Critical Race Theory

1. Critical Race Theory LSJ 362 Fall 2007

2. Where we’ve been and where we’re going John Locke and slavery Exhibit A Slavery: Is the state of being in the absolute or arbitrary power of another. • In Locke's 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: • Locke's preamble stated: "that we may avoid erecting a numerous democracy;" • 1. Locke's "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 Locke's 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 Locke’s staunch advocacy of individual rights with evidence that he had such exclusionary attitudes?

5. 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/ethnocentrism will fade away  faith in the system, notion of a better future

6. 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 don’t, the system provides you little hope (like a leet-man in Locke’s 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 didn’t focus on race, gender, sexuality, or other axes of oppression, only class)

7. Critical race theory • Type of legal scholarship that emerged in the 1980’s, 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

8. 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

9. 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

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

11. 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 didn’t 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

12. Patricia Williams, “The Obliging Shell” • Law’s 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)

13. 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)

14. Patricia Williams, “The Obliging Shell” • Jena, Louisiana • Noose incident August/Sept 2006 Superintendent :“Adolescents play pranks. I don’t 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