: What Made FDR and the Greatest Generation Truly Great (2016), on this website in the “American Regime” section.