Critical Race Theory includes claims which are far more benign than many of its critics realize and yet is far more radical and poisonous than many of its proponents are willing to admit. If this statement sounds like a contradiction, I highly recommend reading Delgado and Stefancic’s 839-page anthology Critical Race Theory: The Cutting Edge which provides examples of both extremes: true insights mingled with utterly outlandish claims, often within the same essays. For people who are only familiar with Delgado’s and Stefancic’s work through their comparatively mild text Critical Race Theory: An Introduction, this anthology will offer a more accurate and revealing view of the discipline.
True Insights
When CRTs talk about history, their claims are often unobjectionable. For example, Michael Olivas’ essay “The Chronicles: My Grandfather’s Stories and Immigration Law” discusses various shameful episodes within U.S. racial history, among them The Cherokee Trail of Tears and the Chinese Exclusion Act. Ariela Gross’ “The Caucasian Cloak: Mexican Americans and the Politics of Whiteness in the Twentieth Century” offers an account of how anti-miscegenation laws (laws prohibiting “interracial” marriage) played out in actual court cases. The accounts would be farcical if they weren’t so appalling: husbands and wives were hauled into court to determine whether their marriage was illegal, based on evidence like the “brightness” of the woman’s complexion or the curliness of the man’s hair or their willingness to socialize with people of the “Negro” race.
Similarly, other essays scattered throughout the book address legitimate present-day concerns: Julie Sue’s “Making the Invisible Visible” calls attention to the problem of modern-day slave labor in the Los Angeles garment industry. Gerald Lopez sketches the life of a poor Latina single-mother in “The Work We Know So Little About.”
Still other essays are more speculative but still interesting. For example, James Gordon suggests that Supreme Court Justice Marshall Harlan, who wrote the dissenting opinion in Plessy v. Ferguson (a case which legalized racial segregation) may have been motivated by (possibly) having a half-Black half-brother. Given Paul Butler’s other contribution to the volume, which I’ll discuss later, I was pleasantly surprised by his thought-provoking “Much Respect: Toward a Hip-Hop Theory of Punishment.” Another fascinating line of inquiry pursued by several authors is how Mexican-Americans and Hispanics have alternatively viewed themselves as “white” or “people of color” depending on their circumstances and political goals.
Finally, one major theme of the book with which people in general, and Christians in particular, should readily agree is the idea that our modern conception of “race” is a social construct. Even a cursory analysis of U.S. law shows how the term “white” has been interpreted and re-interpreted to include or exclude certain people. The simplest demonstration of the social construction of race today is how biracial children will be raced as “white” or “black” or “Asian” or “Hispanic” based solely on their physical appearance, decoupled from their actual ancestry. Alternatively, the dispute over whether Jews or even Asians should be counted as “white”, which rages among CRTs, is further evidence that –unlike sex– “race” is social phenomenon rooted not in biology but in social dynamics.
Rotten Roots
If some people are wrongly inclined to view Critical Race Theory as completely false, others are wrongly inclined to think that it is neutral, with few if any commitments that would conflict with either classical liberalism or a Christian worldview. That is far from the case. In reality, CRT is explicitly opposed to classical liberal commitments like individual rights, colorblindness, objectivity, and legal neutrality. Similarly, it is rooted in a cynical view of reality based on power that is irreconcilable with basic Christian doctrine.
In their introduction, the editors argue that “CRT begins with a number of basic insights” (p. 2). They are:
“[1.] racism is normal, not aberrant, in American society. Because it is an ingrained feature of our landscape, racism looks ordinary and natural to persons in the culture. Formal equal opportunity –rules and laws that insist on treating blacks and whites alike (color blindness)– can thus remedy only the more extreme and shocking forms of injustice that do stand out. It can do little about the business-as-usual forms of racism…” (p. 2-3)
“[2.] Critical race theory’s challenge to racial oppression and the status quo sometimes takes the form of storytelling… Starting from the premise that a culture constructs its own social reality in ways that promote its own self-interest, these scholars set out to construct a different reality…” (p. 3).
