Judicial Courts CRT Kritik Index
.............................................................................................................................................................. 1
1NC Judicial Courts CRT Kritik ............................................................................................................... 2
Aff is Shallow: Anti-colonialism is key ................................................................................................... 6
Perm Answers: CRT is Best Starting Point ............................................................................................. 7
Link: Starting Point Analysis ................................................................................................................ 12
Link: Government Judicial Action ....................................................................................................... 16
Link: Civil Society/Patriarchy .............................................................................................................. 23
Impacts ................................................................................................................................................ 27
Case Neg.................................................................................................................................................. 30
No solvency: Courts and government fail the people ........................................................................ 31
No Solvency: Courts racist .................................................................................................................. 33
No solvency: Social racism .................................................................................................................. 35
No solvency: US Support for Israel ..................................................................................................... 37
No solvency: Patriarchy....................................................................................................................... 38
No solvency: Middle East Womyns' Rights -- Arab Experience Unique ............................................. 40
CRT Alt Solvency...................................................................................................................................... 41
Decision rules for the K ........................................................................................................................... 47
Language Critique ................................................................................................................................... 49
AFF ANSWERS: ........................................................................................................................................ 52
A2: Courts bad for topic areas ............................................................................................................ 53
A2: CRT takes out case solvency ......................................................................................................... 57
AT: CRT framework good ................................................................................................................... 62
1NC Judicial Courts CRT Kritik
Judicial branch supports the rise of the imperial presidency through the executive branches
creation of secret laws through the manipulation of the court system
Adler, Aug 13 (David Adler is the director of the Andrus Center for Public Policy at Boise State
University where he holds appointment as the Cecil D. Andrus professor of public affairs. He serves as an
adjunct professor of law in the University of Idaho’s College of Law, where he teaches courses on the
Constitution and the Supreme Court. “Secret executive law upheld by courts violates Constitution.” Aug
1, 2013 http://www.idahostatesman.com/2013/08/01/2682709/secret-executive-law-upheldby.html#storylink=cpy)
At the time of the American Revolution the principle of the rule of law was focused on the
subordination of the executive to legal prescriptions. The founders, who were keen students of history,
had culled from their readings the lesson that kings and despots and tyrants had defied efforts to rein in
their powers. In a historic act, culminating in decisions made in the Constitutional Convention, the
presidency was made subject to the limits of the Constitution. Executive transparency and accountability
were ascendant. With some exceptions, that trajectory survived well into the 20th century, but the rise of
the imperial presidency has proven to be prologue to another perilous era: executive branch creation
of secret law. Since 9/11, the administrations of George W. Bush and Barrack Obama have hidden
from public view legal memos prepared by the Office of Legal Counsel that have purported to supply
the legal justifications for a range of executive branch initiatives: preventive war, extraordinary
rendition, warrantless surveillance, termination of the Geneva Convention, defense of interrogations
methods widely condemned as torture and, most recently, targeted killings and the use of exigent
letters. Scholarly analyses of OLC memos that were leaked or subsequently released during the latter years of the Bush administration have
shredded the reasoning employed by attorneys in that office. Worse than the impoverished and indefensible reasoning, however, is the fact
that the Obama administration has refused to release the memos so that they could be scrutinized publicly. If
matters could be made
worse, they have been made worse — by the judiciary. In the past several years, federal court rulings
have granted summary judgment to the Department of Justice, sustaining its claims of the need for
secrecy. It’s one thing to withhold on national security grounds certain policy decisions that require
secrecy, but it’s quite a different matter to insulate the OLC memos that might disclose advocacy of
the desire to violate statutes and treaties, which is what several of the memos have done
Unchecked executive power justified the conflation of the INS into the department of
homeland security, the creation of the Patriot act and justifies the ongoing Federal
abuses such as the labeling of immigrants as well as civilians as terrorist
Wing 03 Bessie Dutton Murray Distinguished Professor of Law at the University of Iowa
College of Law (Adrien, "Civil Rights in the Post 911 World: Critical Race Praxis, Coalition
Building, and the War on Terrorism." Louisiana Law Review, 63 La. L. Rev. 717, Spring 2003)
The legal position of Arabs and Muslims has especially declined since the exceptionally speedy
passage of the Uniting and Strengthening America by Providing Appropriate Tools Required to [*729]
Intercept and Obstruct Terrorism (USA Patriot Act), n96 which subjects noncitizens to guilt by
association, ideological exclusion, unilateral executive detention, and racial profiling. Aliens are
deportable for innocent association, without any proof that they supported terrorist activity. n98
Noncitizens are now subject to the resurrection of ideological exclusion, that is that they will be
denied a visa on the basis of pure speech if they are seen as endorsing or espousing terroristic activity
or persuading others to support activity or a group. n99 Aliens can be detained without any hearing or
showing that they pose a threat to national security or are a flight risk. The defendant in a normal
criminal proceeding can be held without bail only if he is a danger to the community or a flight risk. n100
Aliens can now be held not only during the proceeding which can take years, but also afterwards,
indefinitely, even if the proceeding says they should not be removed from the country!! n101 Rules that
effect citizens and noncitizens alike include the authorization of secret searches and wiretaps without
any probable cause as would normally be required by the Fourth Amendment. n102
Unchecked governmental power leads to an ongoing declaration of war against Islam
and radical dissidents creating a perpetual cycle of retaliatory warfare.
Churchill 03 Professor of American Indian Studies at the University of Colorado/Boulde,r
Ward, Some people push Back: On the Justice of Roosting Chickens: Reflections on the Consequences of
U.S. Imperial Arrogance and Criminality, Published by AK Press in 2003
That desperate circumstances generate desperate responses is no mysterious or irrational
principle, of the sort motivating fanatics. Less is it one peculiar to Islam. Indeed, even the FBI's
investigative reports on the combat teams' activities during the months leading up to
September 11 make it clear that the members were not fundamentalist Muslims. Rather, it's
pretty obvious at this point that they were secular activists – soldiers, really – who, while
undoubtedly enjoying cordial relations with the clerics of their countries, were motivated far
more by the grisly realities of the U.S. war against them than by a set of religious beliefs. And
still less were they/their acts "insane." Insanity is a condition readily associable with the very
American idea that one – or one's country – holds what amounts to a "divine right" to
commit genocide, and thus to forever do so with impunity. The term might also be reasonably
applied to anyone suffering genocide without attempting in some material way to bring the
process to a halt. Sanity itself, in this frame of reference, might be defined by a willingness to
try and destroy the perpetrators and/or the sources of their ability to commit their crimes.
(Shall we now discuss the US "strategic bombing campaign" against Germany during World War
II, and the mental health of those involved in it?) Which takes us to official characterizations of
the combat teams as an embodiment of "evil." Evil – for those inclined to embrace the banality
of such a concept – was perfectly incarnated in that malignant toad known as Madeline
Albright, squatting in her studio chair like Jaba the Hutt, blandly spewing the news that she'd
imposed a collective death sentence upon the unoffending youth of Iraq. Evil was to be heard in
that great American hero "Stormin' Norman" Schwartzkopf's utterly dehumanizing dismissal of
their systematic torture and annihilation as mere "collateral damage." Evil, moreover, is a term
appropriate to describing the mentality of a public that finds such perspectives and the
policies attending them acceptable, or even momentarily tolerable. Had it not been for these
evils, the counterattacks of September 11 would never have occurred. And unless "the world
is rid of such evil," to lift a line from George Junior, September 11 may well end up looking like
a lark. There is no reason, after all, to believe that the teams deployed in the assaults on the
WTC and the Pentagon were the only such, that the others are composed of "Arabic-looking
individuals" – America's indiscriminately lethal arrogance and psychotic sense of selfentitlement have long since given the great majority of the world's peoples ample cause to be
at war with it –or that they are in any way dependent upon the seizure of civilian airliners to
complete their missions. To the contrary, there is every reason to expect that there are many
other teams in place, tasked to employ altogether different tactics in executing operational
plans at least as well-crafted as those evident on September 11, and very well equipped for
their jobs. This is to say that, since the assaults on the WTC and Pentagon were act of war –
not "terrorist incidents" – they must be understood as components in a much broader
strategy designed to achieve specific results. From this, it can only be adduced that there are
plenty of other components ready to go, and that they will be used, should this become
necessary in the eyes of the strategists. It also seems a safe bet that each component is
calibrated to inflict damage at a level incrementally higher than the one before (during the
1960s, the Johnson administration employed a similar policy against Vietnam, referred to as
"escalation"). Since implementation of the overall plan began with the WTC/Pentagon
assaults, it takes no rocket scientist to decipher what is likely to happen next, should the U.S.
attempt a response of the inexcusable variety to which it has long entitled itself.
The Alternative is to reject the Aff’s usage of Federal power in favor of Judicial Checks
and Balances. Only by raising public support can the courts achieve its goal in
protecting the rights of citizens and minorities in a Post 9/11 world
Fisher 05 Louis, Congressional Research Service, Judicial Review of the War Power, Presidential
Studies Quarterly Center for the Study of the Presidency, September 2005)
The shock of 9/11 initially produced a compliant judiciary, willing to defer to executive initiatives and
judgments. The executive branch continued to flex its muscles, insisting that it had the constitutional
authority to detain hundreds of individuals in Guantanamo Bay and hold them indefinitely until the
government decided it was time for their release. President Bush, on November 13, 2001, issued a
military order authorizing the creation of military tribunals to try noncitizens who had given
assistance to al Qaeda. He claimed that he had authority to designate U.S. citizens "enemy
combatants" and hold them for years without giving them access to an attorney, charging them with a
crime, or bringing them before a court for trial. These sweeping assertions of presidential power
finally led to the Supreme Court's decisions on June 28, 2004. Writing for the plurality in Hamdi v.
Rumsfeld, Justice Sandra Day O'Connor rejected the government's position that separation of powers
principles "mandate a heavily circumscribed role for the courts." A state of war, she said, "is not a
blank check for the President when it comes to the rights of the Nation's citizens."145 This judicial
rhetoric was not matched by the issuance of clear standards from the Court, either in this case or Rasul
v. Bush (Fisher 2005b, 210-49). Lower courts were therefore largely on their own in scrutinizing the
administration's claims for presidential power. On January 19, 2005, District Judge Richard J. Leon ruled
that the foreigners imprisoned at Guanranamo had no legal way of challenging their detentions in
federal court. 146 Other district judges, however, sharply rejected the legal arguments put forth by the
Justice Department. On January 31, District Judge Joyce Hens Green ruled that the special tribunals
created in Guantanamo to satisfy the Supreme Court's decision were unconstitutional by denying due
process to the detainees who sought to challenge their classificacion. 147 In another setback for the
administration, on February 28 a district judge in South Carolina held that the government must release
Jose Padilla, a U.S. citizen who President Bush had designated as an enemy combatant, within forty-five
days unless the government charged him with a crime. 148 Padilla had been held incommunicado for
almost three years. The sharp disagreements between Judges Silberman and Tatel in the D.C. Circuit
underscore the rift that still exists among federal "judges on war power issues and the political question
doctrine. Contrary to the general impression that war power disputes present delicate political issues
beyond the scope of judicial scrutiny, courts have generally regarded the exercise of war powers by
the political departments as subject to independent judicial scrutiny. Throughout the past two
centuries, federal courts accepted and decided a broad range of issues involving military operations.
