Critical Race Theory


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Critical Race Theory

• LSJ 362
• Fall 2007

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Where weve been and where were going

• John Locke and slavery
• Exhibit A
• Slavery Is the state of being in the absolute
  or arbitrary power of another.
• In Lockes definition of slavery there is only
  one way to become a legitimate slave In order to
  do so one must be an unjust aggressor defeated in
  war. The just victor then has the option to
  either kill the aggressor or enslave them.
• Locke tells us that the state of slavery is the
  continuation of the state of war between a lawful
  conqueror and a captive in which the conqueror
  delays to take the life of the captive and
  instead makes use of him only in this condition
  is slavery legitimate. Illegitimate slavery is
  the state in which someone possesses absolute
  power over someone else without just cause.
• John Locke was an opponent of slavery

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• Exhibit B
• Locke wrote the Fundamental Constitutions for
  the Government of Carolina in 1669
• Lockes preamble stated that we may avoid
  erecting a numerous democracy
• 1. Lockes constitution established the eight
  lords proprietors as a hereditary nobility with
  absolute control over their serfs called
  leet-men
• XIX Any lord of a manor may alienate sell or
  dispose to any other person and his heirs
  forever his manor all entirely together with
  all the privileges and leet-men there unto
  belonging....
• XXII In every signory barony and manor all
  the leet-men shall be under the jurisdiction of
  the respective lords of the said signory barony
  or manor without appeal from him. Nor shall any
  leet-man or leet-woman have liberty to go off
  from the land of their particular lord and live
  anywhere else without license from their said
  lord under hand and seal.
• XXIII All the children of leet-men shall be
  leet-men and so to all generations.
• 2. The slavery of Africans received protection
  under Lockes law
• CX Every freeman of Carolina shall have
  absolute power and authority over his negro
  slaves of what opinion or religion soever.

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• Exhibit C
• Further evidence that Locke supported the slavery
  of Africans he invested in the slave-trading
  Royal Africa Company (1671) and the Company of
  Merchant Adventurers to trade with the Bahamas
  (1672).
• So how do we reconcile Lockes staunch advocacy
  of individual rights with evidence that he had
  such exclusionary attitudes

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Liberalism and race

• Locke supported rights of man meaning white
  male property owners
• This same understanding was held by the Founding
  Fathers of the USA foundation of liberal
  democracy
• At the time even this was revolutionary
• Over time we have seen the expansion of the
  definition of men to include women racial
  minorities people without property
• Traditional liberal view
• over time incremental progress gradually brings
  previously excluded groups into the fold makes
  them equal
• law should recognize equality of previously
  excluded groups and over time racism/sexism/ethno
  centrism will fade away faith in the system
  notion of a better future

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Marxism and race

• Marxist critique of liberal democracy
• individual rights inherently separate rather than
  unite men
• this serves interest of dominant class
• e.g. for Locke protecting property is at core of
  rights
• Marx might say this sounds good if you have
  property but if you dont the system provides
  you little hope (like a leet-man in Lockes
  Constitution or a worker in a sweatshop - for
  these people this vision of law merely upholds
  status quo)
• Marxist critique of democracy focuses on CLASS
  interests concealed in liberal ideology
• (Marx didnt focus on race gender sexuality or
  other axes of oppression only class)

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Critical race theory

• Type of legal scholarship that emerged in the
  1980s calling for critical analysis of race in
  American law
• Reaction to perceived failure of traditional
  civil rights litigation to produce meaningful
  reform
• Main tenets
• Racism is a normal part of American society and
  has been so throughout our history
• Racism is not limited to discrete acts of overt
  discrimination or violence against minorities
  but is so interwoven into the fabric of our lives
  as to be often unrecognizable
• Institutionalized racism institutions set up to
  promote given racial hierarchy

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Critical race theory

• 2. Racism must be understood in social/historical
  context (Derrick Bell calls this racial realism)
  not as isolated actions but as pattern of
  institutions and assumptions

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Critical race theory

• 3. Understanding racism requires understanding
  perceptions of those who have experienced it
  because it is often invisible to those who
  benefit from it
• Reject normativity of white experience
• Reject objectivity
• openly acknowledge that perceptions reflect the
  mindset status and experience of the person
  involved
• the apparent neutrality of equal opportunity is
  a fiction neutrality only promotes the interests
  of the majority
• Patricia Williams Richard Delgado storytelling

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Critical race theory

• 4. Traditional liberal legal remedies are not
  enough
• Antidiscrimination law rendered impotent by
  restrictive definitions of merit fault and
  causation

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Patricia Williams The Obliging Shell

• City of Richmond v. J.A. Croson Co (1989)
  Supreme Court threw out minority set-aside
  program that stipulated that 30 of city
  contracts should go to minority-owned business
• Court threw it out because The dream of a Nation
  of equal citizens in a society where race is
  irrelevant to personal opportunity and
  achievement would be lost in a mosaic of shifting
  preferences based on inherently unmeasurable
  claims of past wrongs.
• Court said that just because only 0.67 of
  contracts were awarded to minorities that didnt
  constitute proof of discrimination (there could
  be other reasons for this outcome) insisted on
  proof of discrete discriminatory act not enough
  simply to note unjust outcome
• For Williams this decision is an example of how
  strict adherence to formal equality results in
  maintaining inequality

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Patricia Williams The Obliging Shell

• Laws scope so narrow as to ignore real
  inequalities in society
• This absurd type of twisted thinking this
  racism-in-drag is propounded not just as a theory
  of equality but as a standard of neutrality.
  (I also think that this schematic is why equality
  and neutrality have become such constant and
  necessary companions they are two sides of the
  same coin. Equal has as its unspoken referent
  to whites neutral has as its hidden subtext
  to concerns of color.(p 2137)

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Patricia Williams The Obliging Shell

• formal equal opportunity has done a lot but
  misses the heart of the problem the rules may be
  color blind but people are not. The questions
  remains therefore whether the law can truly
  exist apart from the color-conscious society in
  which it exists (p 2142)
• What does she mean racial omission is a literal
  part of original intent (p. 2143)

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Patricia Williams The Obliging Shell

• Jena Louisiana
• Noose incident August/Sept 2006
• Superintendent Adolescents play pranks. I
  dont think it was a threat against anybody.
• Interracial fights DA I can be your best friend
  or your worst enemy. With the stroke of a pen I
  can make life miserable on you or ruin your
  life.
• December 2006 assault of white student 6 black
  students arrested charged with attempted second
  degree murder
• June 2007 Mychal Bell found guilty of aggravated
  second-degree battery