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40 B.C. L. Rev. 787 (1998-1999)
Race, Equality and the Rule of Law: Critical Race Theory's Attack on the Promises of Liberalism

handle is hein.journals/bclr40 and id is 799 raw text is: RACE, EQUALITY AND THE RULE OF LAW: CRITICAL RACE THEORY'S ATTACK ON THE PROMISES OF LIBERALISM INTRODUCTION In recent years, critical race theory (CRT) has come to occupy a conspiauous place in American law schools.1 The theory holds that despite the great victories of the civil rights movement, liberal legal thought2 has consistently failed African Americans and other minori- I See generally Stephanie B. Goldberg, The Law, a New Theory Holds, Has a White Voice, N.Y. TIMEs,July 17, 1992, atA23 (describing critical race theory as having had an undeniable impact on legal education); Neil A. Lewis, For Blac Scholars Wedded to Pin of Race, New and Separate Goals, N.Y. TIMES, May 5, 1997, at A14 (noting that critical race theorists are on the faculty at almost every major law school); Jeffrey Rosen, The Bloods and the Gits: OJ. Simpson, Critical Race Theory, the Law, and the Triumph of Color in America, NEW REPUBLIC, Dec. 9, 1996, at 27 (book review) (observing that critical race theory has gained increasing currency in the legal academy). 2 It is not possible to explain adequately the liberal tradition in American legal thought within the bounds of this short essay. In brief, my argument assumes that the consensus school of American political thought is correct: agreement on certain liberal principles lies at die core of American politics, and all political disputes, (including those over race, class, gender and sexual orientation), take place in the context of that broad consensus. See generally Louis HARTZ, THE LIBERAL TRADITION IN AMERICA (1955); SAMUEL HUNTINGTON, AMERICAN POLITICS: THE PROM- ISE OF DISHARMONY (1981); GUNNAR MYRDAL, AN AMERICAN DILEMA (20th anniv. ed. 1962) (1944); ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA (Richard D. Heffner ed., Mentor 1956); GORDON WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787 (Norton 1972) (1969). But see ROGERS SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (1997) (rejecting consensus school, arguing instead that America contains multiple traditions of liberalism and bigotry); Rogers Smith, Beyond Tocqueville, Myrdal and Hartz: The Multiple Traditions in America, 87 AM. POL. SCI. REV. 549, 558-563 (1993) (further disputing consensus school). Liberal principles are so ingrained in political and legal discourse in the United States that they are hardly mentioned anymore, but they have structured and moderated political and legal debate for more than two centuries and are likely to do so long into the future. See generally HARTZ, supra. They include government with the consent of the governed; repre- sentative democracy; guaranteed liberties and equal citizenship; separated institutions checking and balancing each other until consensus is reached, and multiple sovereignties, including those of states, local governments and individuals. See HUNTINGTON, supra, at 14. These basic principles (and there are more) are embodied in the higher law of constitutions, which are enforced (some of the time) by reasonably independent judges (chosen through political proc- esses) under a system that aspires to the rule of laws, and not of men. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). Judges make their decisions case-by-case, justifying their choices according to a system of precedent and reasoning by analogy, but with some freedom to reshape the law incrementally, and even to overrule precedents on occasion. See generally EDWARD H. LEVI, AN INTRODUCTION TO LEGAL REASONING (1948). Adherence to these general principles is nearly universal in the United States, and defines people as being American more accurately

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