About Critical Race Theory

Yesterday morning, my wife came upstairs and told me that NPR had a story about taxes. She also mentioned that it would probably annoy me. (She gets me.) But I decided to turn it on just to see who would be guesting.

One of the guests was Professor Dorothy Brown. Prof. Brown is a friend and a mentor, so I left it on and I’m glad I did. The episode of 1A focused on the racial wealth gap and, to my interests, the place of the federal income tax in causing and exacerbating the wealth gap.

That the tax law treats Black and white taxpayers different isn’t immediately obvious. After all, it’s written in race-neutral language (or, better, it doesn’t mention race at all). And, in fact, it has taken at least two decades of pioneering work by Prof. Brown (and others) to highlight the ways in which the tax law, while facially neutral, has a disparate impact that benefits white taxpayers and harms Black and brown taxpayers.[fn1]

Figuring out ways in which the tax law affects Black taxpayers differently from the ways it affects white taxpayers is no easy task, though. Among other things, the IRS doesn’t collect taxpayers’ races. So Prof. Brown’s research truly requires detective work.

As I listened to Prof. Brown on NPR, I thought about Utah’s H.R. 901. H.R. 901 is a resolution recently passed by the Utah house claiming that

some concepts contained in critical race theory degrade important societal values and, if introduced in classrooms, would harm students’ learning in the public education system

The resolution goes on to recommend that the state board of education enact rules to prevent certain race-based ideas (ideas that the resolution asserts are parts of critical race theory) from being taught in public schools or taught to public school teachers. With this resolution, Utah joins a chorus of states attempting to ban critical race theory from grade school curricula.

Now this resolution would be laughable for a couple reasons. The first is, I can almost guarantee that the only public school in Utah with explicit instruction in critical race theory is the S.J. Quinney College of Law. Critical race theory, after all, is a legal theory. I would be shocked if grade schools in Utah were teaching, say, legal realism or legal positivism or feminist legal theory or, honestly, any other legal philosophy. Why? Because that’s not really what grade school is about.

Same with critical race theory. And what is critical race theory? I’m not going to be able to give a definitive answer, in part because I’m not primarily a critical race theorist and in part because there’s no simple, and probably no single, answer to that question. But at a very high level of abstraction, critical race theory asserts that racial minorities are subject not just to individual racism but to a type of systemic racism built into our society and, more specifically, into our laws. It works to explore, understand, and undercut this legal and systemic racism.

I just said I’m not primarily a critical race theorist. But I’ve learned a lot from their research. Prof. Brown makes a compelling case that the racial wealth gap isn’t just the result of some white people being racist against some Black people. Rather, the tax law provides benefits that primarily accrue to white taxpayers, allowing them to build wealth, and detriments that largely accrue to people of color, which makes it harder for them to build wealth. (It’s also worth noting that the tax law isn’t the only mechanism impeding racial minorities from accumulating wealth. The history of redlining, racial disparities in lending, the different treatment of Black and white veterans by the G.I. Bill, and other legal and societal moves have all contributed to the differences.)

It’s also worth noting that critical race theory doesn’t present a particular set of answers to the problems of systemic and legal racism. Rather, critical race theorists present many and varied potential solutions, and sometimes, I imagine, no solutions at all.

All of this is to say, the anti-critical race theory actions of a handful of states are incoherent; the legislators proposing these bills don’t understand what critical race theory is and, instead, are looking to scapegoat something, and the something they’ve chosen is racial progress. They’re also making a performative stand since none has been able to point either to critical race theory being taught in grade schools or the harm that such teaching would do.

If you’re still with me you may be asking yourself, “Why is Sam writing about anti-critical race theory laws on a Mormon blog? After all, even if the Utah legislature made some performative act, Utah is different and separate from Mormonism.”

And honestly, that’s a good and legitimate question. It really annoys me when people conflate Utah and Mormonism and blame one on the other. Here, though, I have two reasons for writing. The first is, it’s worth underscoring that these laws and resolutions demonizing critical race theory have nothing to do with critical race theory.

But the second is, unfortunately, there’s a fairly blatant Mormon connection to Utah’s resolution. The primary sponsor of the resolution is Rep. Steve R. Christiansen. And Rep. Christiansen’s official legislative bio says he works for Presiding Bishopric Projects, the Church of Jesus Christ of Latter-day Saints.

And his day job doesn’t somehow transform his legislative proposals into church-sponsored proposals. But it is troubling to me that someone working for the Presiding Bishopric is also pushing a narrative that critical race theory, which aims to uncover racist laws and structures, is somehow harmful to children (because, idk, it forces them to confront flaws in their country and its laws?).

And it’s doubly troubling given that President Nelson has unreservedly condemned racism and, moreover, has pleaded with church members to “do whatever we can in our spheres of influence to preserve the dignity and respect every son and daughter of God deserves.”

Solving the problems that critical race theory uncovers is, of course, not the only way we can combat racism and preserve the dignity and respect our brothers and sisters deserve. But taking it off the table undermines efforts to build a Zion society where racial minorities will not face individual or systemic discrimination.


[fn1] If you’re interested, Prof. Brown has just published The Whiteness of Wealth. I haven’t read it yet, but it’s way up on my list of to-read-soon books. And based on her other scholarship—much of which I have read—I feel no hesitation in recommending it.

Comments

  1. john f. says:

    Just so. Thank you, Sam.

  2. Brent P says:

    Critical Race Theory seems to mean two things: 1) a broad theory with many different proponents with an array of ideas that generally tries to explain the phenomenon of sub-legal systemic racism which often is expressed in dense legalistic language and written for an educated audience. 2) A boogeyman promoted by many right-wing figures to smear the left and unite a deeply fractured right that doesn’t actually have much to do with the actual body off academically expressed ideas under the rubric of Critical Race Theory.

    The recent pieces of legislation banning Critical Race Theory are attacking the second incoherent boogeyman version. It is nothing more than a political gambit to try to paint the left as the real racists and avoid acknowledging the inconvenient fact that the head of their party is the most unabashed racist president in over 60 years.

  3. Because you can’t see the problem from where you are, with all your careful filters in place, doesn’t mean it doesn’t exist.

  4. In Idaho the legislature just passed a law targeting critical race theory, after first trying to cut higher education and public education funding to “send a message”.

    The driver was report from an unnamed community figure who claimed that a student at Boise State University was forced to apologize in class for being white and was called stupid.

    After hiring a prominent law firm that interviewed the supposed victim and other students it was determined that the incident never occurred and that, in fact, no student alleged that they had experienced anything of the like.

    So a fake story led to budget cuts and a law —- all designed to pander to a hard right conspiracy theory without foundation.

    To top it off, Idaho’s nutty Lt. Governor (she recently posed with a gun and bible in a truck and is a big supporter of the militia movement) has now convened a task force with a co-chair who released the name of a 19 year old who was sexually assaulted by a legislator (since resigned) to ferret out critical race theory in Idaho’s schools. This group is filled with conspiracy mongers and has shut out most of the education community, including a pro-education business group.

  5. I’m perfectly fine with you posting something about Critical Race Theory here. Every other intersection of Critical Race Theory and religion I see are posts about how Critical Race Theory is anti-Christian. So this is refreshing.
    Since Critical Race Theory points out ways that society has been unjust (intentional or otherwise), it is a threat to those who have benefited from those injustices. They don’t like the idea of the people rising up and saying “We should correct these injustices going forward”, and those who are in power see their power diminished.
    In the article I read about Utah passing the anti-CRT law, when the point that no educator in Utah is known (or even accused of) teaching Critical Race Theory was pointed out, it was asked why make a law to stop a non-existent problem. The answer was that the state senators were getting bombarded by emails and phone calls about the threat of Critical Race Theory being taught. Hmm, I wonder what news network those people are following?

  6. Public schools usually operate at the level of pop culture. I doubt most educators who are quite taken with CRT have read many, or any, scholarly articles about it. But they’ve heard a lot about “white privilege” and the 1619 project and they’ve know who Some have even heard the more melanin correlates with better cognition. Some think having white people kneel to people of color is a way of moving forward.

    I doubt that passing laws banning CRT will have much effect. What Don Lemon, Stephen Colbert and Alexandria Ocasio-Cortez will influence educators more.

  7. . . .and some have even heard that more melanin. . .