Most of those lawsuits were brought by private individuals who expected their legal claims to be
settled on the legal and constitutional merits. While courts often acknowledge the president's broad
discretionary powers in foreign policy and military actions, they usually do so after interpreting what
Congress has authorized by statute. Even at the height of judicial unwillingness to reach the
constitutional merits of the Vietnam War, the courts looked for some form of congressional approval
or at least ratification of presidential war initiatives. They also intimated, repeatedly, that absent such
a support (express or implicit) the decisions they reached might have turned against the president.
Public pressure has affected judicial rulings on the war power. As the Korean and Vietnam Wars
continued and popular support diminished, the courts appeared to be responsive to public opinion.
District Judge Pine and the Supreme Court were aware of the sharp public disapproval of President
Truman's broad claims of executive power. Sentencing of Vietnam War resisters seemed to decline in
severity as public opinion turned against the war (Kritzer 1977, 1979; Graebner 1973-74). Although
courts often decide war power disputes involving private citizens and private corporations, they are
much more reluctant to decide cases brought by members of Congress. It is not enough for a dozen or
so lawmakers to initiate a lawsuit. Unless there is evidence of a clear and resolute conflict between the
political branches, and unless Congress as an institution is prepared to confront the president, the
judiciary is likely to dismiss the case on various grounds. Lawsuits involving war power boundary
disputes between the political branches will be addressed only if perfectly "ripe" for judicial resolution.
When Congress decides to press a war power issue in the courts, it must do so as a body and after taking
votes in opposition to presidential actions. The protection of individual rights and liberties depends
now, as it did two centuries ago, on a vigorous system of checks and balances. In no area of federal
power is that constraint more crucial than the decision to go to war. Without judicial and legislative
controls, this part of presidential power shades into the monarchy that the Framers thought they had
put behind them. A restoration of judicial and legislative checks depends on an understanding that
the concentration of war power in the presidency is unhealthy for constitutional liberty, the country,
and the world.
Aff is Shallow: Anti-colonialism is key
Colonialism is the Problem, not war powers allocation. The impact they are describing
and the racism they pin-point—the narratives of Presidential War Power they tell—
are not about Executive authority as much as they are about colonialism as a whole.
Torok 04 CUNY Law Graduate and PhD candidate in ethnic studies, Berkeley
(John Hayakawa, Howard Law Journal, Fall, 2004 Doctoral Candidate, Department of Ethnic Studies,
University of California, Berkeley. J.D. 1991 C.U.N.Y. Law School. 48 How. L.J. 351, “Freedom Now! - Race
Consciousness and the Work of De-Colonization Today.”)
Frantz Fanon, a central figure in the Algerian Revolution of 1952 to 1961, held that colonialism is violence in its pure
form. n187 Kwame Nkrumah of Ghana held that the "raison d'etre of colonialism is the thorough exploitation of
the subject peoples and territories." n188 Bert [*380] J. Thomas, the editor of the volume of essays I relied upon for my discussion
here, asserts: "Pan-Africanism is a coherent theory, which has as its aim the complete destruction of all phases of colonialism and their
consequences." n189 John Henrik Clarke in the preface to the Thomas book states that the essays deal with "the African world struggle and the
search for an ideology of liberation." n190 The
search for an ideology of liberation by and for people of color, in the
domestic and international spheres, is a complex, continuing task. European imperialism led to the colonization of the
Americas, Africa and Asia. n191 In aid of colonialism, the Portuguese began the European slave trade from Africa over five centuries ago.
Colonialisms begat racisms. n192 Frantz Fanon found that racism had become an ideology in the colonial
milieu. "Metropolitan scholars, particularly anthropologists, keep this racism alive, since they are prone to write that "before the advent of
colonialism, [the native's] history was one which was dominated by barbarism." n193 De-colonization involved and involves not
only access to state power in the former European colonies, but the colonized's rejection of internalized racism.
n194
This, Frantz Fanon and Albert Memmi n195 posit, is necessarily a violent, painful process. n196 As anti-subordination legal
theorists and activists located in the United States, we live in, and with, the legacies of colonial projects.
As American lawyers and law teachers of color, we do well to examine the life work of Charles Hamilton Houston and William Henry Hastie. n197
CRT is not focused on one race—that’s another net benefit for the critique. Their
advocacy talks about a number of races, but each instance there is a primary focus on
one particular group.
Torok 04 CUNY Law Graduate and PhD candidate in ethnic studies, Berkeley
(John Hayakawa, Howard Law Journal, Fall, 2004 Doctoral Candidate, Department of Ethnic Studies,
University of California, Berkeley. J.D. 1991 C.U.N.Y. Law School. 48 How. L.J. 351, “Freedom Now! - Race
Consciousness and the Work of De-Colonization Today.”)
As noted, the LatCrit movement is the best-organized form of race-conscious critical legal thought. The
choice to organize as
critical race theorists, however, as opposed to as Latina/o, or Asian American, or Native American, or
Black critical legal theorists, is a different stance. n140 The distinction is an important one. CRT centers
critical theory and race, racisms, and law, rather than a particular racial identity category. CRT can and
should learn much from LatCrit, and vice versa. CRT's "first-decade learning curve" framed the start-up of, and served as the
"point of departure" for, LatCrit as an organized legal intellectual movement. n141 LatCrit's learning curve, especially its sophisticated [*372]
organizing methods and level of theoretical ambition, can be a starting point for a renewed CRT movement. n142
Perm Answers: CRT is Best Starting Point
CRT is the best starting point. CRT attacks the Oppressor head on instead of reforming
its legal doctrine
Torok 04 CUNY Law Graduate and PhD candidate in ethnic studies, Berkeley
(John Hayakawa, Howard Law Journal, Fall, 2004 Doctoral Candidate, Department of Ethnic Studies,
University of California, Berkeley. J.D. 1991 C.U.N.Y. Law School. 48 How. L.J. 351, “Freedom Now! - Race
Consciousness and the Work of De-Colonization Today.”)
Charles Houston and William Hastie developed and put into practice the philosophy of legal education that the Howard University School of
Law used to educate Thurgood Marshall and most of his NAACP legal staff and volunteer lawyer colleagues. Houston, Hastie, and Marshall led
and trained the cadre of lawyers who eradicated the formal law of American apartheid using the judicial process. "Dean" Houston n110 is further
acknowledged as the architect of the NAACP's litigation strategy that culminated in 1954 in the Brown v. Board of Education decision. n111 Theirs
is a justly celebrated achievement. Houston
and Hastie's philosophy of race-conscious community organizing as it
philosophy may perhaps be a
n113
starting point for progressive forms of racial solidarity.
related to their litigation work, however, is less well-known. I submit it is also crucial. n112 This
Genna Rae McNeil's summation of Houston's life work applies to both Houston and Hastie:
Houston engaged in planned litigation campaigns with what Brazilian social theorist Paulo Freire has
described as critical consciousness. This critical consciousness incorporated both understanding and
rejecting the oppressor's ideology and explanations, rejecting the oppressor's models and
behavioral traits, identifying the system (or aspects of the system) that was the cause of oppressive
conditions, and approaching transformation of the system (or those aspects of the system) as a
collective endeavor, the strategies of which were to be developed through dialogue across class
lines... . A critical consciousness also prompted Houston to extract from his legal training those aspects of the judicial process likely to
have the greatest impact on the black struggle. n114
Critical Race theorists should start with an inward focus.
Torok 04 CUNY Law Graduate and PhD candidate in ethnic studies, Berkeley
(John Hayakawa, Howard Law Journal, Fall, 2004 Doctoral Candidate, Department of Ethnic Studies,
University of California, Berkeley. J.D. 1991 C.U.N.Y. Law School. 48 How. L.J. 351, “Freedom Now! - Race
Consciousness and the Work of De-Colonization Today.”)
As critical race theorists, I see our collective project as understanding our own condition--meaning
that of the communities of color in the United States from which we come and their relations with each
other--in all its multidimensional complexity. n176 This allows us to establish the ideological content of
our fight, to know what we want in our condition. This is clearly a race-conscious "we." I further define
the collective project of CRT as understanding the principles of white, male, and straight supremacy as
they operated and operate in the modern world-system n177 and within the international legal order. n178
Black and white binary doesn’t address non-black minority issues
Delgado & Stefancic 12 professor and research professor of law at the Seattle University School of
Law (Richard and Jean, Critical Race Theory: An Introduction New York U Press. NY, 2012 Pg76-77)
The black and white binary is said to operate in everyday culture as well. Imagine
that a group of liberal television executives says to each other, “Let’s have minority
sitcom.” The group is well meaning, but their thoughts immediately go to a program
whose central characters are a black family. Later, on second thought, they might add
an Asian maid or a Latino teenager who is a friend of one of the family’s children. But the
essential framework for the program is apt to revolve around African American
problems, in-jokes, and situations. Similarly, history text books may devote considerable
space to the tremendously significant issue of slavery but overlook or devote scant
treatment to the intense persecution of Chinese in California and elsewhere. Many may
also ignore the equally important role of Conquest and the wars with Mexico and Spain
in shaping Latino history. Even rare would be a book that discusses the recent wave of
intense anti- Muslim suspicion that gripped the country in the years following 9/11.
Each minority group has been racialized in its own unique way
Delgado & Stefancic 12 professor and research professor of law at the Seattle University School of
Law (Richard and Jean, Critical Race Theory: An Introduction New York U Press. NY, 2012 Pg77)
Regardless of what one thinks about exceptionalism, critics of the black-white binary do
make at least one valid point. The differential racialization thesis, mentioned earlier in
this book and embraced by most contemporary students of race, maintains that
each disfavored group in this country has been racialized in its own individual way and
according to the needs of the majority group at particular times in its history. Few blacks
will be yelled at and accused of being foreigners or of destroying the automobile
industry. Few will be told that if they don’t like it here, they should go home. Few will be
ridiculed on account of their unpronounceable last names or singsong accent. Few will
have a vigilante, police officer, teacher, or social worker demand to see their papers,
passport, or green card. Few will be asked if they are terrorists. By the same token, few
Asian-looking people will be accused of being welfare leeches or having too many
children out of wedlock.
Black-white binary marginalizes nonblack minority groups
Delgado & Stefancic 12 professor and research professor of law at the Seattle University School of
Law (Richard and Jean, Critical Race Theory: An Introduction New York U Press. NY, 2012 Pg78)
Long preoccupied with issues of identity, American society prefers to place its citizens
into boxes based on physical attributes and culture. No science supports this practice; it
is simply a matter of habit and convenience. Like other paradigms, the black-white one
allows people to simply and make sense of a complex reality. And, of course, it is
helpful in looking at the historical and ongoing relationship between balck and
white Americans. The risk is that nonblack minority groups, not fitting into the
dominant society’s idea of race in America, become marginalized, invisible, foreign, unAmerican.
Black white binary destroys coalition building
Delgado & Stefancic 12 professor and research professor of law at the Seattle University School of
Law (Richard and Jean, Critical Race Theory: An Introduction New York U Press. NY, 2012 Pg78-79)
The black-white- or any other – binary paradigm of race not only simplifies analysis
dangerously, presenting racial progress as a linear progression; it can end up injuring
the very group, for example, blacks, that one places at the center of discussion. It
weakens solidarity, reduces opportunities for coalition, deprives a group of the benefits
of the other’s experiences, makes it excessively dependent on the approval of the white
establishment, and sets it up for ultimate disappointment . Consider some of the ways
this can happen . The history of minorities in the United States shows that while one
group is gaining ground, another is often losing it. For example, in 1846 the United States waged
a blood thirsty war against Mexico in which it seized about one half of that nation’s land. Later, Anglo lawyers
and land hungry settlers colluded with courts and local authorities to deprive the Mexicans who chose to
remain in the conquered territory of their lands, which were guaranteed by the peace treaty. Yet, only a few
years later, the North gallantly fought an equally bloody war against the South, ostensibly to free the slaves.
