What is “Critical Race Theory”? A Meditation on Several Answers. (Part II)

Note

This is the second meditation of a multipart series considering different proposals about what constitutes Critical Race Theory’s common themes (or, for some, central tenets). The first meditation is here. Enjoy y ¡Saludos!

Signposting

This post has three parts. First, I set the stage for my treatment of the first published list of CRT’s common themes. I remind readers that CRT scholars emphasize the importance of providing contextual and historical descriptions of CRT rather than abstracted “central tenets” from the movement. I also discuss the assumptions informing how I “historically” engage CRT texts. Second, I offer a historicized take on the first published list of CRT’s common themes. Third, I conclude with a brief intermission noting what I did and did not say.

Setting the Stage

Last post, I mentioned that founding CRT scholars resist distilling CRT into a set of central tenets. As Tommy Curry  writes, “the originators of Critical Race Theory held that CRT could not be understood as an abstract set of ideas or principles.” Mari Matsuda, a CRT founder, explains the reasoning behind this view: “among [CRT’s] basic theoretical themes is that of privileging contextual and historical descriptions over transhistorical or purely abstract ones.” CRT scholars emphasize the importance of contextualized and historicized analysis—even of their own work.

Here we should pause and note that most treatments of CRT ignore every aspect of the previous paragraph. They ignore that CRT’s founding scholars emphasize the importance of contextual and historical analysis and consistently apply that emphasis to their own presentations of CRT. Such omissions are unjust; they fail to give CRT scholars their due. Moreover, these omissions are failures of neighbor love, because they involve acts of commission and omission that perpetuate misrepresentations of our CRT neighbors.

Let’s note two more points about these omissions. First, they reflect the broader trend within the US to ignore history and eschew historicized analysis. Even academics routinely demand and settle for presentations of “central tenets” or “key premises” rather than contextualized, historical treatments. What Tommy Curry writes about philosophy holds for most disciplines: “[H]istory is not usually of any concern to the philosopher.” If you doubt my generalizing of Curry’s claim, peruse posted syallbi for college courses in, say, the hard sciences. Most folks studying biology or chemistry will receive little to now treatment of the field’s history. It’s as if that history is completely irrelevant to “the task at hand.”

Second, these omissions prohibit people from acquiring the forms of understanding that are constitutive of contextualized and historicized work. Consider Matsuda’s quotation. The reader who attends to its context and history will recognize that it comes in a book (a) co-authored by four of CRT’s founders and (b) published four years after the official founding of the CRT movement in the summer of 1989. Kimberlé Crenshaw, Richard Delgado, Charles Lawrence III, and Mari Matsuda organized and participated in that founding conference. This book shows that they continued collaborating four years after the conference, and that each continued to endorse the need for contextual and historical descriptions of CRT. (Related point: If you read Crenshaw’s descriptions of CRT here, here, here, or here, you’ll see that CRT’s most widely-known founder has maintained this endorsement in her presentations of CRT).

Like these CRT scholars, I advocate contextualized and historicized engagement with CRT texts. I learned the importance of this approach from Cornel West.

In “Minority Discourse and the Pitfalls of Canon Formation,” West observes that “[a]ny attempt to expand old canons or constitute new ones presupposes particular interpretations of the historical moment at which canonization is to take place.” This observation applies to the formation of the CRT canon—and to the articles and books it houses. Hence, those trying to learn about CRT should ask: “What is the history undergirding and shaping this article by Tommy Curry, or that Reader edited by Kimberlé Crenshaw et al.?” Justly answering these questions will promote understanding of the texts, their authors, and the movement to which both belong.

I hasten to add that I employ a specific conception of “history.” Like Cornel West, I operate with “a particular sense of history in which conflict, struggle, and contestation are prominent.” When I read a CRT text, I ask: “What conflicts, struggles, and contestations motivated the production of this piece?” An assumption accompanying this question is that these conflicts, struggles, and contestations have cultural and political components. Here too I follow West: “Yet it is impossible to grasp the complexity and multidimensionality of a specific set of artistic practices without relating it to other broader cultural and political practices at a given historical moment.” What West says about “artistic practices” he applies to texts. “As cultural critics attuned to political conflict and struggle inscribed within the rhetorical enactments of texts, we should relate such conflict and struggle to larger institutional and structural battles occurring in and across societies, cultures, and economies.” Yes: here too I follow West. Of course, not everyone endorses this conception of history, and not everyone applies it to the reading of texts. But I do, and I want my readers to know my perspective.

I’ll remind readers of one more point before turning to the next section. Recall that Matsuda speaks of CRT’s “basic theoretical themes.” She does not speak of their central “ideas, principles,” or “tenets. Here she repeats a common trend among founding CRT scholars to distinguish “themes” or “elements” from “ideas” “principles” or “tenets” of CRT. As I noted in my previous post on CRT, it seems that these CRT scholars find “themes” sufficiently capacious and flexible to house their emphasis on understanding CRT contextually and historically.