  8. Aussie Mormon says:

    If they detoured via critical socio-economic class theory (no idea if this exists) first, then they might get more traction.
    It’s a lot easier to combine “lower classes are discriminated against in tax law”, “once you’re in the lower class it’s harder to get out”, and “blacks are often born into lower class areas” than it is to go straight to “blacks are discriminated against in tax law”

  9. Michael, a couple things. First, I’d push back—hard—on your accusation that public school teachers fail to rise above pop culture. In both my long-ago public school education and my kids’ current public school educations, their teachers have been excellent and informed by both experience and amazing teacher education programs. In their personal lives they may well be influenced by Don Lemon, Stephen Colbert, and AOC (they’re not, but whatever) but, in their classroom, they’re influenced by their training and their continuing education.

    Second, please leave conspiracy theories out of this. Nobody except people trying to maintain current racist racial hierarchies claims that people are looking for white people to “kneel to people of color.” That is both incorrect and deeply offensive.

  10. Eliza S. says:

    Melissa,that is an interesting premise but I don’t think the “detour” would help much in the Mormon Corridor. The culture is too deeply steeped in “pull yourself up by your bootstraps” “God wants the faithful to be rich” prosperity gospel nonsense. The idea that discriminatory systems are keeping people poor is just as antithetical to the prevailing ideologies as CRT.

  11. Eliza S says:

    Aussie Mormon; no idea how my phone got “Melissa” from your name…must proofread better…

  12. Steve LHJ says:

    If the tax laws are negatively impacting lower income brackets, and minority groups are disproportionately represented in lower income brackets, addressing the issue by making it a race issue is illogical and unhelpful. Correlation is not causation after all, we all know this. Address the negative effects on lower income brackets and problem is solved.

    Making it about race distracts from the real issue, and critical race theory in general does this which is why it is often unhelpful at best if not altogether destructive. When an ideology pushes someone to ignore the basic rules of logic, I am very distrustful of such an ideology.

  13. Steve LHJ, a couple things. First, critical race theory is not an “ideology.” It’s a way of looking at society and law. And, while you’ve articulated the pushback Prof. Brown and other critical race theorists get, you’re also wrong. Prof. Brown has clearly demonstrated that class is not the only relevant criterion in the tax law; benefits and detriments also have racial components. I’m not going to do justice to her research in a short comment but, if you’re interested in understanding critical race theory as applied to tax, you could read her book or read her (extensive) scholarship. And the cool thing about legal scholarship? A good portion of it is available for free. You can check a lot of it out here.

  14. CRT was taught to my 6th grader in a conservative Texas school district this spring by a liberal teacher who went off the reservation. It’s all over the place here in TX. Liberal educators cannot help themselves sometimes.

    I see it as the most serious issue I have seen in my 15 years as a parent with multiple students in public schools in Texas.
    This teacher almost lost her job justifiably in my view.

  15. Bbell, what was this alleged critical race theory that your sixth grader was taught in a public school in Texas?

  16. White/hetero priv.

    This is a huge issue here. We are one school district over from Southlake ISD.

    In my view this is real. Conservative parents are up in arms.

  17. In another instance a teacher did the whole 1 step forward if you have 2 hetero parents. One step forward if you are white etc.

    This is real.

  18. Bbell, you’ll forgive me if my jaw drops for a couple reasons. First, that you consider the idea of white privilege the most serious issue you’ve seen in 15 years says a lot about what you pay attention to.

    Second, I’m struggling to see how teaching white privilege is teaching critical race theory. Actually, I take that back: teaching that white Americans have privileges not enjoyed by Black Americans is unequivocally not teaching critical race theory.

  19. Steve LHJ says:

    Sam, right it’s not an ideology in and of itself, but I believe it is couched in an ideology that insists in looking at the world through a lens of group identity and power struggles between them.

    Like you said, the law is “written in race-neutral language (or, better, it doesn’t mention race at all)”. It follows then that if there are any issues disproportionately affecting one race over another, it is because of a correlation with something that -is- written and addressed in the laws.

    The obvious solution will always be to address the direct issue that negatively impacts individuals (lower income bracket, single parent households, contractors, people that work two jobs, etc.), and that will solve the issue that is disproportionately effecting a particular race or group – *as well as* all the other individuals negatively effected by that policy. Making it about race is unhelpful and detracts from the real issues. Address the policy itself as it affects individuals and that will solve any group correlative issues as well.

  20. A Turtle Named Mack says:

    White/hetero privilege (which is very real and should definitely be taught in elementary schools) is not Critical Race Theory.

  21. We even had a school board candidate who lost badly who I kid you not had a pro CRT statement on her website

  22. Steve, what you’re espousing is basically post-racial ideology; until recently, it was the dominant direction of the law. It is another legal theory/lens through which to look at society. Like critical race theory, it makes assumptions both about how the world is and how it should be.

    What you’re articulating may be a solution to problems. A critical race theorist would counter that the colorblind society we formally have hasn’t solved inequities, though, and that, if we leave race out of our discussion and exploration, the law will continue to be biased against racial minorities. That is, CRT anticipates and disputes your objections.

    But again, there’s a wealth of literature out there that’s absolutely worth engaging.

  23. Steve LHJ says:

    I’m not espousing any ideology, inasmuch as logic is not an ideology. Might there be value in seeing how the law effects particular groups given the inevitable disproportionate correlations that will exist? Maybe so, could be insightful, I’m all for looking at issues from all angles.

    As far as solving a problem though, it would be a logical error to try to solve a non-racially-motivated non-racial law by racial outcome. Those are correlates and entirely irrelevant to a given root issue.

    It’s like saying there are green trees and blue trees. 70% of group 1 have green trees, 70% of group 2 have blue trees. Our policy is only to water green trees.

    This disproportionately adversely affects group 2.

    Should we solve the issue by
    A) Giving group 2 extra water
    B) Changing the policy to give water to both green and blue trees

    If you answered A, you made a logical error – it misses the fact that 30% of Group 1 aren’t getting the water they need and 30% of Group 2 doesn’t need the extra water.

    The issue is about the trees and the underlying policy, and addressing the actual issue at hand solves any group correlate issue.

    It’s just logic.

  24. Steve, I don’t have time to engage much further on this, but you’re coming from an ideological position (that is, you’re starting from an assumption that tax laws that disparately impact racial minorities but don’t expressly mention race cannot be looked at from a racial perspective). That’s making certain ideological assumptions. As someone involved in tax who has read the scholarship, I’m afraid your ideological assumptions (which you categorize as “logic”) don’t entirely reflect the law or its impacts.

  25. Thank you Sam for the thoughtful article.

    I have not read enough about CRT to really speak to it intelligently, but I do struggle with the concept. I think my struggle stems from the naïve hope that the law (including tax law) should be neutral on race (both on its face and “as applied”…incidentally, that is my curiosity about Prof Brown’s research…is she arguing that reforms need to take place in application, or that truly the law itself is not facially neutral? This is homework for me now!). I think this hope for neutrality was the basis of Judge Posner’s CRT critique so many years ago as well.

    The only comment I would add is that it is still a theory; a lens through which to view legal issues, correct? So pushing back against SteveLHJ’s comment as “you’re also wrong” might be a little strong, and is less likely to win supporters and more likely to further entrench the distrust about CRT. Unfortunately, culturally, there is so much antagonism and false narrative that CRT may struggle to get a fair shake at what it truly is attempting to say.

    But I look forward to your insights about what can/should be done to remedy this racial disparity in America, especially given President Nelson’s counsel on racism.

  26. Sam, you’re being disingenuous. If one reads H.R. 901, or even just the portion you posted, the resolution concerns and opposes only certain concepts purportedly contained in CRT, which are then specifically delineated in the resolution itself (e.g., teaching that “one race is inherently superior or inferior to another,” etc.). Stopping the teaching of such concepts is the only operative part of this text, which makes the resolution very far from what you portray as an overall, ignorant assault on teaching CRT. To the extent those specific concepts are not taught, or even a part of CRT as commonly espoused, the resolution itself does not seek to ban CRT teaching at SJQ or anywhere else in Utah. Sure, that may make the resolution a waste of time (and I truly hope nobody actually is considering teaching such nonsense concepts to grade school kids), but it also makes the rest of your post largely a bunch of straw. If, though, teaching that one’s race is inherently superior/inferior and the other concepts listed in the resolution actually is a part of CRT as broadly understood, such concepts are the opposite of the racial progress you suggest proponents of the resolution are scapegoating, and the operative text of the resolution doesn’t go nearly far enough.

