Title: Critical Race Theory
1Critical Race Theory
2Where 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
3- 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.
4- 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
5Liberalism 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
6Marxism 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)
7Critical 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
8Critical 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
9Critical 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
10Critical race theory
- 4. Traditional liberal legal remedies are not
enough - Antidiscrimination law rendered impotent by
restrictive definitions of merit fault and
causation
11Patricia 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
12Patricia 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)
13Patricia 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)
14Patricia 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