Critical Race Theory And Progress To Social Justice

“Bearden Morning of Red Bird” Painting

“Rodrigo’s Indictment of Western Democracy: Some Thoughts on Critical Race Theory” by Gary Crethers

Review of Richard Delgado’s “Rodrigo’s Seventh Chronicle: Race, Democracy, and the State.”

Rodrigo’s case against American Racism hinges on his analysis of the American Democracy or more accurately Republic and its dependence on Enlightenment values that are steeped in individualism, perfectionism, hierarchy, capitalism and a legal system that perpetuates the status quo, thus preserving institutional racism. Rodrigo claims that “Western Democracies – are practically alone in our systemic mistreatment of our own minorities” (Delgado 4). This is a glaring problem in the Democratic form of government that has developed in the USA, a problem that is “systemic not incidental” or “episodic” thus making racism something the law cannot address as it is woven in the fabric of the status quo, (6, 15). Racism is normative to democracy as practiced in the USA.

“The Emancipation of the Negroes, January, 1863—The Past and the Future,” Harper’s Weekly, Jan. 24, 1863

Rodrigo blames democracy itself, which he claims is steeped in institutional racism based in Enlightenment philosophy. He names some of the defenders of slavery such as Locke, Hobbs, Mill, Rousseau and the framers of the US Constitution. Rodrigo notes the use of color imagery, in the Founders writing, many who owned slaves and even those who didn’t own slaves believed in a natural hierarchy in which blacks are unable to live with Whites (7). Jefferson comes to mind most notoriously in his Notes on the State of Virginia, “The first difference which strikes us is that of colour” (Jefferson 264). Rodrigo sees this product of the enlightenment with its emphasis on perfectionism, a mechanistic worldview in which powers are perfectly balanced, as in the U.S. constitution. The balance of powers creates an institutional tendency to freeze the status quo in place with the legal systems focus on precedent – “stare decisis and the rule of law mean that judges are bound to continue the previous regime” (14). Such a perfect system created by an elite of educated whites of the upper classes, in which hierarchy is inherent and with darker peoples less enlightened than those of light skin (Delgado 7-8).

Illustration of George Washington with his wife, Martha, and her grandchildren George Washington Parke Custis and Nelly Custis, whom the couple raised. At right, a slave is shown entering the room. Courtesy Library of Congress

Rodrigo states “democracies pioneered the slave trade, plantation system, coolie labor, Native American relocation, and Bracero programs” (8). This domination is considered to be systematic, implicit in the idea of democracy (of western nations), and is based on the exclusion of minorities since all cannot govern. This exclusion is based on three criteria, “color, followed by sex, and property, in that order” (8). He goes on to state “Liberal democracy and racial subordination go hand in hand” (9). He also indicts free market economics in which he claims it and the Enlightenment to be based in the same mechanistic model (9). The market, he claims “accentuates” racism (11) and market forces drive out altruistic tendencies, as the narrator notes in his own law classes where idealistic reformers by the end of law school seek the safe haven of corporate law (12). The narrator goes on to state “Enlightenment-based, Western style democracy poses … the near certainty of domination and rough treatment of minorities … natural and deserved [with] legal self-seeking … defined as what white people do” (12).

Rodrigo goes on to state that it is in Protestantism, the Calvinist individualism, in which social groups have been de-emphasized in favor of the individual. Where ones economic status is tied to individual effort and failure is seen as a personal problem, a sign of “moral sin or sloth” (17). Interestingly he does not include Luther in this critique, who was after all seeking to reform Catholicism, not do away with it. He sums up saying “Law, perfectionism, free market economics,” (22) as well as the hierarchical structural belief system imbedded in Enlightenment theory. The notion of the word enlightenment is itself a source of oppression with its focus on “sight-based metaphors” (20) and the “purveyors of color imagery,” such as television, even the Constitution “color-conscious in its inception” (22), all add up to an institutional racism that cannot be done away incrementally by precedent due to “the interlocking web of cultural understandings, meanings, and presuppositions … local officials will gut the landmark decision (16). Using the example of Brown v. Board of Education, Rodrigo claims the old status quo is “quietly stolen back by narrow construction, foot dragging and administrative delay” (15). Change has to come at once not piecemeal (16). Rodrigo then goes on to posit a tactile based approach to replace the enlightenment, a society of huggers (20), and thinks that approaching whites with the notion that multiculturalism is in their self-interest (21), as Matsuda says “pragmatic businessmen … open to the idea that equality might be good for business” (Matsuda 4).