  27. thor, fair. It’s probably more aggressive of me than is warranted to say Steve’s wrong, and I apologize, Steve, if it came off that way.

    Paul, I was a little hesitant about writing this for two reasons. First, the resolution has no actual legal effect. Second, to the extent there is operative language, the operative language doesn’t describe anything that is actually part of critical race theory. However, the language surrounding these resolutions and laws invokes critical race theory, and the framing of the resolution is framed around critical race theory (however misrepresented). And framing and language are important, especially where that framing and language are invoked by a legislative body. So no, I don’t think I’m making straw arguments even if, in the end, the quasi-operative language of the resolution doesn’t actually reflect anything real.

  28. Steve LHJ says:

    Sam, nope I didn’t say that. I said you can look at it from a racial perspective, it could be helpful, for example you could gain the insight that a given law was in fact racially-motivated, and that should be addressed. But if it is agreed a law is non-racially-motivated and non-racial, then we are only dealing with correlates – and trying to create a solution with a racial lens is illogical and will detract from solving the actual problem. That’s not ideology as much as you might want it to be, and as I alluded to earlier if a person of reasonable intelligence refuses to acknowledge basic logic propositions I’m very distrustful of their underlying motives. Tbh, it seems like you have ulterior motives

  29. Steve, I’m done arguing this. Your assertion that using a racial lens to look at racially-burdensome, but facially-neutral, laws is not logical and is not right. But if you choose to make blanket statements criticizing scholarly perspectives you haven’t read or engaged with, there’s not a lot I can do in a comments section.

  30. who went off the reservation

    I never thought I’d see the day, but it turns out that Bbell has something in common with Hillary Clinton—blissful ignorance about the racial roots of a thoughtless metaphor, though I’d argue that in this context he one ups her by deploying it in a complaint about a lesson on racism.

  31. “I have not read enough about CRT to really speak to it intelligently…”
    Yet, three full paragraphs follow this line. We believe you, you do not need to go out of your way to prove the point.

    Look, these right-wingers aren’t attacking CRT because they don’t like it. They don’t have the slightest freaking clue what it is and they don’t care. They are just looking for means of purging teachers they don’t like. They know what they are doing. They are fascists, not idiots.

  32. Steve LHJ says:

    Sam, I literally laid out the logic in an example for you. You have done nothing to address the criticism other than to call it wrong or brush it off by claiming other people have ways to address it but not explaining what those ways are. This is your post, maybe you should try backing up your viewpoint rather than vaguely assert other people have the answers. Maybe I am wrong, but you haven’t provided anything useful to help me see that, only assertion without evidence

  33. fwiw it’s a pretty big leap from “tax laws are drafted in such a way as to avoid any explicit mention of race” to “tax laws therefore have no racial motivation at all” and it’s also a pretty big leap from either of those to “and therefore any attempt to address the racially-disparate effects of tax laws is illogical and therefore illegitimate if it acknowledges race in any way.”

  34. Just a few notes here to nobody in particular.

    1. Critical race theory is badly misunderstood on both the left and the right. Liberals tend to define it as “statements about race that I like,” while conservatives define it as “statements about race that I don’t like.”

    2. It is actually a fairly diverse collection of ideas from a number of different disciplines, the most important being legal studies, but also including education, sociology, anthropology, history, and, of course, English (because English departments will basically teach anything).

    3. The unifying idea behind critical race theory is that the institutions of liberal democracy (stuff like free speech, peaceful demonstrations, multi-party elections) have not addressed, and are probably not capable of addressing deep structural inequalities. It is not, therefore, a “liberal” idea. It is precisely an idea that critiques liberalism.

    4. The fact that it is a critique of liberalism does not make it a doctrine that promotes violent uprising. Critical theory is primarily about identifying the problems and only secondarily about proposing solutions. The only people who have actually taken up arms to destroy the democratic process recently are, and are being defended by, the same people who are trying to rid the world of critical race theory. Actively denying the results of a fair election is a much greater threat to democracy than critical race theory will ever be.

    5. The core assumptions of critical race theory are debatable. As an actual liberal, I tend to disagree with a lot of the critiques of critical race theory. But, as an actual liberal, I also believe that my own position should be critiqued and that discussions about the blind spots of liberal democracy will only make it stronger.

    6. Nobody is teaching critical race theory to second graders. Critiquing the foundations of Enlightenment liberalism and majoritarian democracy is just not a part of anybody’s elementary school curriculum. It is being taught in law schools and graduate seminars and faculty discussion groups, which is a perfectly good place for such discussions to occur. And to try to prevent it from being discussed in these forums is silly and counterproductive.

    7. The things that are being enumerated in legislation aimed at banning critical race theory–things like “teaching that one race or religion is inherently superior to any other” or that “people today are responsible for the actions of their ancestors”–have nothing to do with critical race theory. So all of the current legislative actions are doing absolutely nothing, which is what they were designed to do.

    8. The place that people do learn that one race or religion is superior to another, and that people can be held responsible for the actions of their ancestors, is in the Churches whose membership is the most outraged about critical race theory. The idea that God favors one group of people over another is the basis of the entire Old Testament. And the idea that we can be held responsible for the sins of our first ancestor has been a core Christian doctrine since the time of Augustine,

  35. Thanks, Michael.

  36. When the Oregon department of education promotes materials on its website to its teachers that “white supremacy culture shows up in classrooms when students are required to show their work,” that is CRT writ small being taught to second graders. I live in Oregon and know about this controversy personally. If you have to push back on the concept that showing your work on how you arrived at 2+2=4 is a form of white supremacy, something is off.

  37. Blue in a Red State says:

    Excellent excellent post. Thanks for the thorough review. Wish more of my co-religionists agreed with you.

  38. CS, again, two things. First, do you have a link to an Oregon DoE website that says that? And second, that’s not “CRT writ small.” It’s not CRT write infinitesimal. It’s not CRT at all.

  39. Sam,

    For someone who is not a “critical race theorist” you sure have opinions when something does not fit your narrative. And if teaching math in such a way that “white supremacy culture shows up in classrooms when students are required to show their work” to second graders is not part of the “type of systemic racism built into our society” as you define CRT to be, then I don’t know what is.

    And here is the link:

    https://content.govdelivery.com/accounts/ORED/bulletins/2bfbb9b?fbclid=IwAR3U8iS7fCD-g0NArQh74qlRa5IVFiTXoithZA89kMvmD0DETmzcV9DuQdg

  40. Sam doesn’t have to be a critical race theorist to recognize when right-wingers are making crap up. I am not Catholic, but I can tell when people are stating falsehoods about Catholicism. I am not a Marxist, but I can tell when people are attributing something to Marxism that is not Marxism. Yes, those are the things which y’all that are critical race theory, but that does not make it so.

  41. Old Man says:

    Sam,
    Excellent post.

    CS,
    Snopes has partly debunked your claim about the Oregon Department of Education and has labeled it “misleading.”

    CRT has obviously been a topic of conversation in my life… I am a high school history teacher in Utah. I must push back on those claiming that CRT is being taught in public schools. I reached out to my colleagues across the western U.S. and also discussed the issue with a group of university professors. NO ONE knew of ANY teacher teaching CRT at the high school or undergrad levels. As Sam stated, it is a legal theory. The best definition we have found is on the website of the American Bar Association. But the debate has inspired those who love seeing the “red menace” in public education. We will surely get hate mail and nasty phone calls from parents who love Ben Shapiro and buy into this CRT nonsense. Some younger teachers are concerned about teaching the Civil Rights unit next year or dealing with discussions about racism. I am getting too old for this nonsense…

  42. How CS characterizes the link provided also appear to be misleading. But that is intentional, of course. Misinformation one of their central strategies.

  43. Thanks, CS. Second question: did you read the page you sent me? Because it doesn’t mention anything about white supremacy or about showing work.

    I’m strongly getting the impression that a large handful of commenters (though not the majority by a long stretch) equate recognizing racial inequity as being somehow oppressive to majority cultures and the goal of critical race theory being to oppress the white majority. That’s, um, not a description either of critical race theory or of its goals (or, for that matter, of anything that’s happening anywhere in K-12 education). Like I said, I’m not a critical race theorist–that’s not the approach that generally underlies my scholarship for various reasons. But I am familiar with critical race theory; I’ve read scholarship coming out of that background and, as Chris said, am certainly more than capable of identifying things that have nothing to do with critical race theory.