“[3.] A third premise underlying much of critical race theory is interest convergence [which] holds that white elites will tolerate or encourage racial advances for blacks only when these also promote white self-interest…. Many [criticalists] are postmoderns, who believe that form and substance are closely connected. Accordingly, they have been using biography and autobiography, stories and counterstories to expose the false necessity and unintentional irony of much current civil rights law and scholarship. Others have been experimenting with humor, satire, and narrative analysis to reveal the circular, self-serving nature of particular legal doctrines or rules. Most mainstream scholars embrace universalism over particularity, and abstract principles and the rule of law over perspectivalism… For CRT scholars general laws may be appropriate in some areas… but political and moral discourse is not one of them” (p. 3).
To put it more succinctly, critical race theory assumes that racism is pervasive and permanent, but is hidden beneath claims of “objectivity,” “colorblindness,” and the “rule of law.” Law is not derived from a consistent set of abstract, universal principles but instead functions to justify the power and dominance of the ruling class. We can challenge the supposed objectivity and universality of the law by telling and listening to the stories of the racially oppressed.
Accepting these premises will have a devastating effect not just on policy but on the philosophical and theological basis for any functional society. For example, if we accept the premise that racism is normal and pervasive but hidden, then it follows that nearly everything can be construed as racism. Moreover, to challenge the claim that some particular law, or policy, or expression, or image is not racist is merely to show that you have been so conditioned by racism that you no longer recognize it. We’re left with critical race theorist Robin DiAngelo’s observation: “the question is not ‘Did racism take place?’ but rather, ‘In which ways did racism manifest in this specific context?‘” This mentality is a recipe for paranoia, misery, and division.
Similarly, if we assume that just laws are not reflections of abstract, universal principles but are merely expressions of the ruling class’s self-interest, we’ve abandoned not only Judeo-Christian moral philosophy but any basis for an objective critique of injustice. Activism can no longer be based on a demand that the government to consistently apply moral principles, but must simply aim to seize power so that equity can be achieved.
Poisonous Fruit
I can’t possibly call attention to all of the troubling consequences of these premises, so I’ll give only two examples: Butler’s “Racially Based Jury Nullification: Black Power in the Criminal Justice System” and Nunn’s “Law as a Eurocentric Enterprise.”
“Racially Based Jury Nullification: Black Power in the Criminal Justice System”
Butler’s essay begins by noting that as a young black attorney, he was told that he would “lose many of [his] cases, despite having persuaded a jury beyond a reasonable doubt that the defendant was guilty… because some black jurors would refuse to convict black defendants who they knew were guilty” (p. 282). He also learned that many of his fellow African American prosecutors wanted D.C. Mayor Marion Barry to be acquitted “even though he was obviously guilty… because they beleived that the prosecution of Barry was racist” (p. 282). Rather than critiquing these views, Butler came to embrace them. I will simply quote him at length:
“the black community is better off when some nonviolent lawbreakers remain in the community rather than go to prison. The decision as to what kind of conduct by African Americans ought to be punished is better made by African Americans themselves, on the basis of the costs and benefits to their community, than by the traditional criminal justice process, which is controlled by white lawmakers and white law enforcers…Considering the costs of law enforcement to the black community and the failure of white lawmakers to devise significant nonincarcerative responses to black antisocial conduct, it is the moral responsibility of black jurors to emancipate some guilty black outlaws.
Through jury nullification, I want to dismantle the master’s house with the master’s tools. My intent, however, is not purely destructive; this project is also constructive, because I hope that the destruction of the status quo will lead not to anarchy but rather to development of noncriminal ways of addressing antisocial conduct. Criminal conduct among African Americans is often a predictable reaction to oppression. Sometimes it is a symptom of internalized white supremacy; other times it is a reasonable response to the racial and economic subordination every African American faces every day. Punishing black people for the fruits of racism is wrong if that punishment is premised on the idea that it is the black criminal’s just deserts” (p. 283).
In a section entitled “The Rule of Law as Myth” Butler writes: “The idea that any result can be derived from the preexisting legal doctrines… is a fundamental principle of legal realism (and, now, critical legal theory). The argument, in brief, is that law is indeterminate and incapable of neutral interpretation… even if neutrality were possible, it would not be desirable, because no general principle of law can lead to justice in every case… If the rule of law is a myth, or at least is not applicable to African Americans, the criticism that jury nullification undermines it loses force. The black juror is simply another actor in the system, using her power to fashion a particular outcome” (p. 285).
