Philosopher views

THE LAW IS INHERENTLY RACIST

1. AMERICAN LAW IS MOVING BACK TO DRED SCOT AND PLESSY

Richard Delgado, Charles Inglis Thomson Professor of Law, University of Colorado, and Jean Stefancic Research Associate, University of Colorado School of Law, WILLIAM & MARY LAW REVIEW, WINTER, 1995, p. 182

As a culture, and as a legal profession, we are rapidly returning to the regime of Plessy v. Ferguson's separate but equal doctrine and the Civil Rights Cases view of blacks as imposers and whiners because they desire to live in American society on the same terms as whites. Moreover, we find some frightening straws in the wind--indications that ought to give pause to any defender of freedom and minority rights. We have reviewed evidence that society generally, and the legal system in particular, are beginning to regress in one final, decisive quantum jump. American society, without the spur of Cold War competition or the need for minority labor or soldiers, is in serious danger of quietly, implicitly readopting a familiar standard from another era: Dred Scott v. Sandford, in which blacks and other minorities of color have no rights that white Americans are bound to respect.

Eric K. Yamamoto, Professor of Law, William S. Richardson School of Law, University of Hawaii, MICHIGAN LAW REVIEW, February, 1997, p.842

What Krupat and others describe is the oppressive way law sometimes operates as a discursive strategy backed by force. It starts with the assessments of cultural difference and the marking of inferiority upon the racialized minority. It then inscribes an inferior identity into a legal text - defining Indians as wards of the government - that then legitimates paternalism - requiring Indian acceptance of the subordinated identity of "dependent sovereign" - or negation - removal. In this manner, law operates as a "cultural system that structures relationships throughout society, not just those that come before courts." As a cultural system, law sometimes inscribes and reproduces liberatory ideas and group images. Often, however, it reflects dominant interests and fosters structural "oppression less by coercion than by offering people identities contingent upon their acceptance of oppression as defining characteristics of their very selves." Law is experienced in this fashion by racial minorities as injustice, not because of any particular hostile legislative enactment or court ruling, but because of the systemic oppression it legitimates.
3. LAW HAS SANCTIONED GENOCIDE

Eric K. Yamamoto, Professor of Law, William S. Richardson School of Law, University of Hawaii, MICHIGAN LAW REVIEW, February, 1997, p.843

Law's inscription and reproduction of cultural images, which create meaning that "radiates throughout social life," are captured in Arnold Krupat's description of the role of law in the racialization and then "removal" of Indians from eastern America. Indian removal, and the destruction of Indian societies, "could finally be written into law and enforced ... because by that time, a certain story about America and about 'civilization' had become sufficiently acceptable [through journalism and literature] that it could be used as ideological justification for 'certain sequences of causes and effects,' for expansion with honor." Dominant white government and business powers took prevalent narratives about Indian cultural difference, racial inferiority, and the righteousness of American expansion and inscribed them in a legal text, the Indian Removal Act. Those narratives legitimated not only the creation of the text but also its coercive enforcement. As if by cloning, the Reagan-appointed Presidential Commission on Indian Reservation Economies later employed nearly identical racialized rhetoric and issued a culturally derogatory report justifying the harsh consequences of decreasing "tribal dependence on federal monies." Like the cultural derogation of African Americans, which was used to justify Jim Crow laws, and the similar denigration of Japanese Americans, which was used to justify mass internment during World War Two, the negation of Native Americans conjoined dehumanizing cultural representations of the racial "other" with legal sanctions. I am talking not about ... cold-blooded atrocities but about law and the ways in which [cultural] genocidal objectives have been carried out under color of law ... "legally, philanthropically, without shedding blood, and without violating a single great principle of morality in the eyes of the world." These were legally enacted policies whereby a way of life, a culture, was deliberately obliterated.

RACISM IS USUALLY UNINTENTIONAL

1. RACISM IS OFTEN UNINTENTIONAL

Roy L. Brooks, Professor of Law, University of San Diego; HARVARD BLACKLETTER JOURNAL, 1994, p.320

In a statement presented to the United States Civil Rights Commission a generation ago, Anthony Downs explained that racism functions operationally and institutionally: "[it] exhibits itself in hundreds of ways in American society, and acts in hundreds of other ways that are not recognized by most citizens." Anthony Downs, Racism in America and How to Combat It, UNITED STATES COMMISSION ON CIVIL RIGHTS 6 (1970). According to Downs, "[r]acism can occur even if the people causing it have no intention of subordinating others because of color, or are totally unaware of doing so." Id. Significantly, Downs reasons, "[t]he separation of races is not racism unless it leads to or involves subordination of one group by another…Therefore, favoring the voluntary separation of races is not necessarily a form of racism.". It only becomes racism "if members of one group who wanted to cluster together tried to restrict the locational choices of members of some other group in order to achieve such clustering; for example, if whites tried to discourage Mexican Americans from moving into all-white neighborhoods." Id. In contrast, Professor Joe Feagin, a preeminent scholar on race relations, has explained that it is useful to distinguish between "discriminatory actions" and "motivation," as well as other dimensions of discrimination which include: discrimination's "effects"; the relations among motivation, actions and effects; and the contexts of discrimination both immediate (within the institution) and broad (impacting society at large).

Frank I. Michelman, Robert Walmsley Univ. Prof. of Law, Harvard University, MICHIGAN LAW REVIEW, February, 1997, p.62

"Societal" and "structural" and "unconscious" racism are perfectly intelligible notions, and claims of their applicability to the United States now are not, I daresay, honestly dismissible out of hand as unreasonable or disingenuous: If you were to hear today at the water cooler about some ambiguously pigmented fellow, not of your acquaintance, who has been "passing" at your firm or faculty or company, would it occur to you to ask "as which race?" or to say that you simply couldn't fathom his motives? For all his disparagement, as trans-factual, of CRT's "central premise" that nonwhite lives suffer widespread harm from a denigratory race-consciousness that is "institutional and endemic," not confined to discrete "acts of intentional discrimination," Jeffrey Rosen offers not the slightest rebuttal to the premise that I can see, beyond a ringing and risible declaration that the life of Judge Leon Higginbotham "refutes" it. He offers instead the form of response that lawyers know as demur-and-avoid and others know as changing the subject: The premise of institutional racism carries normative and prescriptive implications at odds with liberal ideals of colorblindness and individual responsibility, and for that reason cannot be entertained in legal argument. And there, after all, is the point: I am myself right here and now entertaining the premise as a sociological theory.
3. RACISM IS UNCONSCIOUSLY MASKED BY PRAGMATIC CONCERNS

Thomas Ross, Professor of Law, University of Pittsburgh, BUFFALO LAW REVIEW, Winter, 1998, p.90

Yet, I would not imagine that White racists, past or present, typically engage in a conscious calculation of the utility of their own racism. If it were this simple, racism might have been displaced by the many appeals to conscience, so eloquently and passionately articulated by the opponents of racial subordination in every generation. Racism remains embedded in the White consciousness because it has never been so simple as a material cost/benefit analysis. Racists, of each generation, cannot set aside the narratives that allow them to make sense out of their collaboration in a system that first enslaved, and then subordinated innocent human beings. To give up those narratives would entail a loss of the coherence of their normative world. Yes, the slave owner presumably enslaved blacks because it made him richer than he would be if he set them free. But the various normative understandings of that choice, that slavery was as morally acceptable as his use of livestock, or that slavery was an unfortunate social structure that he had to manage, and that his slaves were better off enslaved than turned loose, or whatever his moral justification, were not, at least in his mind, the product of a conscious, self-interested choice to embrace a particular set of narratives about blacks.