Turning to Richard Delgado

The earliest published presentation of common themes that CRT’s founders endorse comes in footnote one of Richard Delgado’s essay “When a Story is Just a Story: Does Voice Really Matter.” The Virginia Law Review published this essay in February of 1990; the CRT founders launched their movement with a conference held on July 8, 1989. Therefore, Delgado’s formulation of CRT’s common themes comes less than seven months after the movement’s founding conference. (I say “less than seven months” because Delgado wrote this formulation before the article was reviewed, accepted, and published. That’s how academic writing works.) And it comes from a founding CRT scholar who organized and participated in that conference.

The careful reader will notice that the title of Delgado’s essay does not mention CRT and will recall that the historic presentation of common CRT themes comes in the essay’s first footnote—not the body of the text. Delgado, then, places the kind of CRT-talk that many are seeking in the marginalia of his essay. He does not center it. This textual feature will surprise readers expecting that the first published list of CRT’s common themes would come in an essay centering and comprehensively detailing the movement’s distinctive features. Again, that’s not the case. And we should ask why.

We can start answering this question by returning to the essay’s title, “When a Story is Just a Story: Does Voice Really Matter?” The words “just” and “really” should make us wonder if this piece is a response to people who are questioning/belittling the use of “story” in legal discourse. So should the fact that the title ends with a question mark. Moreover, we should wonder why this question and this title are in Virginia Law Review. (For those unfamiliar with law review journals, the overwhelming majority of these journals did not publish articles about “story,” “stories,” or “voice” during the nineteenth century and most of the twentieth century.)   

Delgado addresses our hunches in the article’s first sentence. “A growing body of literature, much of it written by feminists and scholars of color, draws attention to the role of “voice” in legal scholarship.” Delgado continues:

These scholars argue that some members of marginalized groups, by virtue of their marginal status, are able to tell stories different from the ones legal scholars usually hear. In addition, some of the scholars urge that those stories deserve to be heard—that they reveal things about the world that we ought to know.

Delgado locates his essay within a body of literature about the role of “stories” in legal scholarship. This literature, he flags in footnote one, includes pieces by him (1984), Menkel-Meadow (1987), and Matsuda (1988). And these authors, Delgado says in the same footnote, “These and other scholars writing in this vein occasionally refer to themselves as the Critical Race Theory or New Race Theory group. I shall use these terms interchangeably.”

Lest readers think CRT scholars are only discussing “story” and “voice” in legal scholarship, Delgado pivots to discuss CRT’s common themes, along with the nature of the CRT-collective sources and the origins of this essay. I quote Delgado at length.

Whatever label is applied to this loose coalition, its scholarship is characterized by the following themes: (1) an insistence on “naming our own reality”; (2) the belief that knowledge and ideas are powerful; (3) a readiness to question basic premises of moderate/incremental civil rights law; (4) the borrowing of insights from social science on race and racism; (5) critical examination of the myths and stories powerful groups use to justify racial subordination; (6) a more contextualized treatment of doctrine; (7) criticism of liberal legalisms; and (8) an interest in structural determinism—the ways in which legal tools and thought-structures can impede law reform. A partial bibliography of such work has been compiled by Robert Williams, Professor of Law at the University of Arizona (copy on file with the Virginia Law Review Association).

While we have no formal membership or organizational structure, in the summer of 1989 a group of scholars met for the first time in Madison, Wisconsin, as the Conference on Critical Race Theory, where I delivered an earlier version of this paper.

Let’s examine this passage in reverse.

Delgado concludes by telling readers that he delivered a version of this essay during CRT’s founding conference. Consequently, the CRT founders in attendance were familiar with a pre-published version of the essay and commented on it (that’s how the academic conference game works). Hence, many CRT founders engaged Delgado’s essay despite the movement’s lacking formal membership and an organizational structure.

Let me stress that last point. At its inception, CRT lacked formal membership and organizational structure. These absences partially explain why CRT has become notoriously difficult to define. It did not begin with something like a statement of faith that all critical race theorists endorsed. Kimberlé Crenshaw makes a similar observation while discussing CRT’s founding conference.   

Some common themes did emerge [during an early conference workshop], and we honed them further in the next workshop. Yet we remained fundamentally eclectic in many respects. We eventually achieved some degree of intellectual coherence down the road, but the notion of CRT as a fully unified school of thought remains a fantasy of our critics.

Diversity and a lack of organizational rigidity characterized CRT at its inception. And Crenshaw’s comments reveal this was true of CRT ten years later. Even then, CRT was not a “fully unified school of thought.”

Still, CRT scholars such as Robert Williams Jr. (Lumbee) could craft a bibliography canonizing some texts as CRT. And these texts, like their authors, shared the themes Delgado listed. Let me repeat that list.