  44. Thanks Michael — just so:

    Actively denying the results of a fair election is a much greater threat to democracy than critical race theory will ever be.
    Actively denying the results of a fair election is a much greater threat to democracy than critical race theory will ever be.
    Actively denying the results of a fair election is a much greater threat to democracy than critical race theory will ever be.
    Actively denying the results of a fair election is a much greater threat to democracy than critical race theory will ever be.
    Actively denying the results of a fair election is a much greater threat to democracy than critical race theory will ever be.
    Actively denying the results of a fair election is a much greater threat to democracy than critical race theory will ever be.
    Actively denying the results of a fair election is a much greater threat to democracy than critical race theory will ever be.
    Actively denying the results of a fair election is a much greater threat to democracy than critical race theory will ever be.
    Actively denying the results of a fair election is a much greater threat to democracy than critical race theory will ever be.
    Actively denying the results of a fair election is a much greater threat to democracy than critical race theory will ever be.

  45. John Mansfield says:

    By profession I am a fluid dynamicist. A quarter century back Ed Lorenz gave a nice hour-long lecture to my small department, a gathering of three dozen packed in the same room where our oral exams were held, and where I presented to the department a few times, including when it was time to defend my PhD thesis. (My school didn’t call them dissertations; masters students wrote “essays.”) Lorenz recounted the system of three non-linear equations which he worked with as a stripped-down model of convective heat transfer, and which led to the seminal paper “Deterministic Nonperiodic Flow,” published in the Journal of Atmospheric Sciences. The great man was quite generous with us as colleagues, some of us extremely junior colleagues. This piece of fluid dynamics slipped into popular culture, known as the Butterfly Effect, often a bit mangled in the passing along by those not really conversant in the science yet interested enough to do so because they grasped that it is an important and fascinating phenomenon. So, I guess I get where Prof. Brunson may be coming from with the idea he repeated several times above that Critical Race Theory is a legal theory only meaningfully channeled to society through law schools.

  46. If you have to push back on the concept that showing your work on how you arrived at 2+2=4 is a form of white supremacy, something is off.

    What is “off” about the actual approach recommended in the Pathway to Equitable Math Instruction?

    “Math teachers ask students to show work so that teachers know what students are thinking, but that can center the teacher’s need to understand rather than student learning. Teachers should seek to understand individual student perspectives and focus on students showing their work in ways that help students learn how to process information.”

    Would you feel such a strong urge to push back against the concept of showing your work if you were to learn that it’s not about showing your work per se but about showing your work in “standardized, prescribed ways”?

    “White supremacy culture shows up in math classrooms when… Students are required to ‘show their work’ in standardized, prescribed ways.”

    I have no doubt that the reference to “white supremacy culture” remains a stumbling block for many regardless of the context, but for someone personally affected by “CRT writ small,” you do not seem to be particularly interested in the details.

  47. did you read the page you sent me? Because it doesn’t mention anything about white supremacy or about showing work.

    Sam, you have to click on the link to Equitable Math and then download “Stride 1” on “Dismantling Racism in Mathematics Instruction” in order to find CS’s inaccurate and decontextualized quotation.

  48. You’d think that CRT wouldn’t be taught in schools, but the fact is that it is being taught in schools. True, the higher level foundations of the theory and things like tax law aren’t taught in elementary school, but to claim CRT isn’t taught at all on that basis is a bit like asserting that the constitution isn’t taught in elementary school because students aren’t asked to read Marbury v Madison. They’re taught it, just on a more basic level. Same with CRT. There are examples of children being taught that racism is an inherent part of the American system.

  49. “There are examples of children being taught that racism is an inherent part of the American system.”

    That isn’t critical race theory. It is basic history.

    Y’all should read the original text of the US Constitution. Sam will help you with the big words.

    I get a feeling you people think Cleon Skousen is a historian. The Bloggernacle never changes.

  50. “There are examples of children being taught that racism is an inherent part of the American system.”

    That isn’t “critical race theory.”

    That is history.

    Sorry, this level of ignorance is intentional.

  51. 1. Tax policy favors poorer people with children.
    2. Fort Worth ISD is all in on CRT. It’s all over the website. I regard Fort Worth ISD at this point is a racist pro segregation district. I am not alone in this. I applaud the Texas state legislature for banning CRT. This inherently racist theology is evil. As a parent I have demanded and succeeded in disciplining teachers that push CRT on children.

    Above somebody posted that conservatives are looking to fire pro CRT teachers. That would be correct.

  52. I am mostly glad to see people like Bbell embrace cancel culture. After all, fascists always have.

  53. Dsc, I’m assuming you can give concrete examples of these teachings you assert are happening and are able to explain how they’re critical race theory.

    Bbell, I’m working really hard to not be rude, but your assertions about tax law are not even in the ballpark of reality and I struggle to figure out how your assertions about Fort Worth schools are not just blatantly racist. They are clearly anti-First Amendment which is an odd position to take as a professed political conservative.

  54. Bro. B. says:

    Sam, good post, and I’m going to take your suggestion to read more about Dorothy Brown’s research on the inequity of the tax code. The G.I. Bill is another example of a facially non-racist law that was applied in a racist way. And there are still vestiges of this as well as vestiges of Jim Crow laws and practices. Otherwise, we wouldn’t need the banking regulations I have to constantly re-certify on against red-lining and disparate treatment in lending.
    Michael, your points show clearly how the debate isn’t over CRT per se, it’s just the same struggle as always between Blue and Red, the Haves and Have Nots. It’s just more of the same fear the far right has always campaigned on, that “they” are going to move into your neighborhood, take over your schools, take away your jobs, your peace, your prosperity, your personal freedom. What will be the future of U.S. education if in our schools we can’t talk about the facts of slavery, Jim Crow, colonialism of the Native Americans? Why in this country do we have to draw these political lines in the sand that prevent us from having an honest, rational conversation that even considers the possibility of systemic racism?

  55. Thanks, Bro. B. I thought about bringing up the GI Bill (and I’m glad you did). My grandfather fought in Iwo Jima and, through the GI Bill, moved our family from being farmers to professionals. It was amazing for (white) America. And if those same benefits had been provided to Black veterans, I don’t think the discussion we’re having wouldn’t be occurring, but they’d be significantly different. But, to my shame, I had no idea that the GI Bill ended up treating white and Black veterans differently until I was teaching law school.

  56. For those curious about how another facially-neutral set of laws had disparate impact based on race, this is a pretty decent summary of how the GI Bill benefited white veterans without providing much benefit to Black vets: https://www.history.com/news/gi-bill-black-wwii-veterans-benefits

  57. Chris,

    No, racism is not inherent in the American system. It has been blighted by racism. Our country has been primarily racist at times. There have even been racist laws. But the foundations of American Constitutional law and the Common Law are neutral to race. To say that at their core they exist to prop up racial hierarchies is ludicrous.

    Sam,

    The Philadelphia school district’s anti-racism declaration had CRT woven into it. The Buffalo School District’s Emancipation Curriculum is fundamentally CRT. Every school adopting the 1619 Project as curriculum is adopting material that is designed to prop up CRT and view history through that lens. There are more examples, but those are the most overtly connected to CRT that I can think of.

  58. Chris Henrichsen says:

    “ But the foundations of American Constitutional law and the Common Law are neutral to race.”

    That is a claim without basis in reality. But fascist myth-making is not about facts or reality. I know my enemy well.

  59. Sam,

    There is a difference between a law that disproportionately affects people with different demographics and a law that affects people because of those demographics. I think that’s the fundamental area of disagreement that critics of CRT have. Redlining was racist. Tax deductions for mortgages are not, even though redlining created a disparity based on race that now benefits more Whites than Blacks because the system benefits Black homeowners in the same way it benefits White homeowners. We can recognize that racist laws and policies still affect people without labeling race-neutral laws racist.

  60. Chris,

    Perhaps you occupy a different reality. The original Constitution did not mention race. It did not overtly support or protect slavery, and the few accommodations for slave states (eg the 3/5 compromise) were not fundamental to the constitutional system, unlike other features, such as separation of powers, federalism, bicameralism, enumerated powers, etc.

    As for the Common Law, it’s hard to imagine how it is fundamentally racist in origin, given that it developed in a climate that was more or less racially homogenous.

  61. Meant to clarify something earlier. The Constitution does reference “Indians not taxed”, but at the time, this was a question of nationality, not race directly.

  62. Oh, we absolutely do occupy completely different realities. That is obvious. Sadly, we occupy the same church and the same nation-state.