During Reconstruction, slavery was abolished and important legislation enacted for the benefit of the newly
freed blacks. Yet at the very same time, Congress was passing the despised Indian Appropriation Act, providing
that no Indian nation would be an independent entity capable of entering into a treaty with the United States.
To make matters worse, a few years later, the Dawes Acr broke up land the tribes held in common, resulting in
the loss of almost two-thirds of all Indian land. And in 1882 Congress passed the Chinese Exclusion Act; earlier
California had make it a crime to employ Chinese workers.
Binary thinking hinders progress for all minority groups
Delgado & Stefancic 12 professor and research professor of law at the Seattle University School of
Law (Richard and Jean, Critical Race Theory: An Introduction New York U Press. NY, 2012 Pg79-80)
Binary thinking, which focuses on just two groups, usually whites and one other, can thus
conceal the checker board of racial progress and retrenchment and hide the way
dominant society often casts minority groups against one another to the detriment of all.
In the years following the Civil War, southern plantation owners urged replacing
their former slaves with Chinese labor. Congress acquiesced. And immediately after
the Civil War, the army recruited newly freed slaves to serve as Buffalo Soldiers putting
down Indian rebellions in the West. Consider, as well, Justice Harlan’s dissent in Plessy v.
Ferguson, reproduced in part in chapter 2 of this book, which sharply rebuked
segregation for blacks but supported his point by disparaging the Chinese, who did have
the right to ride with whites. In more recent times, during California’s Proposition 187
campaign, proponents for this anti-immigrant measure sought black votes by depicting
Mexican immigrants as newcomers who took black jobs. And in recent years, antiimmigration forces whip up public sentiment against Muslims among minority and bluecollar communities by appealing to patriotism.
Binary thinking can cause minority groups to id with whites at the expense of other
groups
Delgado & Stefancic 12 professor and research professor of law at the Seattle University School of
Law (Richard and Jean, Critical Race Theory: An Introduction New York U Press. NY, 2012 Pg 80)
In addition to pitting one minority group against another, binary thinking can induce a
minority group to identify with whites in exaggerated fashion at the expense of other
groups. For example, early in one state’s history, Asian sought to be declared white so
that they could attend school for whites and not have to go to the ones with blacks. And
in the Southwest, early litigators for Mexican American pursued an “other white”
policy, arguing that segregation of Mexican American was illegal because local law only
countenanced segregation against blacks. Community-betterment organizations like the
League of United American Citizens reacted to rampant discrimination against their
members by insisting that society treat Latinos as whites.
Any kind of binary can cause minority groups to fall into repetitive suppressing ruse in
which whites select token groups
Delgado & Stefancic 12 professor and research professor of law at the Seattle University School of
Law (Richard and Jean, Critical Race Theory: An Introduction New York U Press. NY, 2012 Pg 81-82)
Anglocentric standards of beauty divide Mexican and black communities, enabling those who most
closely conform to the Euro-American ideal to gain jobs and social acceptance and, sometimes, to
look down on their darker skinned brothers and sisters. Similar, “box checking” allows those of
white or near-white appearance to gain the benefits of affirmative action without suffering the
costs of being thought of and treated as black or brown. Black-white or any other kind of binary
thinking can also cause a minority group to go along with a recurring ploy in which
Caucasians select a particular group – usually a small, nonthreatening one – to serve as
tokens and overseers of the others. Minorities who fall into this trap hope to gain status,
while whites can tell themselves that they are not racists because they have employed a
certain number of suitably grateful minorities as supervisors, assistant deans, and
directors of human relations. Finally, dichotomus thinking and exceptionalism impair the
ability of groups to form coalitions. For example, neither the NAACP nor any other
predominantly African American organization filed an amicus brief challenging Japanese
internment in the World War II case of Korematsu v. United States. As mentioned earlier,
a politically moderate litigation organization of Latinos distanced itself from other
minority groups and even from darker skinned Latinos by pursuing an “other white”
strategy during the middle years of the twentieth century. And in Northern California,
Asians, Mexican Americans, and blacks have been at loggerheads over admission to the
prestigious Lowell High School and the University of California at Berkeley. Will minority
groups learn to put aside narrow nationalism and binary thinking and work together to
confront the forces that suppress them all? It would seem that they have much to gain, but old
patterns of thought die hard. If contextualism and critical theory teach anything, it is that we rarely challenge
our own preconceptions, privileges, and the standpoint from which we reason.
Link: Starting Point Analysis
When focused on pedagogy of oppression, they are talking about a situation involving
racism and immigration. Muslims and others are being treated as criminal outsiders,
even as citizens. This is a terrible reality, but we still need to think about the context we
use to approach this form of racism. Our argument is that implementing a CRT Praxis
and examining anti-blackness and Lat Crit are the best starting points to discuss racism
in terms of immigration and criminality.
Woods 09 teaches criminology at Sonoma State University in northern California,
Tyron "The Plantation Society, circa 2008: Discussing Immigration through the Lens of Criminology,"
Radical Teacher Number 84, Spring 2009)
In this reflection on my teaching, I wish to share the problems I have encountered in teaching criminology students
about immigration in general and the politics of immigration in particular. I suggest that these challenges are in
many ways indicative of the general need for educators in the academy to do more in re-evaluating how we teach
and learn about power. There is much about my experience that will be familiar to other radical teachers who attempt to confront complex social issues in
the classroom at a historical juncture when such matters are more commonly reduced to individual failures (e.g., as prejudice, criminality, immorality). At the same
time, I argue that my experience reveals an uncommon insight, one largely missing from progressive or radical discourse on immigration. Namely, what my
criminology students have shown me is that anti-immigrant discourse is fundamentally reliant upon criminological
tropes widely distributed throughout the society. These tropes are so basic to our society that while it took teaching criminology for me to
recognize it as such, it certainly did not take learning criminology for my students to apprehend the immigration issue in criminological terms. Students come
to my classroom well-versed in the prevailing misperceptions of immigrants as “criminals.” Rather than simply meeting
this discourse of criminality on its own terms, my teaching implicates it in the legacy of white supremacy which, as
I will explain below, is its condition of possibility. Despite the historic variation in immigration policy, the
criminological underpinnings remain constant.2 During the period of nativism in the 1950s, immigrants from Latin America were charged with
disrupting the job market and displacing “American” labor. This argument led to “Operation Wetback,” the infamous policy of mass deportation of Mexican
immigrants (along with many Mexican-Americans). Although “stealing jobs” never really disappears from the discourse, the 1990s anti-immigrant resurgence,
especially in California, took the form of “resource depletors”: immigrants and their children were represented as depleting scarce fiscal and natural resources. 3 As
with welfare recipients, ex-prisoners, or even the poor generally, immigrants are disqualified through a discourse that holds a rule-breaker as morally deficient,
socially inferior, and unworthy of civic inclusion. This moral discourse is racialized and owes its deep roots to Europe’s imperial project. “Resource depletor” is a
more expansive formulation of “job stealer,” and both are simply different ways of saying “thief”—a criminal of the most basic kind. In the present day, this
criminological discourse occurs amidst an important divergence between crime and immigration. Since the 1990s, immigration to the United States—both
documented and undocumented—has reached historic highs, and yet rates of violent crime and property crime have declined sharply over the same period, with
the violent crime rate reaching historic lows.4 This divergence is mirrored in the basic contradiction of contemporary criminal justice policy: since the 1970s, the
overall crime rate has declined while the rate of incarceration and prison-building has increased dramatically. In other words, much as there is a fundamental
structural disconnect between crime and incarceration, the evidence shows that immigration does not contribute to increased rates of crime. 5 Despite
the
post-9/11 conflation of terrorism (crime) with immigration, immigrants are far less likely to commit crimes than
are the native-born. If the politics of immigration nonetheless continue to live through a more fundamental politics
of criminality, then we need to understand the basic properties of criminological discourse as it prepares the
ground on which people are encouraged to see the presence of (certain) immigrants in the United States as
illegitimate. As I will argue, there is no way of getting at the essential components of criminology (as discursive
practice and as indispensable appendage to the massive state apparatus of control that is the criminal justice
system) without a sustained examination of black existence in the modern Western world, and of slavery in
particular. Consequently—and I believe this point is most salient for the overall intervention that Radical Teacher offers with this special issue—the basic
characteristics of black positionality provide the fundamental parameters for understanding key issues in
immigration today.6 U.S. society has a despotic approach to the “criminal” because it has always maintained
despotic relations with its black subjects. As Toni Morrison’s quotation in the epigraph suggests, black (non-) existence serves as the
metaphorical and structural scaffolding, largely occluded from view, which sustains the animated debates about
immigration. It is only within this larger structural context that my students’ perspectives make sense. By the same token, the context threatens to rob them of
their moral courage, of their humanity. Criminology students, regardless of race and ethnicity, and more so than students in any other major, know that so-called
“white-collar” criminals are responsible for the majority of the harm caused by criminal behavior in this country. Since it is a basic feature of the curriculum in the
department, the students are exposed to the facts that show that immigrants or gang members or drug addicts, or any of the other “usual suspects” of the criminal
justice system, do not warrant the obsessive fear with which society tends to regard them. And yet they are immersed in a society, a field of study, and a career
path that encourages them to disregard these facts. What are the components of this ethical evasion and how can an educator productively disrupt this process of
social formation, literally the making of police officers, prison administrators, probation officers, juvenile counselors, and the everyday citizen amenable to “law and
order” rhetoric and policy? To better relate my experiences with these questions, I should say more about the contexts in which I work. I currently teach in the
Department of Criminology and Criminal Justice Studies at Sonoma State University in northern California. Most of my students are white, from working to lowermiddle class economic backgrounds in rural or suburban northern and central counties of the state. There are small numbers of Mexicano/Chicano students,
followed much further behind by Asian Americans and Native Americans; statistically speaking, blacks are only an occasional presence in my classrooms. The
criminology major also tends to attract somewhat more men than women (though not as disproportionately as masculinist stereotypes of criminal justice
professions might cause one to expect). Additionally, most of my students are headed into careers in various law enforcement agencies, come from law
enforcement families, or are already working in the criminal justice system in some capacity. The “typical” student in my classroom, I would argue, has much in
common with the main subjects of U.S. civil society. He is white, but comes from areas in which Mexicanos/Chicanos—immigrants, migrants, and long-time
residents/citizens—are the largest minority group (and a majority in many places). Although generally speaking Mexicanos/Chicanos are more likely to be integrated
into white spaces than blacks, my typical student’s geography remains well-segregated. Mexicano/Chicano and African American communities thrive throughout
the state’s Central Valley, but they largely exist along the internal margins of a dominant paternalistic Anglo social structure.7 My typical student, therefore, is