(1) An insistence on “naming our own reality”;
(2) The belief that knowledge and ideas are powerful;
(3) A readiness to question basic premises of moderate/incremental civil rights law;
(4) The borrowing of insights from social science on race and racism;
(5) Critical examination of the myths and stories powerful groups use to justify racial subordination;
(6) A more contextualized treatment of doctrine;
(7) Criticism of liberal legalisms; and
(8) An interest in structural determinism—the ways in which legal tools and thought-structures can impede law reform.

I’ll comment on Delgado’s list by way of negation.

As formulated, the themes say little to nothing about the nature of white supremacy, racism, whiteness, white people, racialized minorities, race, gender, sexuality, privilege, or oppression. They also do not mention Marxism, Postmodernism, or Critical Theory. None of these points entail that later lists of CRT’s common themes do not mention or describe these topics. Indeed, many do. Still this list—this historic, initial formulation of CRT’s common themes—does not. We will return to these points in future meditations.

For now, I wish to reiterate that Delgado buries his list in this essay’s first footnote. One reason for this structural decision is that Delgado’s is first and foremost offering a response to a critique against CRT scholars “naming their own reality” through stories that serve as counter-stories to “the myths and stories powerful groups use to justify racial subordination.” The source of this critique is none other than Randall Kennedy, a distinguished lawyer and racial justice advocate.

In “Racial Critiques of Legal Academia,” Kennedy lambasts Matsuda, Delgado, and Derrick Bell—all CRT founders. Delgado concisely summarizes the argument Kennedy develops over his seventy-five-page essay:

“There is, [Kennedy] claims, no such thing as a nonwhite voice; if there is, there is no reason to pay particular attention to it; and if we were to ‘privilege’ the new voice, this would surely backfire, injuring the cause of racial justice.” (Cartagena comment: “Sound familiar?”)

Delgado praises Kennedy’s critique for being “provocative, scholarly, and exhaustive.” Yet he charges that it “rests on questionable premises and contains innumerable distortions and failures of empathy.” (Again, sound familiar?) Delgado supports these claims in the essay’s second section (Note: section one is the introduction).

In addition to supporting the previous claims, Delgado uses this essay to explain why, even though he and Kennedy “are both scholars of color who have written about and are committed to racial justice,” they disagree about CRT’s conceptions of the place “story” and racialized minority “voices” should have in legal scholarship. Again Delgado:

What accounts for the gap between us? In Part III, I put forward two explanations. First, Kennedy and I have markedly different views of legal language. Essentially, he believes that everything that needs to be said about civil rights can be said within the dominant discourse; I do not. Second, Kennedy and I differ on the nature of racism. He would define it narrowly; but I and most other Critical Race Theorists see it as including a good deal more than does Kennedy.

Delgado doesn’t settle for arguing that Kennedy has misrepresented CRT, and that, if he hadn’t, he would agree with CRT scholars. Instead, Delgado offers a twofold argumentative explanation for why he and Kennedy come to different conclusions about CRT.

Delgado’s focus on why he differs from Kennedy is another reason why this essay doesn’t offer a comprehensive account of CRT. Delgado is seeking to defend himself and the movement from Kennedy’s critique by highlighting why he, Delgado, believes Kennedy’s position is wrong. This task is important for CRT and Delgado, for both are under pressure by a fellow racialized minority and promoter of racial justice to defend their rejection of the dominate discourses about race, racism, and civil rights (e.g., incrementalism/gradualism is wise; overt discrimination is largely a thing of the past; Black-white gap is slowly but surely closing; and Black self-help should be encouraged). This is the historical moment, to use Cornel West’s phrase, for Delgado’s essay and its footnoted list of common themes in CRT. This is part of the political and cultural struggle producing CRT. Remember, Delgado read a version of this paper at the movement’s inaugural conference.

Intermission

In this post, I have discussed how I approach CRT texts and treated the first published list of CRT’s common themes. I have not defended CRT, the accuracy of Delgado’s list, or Delgado’s arguments against Kennedy. Those were not my goals and I have not tried to achieve them. I make these points to minimize the likelihood that people misread and misrepresent this post. Given the craze around “CRT,” emphasizing these points seems wise.

I conclude by noting that this post did not treat Matsuda’s 1993-list of CRT themes despite my previous post saying it would. I decided that addressing that list was too much for this post. I said enough—perhaps too much—for most readers; the post is over 2,700 words long. Moreover, I’m unsure if I will treat that list in this mini-series. Given all that has happened this week (e.g., President Trump’s inciting a riot to takeover Capitol Hill on Wednesday), I need to re-evaluate what’s the best use of my and my readers’ time and energy. Either way, I’ll consider another list in the next post.

Saludos, y’all.