Tim Golden:
Your use of the word “emancipatory” is compelling in that CRT is engaged with American history,
in particular the history of American chattel slavery.
Before elaborating on this point, it is important to note that there are various iterations of CRT,
which relate to different ethnicities who find themselves at the bottom of the “white-over-color ascendancy”
(racial hierarchy with whites at the top)
that Delgado and Stefancic reference in the lead-up to your question.
For example, there are Asian, Latinx and Indigenous forms of CRT.
And there is also an African American iteration,
which is the one that I will be discussing here.
Again, your use of the word “emancipatory” resonates with American history
and its enslavement of Black people,
and hearkens back to the formation of the American republic
and its central founding document,
the United States Constitution.
Drafted in 1787 and eventually ratified through a series of compromises that maintained slavery for the foreseeable future
— at least until 1808
— CRT, in its African American iteration, with Derrick Bell as its principal expositor,
has argued that those compromises set in motion a machinery of government that is dangerously and perpetually compromised
in its tolerance of anti-Black racism.
CRT’s critical and emancipatory aims, then, are to show how American law and politics maintain systems of racial oppression.
CRT does this in at least two ways.
️First, by showing how the compromises at the American founding have set the tone for a morally lax American political ethos
which benefits African Americans,
not because of any genuine recognition of moral harm done to them,
but rather because their interests coincidentally converge with those of American whites.
This is what Bell referred to as
“interest convergence,”
and it is a sort of utilitarian moral calculus
less concerned with doing what is right
and more concerned with doing what is expedient.
For example, President Abraham Lincoln, Bell would argue, did not emancipate
— there’s that word again
— the slaves because it was morally right,
but rather because the Union had to be restored.
And President Barack Obama was not elected because America had suddenly become any less racist in its view of Black people,
but rather because so many upper-middle class whites were bleeding large sums of money from their retirement accounts in the financial crisis of 2008,
and because Sen. John McCain and Gov. Sarah Palin appeared to them to be incompetent to handle the fledgling economy.
I have written of this in the introduction to my book on Derrick Bell.
️A second way that CRT advances its critical and emancipatory aims is through
a trenchant critique of abstraction in American constitutional law.
CRT, through the work of Bell and others, has demonstrated how the 14th Amendment of the Constitution,
ratified for the purpose of helping newly freed slaves shed the legacy of slavery,
is now interpreted in ways that make such remediation illegal.
CRT points out how,
through an abstract understanding of “equality,”
liberal democratic theory,
with its emphasis on a symmetrical concept of “rights,”
generates absurd notions of “reverse racism,”
in which whites can now claim legal harm pursuant to a constitutional amendment that was ratified,
not to protect whites,
but rather to remediate the harm that whites have done.
CRT’s work in law is thus critical and emancipatory in its exposure of racial oppression in American constitutional law.