accustomed to seeing and even interacting with people of color—principally people of Mexican origins—but largely through relations that reproduce social
distance, rather than bridge it. Rural segregation is mirrored in the small cities that border the heavily populated San Francisco Bay Area, such as Santa Rosa near
where my institution is located. The immediate historical context here is the process by which the rural communities of California have emerged from three decades
of a radically changing political economy whereby agriculturerelated industries have been superseded by the prison industrial complex.8 The ascendancy of the
prison industry in rural California is a manifestation of the massive political, economic, and social shifts attending the transition from welfare to warfare state.9
Capital flight, deindustrialization, and state restructuring produced surpluses in land, capital, labor, and state capacity—the antidote to which became, in part, a
dramatic prison building frenzy and social policy of mass incarceration. Prisons became the simplistic answer to a series of complex questions. The state’s job is no
longer to provide for the common well-being of its citizens; it has restructured itself away from this capacity, and in a period of permanent crisis, through the
mechanics of domestic militarism, presents its social necessity in terms of an impossible mandate: the war on crime in its proliferating forms (drugs, gangs,
terrorism, immigration). To put it another way, in terms of social position, the typical criminology major in my classroom is the product of a socio-political geography
in which “law and order,” replete with its constitutive racial imaginings, continues to acutely inform their self-identities, albeit with a nagging sense that somehow
the “good guys” are losing their grip. Sometimes this shadow manifests in my students as cynicism or bitterness, but often it gets mobilized into a penchant for
punishment. They exorcise the economic anxieties that have been such an insidious part of the landscape of their lives by means of racialized antagonisms that they
articulate in criminological terms (as in: if you do the crime, be ready to do the time!). The most illuminating discussions about immigration take place in my
Criminology seminar. This course is a core class in the major, and generally when it is taught by criminologists, the focus is on the gamut of theories in the discipline
about why people do crime and how best to punish and prevent offenders. I find this pedagogy a good formula for making a very bad problem (the prison industrial
complex) much worse, but not for much else. 10 As a teacher of students embarking upon careers devoted to controlling the liberty of criminalized Others, I find
myself struggling to come up with ways to teach about the problems criminology takes as its objects of study (“crime,” violence, “deviance,” policing,
incapacitation), while simultaneously providing students with a “coherent framework” through which to interrogate the very power that criminology (and each one
of my students) most takes for granted: the right to seize the freedom of another human being in the first place. To put it more succinctly, criminology empowers us
to judge the Other. What I want to do in my Criminology seminar, on the other hand, is to teach about power. Before we even get to what criminology has to say for
itself, therefore, we spend almost two months building a context in which to situate our study of criminological theories. 11 We discuss the rise of capitalism and
Enlightenment moral theory, the expansion of Europe through imprisonment and the convict trade. The
centerpiece of this history, however, is an
analysis of slavery. What was it and what role did it play in the genealogy of criminal justice? 12 We discuss W.E.B. DuBois’
analysis of the social relations necessary for slavery to function. 13 DuBois develops a lesson about power that is basic for conscious
people: dominance succeeds only through division. If a small handful of white people owned all of the slaves and most of the land—in other
words, held the wealth in the society—how could they possibly hope to maintain their control without the assistance of all of the other whites (the majority)? The
slave owners needed overseers, bounty hunters, and slave patrols to police their plantations. As DuBois points out, however, it made no rational sense for the
average, landless white worker to go along with the slave system since it was precisely slavery that was keeping him impoverished. In short, most whites had more
in common with the African slaves—in terms of poverty, self-determination, material security—than they had with the wealthy planters. From where we sit today, it
seems a matter of course that the white workers would identify with other whites, even though the owners were their oppressors too, and not with blacks, but it is
important for students today to understand that this division had to be created and reproduced on a daily basis. As DuBois (and historian David Roediger much
later) observed, the white worker was paid off with the “wages of whiteness”: in the face of continued immiseration and landlessness, he could take solace in the
comfort that he was white.14 I find that this story is actually a poignant one for today’s college students, most of whom have all come up in a post-civil rights era in
which slavery is recognized as a tragic evil in our nation’s past. The
problem, of course, is that we continue to endure slavery’s
aftermath, both culturally and in terms of society’s structures: the criminal justice system evinces this legacy
perhaps more than any other institutional setting.15 Moreover, racism not only thrives today, but conventional
narrow understandings of it betray an implicit faith in the system’s capacity to be reformed and an unwillingness
to face the evidence that white supremacy and state violence are two sides of the same coin. 16 I discussed with my students
how the fact that the criminal justice system served as the lynchpin on which slavery was remade as a contemporary
legal institution meant that we need to pay closer attention to the social relations of slavery. Who were the police
of the slave society? Who’s playing the role of the white workers today? Who are the slave patrols, the overseers,
the bounty hunters, the slave trading merchants? The point is not to reduce one to the other, to argue that imprisonment today is slavery.
Instead, we discuss two principal lessons of slavery for the study of criminology. First, that white supremacy is a hierarchy in which all groups
are pitted against each other in competition to distance themselves from blackness, at the bottom, and to get
close to whiteness on top. In other words, the social system of white supremacy creates an anti-black world that
captures all races within its binary logic: in such a context, racial identity is indexed by two polar realities, one
embodying value (whiteness) and the opposite embodying value’s absence (blackness). A second principal lesson of slavery for
the study of contemporary criminology is that the function of policing historically has been to contain the political desires of the white worker by binding him to the
state. It
is not surprising, then, that the slave patrols were the first official organized police force in this nation’s
history. As DuBois noted, the white worker was kept from seeing himself in the black worker because he was bound to the planters and repelled from the slaves
and even from the mass of white laborers because “they constituted the police patrol [that] could ride with the planters and now and then exercise unlimited force
upon recalcitrant or runaway slaves.”17 In class, we discussed how the
act of policing entails an unconscious identification with the
state and against the objects of police action. When the state is white supremacist, then policing too becomes an
act of identification with (and desire for) whiteness. While many of my students were able to process the implications of this history, to
recognize both the error and the injustice of the “wages of whiteness,” they saw it mostly as rhetoric or analogy (as in, today is like yesterday in these ways . . .),
rather than as a descriptive analysis of what is currently. When I attempted to ground this historical lesson about power into the context of their own lives with the
example of immigration, they vigorously resisted, swiftly condemning “illegal” immigration. For example, I asked them, how does the current immigration debate
illustrate the historical example of the white worker and the “wages of whiteness”? I brought up the case of California’s anti-immigrant Proposition 187 (which
occurred before many of my students had reached kindergarten) and how it won support from a significant number of black and Latino voters. 18 Was
this not
an example of how white supremacy and racial capitalism work, in this case encouraging oppressed workers and
people of color to police themselves by demonizing immigrants and thereby distracting attention from the true
source of their oppression? And what about those white workers again, how did they cast their lots this time? The students were quick to defend their
position against immigrants. One senior (who has since gone on to a career as an agent with the California Department of Alcohol Beverage Control: “we carry
guns,” she told me in response to my query, why?) became particularly agitated. She talked about her father who has owned a landscaping business in Sonoma
County for a long time. She said: “My dad is being undercut by immigrants who don’t have proper licensing because they’re undocumented and therefore can
charge much less than he does.” She was angry. Is this student’s story a specific illustration of the general failure of this country’s immigration policies? It is, in part.
We cannot verify any of the asserted facts, of course, but discursively this student’s story communicates the time-worn theme of the immigrant as “job-stealer,”
and therefore implicitly as “thief.” Although the student appeared to understand the concept of the “wages of whiteness” intellectually, when it came to her life,
her unconscious emotional investment in white supremacy (understood criminologically) won out and the immigrant was blamed for her father’s declining fortunes.
Her viewpoint found ample support among her classmates. When I remind them of the requirements of a capitalist system, of how competition for finite resources
like jobs comes about, and of how the increasing hardships and economic anxieties that their own families are enduring today are only extended by transferring the
problem onto other struggling workers, they respond simply: “but they broke the law by coming here.” This point, . The tradition of Western liberalism, in which
the rational, self-interested, autonomous individual subject is seen as the primary agent of history and thus as existing ontologically prior to the social structures of
this history, is deeply ensconced in the U.S. academy across its disciplines. Western liberalism is also racialized at its core, lending the emotional
investment in individualism a greater urgency given our racially stratified world. In short, it is not that the students are insensitive to the hardships faced by
immigrants, but sensitivity is not the same as a structural analysis of individual behavior: “But they shouldn’t have come that way,” as if undocumented immigration
is merely a matter of preference; “They should try to make things better in their country,” as if an individual can resolve historical contradictions on their own; and,
“It’s wrong that they’re treated unfairly, but they don’t make an effort either, they need to meet us halfway,” as if the schisms of racial capitalism were actually
problems of diplomacy and good-will. What are these emotional investments? As Marlia Banning observed in an earlier issue of Radical Teacher, “there are no
obvious pedagogical solutions that address the emotional attachment to political beliefs.” 19 I concur—and I wish to build on, yet depart slightly from, this insight. In
the symbolic economy of anti-immigrant discourse, the immigrant is not even a primary figure. The central criminological trope in the anti-immigrant discourse—
illegals—and the converse promoted by immigrant supporters—no human being is “illegal”—are both part of a larger deception. The formulation of the immigrant
as a thief draws upon the idea of a fraudulent person. But an immigrant is not a fraudulent person; rather, he is a person who, according to anti-immigrant
discourse, has committed fraud by attempting to pass as a citizen, or more accurately, given the historical conflation of whiteness and citizen, as a legalized
resident. To be a fraudulent person, on the other hand, is to be caught impersonating a human being. There is only one such position in the anti-black world and it
belongs to the black. As
DuBois once put it, blacks are constructed not as people with problems, but rather as “a problem
people.” 20 Slave codes in the southern United States demanded that slaves receive clothing, food, and lodging sufficient to their basic needs. Slaves,
although dead to civil rights and responsibilities—social death—are reduced to nothing but the physical body,
unprotected against mutilation or torture.21 The functioning of social death is, again, premised on the context itself
as anti-black. The post-Emancipation era of the Black Codes, convict leasing, and lynching ensured that blackness
meant social death not by virtue of enslavement, but instead as a product of criminality and imprisonment.