  63. “It did not overtly support or protect slavery…”

    That is compete and absolute bullshit. See the original Article IV. I know this is a proper blog and all, but you have white supremacists saying stuff like that. This isn’t a difference in historical interpretation. Dsc is making claims which have no basis in truth and can only be based in blatant white supremacy.

  64. Michael Austin says:

    “The original Constitution did not mention race. It did not overtly support or protect slavery.”

    This assumes that the Founders did not understand, and trust their audience to understand, terms like:

    “Those bound to Service for a term of years.”
    “Free persons . . . and other persons”
    “Importation of such Persons as any of the States now existing shall think proper to admit”

    Of course the Constitution mentions slavery. And of course it protects the slave trade. The ONLY limitation on Constitutional amendments in the entire document involves the “importation of such Persons as any of the states now existing shall think proper to admit.” The framers avoided the word largely out of embarrassment and because they hoped that, hundreds of years later, gullible people who don’t read history might be dumb enough to think that they weren’t talking about slavery when everybody at the time clearly understood that they were.

  65. Thanks, Dsc. Your comments elucidate your mindset really well and they speak for themselves; I’ll leave them un-commented-upon.

  66. Is Dsc also commenting under the name “Jonathan Cavender” elsewhere? If so, it makes perfect sense.

  67. Is Dsc also commenting under the name “Jonathan Cavender” elsewhere? If so, it makes perfect sense.

  68. Sam,

    That’s a pretty juvenile response. The last time we interacted, you also responded like a teenager. I’m sensing a pattern.

    I like about 80% of what you write. But when you’re challenged, boy do you look childish.

  69. Michael Austin,

    I thought I was clear in acknowledging that the Constitution made compromises with respect to slavery. I also noted that they aren’t fundamental to the system of government created by the Constitution.

    I think it says something about the fundamental nature of the country that the law banning the slave trade was enacted the first date permitted under that provision. The framers of the Constitution by and large understood slavery as a waning institution.

  70. No, seriously, Dsc, arguing that the Constitution doesn’t support slavery because it doesn’t explicitly mention race is certainly a take, and not one that I feel the need to argue against. If that’s the way you read the Constitution and US history, well then, your comment speaks for itself.

  71. Michael Austin says:

    “I think it says something about the fundamental nature of the country that the law banning the slave trade was enacted the first date permitted under that provision.”

    You are correct here. But what it says is that the Midatlantic States, especially Virginia, which, thanks to the 3/5ths clause had a lock on the Presidency from 1800-1824, joined with the Northern States to outlaw the slave trade because they knew that doing so would drive up the price of their slaves and make them the primary exporter to the Deep South. Which is exactly how it worked out.

  72. Sam,

    My reply to you was about CRT in schools. If you have something to say about that, please do so.

    As for my take on the Constitution, if you disagree, that’s fine. It’s an argument far too nuanced and complex to hash out here. But I’m quite comfortable in my take, as I am in the company of great thinkers like Frederick Douglass, who explained this position much better than I can 170 years ago.

  73. Brent P says:

    Steve LHJ, “I’m not espousing any ideology”

    *cough* right-wing libertarianism *cough*

    DSC, “the Constitution doesn’t talk about race”, says the right-wing libertarian who doesn’t want to admit he’s a libertarian (because libertarians often want to appear as these rational non-ideological people who we the end-all-be-all to disagreements) but it’s painfully obvious from the comments and who because of years of breathing in the fumes of libertarian revisionist history has been intoxicated with some sort of fantasy view of the Constitution and Founding Fathers. Apparently your magical view of the Constitution is too nuanced for us mere Cretans to understand. Sorry pal, you jumped the shark long ago.

  74. Brent,

    If you want to discuss the topic, then let’s discuss the topic. I’m certainly not a libertarian (very pro-life, pro-gun control, pro-environmental protection), so if you have something to say that isn’t an aspersion toward my supposed ideology, go ahead and say it. I will reiterate that the view that my view of the Constitution is essentially Frederick Douglass’s view, so it’s not new or libertarian. If it’s revisionist history, it’s revisionist history that is nearly two centuries old.

  75. Brent P says:

    dsc, you wrote earlier that the “foundations of American Constitutional law and the Common Law are neutral to race” AND that your view of the Constitution is essentially that of Frederick Douglass’s.

    OK. Frederick Douglass wrote that the Fugitive Slave “clause of the constitution…gave to the slaveholder the right at any moment to set his well-trained bloodhounds upon the track of the poor fugitive; hunt him down like a wild beast, and hurl him back to the jaws of slavery from which he had, for a brief space of time, escaped. This clause of the constitution consecrates every rood of earth in that land over which the star-spangled banner waves as a slave-hunting ground.”

    He further argued that the constitution prevented more slaves from running away, like he had.

    Now, Douglass changed his mind, eventually arguing that slavery was unconstitutional. And I think that he had to. It was out of a spirit of pragmatism and compromise and recognition that the only feasible way to abolish slavery was with the 1789 Constitution as an ally and not a foe to be overcome. But his earlier views were more in line with those of hard abolitionists such as William Lloyd Garrison and Wendell Phillips who argued that the Fugitive Slave Clause (which enabled the Fugitive Slave Act of 1793, Fugitive Slave Law of 1850, and on which basis the US Supreme Court overturned the conviction of Edward Prigg for slavecatching in the free state of Pennsylvania in the 1842 Prigg v. Pennsylvania case), the 3/5ths clause, the extension of the slave trade until 1808 in Article I of the Constitution, and Congress’s powers to put down insurrections were evidence of the Founders’ intentions of keeping slavery alive and well. In terms of sheer reason, the earlier Douglass arguments were the most well-positioned and willing to acknowledge inconvenient truths. The later Douglass arguments bent the rules of reason, but for all the right reasons. The 1789 US Constitution upheld slavery. We had to abolish slavery. We had to keep the 1789 US Constitution intact. In order to abolish slavery, we had to engage in some clever mental gymnastics, exploit some loopholes, and make our arguments with a hint of disingenuousness and ignorance to inconvenient truths in order to move forward. Douglass will forever remain a hero. He was also human and up against insane challenges.

    Look, I’ll walk back my assumptions of you being under the spell of right-wing libertarianism and acknowledge that you may be more nuanced in your thinking than your comments suggest. But in this comment section, I think it is quite clear that you are reflecting on earlier history of Common Law and the 1789 US Constitution with a naive wistful dreaminess common in libertarian circles, and that you don’t seem to know what you’re talking about.

  76. Steve LHJ says:

    @Brent P
    Not particularly right wing, and not libertarian, I sit left on many issues and right on others and don’t like politics or political parties generally. You can see here where I write about the pathologies of extreme conservatism and liberalism: lovehavejoy.com/toxic-masculinity-femininity-and-the-polarization-of-politics

    It seems several people here are so far left that they are making people like Bill Maher look right wing (even he acknowledges the insanity of CRT and anti-racism movements). And if that doesn’t make a person step back and realize how far their head is in the sand, I’m not sure what will. And the problem with those in either extreme is likely they don’t want their head out of the sand, because then they can’t indulge in the hate nor pat themselves on the back in an illusory self-congratulatory superiority that clearly compensates true self-assuredness.

  77. Old Man says:

    I honestly don’t care what anyone’s political views are. But let’s perform an experiment. One thing I have never heard anyone pray for: “Father, please bless my children so they will be treated like Black children are treated in life.” I have heard prayers/wishes in the opposite direction. Blacks want to treated like Whites.

    I dare any of you to offer a prayer in Church asking for all of the children in the Ward to be treated like Black children are treated. Watch what happens. If any react, ask them why they are upset.

    When someone offers such a prayer and the reaction is complete bewilderment, because no disparity exists, look around you. You live in Zion.

  78. Steve LHJ says:

    I think you’d get an equally shocked and bad response either way – and rightfully so, it would be really ignorant for a person to think there was such a thing as a universal way black or white children are treated in life.

  79. Brent,

    No one is arguing (at least, I’m certainly not arguing), that the Constitution is a flawless document that perfectly preserved liberty, or that it did not make concessions to slave states to allow them to continue the practice of slavery. I think Douglass goes too far when he pretends that the Fugitive Slave Clause wasn’t really about slavery. But the Constitution would need no amending if the states all voluntarily chose to give up slavery, as some at the time of the founding predicted would happen. That’s why Madison was so careful to never call slavery by its name; he noted that it would be “wrong to admit in the Constitution the idea that there could be property in men.”

