“Law organizes [W]hite society; then it helps maintain that society through both physical and ideological coercion.” – Kenneth B. Nunn
“Race may be [the U.S.’s] single most confounding problem but the founding problem of race is that few people seem to know what race is.” – Ian F. Haney López
Critical Race Theory and Neighborly Love
Who are your critical race theorist neighbors? What do they believe? And why do they believe it? I previously argued that amid recent heated ecclesiastical debates about critical race theory (CRT), Christian leaders are largely silent on these questions—rarely even raising them. This silence is a twofold failure in neighborly love: it fails to give Christians resources needed to adjudicate these debates; and it fails to promote justice and charity toward critical race theorists. This essay continues my efforts to mend these breaches of love.
Whereas my first essay traced a constellation of general commitments and conclusions CRT scholars share, here I focus more narrowly on how these scholars understand law and race, for as I mentioned, “CRT is a movement aimed at providing an antiracist understanding of the relationships between ‘race’ and law.” This focus requires taking a step and asking why CRT scholars analyze race and law. The answer lies in CRT’s origins.
Critical Race Theory’s Origins
CRT began with disillusionment. Nearly 20 after the legendary Judge William H. Hastie told CRT’s founder, Derrick Bell, “Son, I am afraid that you were born fifteen years too late to have a career in civil rights,” Bell was bewildered by how little progress he and other civil rights lawyers had made implementing Brown v. Board of Education. White flight, Northern and Southern refusals to integrate, the establishment of private schools, the persistent inferiority of racialized minority educational experiences, and the steady dismantling of the 1960’s Civil Rights legislation left Bell persuaded that U.S. society had “transformed Brown into a magnificent mirage,” a bare symbol without much antiracist substance.
Through publications and service as a law school professor, Bell worked tirelessly to analyze how U.S. legal systems perpetuated white supremacy before and after Brown. His work caught on. And when Harvard Law School failed to replace Bell in the early 1980s with a racialized minority, students held mass protests. As Kimberlé Crenshaw writes, “From the students’ perspective, then, Bell’s departure left the school with a gaping hole in the curriculum,” for Bell alone taught courses on the intersections of race and law; and it left a gaping hole in the faculty, given “the dearth of minority law professors at the school.”
Harvard did little to meet student demands. But why? Dean James Vorenberg answered while asking a group of protestors, “Wouldn’t you prefer an excellent [W]hite professor over a mediocre Black one?” This question revealed racist tropes such as the candidate “pool problem,” “merit,” and “not compromising standards” that informed Harvard’s racial inertia. So too did the law school’s hiring of 10 White males that year. Students and faculty saw these tropes and hires, and several committed to starting a movement within legal studies that extended Bell’s work. In the summer 1989 this group held a workshop entitled “New Developments in CRT.” But the title was misleading. As Crenshaw writes, prior to her penning the workshop’s invitations, “there really was no CRT as such.” Crenshaw coined the phrase “Critical Race Theory” and its acronym “CRT” while creating the workshop. Through her and the workshop’s participants’ efforts, Critical Race Theory was born.
Critical Race Theory and Critical Legal Studies: Agreements
Like human birth, CRT combined life-giving materials from several sources. One of the most significant of these sources was Critical Legal Studies (CLS). CLS was a response to 19th century scholars such as John Austin and Jeremy Bentham who championed views of human law—they, like their CLS and CRT predecessors, never gave much attention to divine law—as objective, formal, and asocial. As Elizabeth Mensch writes: “The nineteenth century’s process of legal rationalization resulted in the abstraction of law from both particularized social relations and substantive moral standards. By the ‘rule of law’ classical jurists meant quite specifically a structure of positivized, objective, formally defined rights.” Such formalized views of law overtook historic competitors and dominated Europe and European-derived countries. In fact, they still do. But they are not the only options. Alternatives known as “law-in-context theories” emerged in the late 19th century and persist today. Each of these theories, Kenneth Nunn writes, present law as “a product of society and not something separate and distinct from it.” CLS theorists champion this in-context view of law, rejecting its formalized competitors.