Blackness remains to this day the essential marker of criminality and deviance. 22 Black existence and its signifier
“criminal,” then, serve a central metaphorical and structural purpose for a white supremacist bourgeois society. In
the contemporary debates on immigration, it provides the menacing content for the construct “criminal” that gives the anti-immigrant position its purchase in
mainstream society. To put it differently, we
as educators cannot effectively undo the racism of anti-immigrant discourse
without also challenging the anti-blackness of crime and punishment. In concrete terms, moreover, we need to
recall the destruction of the black community base, the deindustrialization of the political economy, dismantling of
the welfare state, and the installment of the prison industrial complex. These processes collectively produced a
black population available on a massive scale for social transfer to the living death of prison cages. These
dislocations and debasements were the conditions of possibility for the political economy that draws immigrants
to this country, while at the same time, the institutionalization of the (vanquished) black liberation movement
serves as the prerequisite for the very struggles against the exploitation of immigrant labor that have, rightfully,
gained momentum today.23 In other words, there would be no immigrant labor to speak of if the black liberation movement had not been systematically
destroyed, and, ironically, that very same social movement history would not otherwise be available to other oppressed groups to learn and benefit from. Needless
to say, I have not been at all successful in realizing this kind of analysis with my students. In much of its practice, criminology is an exercise in bad faith in that it
encourages students to flee a displeasing truth for a more comforting lie. The criminological discourse on immigration is an expression of bad faith as well. My
students live this lie in their own ways. Although they know that “crime” is far more complex and messy than a simple case of immorality, the fact that the United
States has the largest prison population in the world, both in total numbers and per capita, eighty percent of whom are people of color, and that Immigration and
Customs Enforcement (ICE) holds some 23,000 people in immigration jails on a given day and about 200,000 annually, does not, in any sincere way, trouble them
much.24 At some level in their consciousness, perhaps they know that people (immigrant and non-immigrant alike) do not have what they need to survive in this
These are tough ethical problems
for young people emerging from a context in which their futures are mortgaged ever more by the racial state’s commitment to the needs of capital. My
society, and that in their capacities as law enforcers, they are not making things better for these millions of people.
students also know all too well from their own backgrounds in hardworking and increasingly abandoned communities that power and wealth concentrate in the
hands of a very select few at the expense of people like themselves. They might recognize, should they dare to admit it, that when
they fight on behalf
of the state, whether it is in patrol cars, along catwalks or borderlines, or in foreign military escapades, they win
only dimmer futures not only for the people of color they apprehend, but also for themselves . The question of ethics, in
these ways, lurks throughout the dialectics of race and class in the prison regime that shapes immigration policy. I honestly do not know how to proceed,
pedagogically, in this context. Is a Freireian pedagogy possible within an anti-black world? What would it look like to correspond with
these students across our differences in social positioning and emotional attachments, as a pedagogy of self-awakening?25 James Baldwin, as always, assesses the
challenge with clarity: “One
may see that the history, which is now indivisible from oneself, has been full of errors and
excesses; but this is not the same thing as seeing that, for millions of people, this history—oneself—has been
nothing but an intolerable yoke, a stinking prison, a shrieking grave. ”26 Teaching about immigration within criminology shows me that
black-brown-white remain insoluble antagonisms. I remain open to what the answers may be, and, in the interim, try to act ethically myself in
confronting the anti-blackness of both criminology and much of the discourse on immigration.
Link: Government Judicial Action
Courts have unconsciously without remorse gutted the meaning of the Reconstruction
Amendments and abandoned laws meant to protect newly freed blacks in order to
appease whites
Cho 09 Professor of Law, DePaul University College of Law
(Sumi, "Post-Racialism." Iowa Law Review. vol. 94, 2009)
Prior to the civil rights movement at the midpoint of last century, whiteness—as critical-race-scholar
Cheryl Harris wrote—was a valuable form of property recognized and enshrined by law as a normative
civic and legal ideal.44 Not possessing whiteness meant denial of the freedom to immigrate,
naturalize, enjoy full citizenship, exercise the right to vote, choose one’s profession, or control one’s
labor.45 Not having whiteness infringed upon one’s rights to buy, sell and enjoy property; to marry
and form families; to give witness in a court of law and to maintain physical safety and bodily
integrity. 46 During this time, the United States was what sociologists Michael Omi and Howard Winant call a
“racial dictatorship.”47 The passage of the Thirteenth, Fourteenth, and Fifteenth Amendments, along with
Reconstruction-era civil-rights statutes, provided a brief respite from the racial-dictatorship era following the Civil
War. This respite, a result of an interest convergence 48 in maintaining Republican Party influence in the South, was
cut short by the Hayes–Tilden Compromise of 1877, which ushered in the post-Reconstruction era with a
vengeance.49 The post-Reconstruction era, with its devolution of state-based federalism accompanied by the
withdrawal of federal troops from the South, left no significant federal support in place to enforce the
rights of formerly enslaved people.50 In Derrick Bell’s terms, the Hayes–Tilden Compromise represented
the ultimate racial compromise: allowing disparate groups of whites to settle their political
differences over the involuntary sacrifice of Blacks.51 In the racial-dictatorship era, unreconstructed white
normativity 52 prevailed and legislatures passed laws that were clearly “race-d” to disadvantage peoples of color
under the auspice of “states-rights”-based federalism.53The courts in the racial-dictatorship era provided
little relief. Indeed, courts eviscerated the meaning of the Reconstruction Amendments and civilrights statutes by using seemingly neutral strategies to disenfranchise peoples of color in lockstep
with sociopolitical forces that sought to restore the South’s honor.
Courts perpetuated racial subordination
Cho 09 Professor of Law, DePaul University College of Law
(Sumi, "Post-Racialism." Iowa Law Review. vol. 94, 2009)
Second, courts concocted self-serving racially contingent legal distinctions to preserve racial hierarchy.
Drawing upon the detailed Critical Legal Studies critique of binary oppositions in legal doctrine, 61
pre-civil-rights-era courts relied on such distinctions to preserve racial hierarchy. Historically, civil
rights had a very different meaning than they have today. Then, “civil rights” referred to the economic
rights of a small-business owner, such as in Yick Wo v. Hopkins, more than they did to the
constitutional right of equal access to public amenities.62 To the nineteenth-century judges hearing cases of
African Americans who sought access to restaurants and theaters, neither constitutional amendments nor
civil-rights statutes covered the rights of plaintiffs if they involved “social rights” rather than “civil
rights.”63 Thus, judges evoked the social-versus-civil-rights distinction as a way to deny the reach of
the post-Reconstruction amendments and legislation. In similar fashion, courts articulated publicprivate64 and make-find65 distinctions to perpetuate racial subordination.
Courts failed to address the issue of white supremacy within law and society and undo
its effects
Cho 09 Professor of Law, DePaul University College of Law
(Sumi, "Post-Racialism." Iowa Law Review. vol. 94, 2009)
Following World War II, the second reconstruction or mid-twentieth-century civil-rights movement
ushered in liberal legal reforms designed to eradicate explicit discrimination imposed on racial grounds.
In this civil-rights era, Congress, state legislatures, and the courts strove to enact “equality before the
law,” through vehicles such as Brown v. Board of Education74 and its progeny (which struck down de
jure segregation), the Civil Rights Act of 1964,75 the Voting Rights Act of 1965,76 and the Immigration
Act of 1965.77 Not only did Brown leave untouched everything other than formal inequality, but the
Court’s colorblindness principle scrupulously failed to capture the law’s long-running complicity with
white supremacy and equally failed to undo its effects. As established previously, the law’s complicity
with For all their forward advances, these reforms, enacted at the height of Cold War McCarthyism,
provided only formal equality: process-based equality of opportunity, as opposed to a substantive
definition of what equality requires in material terms racism was sometimes of the obvious sort, 78 In
this sense, de jure equality served the aim of racial redemption, as this Article calls it. but more often
its complicity was doctrinally encoded in its self-serving legal rationales, distinctions, and foundational
principles. In this sense, formal discrimination’s elimination failed to address the synergy between law
and society that helped accumulate and compound centuries of white power and privilege using
neutral means. It did not address the subtle, yet well understood, racially coded call-and-response
interplay between the courts and the public. Elimination of formal inequalities primarily served to
improve the courts’ and society’s own self-perceptions, and ironically, the value of whiteness—a
whiteness redeemed by the enlightenment of formal equality.
Courts attention on de jure equality focused as a tool for white racial redemption, it
did not address the collaboration between society and law that helped perpetuate
centuries of white privilege
Cho 09 Professor of Law, DePaul University College of Law
(Sumi, "Post-Racialism." Iowa Law Review. vol. 94, 2009)
In this sense, de jure equality served the aim of racial redemption, as this Article calls it. but more
often its complicity was doctrinally encoded in its self-serving legal rationales, distinctions, and
foundational principles. In this sense, formal discrimination’s elimination failed to address the synergy
between law and society that helped accumulate and compound centuries of white power and
privilege using neutral means. It did not address the subtle, yet well understood, racially coded calland-response interplay between the courts and the public. Elimination of formal inequalities primarily
served to improve the courts’ and society’s own self-perceptions, and ironically, the value of
whiteness—a whiteness redeemed by the enlightenment of formal equality.
In an attempt to redeem the white race reputation, The Supreme Court struck down
pro segregation initiatives yet allowed for the active resistance of desegregation in the
form of the Southern manifesto. Appearing to be neutral while still preserving white
supremacy.
Cho 09 Professor of Law, DePaul University College of Law
(Sumi, "Post-Racialism." Iowa Law Review. vol. 94, 2009)
Here, redemption is used mainly in a property sense, while secondarily in a quasi-religious sense—a process
through which whiteness is decoupled from its problematic association with white supremacy in the civil-rights era
and beyond. Thus, in order to repair the damages to the reputational and property value of whiteness
caused by complicity with racism, society and its institutions needed to redeem themselves from Jim
Crow segregation, indigenous dispossession, racialized labor exploitation, and a centuries-long
covenant with white supremacy. The Warren Court brilliantly effectuated the repudiatory aspect of
racial redemption, in per curiam after per curiam order striking down segregation in various contexts
without written opinion, much like Lady MacBeth in her futile attempts to wash the blood of
complicity from her hands.80 In its desire to cater to white preferences for desegregation,81 courts
merely invited the active resistance of the South—and later the North—to comply with Brown.
Meanwhile, anti-desegregation courts and communities deployed massive resistance in the form of
the Southern Manifesto, the Parker doctrine, pupil-placement programs, so-called freedom-of-choice
plans, and other ingenious “neutral” tactics to preserve white supremacy’s old forms and habits.82
Warren Burger Court despite being famous for establishing Civil Rights Acts and Voting
act still maintained systematic racial power through the redemption of whiteness
Cho 09 Professor of Law, DePaul University College of Law
(Sumi, "Post-Racialism." Iowa Law Review. vol. 94, 2009)
The elevation of Warren Burger to Chief Justice of the Supreme Court in 1969 furthered the racialredemptive project and aided the transformation to a new form of white supremacy under formal
equality. Despite the obvious four-hundred-year legacy of white supremacy which helped structure
American society just as plainly as capitalism, gender-difference, or technology, the law during this
time was primarily concerned with developing “limiting principles” in response to the genie of
equality that had been let out of the bottle. First, in the controversial Milliken v. Bradley decision, the
Court applied “local control” as a variant of the nineteenth-century states-rights rationale in an
attempt to explain why Brown permitted residential segregation, white flight, and monopolistic
control of educational resources.83 Next, the Court in Washington v. Davis imposed an intent
requirement upon plaintiffs who sought to claim racial discrimination using the Equal Protection
Clause;84 a difficult requirement to prove in a world of multiple causation and implicit biases. The
Court in Arlington Heights further complicated matters by requiring a showing of proximate cause to the
intent doctrine in order for the plaintiff to prevail in an Equal Protection disparate-impact case.85
Finally, in Wygant v. Jackson Board of Education, the Court erected a firewall between legal and
societal discrimination (de jure versus de facto) in this affirmative-action-in-employment case,
ironically reminiscent of the social-versus-civil-rights distinction from Plessy (and accompanying
rationale that “stateways cannot change folkways”).86 In Wygant, Justice Powell adjudged societal
discrimination to be “too amorphous” to impose a race-conscious remedy.87 Contrary to the grand
narrative of legal liberalism that dominates United States imagination, the Warren and Burger Courts
from 1953–1986 represented a “land bridge” (rather than representing a rupture, or marked departure,
from an earlier era of racial dictatorship) over which the Rehnquist Court could pass from a pre-civilrights to a post-civil-rights era, while transforming and maintaining systematic racial power through
the redemption of whiteness and the return to a state of racial innocence.
In the 1980s-90s Post Civil Rights era Chief Justice of Supreme court advocated for
segregation and prioritized rights of whites supposedly injured by civil rights
Legislation pushing for a principle of colorblindness to be implemented in court
proceedings.