    Douglass used a good analogy. To paraphrase, you can’t necessarily blame the chart if the vessel is off course. To extend the analogy, the flaws in the constitution are like portions of the chart that fail to map out some dangerous rocks and perhaps a misplaced location here or there. Those shortcomings are a bid deal for those who are led off course because of those errors, but they don’t justify scrapping the chart and starting fresh.

    But CRT, at its core, blames the chart, not the captains of the vessel. The theory is that, not only was the Constitution an imperfect document that failed to address slavery, and in some ways accommodated slavery. Or that the United States has frequently failed to live up to the ideals inherent in the Constitution. CRT goes far beyond that and argues that the entire system is designed to uphold racial hierarchies. I see no evidence for that idea.

  80. Utah Lawyer says:

    The either ignorant or intentionally incorrect statements about the Constitution being racially neutral are just…cringe. So, the foundational legal document upon which our entire government and society are based contains a number of racists provisions to prop up already-existing racism, but we’re going to actually claim there is no systemic racism? I mean, just, wow. I also find it hard to meaningfully engage with those who want to argue there is no white/heterosexual privilege. Come on. Let’s occupy the same reality.

    I find the discussions of CRT and tax law to be super interesting, as an attorney myself, the wife of a veteran who grew up in poverty but who was able to lift himself out of poverty and into a professional job with help from the GI Bill (but also because he’s white), and as the daughter of a schoolteacher in Utah. It’s difficult for me to view the Utah legislature’s actions as anything other than a ridiculous, dog-whistle performance to satisfy racist conspiracy theorists who (unfortunately) are lining the church pews on Sundays and keeping these overwhelming white and LDS legislators in power. When the resolution sponsor admits he has no idea what CRT is but wants to ban it anyway, how is that good governance? What’s next? A good old-fashioned book burning? Are we outlawing dancing like in Footloose?

    I find those who want to view the tax code from a Utopian colorblind perspective are similar to the people in the church who claim the church is somehow perfect but it’s just individual people or the culture who flawed. Just like with the church, those in power and in a position to make changes are more likely to be white and unbothered by the state of affairs. If something is working for you, you’re more likely to think that there is no problem, or that anyone expressing dissatisfaction is overreacting or lying. Pretty far from a Zion society, in my opinion.

  81. Brent P says:

    Dsc, “To paraphrase, you can’t necessarily blame the chart if the vessel is off course. To extend the analogy, the flaws in the constitution are like portions of the chart that fail to map out some dangerous rocks and perhaps a misplaced location here or there.”

    Aren’t you blaming the chart here?

  82. Antonio Parr says:

    BCC loses a bit of its luster when it focuses on hot political topics like critical race theory. By the time the comments are closed, one can be fairly certain that (a) no one will have changed their minds or their party; and (b) someone will feel vilified. Everyone will return to their political camps and either gloat or sulk (or both).

    I get the reference at the end of the essay to Rep. Steve R. Christiansen, but clearly he is of no substantive relevance to such a complex and nuanced topic. We live in a country almost perfectly divided, and these kinds of emotional political discussions are best held face-to-face with neighbors and friends, where eye contact tempers vitriol and real community can be built. (Or write an essay and let the essay stand for itself. But once the back-and-forth electronic bloodletting begins, the negative outcome is fairly predictable.)

  83. If you want to take a hard look at how systemic racism plays out in the real world, there is an article from 2019 that just reappeared on The Atlantic’s website about how white farmers and businessmen, along with other trends, basically stole farmland in the Mississippi delta during the 60s and 70s. TLDR, people in the South angry about the civil rights movement used federal programs to limit the access of black farmers to credit, thus transferring hundreds of thousands of acres from black farmers to white farmers and large corporations. All of this from programs that were intended to help small farmers. It was an effective way to wipe out generational wealth for thousands of black families.

  84. Utah Lawyer,

    Go read Frederick Douglass’s 1860 speech on whether the Constitution supports slavery (I know I’ve been leaning a lot on that guy, but I don’t know that a better overview of the topic has been written since then) and tell me with a straight face that his argument is “cringe”.

    As a fellow lawyer, I hope you don’t treat opposing arguments in your professional life so dismissively.

  85. Michael Austin says:

    On Frederick Douglass,

    There is a huge difference between Douglass’s speeches before and after the Civil War, with the primary difference being the Civil War. Until 1861, Douglass was part of an abolitionist faction that was trying to secure emancipation without a war. He consistently argued that the Constitution did not support slavery because his faction wanted to convince Americans that they could end slavery through the democratic process alone because it was not so deeply entrenched in our system of government that it had to be eliminated through a violent conflict.

    Douglass was wrong about this, and, later in his life he recognized that he was wrong about this. By 1863, he came to see the Civil War as a necessary step in ending slavery. He fully supported the war, and, for the rest of his life, maintained that it was the only way to rid the land of the curse of slavery, No serious historian now doubts that this was the case.

    The argument that the Constitution does not inherently support slavery is, in effect, the argument that the Civil War was unnecessary–that there were democratic means that could have brought about full emancipation without the extra-Constitutional Emancipation Proclamation and the three Reconstruction Amendments, which were imposed on the South as a condition of their re-entry into the Union. Contemporary right-wing historical revisionism likes to pretend that this was all unnecessary. Lincoln jumped the gun. If we had just compromised more and worked with the South, we would soon have seen the end of slavery without wars or fundamental alterations of the Constitution.

    I have read a not inconsiderable amount of history in this area and even wrote a book based on Lincoln’s First Inaugural Address. I have never encountered even the beginnings of a coherent argument that the American Constitutional Process, in the political context that existed in 1860, could have ended slavery without the Civil War and the Reconstruction Amendments. Even with these things, it took a hundred years for the 13th Amendment to even be enforced in the Old Confederacy. As optimistic as the young Frederick Douglass was about the sufficiency of the original Constitution, the older, wiser Douglass understood the situation much better. The original Constitution embedded so many protections for slavery that it took the Civil War and a fundamental renegotiation of the Constitution to set the country on a path that could even lead to freedom for those of African descent.

  86. Brent P says:

    Thanks for chipping in Michael. The quote I provided from Douglass was from 1845. The article I read on Douglass to inform myself was Robert Cohen, “Was the Constitution pro-Slavery? The Changing View of Frederick Douglass.” In it Cohen finds that Douglass was anti-constitution before 1851 and pro-constitution after that date. He broke with abolitionists’ attitudes against the 1789 Constitution well before the Civil War.

  87. Michael Austin says:

    Douglass originally fell under the spell of William Lloyd Garrison, who believed that the Constitution was pro-slavery, but he fell out with Garrison over this very issue. Garrison believed that the North should secede from the Union and create an entirely new Constitution. Douglass never went that far. He worked really hard in the ten years before the Civil War to convince people that the Union could be saved AND slavery could be abolished. But, by 1863 (the date of the Emancipation Proclamation), he agreed with Lincoln that the war was necessary and that slavery could not be expunged without it.

    Really, I would argue that he arrived at a middle position: that the Constitution protected slavery but could be amended without completely destroying it. But also that the political environment made any abolition amendment impossible and would continue to do so for any foreseeable future. So the South had to be defeated, and the Constitution had to be fundamentally revised and then forced on the South as the cost of defeat. This was also the view that Lincoln came to during the course of the war–between his first and his second inaugural address. And it was, in fact, exactly what happened.

  88. Michael Austin,

    That’s a pretty big leap from “the Constitution is not fundamentally racist” to “the Civil War wasn’t necessary to free the slaves.” The Constitution didn’t prop up slavery or racism, although it permitted both. The Civil War and the Reconstruction Amendments helped bring the country closer to the lofty ideals espoused in its founding documents. I don’t think anyone is arguing otherwise.

    And for the record, Douglass did shift his view of the Constitution, but that shift occurred a decade before the Civil War, and it was toward reverence for the Constitution. He revered the Constitution until his death.

  89. Michael Austin says:

    “That’s a pretty big leap from “the Constitution is not fundamentally racist” to “the Civil War wasn’t necessary to free the slaves.”

