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Excerpted From: Robert L. Hayman, Jr., The Color of Tradition: Critical Race Theory and Postmodern Constitutional Traditionalism, 30 Harvard Civil Rights-Civil Liberties Law Review 57 (Winter, 1995) (264 Footnotes) (Full Document)


We are living in fractious times.

Modernity's dominance has indeed wrought its own demise. We are unified, but only under the totality of a relentless hierarchy. We are liberated, but only from the possibility of authentic community. The divorce between who we are and who we always imagined we might be has grown so great that we are now only vaguely aware of the gap.

This, we are told, is postmodernity. It is an age of radical differentiation, spurred on by liberal theory, rendered perverse or moot by power disparities. It is an age of self-realization, the triumph of psychological humanity, instantaneously vanquished by the recognition of its own construction. It is an age of contradiction, the fully realized era of the absurd.

And yet it is an age of hope. Paradoxes yield unexpected pleasures: relinquishing the progression toward totality, we find unity in our differences; surrendering the myth of our autonomy, we are free to choose our constructions. And in the absurd gap between the real and the ideal, we find a space for human action.

For legal scholars and others committed to some vision of social progress, these are passionately ambivalent times. The challenges of postmodernity are daunting and invigorating. These challenges have certainly been felt by constitutional theorists. Some have accepted the invitation to imagine the possibilities for constitutional law in a non-foundationalist, postmodern legal world. Others--partly reacting to the postmodern scene, partly constituting it--have issued a call for the renewal of foundations.

Among the latter's prospects for redemption, none figures more prominently than “tradition.” The call to “tradition” has been voiced in both academic and juridical circles. But here, as elsewhere, postmodern jurisprudence is characterized by an enormous disjunction between theory and practice, between the legal academy and the judiciary. For the academy, “tradition” is evolutive, negotiable, and boundless, a (con)textual end as well as a means; for the judiciary, “tradition” is fixed and determinate, a neutral tool for fixing the meaning of some other text. And there is one additional difference: while in postmodern theory “tradition” may comprise an infinite spectrum of hues, in judicial practice, “tradition” is nearly always white.

This Article examines the “color of tradition,” as it appears in postmodern constitutional theory and in judicial decisions. Part I of this Article offers a brief introduction to the most recent school of postmodern jurisprudence and suggests that Critical Race Theory, both in its form and its substance, demonstrates the possibility of difference without exclusion and pluralism without totality. Part II examines the conventional use of “tradition” as a guide to constitutional interpretation, offers a postmodern critique, and suggests a Critical Race Theory paradigm for reconceptualizing constitutional traditionalism. Part III focuses on the construction and use of “tradition” in the Supreme Court's most recent decisions dealing with race. It identifies four basic traditions that emerge from these cases and contrasts them with four counter-traditions posited by a postmodern racial critique. Part IV concludes with a description of a new “traditionalism,” informed by the lessons of Critical Race Theory, that is dialogic, pluralistic, and multi-hued.

One methodological note is in order. In focusing on Critical Race Theory, this Article presents an outsider's view of outsider jurisprudence. It makes no pretense to the contrary. Even fellow travelers--perhaps especially fellow travelers--need to be careful when they venture down the Critical Race path: people who are used to leading, not following, too easily lose the trail. Consequently, the reader is referred to the original work of the trailblazers to overcome whatever detours, dead ends, and wrong turns that might sidetrack this Article.

[. . .]

I. Critical Race Theory and Postmodern Thought

Christened at a meeting in 1989, the “Critical Race Theory” school is the most recent and perhaps most rapidly developing postmodern jurisprudence. Postmodern jurisprudences challenge the adequacy of conventional legal thought to afford either descriptive or prescriptive insights into the contemporary scene. Their challenge arises not so much because legal thought has become divorced from mainstream epistmologies, but rather because those epistemologies no longer seeadequate to convey a sense of the postmodern world. Realist epistemologies appear untenable in the face of the claims of perspectivism: the propagation of plausible beliefs disrupts the stable order of a determinable reality, abstract truths, and reliable governing laws. Meanwhile, the demise of the autonomous “self”--rendered moot or incoherent by the collapse of the objective/subjective dichotomy, and hopelessly tangled in the web of cultural construction the problematization of the twin master narratives of modernity: the liberation of humanity and the unity of knowledge. In a postmodern world there may be no humanity left to be liberated and nothing from which to liberate it, except its own constructions. Unity, meanwhile, may be attainable only through the suppression of nonconforming truths, or in useless, perhaps tyrannical, levels of abstraction.

Postmodernity's crisis of truth is concomitant with a crisis of justice. Postmodern thought problematizes both the positive and normative portions of law's project, depriving law of its conventional supports. In a postmodern world, law cannot be authentic, cannot be determinate, cannot be justified, cannot even be controlled. Law, in short, cannot be any of the things that we have been taught--by law--to view it as being.