Cho 09 Professor of Law, DePaul University College of Law
(Sumi, "Post-Racialism." Iowa Law Review. vol. 94, 2009)
William Rehnquist’s 1986 elevation to Chief Justice of the Supreme Court ushered in a new phase of
post-civil-rights-era jurisprudence. Prior to his appointment to the highest court, Rehnquist pursued a
career advocating segregation.88 The Reagan–Bush prioritization of civil rights as rights of white men
injured by civil-rights legislation was aligned with the judicial retreat from and transformation of civil
rights under Rehnquist.89 The Court ingeniously deployed the Warren-era principle of colorblindness
to interpret white supremacy’s victims and beneficiaries. Using this approach, the Court’s 1989 cases
heralded a new order. In City of Richmond v. J.A. Croson Co., the Court restated the de facto–de jure
distinction as the societal-identifiable distinction.90 The 1989 term also saw the burden-shifting
controversy in Price Waterhouse,91 the relaxation of the defendant’s evidentiary burdens in Wards
Cove,92 and the re-emergence of the make-find distinction in the Patterson case which interpreted
the “make and enforce contracts” language in section 1981 cases of the 1866 Civil Rights Act.93 Even
though Congress rebuked the 1989 Court in the 1991 Civil Rights Act, Congress’s first repudiatory
attempt, the Kennedy–Hawkins Civil Rights Act of 1990 failed.94 The Kennedy–Hawkins bill passed
both the House and the Senate, but President George H.W. Bush vetoed it. The Senate’s veto override
failed by just one vote.95asserting that hidden “quotas” in the bill would require firms to enact racial
balancing to avoid claims of disparate-impact discrimination.96
We are now in an era where the idea of civil rights is turned on its head. Conversations
arguing against racism are now perceived as “racist” placing whites as an innocent
victim of reverse discrimination. Modern U.S. Courts aided in this white supremacist
era under the guise of colorblindness and offer no remedy for minorities.
Cho 09 Professor of Law, DePaul University College of Law
(Sumi, "Post-Racialism." Iowa Law Review. vol. 94, 2009)
By the time of the 1995 Adarand Constructors v. Pena case,97 the project of redeeming whiteness was
so complete that mentioning “innocent white victims” as documented by Tom Ross’s analysis of
affirmative-action jurisprudence98—was no longer necessary to justify striking an affirmative-action
plan. Instead, the Court decided Adarand in the race-neutral doctrinal terms of “skepticism,”
“consistency,” and “congruence.”99 The Court declared all racial classifications suspect “irrespective
of the race of the burdened or benefited group.”100 Thus, innocent whiteness operated as a
background assumption, signaling a return to the full reputational value of whiteness that is able to
stand in moral equivalency to blackness and other forms of colored other-ness. It was with this
reformulation of the meaning of equality, victimhood, and discrimination that the Court transformed
the Fourteenth Amendment’s understanding of equality from an anticaste principle to an
antidifferentiation principle.101 In the post-racial world of moral equivalence, racial classifications
operate as racial discriminations. Johnnie Cochran, who “played the race card” in the O. J. Simpson
trial, was as notorious and as morally culpable as the “n-word”-spouting police officer Mark
Fuhrman.102 Affirmative action is the moral equivalent to Jim Crow segregation, and ballot initiatives
to ban affirmative action are presented and passed as “civil rights initiatives” in states with an
overwhelming white majority of registered voters.103 Barack Obama’s “dollar bill” comment is as
morally culpable as Geraldine Ferraro’s diminishing comment that Obama’s rapid ascent was due only
to his race.104mention of race is taboo, and making a racist comment is rendered the equivalent to
making a critique of racism. We have arrived at the post-civil-rights era, where the idea of civil rights is
turned on its head, where equality principles are rearticulated to exercise continued privilege—racial
and otherwise—and where critiques of racism are rendered morally equivalent to racism itself.
Privilege is again naturalized, asserted boldly as fact, with all of its social Darwinian overtones clearly
ringing through.
Recent Supreme Court decision in 2007 Parent Involved case make it extremely
difficult and rare for plaintiffs to prevail in discrimination lawsuits
Cho 09 Professor of Law, DePaul University College of Law
(Sumi, "Post-Racialism." Iowa Law Review. vol. 94, 2009)
The recent Supreme Court decision in the Parents Involved case reveals the newest judicial
mechanisms created to preserve racial hierarchy while rearticulating subordination as equality, and
deploying failure-of-proof rationales.105 Such failure-of-proof approaches by the Court focus on
raising evidentiary burdens using enhanced causation and plaintiff-unfriendly burden shifting,
thereby making it increasingly difficult and extremely rare for plaintiffs to prevail in discrimination
lawsuits, while at the same time making it appear as though racial discrimination is either declining
or that racial remedies to redress discrimination are unconstitutional .106 The Parents Involved case
also sets forth familiar limiting principles for racial remedies: de facto versus de jure discrimination,
“no private constitutional rights” revived, narrow tailoring and social justice efficiency arguments, and
individual-group rights distinctions.107The Parents Involved case also sets forth familiar limiting
principles for racial remedies: de facto versus de jure discrimination, “no private constitutional rights”
revived, narrow tailoring and social justice efficiency arguments, and individual-group rights
distinctions.107illustrates the problem of industry capture of the judiciary. The Supreme Court’s racial
jurisprudence would lead one to believe that racial classifications are so toxic that, like chemotherapy,
they should be utilized only when absolutely necessary and, even then, must be used as sparingly as
possible. Strict scrutiny’s imperative as applied to racial classifications is clearly reflected in the twoprong test: compelling interest and narrow tailoring.108 The compelling-interest prong seems to have
gotten somewhat of a “pass” in recent litigation involving education, permitting “forward looking,” more
indeterminate (and less coherent), interest-convergence majority-serving rationales for race-conscious
remedies as seen in Grutter v. Bollinger.109 From Bakke to Grutter, the real focus in racial
jurisprudence has been on “narrow tailoring”; both cultural and legal proscriptions of effective racial
remedies are subject to the invocation of the limiting principle of “narrow tailoring.”110 Although
understood as a win for affirmative-action proponents, Grutter achieved the unstated, forwardlooking nongoal of “critical mass.”111 As long as racial balancing is not effective or explicit and
diversity is pursued in a nonhistorically contingent manner, with a hegemonically supported
postmodern view of what is diverse,112 the Court seems to suggest that it will hold its nose and
permit diversity as a compelling interest.113
Judicial courts sustains Executive’s unconstitutional laws
Adler, Aug 13 (David Adler is the director of the Andrus Center for Public Policy at Boise State
University where he holds appointment as the Cecil D. Andrus professor of public affairs. He serves as an
adjunct professor of law in the University of Idaho’s College of Law, where he teaches courses on the
Constitution and the Supreme Court. “Secret executive law upheld by courts violates Constitution.” Aug
1, 2013 http://www.idahostatesman.com/2013/08/01/2682709/secret-executive-law-upheldby.html#storylink=cpy)
The American people are entitled to an explanation of the legal and constitutional rationales advanced by the
DOJ in defense of administration policies. If the executive branch refuses to disclose the decisions it has
made, and the reasoning undergirding those decisions, and the judiciary sustains that secrecy the
result is the creation of secret law by the executive branch. That pattern inflicts great violence on our
constitutional order. Indeed, it diminishes the rule of law when the citizenry is deprived of the
opportunity to decide for itself whether governmental programs and policies adhere to the
Constitution. Important cases pending in the federal courts, one seeking disclosure of the OLC memos justifying President Obama’s claim
of authority to order “targeted killings,” and the other seeking release of the memo defending the FBI’s resort to “exigent letters” to access
phone data, afford the courts an opportunity to stem the tide of executive branch lawmaking and restore a semblance of transparency and
accountability. The
Alice-in-Wonderland nature of recent federal court rulings that have failed to find a
defensible legal basis for shrouding the OLC Memos in secrecy has introduced a novel and threatening
theory into our jurisprudence: if the executive believes a legal memo should be kept secret, it will be
kept secret. When the nation was confronted in 1974 in U.S. v. Nixon — the Watergate tapes case — with President Richard Nixon’s claim
of an absolute executive privilege to withhold information from the judiciary, the Supreme Court, in an opinion written by Chief Justice Warren
Burger, denounced the claim of absolutism as foreign to our constitutional jurisprudence. Our system rests on checks and balances,
fundamental principle that our judges should remember.
Detainees get no relief from U.S. District Courts
Barclay and Nauziunas, July 13 National Public radio reporters
(Eliza and Jessica, “ Why Doctors Oppose Force-Feeding Guantanamo Hunger Strikers” July
11,2013, http://www.npr.org/blogs/thesalt/2013/07/10/200751527/why-doctors-opposeforce-feeding-guantanamo-hunger-strikers)
Some of the hunger strikers' lawyers, including those representing Jihad Dhiab, a
Syrian who was cleared for release in 2009 but remains in captivity, have
petitioned the court to stop the force-feeding, particularly during
Ramadan.While U.S. District Judge Gladys Kessler said Monday in a four-page
opinion that "force-feedings are a painful, humiliating and degrading process,"
she dismissed Dhiab's petition because she said her court "lacks jurisdiction" over
Guantanamo "and therefore does not have the authority to grant the
relief."According to the Miami Herald, the Pentagon says that during the monthlong
Ramadan fast, medical personnel will only feed hunger strikers after sunset and
before dawn.
Race plays a major determinant in judicial proceedings, it decides who gets a public
trial and who gets sent to Gitmo, U.S. citizens have less rights than European
foreigners
Wing 03 Bessie Dutton Murray Distinguished Professor of Law at the University of Iowa
College of Law (Adrien, "Civil Rights in the Post 911 World: Critical Race Praxis, Coalition
Building, and the War on Terrorism." Louisiana Law Review, 63 La. L. Rev. 717, Spring 2003)
It is interesting to look at the disparate legal treatment of these men. Lindh, captured in
Afghanistan, got a public trial, whereas hundreds of foreign born Arabs and Muslims,
also captured there, are being held in incommunicado detention in Guantanamo Bay,
Cuba. n128 The President issued a military order that Al Qaeda members and other noncitizens
could be tried in military tribunals or commissions without appeal to civilian courts, an action which
has been heavily criticized by various scholars, n129 as well as our allies. n130 At least two federal
courts have denied habeas petitions filed by lawyers representing some of the detainees, refusing
to assert jurisdiction over the cases. n131 [*733] There may be approximately 650 suspects from 43
countries in Cuba, and officials are preparing accommodations for up to 2000 inmates. n132 Some
scholars and government officials have suggested that detention and prosecution of captured
suspects should not even be governed by international law. n133 Harvard law professor Alan
Dershowitz and others have argued that such persons could be tortured without violating any laws
binding the U.S. n134 Padilla, also known as Abdullah al-Muhajir, is a former Chicago Latin
Kings gang member who converted to Islam. n135 He was picked up by authorities as he
returned from Pakistan and was allegedly planning to set off a dirty bomb containing
radioactive materials. n136 He is now being held in incommunicado detention in a U.S.
military prison as an "enemy combatant," without access to counsel or any court-military
or civilian, and may never be tried. n137 In December 2002, U.S. District Court for the Southern District
of New York judge Michael Mukasey issued a 102 page opinion affirming Padilla's right to consult counsel, but
the government continues to resist the court's order. n138 Another U.S. citizen, Yaser Hamdi, born in
Louisiana of Saudi descent, who was captured by Northern Alliance in Afghanistan, is
also being held as an enemy combatant, after being discovered among the Guantanamo
prisoners. n139 The U.S. government in both the Padilla and Hamdi cases is resisting petitions for habeas
corpus and saying that courts should just accept the President's determinations as to their status.
n140
Ironically, putting U.S. citizens under military jurisdiction without access to legal counsel
places them in a legal limbo where they have less rights than foreigners Reid or
Moussaoui. n141 In October 2002, Reid ultimately pleaded [*734] guilty and was
sentenced to life imprisonment by Judge William G. Young of the U.S. District Court in
Boston. n142
Judicial courts refuses to stop force feeding detainees
Perez and Lawrence, July 13 CNN reporters
Natalia Perez, and Chris Lawrence “U.S. rejects call to stop force-feedings at Guantanamo
for Ramadan” Wed, July 10, 2013 CNN http://www.cnn.com/2013/07/03/us/guantanamolawsuit)
(CNN) -- The U.S. government on Wednesday refused to stop force-feeding prisoners at the U.S.
detention facility at Guantanamo Bay, Cuba, during Ramadan.