    It is not a leap at all. For the position that you are taking to be correct, then the issue of slavery has to have been resolvable without a war. It was not. The Constitutional elements that supported slavery–such as the Fugitive Slave Clause, which Douglass was never able to resolve with his view of the Constitution–made it impossible to end slavery at the national level without an Amendment. And the 3/5ths clause–which dramatically increased the electoral power of white slave owners without conceding a single human or political right to slaves–made amending the Constitution to end slavery electorally impossible. There was no possible way, under the 1779 Constitution to end slavery. Douglass came to recognize this clearly by 1863, but, even if he hadn’t, he would gave been wrong. I don’t know of a single reputable historian who would disagree with this claim.

    The Reconstruction Amendments did not just help the nation achieve the ideals of the 1779 Constitution. There were no anti-Slavery ideals in the 1789 Constitution until the Reconstruction Amendments put them in. (And quoting the Declaration of Independence is useless here, since it was not actually Founding Document of the Federal Republic, but of the confederation of states that the Federal Republic replaced).

    If the Constitution provided no way to end slavery without a Civil War, then it cannot properly be said to have been “anti-slavery.” Civil Wars are, by very nature, extra-Constitutional mechanisms. A Constitution that requires an extra-Constitutional violent conflict to do something cannot be said to be “for” the thing that it takes an extra-Constitutional violent conflict to do.

  90. Steve jetts says:

    I love how the multiple cheap shot here at conservatives by commentators I respect. The animosity and comments show that partisanship has blinded many, on the left and right, about the issue. The caricature of the critics of aspects of CTR is almost the mirror image of what they are claiming the opposite side is doing

  91. Michael Austin,

    Slavery could not end without a war, but that wasn’t due to the Constitution. The Constitution wasn’t the barrier; it was an economy that depended on slavery and people who had convinced themselves it was justifiable. Nothing in the Constitution prevented states from prohibiting slavery.

    The fugitive slave clause was clearly wrong and an accommodation to slavery. But it was in no way an integral part of the Constitution. It was added as an afterthought to try to shore up support from the South.

  92. Steve LHJ says:

    I’m just impressed how much you guys know about Frederick Douglass to even have the conversation. I don’t think I know anyone in real life who could just pull that out, I certainly didn’t know any of that, fun to listen to your various takes

  93. I am surprised that Dsc is a lawyer. I had him pegged as a dentist.

  94. Michael Austin says:

    The structural element of the 1789 Constitution that made it plainly racist was the 3/5 clause, not because it counted black people as only 60% human–liberals get this wrong all the time–but because it counted black people as 0% human and gave 60% more representation to the people who owned them. This is an undeniably racist structural element that made it impossible to end slavery by constitutional means by dramatically increasing the political power of slave owners without conceding any political rights to black human beings.

    You may recall that Jefferson was often referred to as the “Negro President.” This was not because he did anything to help black people (he didn’t) or even because he regularly raped his slaves and produced children with them (and “rape” is the correct word here, as consent cannot be meaningfully given to, or withheld, from someone who owns you). Jefferson was the Negro President because, without the increased electoral power given to the slave states by the 3/5th clause, he could never have been elected president.

    The 3/5th clause gave Virginia slave owners a lock on the presidency from 1801-1825, during which time four slave states and four free states entered the Union, which, because of the 3/5ths clause, continued to increase the proportional political power of slave owners. Without this clause, Northern could have maintained control of the presidency and the House of Representatives, prohibited slavery in new states and territories, and eventually been able to eliminate slavery through a Constitutional amendment. This was what Lincoln wanted to do originally. But it was impossible because the Constitution contained an illiberal, un-republican apportionment mechanism that amplified the power of slave owners and gave them a way to perpetuate their disproportional power as new states were admitted to the Union.

  95. There’s been a lot of Sturm und Drang here about whether racism is baked into our legal system and Constitution. So let’s assume it’s not; let’s assume the country’s laws and constitutional demands are truly race-blind.

    That doesn’t take us to a great place. White family wealth is about ten times Black family wealth. Black unemployment is significantly higher than white unemployment. White men are 86% of the CEOs of Fortune 500 companies. Black students have a lower college graduation rate than white students.

    So again, let’s assume our laws and systems are not stacked against Black Americans. That means we’ve nonetheless chosen, societally, to impede Black success. It’s an alternative to the idea of fundamentally racist structures but frankly, it’s not a great alternative.

    I’ve been struggling, honestly, to understand why people want to fight against the idea (or rather, their often inaccurate understanding of the idea) of critical race theory; Christian philosopher Scott Coley has an explanation that I find illuminating.

  96. Steve LHJ says:

    Why assume the causes are inherently racist? The causes are assuredly multi-factorial and complex, and past racist laws or prejudice probably have a part, but how big of a part is an important and unanswered question – and to assume it is the whole part strikes me as weak thinking.

    Even thinking of it in terms of the average “white” and average “black” family is itself a very rudimentary and weak start to address anything reflecting actual reality. In the “black” category are we talking about recent immigrants from Sudan or Angola, Ghana, Cameroon, the Ivory Coast whose cultures are deep and rich and so incredibly vastly different from one another. Or people with heritage from Jamaica or Haiti. Are you including people who are half black and half white? A quarter black, an eighth? Part Chinese, part Thai, part Mexican, part middle Eastern. Black immigrants whose family has lived for generations of family from France or England.

    In the white category are you including Russian immigrants, French, Irish, Spanish, Romanian, even Lebanese that themselves have a vast and disparate heritages of their own with all the different racial mixes most people likely have in those various categories as well.

    When you start breaking it down to the deeper levels, you will soon find that each level of analysis brings different results, people immigrating from Haiti have different outcomes than communities with generations in the deep south, which can be vastly different than communities on the west coast, etc. Culture, family structure or the lack thereof, emphasis on education, IQ, personality genetic predispositions like aggression.

    The variables are wide and vast, and to assume disparate outcomes of a wide and extremely non-homogenous group that are simply tied together by something as weak as having darker or less dark skin pigmentation, and then assume the differences must all be the result of unidimensional racism – the thinking is so childish it’s not even a starting point to get to the actual reality of the matter.

  97. I don’t interact with conservative because of a lot of reasons, but when did they start accusing everyone of being childish? Granted, I accuse them of being fascists, but childish seems odd,

    Also, the one dude just went with IQ and genetics predisposition for violence. The racism is strong folks.

  98. Steve LHJ says:

    Until we have the fortitude to dive deeply into the complexity of the data and the honesty to follow it where it takes us, complex issues will never be solved. The truth, not that which is easy or spares feelings, is what sets us free and will bring ultimate peace and resolve. If we are all children of God of infinite worth, we have to have the faith that the truth will always bear us out and bring us together in the end.

  99. Steve, I do hate racism. Which, of course, doesn’t exist. So I feel pretty silly. I don’t hate you, I feel like that would be bestowing on you more respect than your arguments deserve.

  100. Really? That comment got moderated. Never change, BCC.

  101. Thank you Sam for this post. It gave me some references to were the term/idea of critical race theory originated and how it has morphed in our current political climate. We talk about so many things that need deeper understanding and I appreciate the references of where to look.

  102. I deleted a handful of comments. They weren’t all particularly offensive or bad but the general conversation had gone way off topic and it seemed weird to delete one or two without deleting the ones that were responsive.

    I’m not honestly sure how we’ve gotten where we’ve gotten as some people seem to be arguing against the fact that there is discrimination, period. That’s a horrific stance to take–if you’re not aware of racial discrimination it’s because you’re not looking and not personally affected, which runs entirely counter to the demands of scripture.

  103. Brent P says:

    It should be borne in mind that nowhere else in the Americas did any country have a war as large and horrific as the US Civil War 1860-1865. The tensions for this war started at US independence. The 1789 Constitution was simply too compromising about an issue, namely, slavery and not just that but the idea of forced migrants from Africa as equals, that the Founders knew was a divisive and potentially explosive issue from the beginning, so much so that they couldn’t even bring themselves to say its name. The US had extraordinary problems from the outset and the 1789 Constitution simply didn’t do enough to address these, even if it was a welcome change from the earlier Articles of Confederation.

    The basic arguments of CRT about US history, that its very foundations privileged whiteness and that this privilege was embedded in every institution and document, just seem painfully obvious. I simply can’t see why there is controversy at all about the basics. For those in doubt I encourage all to read “Whiteness as Property” by Cheryl Harris. Probably about the best articulation of CRT to US history I can find. It is available for free with a simple google search.

  104. Steve LHJ says:

    “some people seem to be arguing against the fact that there is discrimination”

    I don’t think anyone here believes or has argued for that, maybe you didn’t have me in mind as it’s certainly not my position. Clearly tribalism, prejudice, and discrimination has been a near universal plague of the human condition. That doesn’t mean we can blame everything on that problem, or that it is the root of all problems, but it certainly is a problem we can agree on that.