Which may mean, ironically, that law is now ripe for reconstruction. Many, though certainly not all, postmodern legal thinkers have risked the “performative contradiction” and sought to remake law in a fashion consistent with postmodern tenets. Critical Race Theorists are joined by feminist legal theorists, new (or neo- or postmodern) pragmatists, and gay and lesbian scholars, in incorporating--and shaping--postmodern thought into affirmative projects. Informed not only by theory but also by the lived experience of modernity's (dis)illusions, dedicated not merely to deconstructive critique but as well to a reconstructive praxis, Critical Race Theorists and these other postmodern rebels defy both cynicism and despair in their pursuit of a postmodern justice.

Critical Race Theory might be “uniquely situated” by context and content to illuminate some aspects of this struggle. Like other postmodern schools, Critical Race Theory is complex, nuanced, and dynamic, and is in constant dialogue with other contemporary movements. At the same time Critical Race Theory manifests a number of discrete features that promise to afford distinctive insights into the workings of constitutional traditionalism.

Critical Race Theorists articulate concerns that may have been ignored or marginalized by the dominant discourse, problematize concepts that seem otherwise immune from scrutiny, and suggest resolutions that are frequently at odds with the prevailing demands of convention or fashion. Thus, Critical Race Theorists focus their writings on the struggle for racial justice, the persistence of racial hierarchy, and other issues of special importance to marginalized communities. They challenge the efficacy of both liberal legal theory, and communitarian ideals as vehicles for racial progress, destabilize the supposedly neutral criteria of meritocracy and social order, and call for a re-examination of the very concept of “race.” At a theoretical level, their proposals entail a fundamental re-thinking of personhood, community, and equality; at a doctrinal level, they may resist the tide of conventional opinion by condemning racist “speech,” defending the use of racial “quotas,” or rejecting the requirement that the equal protection plaintiff demonstrate discriminatory intent.

In order to accomodate previously marginalized voices, Critical Race Theorists call for a modification of jurisprudential dialogue. They stress the boundedness of legal discourse and the ways in which conventional modes of talking and listening may mute some voices and elide their messages. Accordingly, Critical Race Theorists have emphasized the need for inter-disciplinary studies to expand the bounds of law talk, as well as the need for new modes of discourse--new histories, narratives, and counter-myths challenge the pervasive hegemony of the dominant voice.

Co-existent with the commonalities of Critical Race Theory is a pluralism of separate voices and views. Though they share recurring themes, Critical Race Theorists cannot be classified as part of an existing or emerging orthodoxy. On the contrary, the forms and substance of Critical Race Theory permit a plurality of views: there is now sufficient diversity within the general school that it is possible to speak in the plural of Critical Race Theories. Although Critical Race Theorists have not yet aligned themselves into formal camps or movements in quite the same way as, for example, Feminist Legal Theorists, at least two central points of departure (and glimpses of a third) can be identified.

The first concerns the meaning and dimension of “race.” On the one hand, advocates of the minority voice emphasize the distinctiveness, and distinct value, of the perspective gained by living the life of a racial minority in a white-dominated society. For example, Richard Delgado has described how the powerless outsider may experience the exercise of power in ways unnoticed by empowered insiders; Alex Johnson has argued that new ways of listening and evaluating are necessary for an appreciation of the new voice of color; and Jerome McCristal Culp, Jr. has called for a black theoretical scholarship to supplement the more practical black jurisprudence. On the other hand, some Critical Race Theorists reject an essentialist view of race, instead emphasizing the multi-dimensionality of the identities constructed in a postmodern world. Mari Matsuda, for example, has described the “multiple consciousness” of postmodern selfhood and argued for an accommodative jurisprudential method. Angela Harris has identified the dangers of feminist essentialism. Regina Austin has identified the same essentialist dangers in the pretense to a single, coherent “black community.” Finally, John Calmore has urged a recognition of the “many dualities” of African-American life and an awareness of “all of the props of subordination, domination and oppression.”

The tension between these views is not as great as some conventional critics would have it. The “voice” theorists' claims to distinctiveness are not undermined by the much-celebrated demise of the subject, since the politically constructed voice can be at least as distinct as the “natural” autonomous one. Similarly, the claims of the anti-essentialists to multi-faceted identities can co-exist with evidence of a distinct racial voice, since their claim is simply that people do not live only the life of “race.” More importantly, in their common understanding that “race” is politically constructed, both groups of Critical Race Theorists radically differentiate themselves from their mainstream counterparts.