Race Distribution NBA, Market Logic Drove Them to Condemn Donald Sterling

This radical impatience in Rodrigo, something that is needed for change to come about, reminds me of my own youthful memories of the Maoist Chinese attempt to develop an alternative to the legal system during the Cultural Revolution in which “Mao Tse-tung called for the ‘smashing of Kung-chien-fa (public security, procuratorate and judicial organs)” and he was also quoted as saying ‘Depend on the rule of man, not the rule of law’” (Leng 356). During the period of the Cultural Revolution, which in my youth was seen as a positive and revolutionary sweeping away of old dead forms; utilizing forms of self-criticism, and peer group justice, under the guidance of Mao Tse-tung thought, was seen as the way forward. Guidance consisted of a book of aphorisms by Mao, Quotations from Mao Tse Tung, which my associates called the Little Red Book. This is a typical excerpt:

To understand these two different types of contradictions correctly, we must first be clear on what is meant by ‘the people’ and what is meant by ‘the enemy’ . . . At the present stage, the period of building socialism, the classes, strata and social groups which favour, support and work for the cause of socialist construction all come within the category of the people, while the social forces and groups which resist the socialist revolution and are hostile to or sabotage socialist construction are all enemies of the people

(Mao Tse Tung).

Mao’s Revolution

I have seen examples, among the Black Panthers in particular, of Revolutionary or people’s justice which, some of the controversial fall out of which led, for example, to David Horowitz’s leaving the editorship of leftist Ramparts Magazine and migrating into neo-liberal anti-communism (Gottlieb). What I would consider attempts at immediatism, which others may categorize as mob rule (something still popular among anarchists and left communists), depending on the will of the people directly, could easily be seen as a threat to Rodrigo, when we see examples of the American mob engaged in lynching of persons of color and not overthrowing the Bastille as perhaps a leftist might romantically desire. Despairing, over the ability of the judicial system of the US, to make things right for minorities, as it is hopelessly compromised, could lead Rodrigo to something more revolutionary in nature, but this argument against the white majority is leading to what? A Platonic rule by philosopher kings? Realistically it seems he is advocating for a more humanistic, sensitivity to minorities in the American legal system although the Huggy Bear approach seems to be more a joke than a plan of attack (20-21). Anarchists would say that as the people become more aware, educated and self-organized they will naturally desire to remove the constraints of a system that maintains an elite that sucks up much of the product of collective labor for its own interests. Libertarians would say this requires a free market, something that Rodrigo sees as anti-ethical and deleterious to human solidarity (11). I tend to agree with Rodrigo on that point. Rule of law works when it reflects the highest aspirations of a society in my view. When it doesn’t or when the general will is so far disconnected from the law, then rule of law tends to become subverted and disrespected. Often legal systems, out of reach of the common man, became tools of the elites to fleece the masses, something that the Maoists reacted to by attempting to take that layer of elite control out of the judicial process and place it in the hands of the popular masses and under the guidance of the party. That party naturally becomes a new elite and the cycle is unbroken, something Anarchist theorists want to bypass by eliminating the need for a party. Then mass activity and spontaneous leadership becomes the model. Flash mob rule…