In court papers rejecting a petition by detainees, the United States said the feedings provide "essential
nutrition and medical care" and do not interfere with the detainees' religious fasting during Ramadan, the
holy month that begins on the evening of July 8.
The tube-feedings will take place in the early morning and late evening to help detainees comply with Ramadan restrictions,
said Navy Capt. Robert Durand, spokesman for the detention facility.
Shaker Aamer, Ahmed Belbacha, Nabil Hadjarab and Abu Wa'el Dhiab filed a lawsuit Sunday arguing that
the feedings violate the Ramadan daily fast from dawn to sunset.
U.S. District Judge Gladys Kessler had set a deadline of noon Wednesday for the government to respond.Lt.
Col Todd Breasseale, a Pentagon spokesman, said the military has changed force-feeding times at
Guantanamo during Ramadan for years, but doing so "is an accommodation, not a right."Of the 166 prisoners at
Guantanamo, 106 are on hunger strike, Breasseale said.In its court filing, the U.S. Justice Department also denied claims that it
was giving the drug Reglan to the detainees.
Link: Civil Society/Patriarchy
Civil Society is the Masculine Sphere and is Exclusionary
Pateman 88 Reader in Government at the University of Sydney, Australia
(Carole. (1988) The Sexual Contract, 1977 London: Routledge.(p. 11)
Women have no part in the original contract, buy they are not left behind in the state of nature—that
would defeat the purpose of the sexual contract! Women are incorporated into a sphere that both is
and is not civil society. The private sphere is part of civil society but is separated from the ‘civil’
sphere. The antinomy private/public is another expression of natural/civil and women/men. The
private, womanly sphere (natural) and the public, masculine sphere (civil) are opposed but gain their
meaning from each other, and meaning of the civil freedom of public life is through into relief when
counterposed to the natural subjection that characterizes the private realm (Locke misleads by
presenting the contrast in patriarchal terms as between paternal and political power). What it means to
be an ‘individual’, a maker of contracts and civilly free, is revealed by the subjection of women within
the private sphere.
Legalistically Contractarian Societies are Linked to Men’s Freedom and Women’s
Subjugation
Pateman 88 Reader in Government at the University of Sydney, Australia
(Carole. (1988) The Sexual Contract, 1977 London: Routledge.(p. 8)
Men’s domination over women, and the right of men to enjoy equal sexual access to women, is at issue
in the making of the original pact. The social contract is a story of freedom; the sexual contract is a
story of subjection. The original contract constitutes both freedom and domination. Men’s freedom
and women’s subjection are created through the original contract—and the character of civil freedom
cannot be understood without missing half of the story that reveals how men’s patriarchal right over
women is established through contract. Civil Freedom is not universal. Civil freedom is a masculine
attribute and depends upon patriarchal right. The sons overturn paternal rule not merely to gain their
liberty but to secure women for themselves. Their success in this endeavor is chronicled in the story of
the sexual contract. The original pact is a sexual as well as a social contract: it is sexual in the sense of
partriarchal—that is; the contract established men’s political right over women—and also sexual in
the sense of establishing orderly access by men to women’s bodies. The original contract creates what
I shall call, following Adrienne Rich, ‘the law of male sex-right’ Contract is far from being opposed to
patriarchy; contract is the means through which modern patriarchy is constituted.
The Judiciary’s Historical Decisions Have Upheld Sexist Legislation
Pateman 88 Reader in Government at the University of Sydney, Australia
(Carole. (1988) The Sexual Contract, 1977 London: Routledge.(p. 139)
Sometimes wives have simply been excluded from employment; for example, women were compelled
to resign from the Australian public service upon marriage from 1902 until 1966, and the ban was not
lifted in the State of Victoria until as recently as 1973. More generally, women’s employment has been
restricted by ‘protection’ due to those who lack ownership of the property in their persons. One of
the best known examples is the judgement [sic] in the case Muller v. Oregon in the United States in
1908, in a period of great conflict over freedom of contract. In 1905 (in Lochner v. New York), the
Supreme Court ruled that a law limiting the work of male bakers to eight hours per day was
unconstitutional. In Muller v. Oregon the Court ruled that it was permissible to restrict the working
hours of women workers. The Court’s reasoning harks back to the story of the sexual contract; the
argument appeals to man’s strength, woman’s physical structure and child-bearing function and her
dependance [sic] on man. The Court maintained that although ‘limitations upon personal and
contractual rights may be removed by legislation, there is that in [woman’s] disposition and habits of life
which will operate against a full assertion of [civil] right’s. Woman is ‘properly placed in a class by
herself, and legislation designed for her protection may be sustained, even when like legislation is not
necessary for men and could not be sustained’.
Patriarchy Gives the Mere Appearance of Freedom in Liberal States
Pateman 88 Reader in Government at the University of Sydney, Australia
(Carole. (1988) The Sexual Contract, 1977 London: Routledge.(p. 187-188)
Contemporary feminists (especially in the United States) often conclude that the only alternative to the
patriarchal construction of sexuality is to eliminate sexual difference, to render masculinity and
femininity politically irrelevant. At first sight, the complete elimination of status and its replacement
by contract appears to signal the final defeat of patriarchy and the law of male sex-right. The
realization of the promise of contract as freedom appears to be in sight, and the patriarchal construction
of men and women, masculinity and femininity, appears to be breaking down. Feminists have
campaigned for, and won, legal reforms that are couched in what how usually called ‘gender neutral’
terms. Such reforms can mean that women’s civil rights are safeguarded, but this approach to reform
can also lead to curious results when for example, attempts are made to incorporate pregnancy into
legislation that applies indifferently to men or women. Odd things happen to women when the
assumption is made that the only alternative to the patriarchal construction of sexual difference is the
ostensibly sex-neutral ‘individual’.
The final victory of contract over status is not the end of patriarchy, but the consolidation of
the modern form. The story of sexual contract tells how contract is the medium through which
patriarchal right is created and upheld. For marriage to be become merely a contract of sexual-use—or,
more accurately, for sexual relations to take the form of universal prostitution—would mark the political
defeat of women as women. When contract and the individual hold full sway under the flag of civil
freedom, women are left with no alternative but to (try to) become replicas of men. In the victory
hold full sway under the flag of civil freedom, women are left with no alternative but to (try to) become
replicas of men. In the victory of contract, the patriarchal construction of sexual difference as mastery
and subjection remains intact but repressed. Only if the construction is intact can the ‘individual’ have
meaning and offer the promise of freedoms to both women and men so that they know to what they
must aspire. Only if the construction is repressed can women have such an aspiration. Heterosexual
relations do not inevitably take the form of mastery and subjection, but free relations are impossible
within the patriarchal opposition between contract and status, masculinity and femininity. The
feminist dream is continuously subverted by entanglement with contract.
Irrespective of Social Change, the Contract System of Law Continues to Disenfranchise
Women
Pateman 88 Reader in Government at the University of Sydney, Australia
(Carole. (1988) The Sexual Contract, 1977 London: Routledge.(pp. 6-7)
In the natural condition ‘all men are born free’ and are equal to each other; they are ‘individuals’. This
presupposition of contract doctrine generates a profound problem: how in such a condition can the
government of one man by another ever be legitimate; how can political right exist? Only one answer
is possible without denying the initial assumption of freedom and equality. The relationship must
arise through agreement and, for reasons which I shall explore in Chapter 3, contract is seen as the
paradigm of free agreement. But women are not born free; women have no natural freedom. The
classic pictures of the state of nature also contain an order of subjection—between men and women.
With the exception of Hobbes, the classic theorists claim that women naturally lack the attributes and
capacities of ‘individuals’. Sexual difference is political difference; sexual difference is the difference
between freedom and subjection. Women are not party to the original contract through which men
transform their natural freedom into the security of civil freedom. Women are the subject of the
contract. The (sexual) contract is the vehicle through which men transform their natural right over
women into the security of civil patriarchal right. But if women have no part in the original contract, if
they can have no part, why do the classic social contract theorists (again with the exception of Hobbes)
make marriage and the marriage contract part of the natural condition? How can beings who lack the
capacities to make contracts nevertheless be suppose always to enter into this contract? Why,
moreover, do all the classic theorists (including Hobbes) insist that, in civil society, women not only can
but must enter into the marriage contract?
The construction of the difference between the sexes as the difference between freedom and
subjection is not merely central to a famous political story. The structure of our society and our
everyday lives incorporates the patriarchal conception of sexual difference. I shall show how the
exclusion of women from the central category of the ‘individual has been given social and legal
expression and how the exclusion has structured the contracts with which I am concerned. Despite
many recent legal reforms and wider changes in the social position of women, we still do not have the
same civil standing as men, yet this central political fact about our societies has rarely entered into
contemporary discussions of contract theory and practice of contract. Husbands no longer enjoy the
extensive right over their wives that they possessed in the mid-nineteenth century when wives had legal
standing of property.
A2-Foucault-Biopower/Discipline, Civil State and Law Represent the Structure of
Domination in Modern Patriarchy
Pateman 88 Reader in Government at the University of Sydney, Australia
(Carole. (1988) The Sexual Contract, 1977 London: Routledge.(p. 16)
Attention to the subordination constituted by original contract, and by contract more generally, is itself
another possible source of misunderstanding. Michel Foucault’s influential studies might suggest that
the story of the sexual contract will generate a view of power and domination that remains stuck in
an old juridical formulation ‘centered on nothing more than the statement of the law and the
operation of taboos’. Certainly, law and contract, and obedience and contract, go hand in hand, but it
does not follow that contract is concerned only with law and not also, in Foucault’s terminology, with
discipline, normalization and control. In the History of Sexuality Foucault remarks that ‘beginning in the
eighteenth century, [new power mechanisms] took charge of men’s existence, mend as living bodies’.
But beginning in the seventeenth century, when stories of the original contract were first told, a new
mechanism of subordination and discipline enable men to take charge of women’s bodies and
women’s lives. The original contract (is said to have) brought a modern form of law into existence, and
the actual contracts entered into in everyday life form a specifically modern method of creating local
power relations within sexuality, marriage, and employment. The civil state and law and (patriarchal)
discipline are not two forms of power but dimensions of the complex, multifaceted structure of
domination in modern patriarchy.
