The editors of the Journal of Free Black Thought have a nice summary of Critical Race Theory (CRT) within the realm of law schools – at least, it clarifies things for me:
… a review of the legal studies literature suggests that when CRT “questions the very foundations of the liberal order,” this is no grad-school intellectual exercise, but rather a strategy for transforming our entire legal system into one that privileges group rights over individual rights. If you want to transform the foundations of American society (without using rifles), you need a theory of the law, and you need a farm system for training federal judges. (Just ask the Federalist Society.) This, in a nutshell, is why CRT emerged from legal studies. In this essay, we’ll examine what that theory of the law looks like as well as a dissent in a recent federal circuit court case that reflects its spirit.
Liberalism in the civil rights tradition seeks to minimize racial gaps (e.g., in homeownership, education, employment, representation in corporate leadership, and income) with narrowly-tailored affirmative action and broadly-applied (colorblind) social welfare policy—what Delgado and Stefancic disparage as “incrementalism and step-by-step progress.” CRT, by contrast, wants to use the law to force-close all racial gaps: “The critique of color blindness may, one day, persuade the U.S. Supreme Court to accept race-conscious measures in employment and education, leveling the playing field for those [racially defined groups] who have long been excluded from society’s bounty” (Delgado and Stefancic, p. 134).
They go on to examine the recent decision Antonio Vitolo, et al v. Isabella Guzman, which has to do with how money distributed by the Small Business Administration for restaurants impacted by Covid-19. The majority of the panel found its bias towards restaurants owned by “socially disadvantaged” individuals, defined as Black, Hispanic, Native, Asian Pacific, and Asian “subcontinent” Americans, to be unconstitutional; a dissent is examined in detail as being representative of CRT thought.
The results of their examination?
This CRT vision has an intuitive appeal: Whatever its wonders and triumphs, history, including American history, is also a gaping abyss of evil and inhumanity. There is no one alive, from the lowliest to the most exalted, who does not owe her position to injustices visited upon or by her ancestors, however near or distant. The urge to redress history itself is understandable and deceptively simple. All one must do is establish classes of citizens that have illegitimately benefitted from history and classes that have unjustly suffered due to history, and use the instrument of the law to balance the scales between them.
But this unconstrained vision of justice suffers from practical limitations. It’s hard to imagine that even the most ambitious new legal paradigm can “fix” human history, undoing endless centuries of individual and collective decisions and their consequences in the present. Moreover, given that disparity is the rule, not the exception, in every society that has ever existed, it is hard to imagine that disparities, even those manifestly owing to centuries of oppression, can ever be erased.
Perhaps most importantly, any paradigm that privileges essentialist groups over individual human beings, in all their messy particularity, is bound to produce as many injustices as it redresses.
Indeed, members of groups that are not on the list of socially disadvantaged, which is to say those that haven’t gained favor with the elite, will be permanently nettled and dissatisfied. After all, one does not change one’s skin color at will, at least not in a manner convincing to said elites.
And that dissatisfaction may not be permanent, but may easily transform into an even worse condition, a hatred that leads to violence, death, and societal disorder.
Which may translate to revolution. The goal of society is not permanent revolution, regardless of the philosophy of the Cuban government. The goal is figuring out how to live peacefully, and justly, together. It may be one of the most difficult challenges humanity has ever faced.