CLS scholars’ embrace of law-in-context theories attracted CRT scholars because of CLS’ emphasis on the law’s role in perpetuating and maintaining ideologies and corresponding power relations. Early CRT authors such as Alan Freeman and Duncan Kennedy drew on the CLS insight that law is a “crucial site for the production of ideology and the perpetuation of social power.” As Crenshaw summarizes: “[CLS scholars] revealed the constitutive force of law, the ways legal institutions constructed the very social interests and relations that cruder instrumentalists accounts of law thought it merely regulated and ratified.” This revelation, Crenshaw continues, illuminates that “the legal system is not simply or mainly a biased referee of social and political conflict whose origins and effects occur elsewhere . . . [law is] 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.” Together, CLS and CRT scholars argue that laws and legal systems are social constructs which shape the societies that make them.
Critical Race Theory and Critical Legal Studies: Disagreements
While CRT drew upon CLS’s principles, CRT scholars found reasons to go beyond their CLS colleagues. Many rejected CLS’s wholesale denunciation of political liberalism. Mari Matsuda, for example, argued that this denunciation failed to account for the rich, creative ways racialized minorities used political liberalism to promote justice—such as gaining reparations for Japanese internment in the U.S. Further, all CRT scholars found CLS’s disregard of racism and white supremacy indefensible. Crenshaw observes that as CLS scholars remained “unable to transpose [their] insights into an analysis of racial power and law,” CRT and CLS became distinct legal movements. CRT’s focus on race led its adherents to address “quite different concerns, with distinct methodologies and traditions” from their CLS peers.
Critical Race Theory on Law
Laws set the boundaries for pigmentocracies and determine who and what can reside within them. Laws also dictate how interactions within these boundaries will go, perpetuating ideologies to justify the coercion it authorizes to enforce these dictates.
Building on Bell’s groundbreaking text Race, Racism, and American Law, CRT scholars analyzed how white supremacist ideologies permeated U.S. legal systems, especially through the category of race. As Imani Perry notes, their examinations presumed that race and law are “part[s] of the fabric of culture,” and that “law is but one, particularly powerful, arm of cultural production and life.” CRT scholars also presumed that white nationalist aspirations coursed throughout the European and European-derived cultures during the colonial and post-colonial periods; the peoples promoting these cultures desired to establish pigmentocracies—governments and countries for and by those deemed White. While many historians, including Eugene Genovese, Winthrop Jordan, Francis Prucha, SJ, and C. Vann Woodward, recorded these developments, none of them offered robust legal scholarship about these developments or their continued impacts. As such, CRT scholars took up this task.
Through interdisciplinary work, CRT scholars defended that colonial and post-colonial law “organizes [W]hite society; then helps maintain that society through both physical and ideological coercion . . . granting [European and European-derived societies] a sense of legitimacy and superiority over non[W]hite institutions.” Laws set the boundaries for pigmentocracies and determine who and what can reside within them. Laws also dictate how interactions within these boundaries will go, perpetuating ideologies to justify the coercion it authorizes to enforce these dictates. Within this hegemony—this racialized Platonic Cave—racist beams cast light upon European and European-derived societies, offering the false impression that they are legitimate and superior to their non-White counterparts residing in unenlightened, uncivilized shadows.
Cycles of English-Indigenous contact, confrontation, and conquest confirm this view of law. So do their replications in U.S.-Indigenous relations. During the colonial period, English citizens on either side of the Atlantic promoted visions of White civilizations while generating “a rich corpus of texts and legal arguments for dispossessing the Indian.” John Locke’s arguments for Indigenous dispossession in his Second Treatise on Government are representative here. Moreover, even Frenchman Alex de Tocqueville observed that the fledgling U.S. mobilized Lockean-infused laws, undergirded by a widespread embrace of the Doctrine of Discovery, to exterminate Indigenous communities. It would be “impossible to destroy men with more respect for the laws of humanity,” Tocqueville writes, having witnessed firsthand the genocidal Trail of Tears that the 1830 Removal Act triggered. Robert A. Williams, Jr. demonstrates that this did not cease at some point when the U.S. became “post-racial.” Rather, he argues that contemporary lawmakers and Supreme Court Justices have continued to employ into the present “the same racist, narrative tradition of the Indian’s cultural inferiority that informed the Removal era’s dominant legal discourse of opposition to tribal sovereignty.”