  105. Brent P says:

    Steve LHJ, you touch on how race and ethnicity is a social construct. Absolutely. In fact all collective identity is a social construct. Larger categories of Mexican, American, white, black, Chinese are simply imagined so much so that when you break down how each individual identifies themselves you’ll see incredible variation. What you’ll also see is that each individual imagines larger communities and often imagines themselves to be part of some larger community or another.

    Sub-Saharan Africans in the 1500s, the overwhelming majority of whom had never seen anyone from Europe most certainly didn’t see themselves as part of a larger black community. Yet they imagined other sorts of larger communities, ones that they were a part of and ones that they were excluded from. They only began to see themselves as black in contradistinction to better technologically equipped and mostly oppressive people who didn’t have as much melanin in their skin pigmentations. Europeans began to imagine themselves to belong to a larger community of “white” only in contradistinction to darker-skinned Africans and Native Americans.

    Where I think you’re off-base is in the notion that CRT is contributing to a reification of racial categories. That if we stopped talking about race, the issue of race would just disappear. You appear to be very focused on social construction. My concern is what lies beneath the social construction, which is the human tendency to imagine large categories make generalizations about those categories. Here, I believe, is the strength of CRT and why we need it. It is attempting to peel back more layers in the in-group/out-group conundrum. It acknowledges that not talking about race or ethnicity will simply reinforce the status quos of the predominance of a traditionally powerful group against an oppressed group. It is only in talking about race that we can actually arrive at post-racial ideal. For it is only by acknowledging problems that we can hope to solve them.

  106. Sam,

    Wouldn’t it be important to accurately diagnose the cause of racial disparities? If the cause is tax law, for example, then we need to change tax law. But if what we’re actually observing is the generational effect of prior racist policies, then we need to do something else (there are literally hundreds of worth-while ideas). If CRT is correct, then we need to tear down the entire system and start over. If it isn’t, then the system can be a tool for addressing disparities. That seems like a critical distinction to make.

  107. Steve LHJ says:

    Brent P, yes definitely agree that how we imagine our categories matters, and in regards to race not talking about it would serve to keep the status quo more or less. I’m definitely for taking a deeper look and having more conversations about race that I believe will eventually lead to revealing their arbitrary nature, and reveal the absurdity of our prejudicial tendencies. My issue with CRT or its proponents is not having the conversation about race, or trying to see what laws were created with racial intent or bias (which I think is legitimate and should be done), but overstepping and making racially neutral policies automatically about race and justifying this by pointing to racially disparate outcomes as proof. While it is one data point of evidence, there are too many factors that go into difference in outcomes no matter which way you arbitrarily slice the groups, and therefore differences in outcome in and of themselves don’t imply or implicate racism. We need to look at all the variables, and race or an idea of race is one valid data point among many that can help us get the compete picture.

  108. Suburbs of SLC says:

    One problem, both in these comments and in the broader debate, is the jump being made from “I disagree with CRT” to “We should ban teaching CRT.” Some of these legislative proposals are limited to K12 education, others even attack it at the university level. That is simply bizarre to me.

    Dsc, for example, stated this: “To say that at their core [the Constitution and the common law] exist to prop up racial hierarchies is ludicrous.” One can disagree with the idea without suggesting it is ludicrous; many of our most brilliant thinkers have reached a different conclusion. And, given that there is a reasonable disagreement on the issue, it seems appropriate for it to be taught (at age appropriate levels).

    Do I think CRT should be taught to second graders? Of course not, and as many have pointed out, no teachers anywhere are doing that. But might some of its broad principles be taught to high schoolers? Maybe. And that’s ok!

    I am not a Marxist. I think Marx got things wrong. But it would be bizarre to take that disagreement with Marx and conclude students should be banned from reading his work. We learned about Marx, both as a person and his ideas, in an age-appropriate way while taking high school history and comparative government classes (kind of hard to understand the Cold War or the Soviet Union/China without that background, after all). Unsurprisingly, I studied it far more thoroughly at the undergraduate level. I still disagree with his conclusions, but I’m glad I studied it.

    I don’t see why CRT is any different. (I mean, obviously I understand that most of these critiques are all made in bad faith. But let’s pretend people have real concerns.) CRT is an idea worth exploring. It may plausibly explain aspects of our history and government. It may plausibly challenge what policies we support in the future. And it may not! But that doesn’t mean we ban it.

  109. With apologies, Sam’s post is deeply naive. Ideas similar to CRT – if not exactly CRT itself – are being included in public school curricula nationwide at a high rate. Most of the information is public and online. It’s there for anyone to see.

    As it turns out, the NEA just adopted a statement of intent to ensure that CRT is taught in K-12 classrooms across the country. And if there’s any doubt, the NEA cites CRT by name. Does this mean the boogeyman just made an appearance?

    It’s absurd to pretend CRT is some obscure field of legal study like positivism and, therefore, it’s silly to be concerned that such an esoteric philosophy could find its way into Utah schools.

    The argument falls very much in line with the typically intellectually dishonest argument that: “Strictly speaking, ‘CRT’ is an area of legal study taught in law schools. To the extent people are calling whatever is being taught in public schools “CRT,” it isn’t exactly the same, so it’s not ‘CRT’.” This is like arguing that Lenin wasn’t a Marxist because Marxism didn’t originally call for a revolutionary vanguard to lead the proletariat in the violent overthrow of capitalism. As Sam knows, the tactic is called “hair splitting.”

    Amusingly, Sam admits “there’s no simple, and probably no single, answer” to what the definition of CRT is. It appears, at times, it’s useful to define CRT strictly to argue “CRT” isn’t taught in public schools. But when attacking anti-CRT legislation, it’s often claimed that the legislation is off base because we can’t say exactly what CRT is. But, whatever it is, we’re confident the anti-CRT laws have missed the mark.

  110. Kristine says:

    John, you’re not up to date: https://www.nationalreview.com/news/largest-teachers-union-erases-campaign-to-push-critical-race-theory-from-website/

    And even before that, it was not a “a statement of intent to ensure that CRT is taught in K-12 classrooms across the country.” Here’s the text of the actual statement:

    https://web.archive.org/web/20210705090534/https://ra.nea.org/business-item/2021-nbi-039/

    It’s fine to disagree about how history should be taught. But we should be well-informed and honest about where the disagreements are.

  111. Kristine – you’re implying that because the NEA took the information off their website they no longer intend promote CRT? If so, you’re reading this the wrong way. The NEA isn’t changing its intent, they’re hiding it.

    Or show me where the NEA has specifically repudiated its intent to push CRT.

    Point taken. I spoke too casually. The NEA post wasn’t a statement of intent. It appears to have been an actual “resolution,” which in most governance contexts would be more formal and binding than a statement of intent. Either way, and with respect, you’re hair splitting . . . though it turns out to lend more support to my argument in this case.

    The National Review piece you linked to states “The National Education Association (NEA) recently convened for its annual representative assembly, where it debated and advanced a number of resolutions, including one that would launch a campaign to promote CRT in the 14,000 school districts it collaborates with.”

    I assume you believe National Review is reliable source of information since you cited it.

    So, I would say back to you that we should be well-informed and honest about where the disagreements are.

  112. Opponents of Critical Race Theory have created a strawman to argue against, because they know that explicitly saying that schools shouldn’t teach about past racism won’t get far.
    https://www.theatlantic.com/ideas/archive/2021/07/opponents-critical-race-theory-are-arguing-themselves/619391/

  113. Kristine says:

    John, I’m not reading anything into the removal of the page. I posted the statement that was on the site to point out that even the strongest statement of their intent said absolutely nothing about “promoting” CRT. They were planning to offer teachers (most of whom don’t know anything about CRT, because, again, it has never been a part of elementary or secondary education in this country) information about what “anti-CRT” folks are saying (scare quotes because, again, most of the people screaming CRT have no idea what it is), so that they could engage in responsible discussions about how they teach the racial history of our country.

    (And yes, the NR is sometimes a decent source of information. In this case, their editorializing got the better of them after the first couple of sentences.)

Trackbacks

  1. […] of race and the law, is quite popular in the news. The bloggernacle, too. Sam Brunson has a good post at ByCommonConsent on critical race theory, tax law, and the Church. (It’s more interesting than it sounds, I promise.) I don’t have a lot to add—an […]