Toward a Revolutionary Transformation of Society

I don’t see postmodernism to be the solution that perhaps it might have appeared to be a couple of decades ago. Over the years I have attempted to grapple with French Theory and understand the narrator’s reluctance to go to deeply down that rabbit hole, some of it is so dense that it is very off putting (21). Delgado has an interesting ironic commentary going, with two academics chatting away in what seems to be a gourmet bistro while a member of the subject class, a working waiter is a virtual non entity. He may be simply postulating a revolutionary model stripped of Marxist rhetoric, but it is still part of the modernist project as far as I can tell that emerged out of the Enlightenment. After all the enlightenment may have produced a more efficient slavery system, but it also produced abolitionists. I think the critique, although interesting, is not fully emergent from the bed of Hegelian progressive influence. Identifying racial minorities and women as specific political constituencies simply slices the pie into finer and more specific pieces which are probably good, although it can lead quite easily back to the logic of an interest group of one, the individual. Rodrigo’s looking to the Catholic Church as a model, an intermediary (17), is like advocating for the Communist Party rule, or any other elite cadre, such as academia and we are back to the philosopher kings, wisely determining the fate of man. Laws may simply be an encoding of the law of man, but at least they give us time to reflect upon the wisdom of our decision making, the very slowness and defense of the status quo Rodrigo rails against.

Leaving the Status Quo Behind

Although I have a tendency to agree with the left critics of Matsuda, I do see the ideal of bringing about a post-racial society as requiring a mass consciousness raising that may involve some coercion, via legislation, direct action on the streets, media campaigns and the like. The Supreme Court may currently be an impediment, but another Liberal, following in F.D. R’s footsteps could change that, Delgado’s friend in the court (23). Some of Delgado’s problem with the reaction of the right and racism persistent among whites is a result of the failure of the government to sustain policies developed in the sixties by Democrats facing rebellion in the streets and attempting to prosecute an unpopular war in Vietnam at the same time. Incremental changes have happened, albeit much too slowly. It will take the mobilization of constituencies. This mobilization shall require convincing the public of its necessity. Demographics will eventually accomplish much of the goal, but if we desire to see social justice take a progressive form with some due speed, it will require conscious and consistent coalition building since the left is no longer a monolithic movement as some of us nostalgically might imagine we remember.

” The fastest way to change society is to mobilize the women of the world,” said Charles Malik, former president of the United Nations General Assembly in a recent speech” (

I don’t want to come off as being too skeptical, as this paper may indicate. It is more a reflection of my impatience with the slowness of progress in not only racial equality, sexual equality, but also economic justice. There is also a bit of a warning that in the process of change there are often some blood spilled and overall progress to justice may not seem all that just on the ground to some, usually the haves who are being asked to redistribute. The best advice I have is to embrace social justice and not material wealth, although everyone deserves the basics from which native excellence may arise. The problem is to keep the game fail so that all the marbles don’t end up in a few hands, the natural tendency of capitalism. It is after all system designed to aid the the accumulation of wealth in the hands of capable industrial and market innovators. Originally a concept backed by the American and French Revolutions to redistribute wealth from the Kings, landed aristocracy and the Church. It was revolutionary in it’s day. Now it is time for the next step in social justice. How can we do this in an equitable manner and not destroy the goose that lays the golden egg, that is a primary question of our time along with the environment and eliminating race, sex and class background as issues. The NBA decision to take radical action against a racist team owner is unprecedented and a real sign of progress, even if it is based mostly in economic self interest to preserve the league brand.

Works Cited
Delgado, Richard. “Rodrigo’s Seventh Chronicle: Race, Democracy, and the State.” 1 UCLA L. Rev 721 (1994) (Westlaw). (Pagination from printout of article as a word document) 1-35. Web. 25 Apr. 2014.
Gottlieb, Akiva. “David Horowitz is Homeless.” Tablet Magazine. May 2, 2012. Nexbook Inc. Web. 26 Apr. 2014
Jefferson, Thomas. Writings. New York: Literary Classics of the United States, Inc. 1984. Print.
Leng, Shao-Chuan. “The Role of Law in the People’s Republic of China as Reflecting Mao Tse-Tung’s Influence.” The Journal of Criminal Law and Criminology (1973-). 68. 3 (1977). 356-373. Web. 26 Apr. 2014.
Matsuda, Mari J. “Who is Excellent?” 1 Seattle J. for Soc. Just. 29 (2002) (Westlaw). (Pagination from printout of article as a word document) 1-18. Web. 25 Apr. 2014.
Tse Tung, Mao. Quotations from Mao Tse Tung. Trans. David Quentin and Brian Baggins. Beijing: Peking Foreign Languages Press. 1966. Mao Tse Tung Internet Archive. Web. 26 Apr. 2014.

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