Similar legal patterns of racialized discrimination informed 19th and 20th century efforts to maintain white supremacist hegemony in the U.S. The Treaty of Guadalupe Hidalgo (1848), Page Act (1875), Chinese Exclusion Act (1882), Plessy v. Ferguson (1896), Insular Cases (1901), Ozawa v. United States (1922), Anti-miscegenation laws (17th century-1967), and McCleskey v. Kemp (1987) reveal as much. And they illuminate why Cheryl Harris argues that for those deemed White, “[t]he law’s construction of whiteness defined and affirmed critical aspects of identity (who is [W]hite); of privilege (what benefits accrue to that status); and of property (what legal entitlements arise form that status).”
Critical Race Theory on ‘Race’
Harris’s treatment of whiteness hints at the consensus CRT view of race: “race” most properly refers to a law-shaped social construct—i.e., a human invention—involving “historically contingent social systems of meaning that attach to elements of morphology and ancestry.” In this view, “human interaction rather than natural differentiation [is] the source and continued basis for racial categorization,” and much of this interaction happens through law. Note: this is the consensus rather than the unanimous view among CRT scholars. In Race, Racism, and American Law, for example, Bell analyzes “Black” and “White” as if they were natural categories, not social constructs. Hence, Jayne Chong-Soon Lee’s counsel to pause and consider what someone means when she speaks of “race” applies to CRT’s members, too.
The consensus that “race” is a social construct carries denials. Its proponents deny that “race” refers to a naturally occurring phenomenon, something inherent in human beings. Consequently, they also deny that there are biological, psychological, or spiritual grounds in virtue of which anyone is raced. Take Ian Haney López’s rejection of gene-based conceptions of race:
“There are no genetic characteristics possessed by all Blacks but not by non-Blacks; similarly, there are no gene or cluster of genes common to all Whites but not to non-Whites. One’s race is not determined by a single gene or gene cluster, as is, for example, sickle cell anemia. Nor are races marked by important differences in gene frequencies, the rates of appearance of certain gene types.”
Unlike elements on the periodic table, there are no racialized atomic numbers—no genetic microstructures—rendering people Black, Brown, Red, Yellow, or White. The same applies to human psychology and spirituality. Human beings differ biologically, consensus affirmers grant, but that difference is not racial. There are no natural races; only invented ones. There are no actual racial essences; only imagined and enforced ones.
People started imagining, inventing, and enforcing “race” during the colonial period. As Tommy Curry writes: “[R]ace is a colonial category.” Britain, France, Portugal, Spain, The Netherlands—each self-identified Christian empire created conceptions of race presuming white supremacy that justified their budding pigmentocracies. It is not a stretch, then, to say that race is an ecclesiastical artifact—a lethal, imperialistic, colonial, Christian invention.
Further, the colonial era’s lethal invention was fluid, not static. People have used “race” to pick out different things at different times and places. As Lee writes, “malleability, fluidity, and variability” characterize race discourse; people have defined race “in many different ways, often simultaneously.” Yet, white supremacy has informed each shift. The U.S. Supreme Court’s radical reconceiving of whiteness in 1927 is a case in point. In Ozawa v. United States (1927), the Court denied Takao Ozawa U.S. citizenship because he failed to satisfy the racial prerequisite clause. Since he was not Caucasian, the Court argued, Ozawa was not White, and therefore was ineligible for U.S. citizenship. López observes that this decision established “as the supreme law of the land that ‘[W]hite’ and ‘Caucasian’ were synonyms.” Yet three months later, the same Court opposed this law in United States v. Thind, arguing that although Bhagat Singh Thind was Caucasian, he was not White. The Court acknowledged that “[i]t may be true that the Blond Scandinavian and the brown Hindu have a common ancestor in the dim reaches of antiquity,” but it hastened to add that “the average man knows perfectly well that there are unmistakable and profound differences between them today.” The Court ruled Thind was what common people would say he was: a Brown, non-White Hindu. Therefore, this “Caucasian” was ineligible for citizenship. The Court had spoken—and contradicted itself.