“[My] proposal eschews the retributive, or just deserts, theory [of punishment] for two reasons. First, I am persuaded by racial and other critiques of the unfairness of punishing people for negative reactions to racist, oppressive conditions. In fact, I sympathize with people who react negatively to the countless manifestations of white supremacy that black people experience daily… The antisocial conduct is not more evil than the conditions that cause it, and accordingly, the just deserts of a black offender are impossible to know” (p. 288).
“I am reminding black jurors of their privilege to serve a higher calling than law: justice. I am suggesting a framework for what justice means in the African American community” (p. 289).
“Law as a Eurocentric Enterprise.”
The title of Nunn’s essay “Law as a Eurocentric Enterprise” explains his central thesis, but -again- I will simply quote him at length.
“the law is a Eurocentric enterprise –part of a broader cultural endeavor that attempts to promote European values and interests at the expense of all others. Law carries out a Eurocentric program as it organizes and directs culture. It does this by reinforcing a Eurocentric way of thinking, promoting Eurocentric values, and affirming –indeed celebrating– the Eurocentric cultural experience. A contrasting point of view known as Afrocentricity, requires the scholars to interrogate knowledge from a position that is grounded in African values and the African ethos. An African-centered perspective reveals the normally hidden relationship between white supremacy and law in the Western cultural context” (p. 555).
“From an African-centered cultural perspective, racism, sexism, classism, and other problems endemic to Western societies are not the product of misguided or venal individuals. Nor are they solely the result of material conditions or predictable social processes. These problems result from the fundamental nature of European society and culture. That is, racism, sexism, and the like flow from the worldview and conceptual system that are at the core of European culture. It is the core cultural dynamics of Western societies that produce social structures in which male traits, material possessions, and white racial characteristics are so highly privileged” (p. 556).
“Eurocentric culture produces a general sense of insecurity, ‘an incessant need to control, dominate, or be better than others'” (p. 556).
“Dichotomous Reasoning: Eurocentric culture embraces a reasoning style that is dichotomous… Virtual all reality is split into paired opposites.. Dichotomous thinking leads to either-or conclusions and makes it difficult to process information holistically. The dichotomous reasoning found in Eurocentric cultures may be contrasted to the diunital form of reason prevalent in African and other non-European cultures” (p. 556).
“The law operates as a key component in a vast and mainly invisible signifying system in support of white supremacy. The law is even more capable of structuring thought because its masquerade that it is fair, evenhanded, and impartial is rarely contested. Consequently, the law works as an effective ‘tool for psychological and ideological enslavement’” (p. 560).
“Not only is law school one of the most conservative educational experience possible; it is also one of the most racist. Additionally, black law students are forced to reason in the doctrinal and analytical way that Eurocentricity prefers” (p. 560).
“The cage of oppression that encircles the black race is psychological, not material. Law, with its great apparatus of justification, is a critical part of the invisible engine that silently subjugates Africa and Africans. Behind its facade of objectivity and universality, law organizes the world according to Eurocentric values, then defends and legitimates that organization while simultaneously limiting the ability of African-centered activists to contest white cultural domination” (p. 560).
If readers are concerned that I have somehow cherry-picked radical essays from an otherwise mild collection, I can only assure them that I had a wide variety of choices. I could equally have quoted from Delgado’s “Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling” or Davis’ “Law as Microaggression” or Ross’ “Innocence and Affirmative Action” or Wildman’s and Davis’ “Language and Silence: Making Systems of Privilege Visible” or dozens of other essays. To borrow their own language, deeply wrong ideas are not aberrant within CRT; they are normal, pervasive, and permanent.
Summary
If I were to list all the troubling or outright insane statements made in these essays, I would have to produce an entire book. But the main take-away for readers is that Critical Race Theory is not benign. It is -by explicit design- corrosive to the ideas of classical liberalism and the rule of law. Christians who think they can imbibe its wildly cynical outlook towards human law, racism, and objectivity, yet never apply this cynicism to God’s moral law, theology, or biblical interpretation are woefully naive.
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