The second difference among Critical Race Theorists concerns the possibility of racial justice. On the one hand, reconstructionists write hopefully of the transformative possibilities of law, seeking redemption through the liberal pursuit of “rights” and “equality” or through a radically reconstructed society devoid of hierarchy. Patricia Williams, for example, has described the psychic value of “rights” into which an immense faith has already been invested; Kimberlé Crenshaw has cautioned against the Critical Legal Scholars' tendency to underestimate liberalism's practical benefits for oppressed people; and Charles Lawrence has written that “[t]he sustained struggle for liberation from racial oppression must be fed by a faith in ultimate victory.” On the other hand, the “racial realists” insist on an acknowledgment of the deeply entrenched nature of racial hierarchy, a hierarchy that resists each attempt at reconstruction. Derrick Bell, for example, has concluded that “a commitment to racial equality merely perpetuates our disempowerment,” and Linda Greene has warned of the dangers of reliance on a system of justice “that excludes so much and so many from its reach.”

Again, the differences between these thinkers may not be as great as this simple schema might suggest. The reconstructionists seek to confront, not elude, the persistent reality of racial subordination, while the racial realists promise continued struggle for justice, however Sisyphean the task. Virtually all Critical Race Theorists, meanwhile, are united by some form of antisubordination theory, and all insist upon the necessity of struggle.

A latent potential for a third difference among Critical Race Theorists arises out of the contrast between theorists who would pursue separatist strategies--both in academic writing and in legal practice--and those whose work would be racially inclusive. Dissatisfaction or disillusionment with integrationist legal strategies and concerns over white co-optation or assimilation have led some theorists to advocate separatist approaches to legal problems. These concerns prompted a comparable call for separatism within the legal academy. That call has been matched by a responsive plea for inclusiveness, for work that both accepts and engages the efforts of white scholars and practitioners. One resolution, if it is needed, may be found in a pluralism of the type advocated by Patricia Williams, by Robert Williams, and by this Article: a pluralism that promises a celebration of difference, a dialogue that forswears dominance, and a consensus that is authentic and just.

Although these differences may have practical political ramifications, the presence of diversity and dialogue in the Critical Race Theory scholarship adds to its pluralistic strength. The ability to address and examine differences within a group enhances its ability to tolerate those “outside” it. The common understanding of the need for a radical restructuring of conventional thought and the shared desire for social change bind Critical Race Theorists in ways that help them mediate the tensions between community and difference--an ability much needed by our legal system.

Several of the common tenets of Critical Race Theory are fundamentally postmodern. First, Critical Race Theorists reject both realist and conceptualist epistemologies and insist instead on the importance of perspective and context in assessing claims to truth. Second, Critical Race Theorists reject the contention that texts and practices have objective, neutral meanings and insist instead on their relentless deconstruction, and, perhaps, reconstruction. Third, Critical Race Theorists reject the conception of the self as innate, immutable, and autonomous, and insist instead on the re-cognition of “race” as--like all attributes of personhood--a political construction.

However, Critical Race Theorists share one additional commitment that in a sense defies postmodernity. Observers of the postmodern legal scene have noted the extraordinary disjunction between law as it is theorized in the academy and law as it is practiced by judges and lawyers. This divorce is keenly felt in constitutional law, where the academy and judiciary co-exist in mutual disregard, even disdain. In the postmodern world of constitutional law, theory seems nearly irrelevant. One can of course theorize as to why this may be the case, but whether one can actually do something about it remains one of postmodernism's more vexing questions. In response to the vexing questions of postmodernism, Critical Race Theorists have risked an affirmative response, which may well threaten the postmodern disjunction between theory and practice in its insistence on the realization of a postmodernized justice. Thus a fourth tenet of Critical Race Theory emerges, one that may not be postmodern at all: Critical Race Theorists insist that justice cannot be merely theoretical, but must be informed by and realized in lived experiences; and while the struggle for racial justice may offer no prospects for immediate or ultimate success, there is no useful alternative to trying.

[. . .]

“The only helpful way to teach about difference,” writes Judy Scales-Trent, “is to teach about sameness at the same time.” It is important, then, to keep in mind those traditions that we clearly share: our traditions of hope, of faith, of inquiry, of struggle. We may ride in different vessels--one a canoe, the other a ship--but we ride the same river, and in that very real sense, we are all in the same boat.

Our task on this journey is to be true to our traditions. We must ensure that hope does not yield to despair, faith to cynicism, inquiry to self-satisfaction, or struggle to indifference. What is at stake is too large. Camus wrote:

Our brothers are breathing under the same sky as we; justice is a living thing. Now is born that strange joy which helps one live and die, and which we shall never again postpone to a later time. On the sorrowing earth it is the unresting thorn, the bitter brew, the harsh wind of the sea, the old and the new dawn. With this joy, through long struggle, we shall remake the soul of our time . . . .

The struggle yields more than maddening uncertainty. Deconstructed traditions, like rights, may yield reconstructed ideals. Two come to mind: a genuinely universalized comprehension and an all-embracing compassion. From where will they come? Perhaps, after dialogue, we will choose our ideals. We can make them part of a new, multi-colored tradition.

Associate Professor of Law, Widener University School of Law. Portions of this effort--the brief sketches of postmodernism and Critical Race Theory--grew out of a larger project surveying contemporary jurisprudence.


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