Thind’s case illuminates another feature of the consensus view: people attach “race” to more than morphology. Khiara Bridges writes that “the physical traits of race always have been imagined to correlate with nonphysical traits,” including assimilability, aggression, criminality, godliness, industriousness, intelligence, and sexuality. People also racialize accents, capital, cultures, histories, languages, perspectives, regions, and religions. The Court saw Thind’s brownness, Hinduism, and Indian origins as proof that he was non-White and unable to assimilate into whiteness. Had he been a light-skinned Scandinavian with Lutheran commitments, matters would have been different.
The Court’s rulings in Ozawa and Thind reveal that laws contribute to how conceptions of “race” maintain white supremacy beyond a Black-White binary, even as they do so within one. Hence those championing the consensus view stress that laws shape “race.” As López demonstrates, laws ascribe racialized meanings to morphology and ancestry, and infuse racial schemes into social practices and structures. This is not to say laws alone perform these functions. CRT scholars grant that David Roediger’s observation about immigrant racialization experiences—“countless quotidian activities informed popular and expert understandings of the race of new immigrants, as well as new immigrant understandings of race”—applies to shifts in racial conceptions and practices more broadly. But CRT scholars, including Dorothy Roberts, Richard Delgado, and Jean Stefancic, note that laws inform and guide these quotidian practices. In each sphere, human beings—judges, lawyers, legislators, teachers, and employers—not abstract social forces conceive and conserve racial categories and the institutions, systems, and structures they inform.
Critical Race Theory on Jettisoning ‘Race’
López recounts how Republicans and Democrats employ sophisticated racial rhetoric—not ethnicity rhetoric—he calls “racialized dog-whistles” to secure votes. Whereas Republicans admit to crafting a “Southern Strategy” to win the White male vote and establish a White party, Democrats, including the Clintons, played up racist fears of Blacks during their campaigns. Both parties continue to trade in this racist rhetoric.
Although the consensus view held by CRT scholars denies that “race” is natural or essential, CRT scholars affirm that it is socially real. As Crenshaw notes, those championing the consensus view endorse anti-essentialism but reject vulgar anti-essentialism—the view that because “race” is not biologically real, it plays no role in lived experience and is unworthy of study. Race shapes people’s lives. Everyone in the U.S. has a racialized experience—even if they do not recognize it. Consequently, CRT scholars argue, we cannot swap race-talk with ethnicity-discourse. As Lee observes, this option “fails to account for the ways in which race has already been formalized in our institutions, particularly the law.” López supports Lee’s claim by cataloguing race’s influence in every body of law; the same is not true of ethnicity. Furthermore, López recounts how Republicans and Democrats employ sophisticated racial rhetoric—not ethnicity rhetoric—he calls “racialized dog-whistles” to secure votes. Whereas Republicans admit to crafting a “Southern Strategy” to win the White male vote and establish a White party, Democrats, including the Clintons, played up racist fears of Blacks during their campaigns. Both parties continue to trade in this racist rhetoric.
CRT begins in disillusionment about U.S. race-relations. Through the work of activist-scholars including Derrick Bell, Kimberlé Crenshaw, Neil Gotanda, and Mari Matsuda, this disillusionment fuels an antiracist movement within legal studies. Scholars in this movement analyze how law and “race” have served to foster White supremacy in the U.S. Their analyses are intricate and far-reaching, thus mirroring the racialized society they consider. Christian leaders owe the Church insights into this analysis and accompanying history to help Christians navigate ecclesiastical debates about CRT and love their critical race theorist neighbors. Christian leaders also owe the church and CRT scholars treatments of CRT’s literature on gender, sexuality, and racism. For as CRT scholars argue, although “race” is sui generis, it intersects with these social realities. My next essay will take up these issues.