Bell, via Kagan, on Critical Race Theory: The Constitution Is the Problem

by Joel B. Pollak 

In November 1985, the Harvard Law Review published an article by Derrick Bell that was a "classic" in the development of Critical Race Theory. The article was edited by then-student Elena Kagan, and was cited by Prof. Charles Ogletree in support of her nomination to the U.S. Supreme Court by President Barack Obama in 2010. The article makes clear that Critical Race Theory sees the U.S. Constitution as a form of "original sin"--a view later embraced by Obama as a state legislator, and reflected in his actions and appointments. The following is an excerpt from the non-fiction portion of the article; much of what follows is a fictional story that Bell intended as a parable of racial "fantasy." (99 Harv. L. Rev. 4)

At the nation's beginning, the framers saw more clearly than is perhaps possible in our more enlightened and infinitely more complex time the essential need to accept what has become the American contradiction.  The framers made a conscious, though unspoken, sacrifice of the rights of some in the belief that this forfeiture was necessary to secure the rights of others in a society embracing, as its fundamental principle, the equality of all.  And thus the framers, while speaking through the Constitution in an unequivocal voice, at once promised freedom for whites and condemned blacks to slavery....

The Constitution has survived for two centuries and, despite earnest efforts by committed people, the contradiction remains, shielded and nurtured through the years by myth. This contradiction is the root reason for the inability of black people to gain legitimacy -- that is, why they are unable to be taken seriously when they are serious and why they retain a subordinate status as a group that even impressive proofs of individual competence cannot overcome. Contradiction, shrouded by myth, remains a significant factor in blacks' failure to obtain meaningful relief against historic racial injustice.
The myths that today and throughout history have nurtured the original constitutional contradiction and thus guided racial policy are manifold, operating like dreams below the level of language and conscious thought.  Much of what is called the law of civil rights -- an inexact euphemism for racial law -- has a mythological or fairy-tale quality that is based, like the early fairy tales, less on visions of gaiety and light than on an ever-present threat of disaster. We are as likely to deny as to concede these myths, and we may well deny some and admit others. They are not single stories or strands.  Rather, they operate in a rich texture that constantly changes, concealing content while elaborating their misleading meanings.
When recognized, these myths often take the form of the missing link between the desire for some goal of racial justice and its realization. Black civil rights lawyers propound the myth that this case or that court may provide the long-sought solution to racial division. They fantasize and strategize about hazy future events that may bring us a long-envisioned racial equality. White people cling to the belief that racial justice may be realized without any loss of their privileged position. Even at this late date, some find new comfort in the old saw that "these things" -- meaning an end to racial discrimination -- "take time." The psychological motivations behind the myths perpetrated by people of both races can be sufficiently complex to engender book-length explanations by psychiatrists. Racial stereotypes are also part of this suffocating web of myth that forms the rationale of inaction, but it is not necessary to catalogue here the myriad stereotypes about black people that have served since the days of slavery to ease the consciences of the thoughtful and buoy the egos of the ignorant,
The contemporary myths that confuse and inhibit current efforts to achieve racial justice have informed all of our racial history. Myth alone, not history, supports the statements of those who claim that the slavery contradiction was finally resolved by a bloody civil war. The Emancipation Proclamation was intended to serve the interests of the Union, not the blacks, a fact that Lincoln himself admitted. The Civil War amendments, while more vague in language and ambiguous in intent, actually furthered the goals of northern industry and politics far better and longer than they served to protect even the most basic rights of the freedmen. The meager promises of physical protection contained in the civil rights statutes adopted in the post-Civil War period were never effectively honored. Hardly a decade later, the political compromise settling the disputed Hayes-Tilden election once again left the freedmen to the reality of life with their former masters. Finally, the much-discussed "40 acres and a mule," hardly extravagant reparations for an enslaved people who literally built the nation, never got beyond the discussion stage.
The reason that the Civil War amendments failed to produce equality for blacks remains an all-too-familiar barrier today: effective remedies for harm attributable to discrimination in society in general will not be granted to blacks if that relief involves a significant cost to whites. Even in northern states, abolitionists' efforts following the Revolutionary War were stymied by this unspoken principle. Today, affirmative action remedies as well as mandatory school desegregation plans founder as whites balk at bearing the cost of racial equality.
Throughout this history of unkept promises and myth-making about the possibility and proximity of racial equality, racial policy via fantasy has not been the exclusive province of "the perpetrator perspective." Black victims of racial oppression also subscribe to myths about racial issues.  The modern civil rights movement and its ringing imperative, "We Shall Overcome," must be seen as part of the American racial fantasy.  This is not a condemnation.  Much of what advocates call the "struggle" to throw off the fetters of subordinate status is simply an age-old effort to uncover the reality beneath the racial illusions that whites and blacks hold both about themselves and about each other.Clutching for ideological straws is understandable, but, unfortunately, the result is as predictable as that of the framers' fantasy...