Impacts
Racial profiling of Arabs and Muslims effects anyone who can be socially constructed
as an Arab/Muslim
Wing 03 Bessie Dutton Murray Distinguished Professor of Law at the University of Iowa
College of Law (Adrien, "Civil Rights in the Post 911 World: Critical Race Praxis, Coalition
Building, and the War on Terrorism." Louisiana Law Review, 63 La. L. Rev. 717, Spring 2003)
There were early reports that some Blacks and Latinos welcomed the law enforcement targeting of
Arabs and Muslims. n85 When I heard that comment, it reminded me that I preferred that my sons not be
mistaken for Arabs when flying. On the other hand, I also realized that increased racial profiling of
Arabs and Muslims has not meant that the long term racial profiling of African Americans has
stopped. It merely means that my sons may be doubly profiled depending on the context. At the
airport, they may be regarded as Arab terrorists, while at the taxi stand or ATM machine, they may be
regarded as Black criminals. n86 [*728]After September 11, Muslims and Arabs and people who look
like them have been under siege. n87 Over 1000 incidents of hate crimes were reported by February
2002. n88 Even President Bush's Arab secret service agent was removed from an American Airlines
plane. n89 Of five people who were killed, including a Sikh Indian, a Pakistani Muslim, an Egyptian
Coptic Christian, and an Indian Hindu, n90 none of them was a Muslim Arab, but all were socially
constructed as such.
Arabs and Muslims are being De-Americanized
Wing 03 Bessie Dutton Murray Distinguished Professor of Law at the University of Iowa
College of Law (Adrien, "Civil Rights in the Post 911 World: Critical Race Praxis, Coalition
Building, and the War on Terrorism." Louisiana Law Review, 63 La. L. Rev. 717, Spring 2003)
According to Bill Hing, Arabs and Muslims, whether citizens or not, are literally and figuratively being
de-Americanized, which is "a twisted brand of xenophobia that is not simply hatred of foreigners, but
also hatred of those who may not be foreigners but whom the vigilantes would prefer being removed
from the country anyway." n93 A member of the U.S. Civil Rights Commission has even said that in the
event of another terrorist attack, the American government might consider interning Arab Americans,
n94 reminiscent of the treatment of 120,000 Japanese and Japanese Americans in World War II. n95
Aliens, non-citizens, citizens EVERYONE are now subjected to series of civil rights
violations including indefinite detention and secret searches without probable cause
Wing 03 Bessie Dutton Murray Distinguished Professor of Law at the University of Iowa
College of Law (Adrien, "Civil Rights in the Post 911 World: Critical Race Praxis, Coalition
Building, and the War on Terrorism." Louisiana Law Review, 63 La. L. Rev. 717, Spring 2003)
The legal position of Arabs and Muslims has especially declined since the exceptionally speedy
passage of the Uniting and Strengthening America by Providing Appropriate Tools Required to [*729]
Intercept and Obstruct Terrorism (USA Patriot Act), n96 which subjects noncitizens to guilt by
association, ideological exclusion, unilateral executive detention, and racial profiling. n97 Aliens are
deportable for innocent association, without any proof that they supported terrorist activity. n98
Noncitizens are now subject to the resurrection of ideological exclusion, that is that they will be
denied a visa on the basis of pure speech if they are seen as endorsing or espousing terroristic activity
or persuading others to support activity or a group. n99 Aliens can be detained without any hearing or
showing that they pose a threat to national security or are a flight risk. The defendant in a normal
criminal proceeding can be held without bail only if he is a danger to the community or a flight risk. n100
Aliens can now be held not only during the proceeding which can take years, but also afterwards,
indefinitely, even if the proceeding says they should not be removed from the country!! n101 Rules that
effect citizens and noncitizens alike include the authorization of secret searches and wiretaps without
any probable cause as would normally be required by the Fourth Amendment. n102
America headed toward fascism under the guise of national security. Massive
violations against constitutional rights happening now
Wing 03 Bessie Dutton Murray Distinguished Professor of Law at the University of Iowa
College of Law (Adrien, "Civil Rights in the Post 911 World: Critical Race Praxis, Coalition
Building, and the War on Terrorism." Louisiana Law Review, 63 La. L. Rev. 717, Spring 2003)
Under the USA Patriot Act, over 1000 people were held for weeks or months with no
charges in mass preventive detention. n103 They did not have access to lawyers and, in
many cases, their families were not told where they were. n104 Some people were held
as material witnesses, i.e. they might have information. Even they have been treated
harshly. n105 Some have challenged that detention in court. While federal judges have found
that the use of material witness warrants to detain individuals for potential testimony
before a grand jury is unlawful, n106 other judges have held the opposite. n107 According to
Jerry Kang,[we] should not be surprised if courts determine that national security in the
face of terrorism is-in the lingo of constitutional law- a 'compelling interest' and that
rude forms of racial profiling, notwithstanding its over and under- [*730] inclusiveness,
are 'narrowly tailored' to furthering that interest. It would be foolish to think that the
courts will necessarily save us from the excesses of the more political branches. n108
Racial profiling destroys the public’s trust towards law enforcement
Wing 03 Bessie Dutton Murray Distinguished Professor of Law at the University of Iowa
College of Law (Adrien, "Civil Rights in the Post 911 World: Critical Race Praxis, Coalition
Building, and the War on Terrorism." Louisiana Law Review, 63 La. L. Rev. 717, Spring 2003)
In November 2001, the Bush Justice Department said it would interview some 5000 young men, solely
based on age, date of arrival, and country of origin. Virtually all were Arabs or Muslims. n112 Some police
departments refused to assist the federal government as they believed the policy constituted racial
profiling. n113 They knew that law enforcement works best if it positively involves the community
rather than terrorizes it. n114 Needless to say, the affected groups have been outraged by the targeting.
n115 Some months later, the Justice Department announced it would interview 3000 additional men from
countries with an Al Qaeda presence. n116When the Justice Department announced the Absconder
Apprehension Initiative in February 2002, they decided to prioritize [*731] the deportation of 6000
aliens out of the 300,000 foreigners who remained in the country after being ordered deported.
Needless to say, these men were from Arab countries. n117In April 2002, the Justice Department
announced that it would put into effect a provision from IIRIRA, which gives the police the authority
to enforce immigration laws. n118 This was controversial not only in immigrant communities, but
with police concerned about racial profiling. "'We've spent decades establishing trust . . . with our
very diverse communities,' says a San Diego spokesman. 'If there is an immigration emergency tied to
criminal activity, of course we'll assist. But if it is simply an immigration violation . . . we will not be
involved.'" n119
Immigrants are no longer welcomed as contributors and are now perceived as
potential terrorists
Wing 03 Bessie Dutton Murray Distinguished Professor of Law at the University of Iowa
College of Law (Adrien, "Civil Rights in the Post 911 World: Critical Race Praxis, Coalition
Building, and the War on Terrorism." Louisiana Law Review, 63 La. L. Rev. 717, Spring 2003)
In March 2003, the INS was dissolved and folded into the new Department of Homeland Security along
with 21 other federal agencies. The implications are ominous, as one commentator has stated.
"Placing all of the INS's functions into a department focused primarily on national security suggests
that the United States no longer views immigrants as welcome contributors, but as potential threats
viewed through a terrorist lens." n146At the time of this writing, it is alleged that the U.S. government has
drafted in secret Patriot II, the Domestic Security Enhancement Act of 2003. n147 The proposed law would
authorize secret arrests, overturning the federal court decision requiring the government to release the
names of all those detained since September 11. n148 Additionally, the law would permit the U.S. to
extradite even American citizens for trial to countries with which we do not have extradition treaties,
such as Saudi Arabia, Syria and Libya, which are well known for torture. n149 International and current
U.S. law prohibit sending a person to a country where there is likelihood of torture. n150 [*735]
Constituting a new level of invasion of privacy, a proposed Terrorist Identification database would
authorize the collection of DNA of any suspect and of all noncitizens suspected of having an
association with a "terrorist organization." n151 The most extraordinary proposal would possibly strip
Americans of citizenship as a form of punishment for giving material support to terrorist groups. n152
Case Neg
No solvency: Courts and government fail the people
Restricting power won’t solve, checks and balances are already at work. Courts
legitimize presidential powers.
Durden 13, pseudonym for a group of editors at financial website Zero Hedge
(Tyler, “You now Have to Assume Everything is Being Collected” Phil's Stock World blog,
http://www.philstockworld.com)
Every company involved denied the most sensational assertion in the Prism documents: that the NSA
pulled data 'directly from the servers' of Microsoft, Yahoo, Google, Facebook, AOL and more.But PRISM is
a filter on what the government is really storing Prism, as its name suggests, helps narrow and focus the stream.In that way, Prism helps justify
specific, potentially personal searches.But
it's the broader operation on the Internet fiber optics cables that
actually captures the data. 'I'm much more frightened and concerned about real-time monitoring on
the Internet backbone,' said Wolf Ruzicka, CEO of EastBanc Technologies, a Washington software
company. 'I cannot think of anything, outside of a face-to-face conversation, that they could not have
access to.' Whether the government has that power and whether it uses Prism this way remains a
closely guarded secret. Obama defends the 'intrusion' the only way we would expect:'You can't have
100 percent security and also then have 100 percent privacy and zero inconvenience,'And it's no
surprise the President continued the eavesdropping 'You can't expect a president to not use a legal
tool that Congress has given him to protect the country. So, Congress has given him the tool. The
president's using it.And the courts are saying 'The way you're using it is OK.' That's checks and
balances at work. 'But in conclusion: Schneier, the author and security expert, said it doesn't really
matter how Prism works, technically. Just assume the government collects everything, he said. He said it
doesn't matter what the government and the companies say, either. It's spycraft, after all. 'Everyone is
playing word games,' he said. 'No one is telling the truth.'
Government Courts have made it difficult for citizens to fight back
Apuzzo, June 13 Pulitzer Prize-winning investigative reporter for The Associated Press in
Washington, Matt, Denver Post, June 7, 2013, “ What you should know about the NSA phone data
program," http://www.denverpost.com/nationworld/ci_23408127/what-you-should-know-about-nsaphone-data)
People have sued. But challenging the legality of secret wiretaps is difficult because, in order to sue,
you have to know you've been wiretapped. In 2006, for instance, a federal judge in Detroit declared
the NSA warrantless wiretapping program unconstitutional. But the ruling was overturned when an
appeals court that said the plaintiffs civil rights groups, lawyers and scholars didn't have the authority
to sue because they couldn't prove they were wiretapped.Court challenges have also run up against
the government's ability to torpedo lawsuits that could jeopardize state secrets.The recent release of
the classified court document is sure to trigger a new lawsuit in the name of Verizon customers whose
records were seized. But now that the surveillance program is under the supervision of the FISA court
and a warrant was issued, a court challenge is more difficult.Suing Verizon would also be difficult. A
lawsuit against AT&T failed because Congress granted telecommunications companies retroactive
immunity for cooperating with warrantless surveillance. In this instance, Verizon was under a court
order to provide the records to the government, making a lawsuit against the company challenging.
Congress and courts already oversee surveillance program and deem it legal
Drezner June 13 professor of international politics at the Fletcher School of Law and Diplomacy at
Tufts University (Daniel W., Foreign Policy Online, June 7, 2013, “3 unoriginal thoughts on the NSA
revelations," http://drezner.foreignpolicy.com/posts/2013/06/07/
three_unoriginal_thoughts_on_the_nsa_revelations)
While on its surface, this order -- which authorized the secretive National Security Agency to collect
data on phone calls placed by Verizon customers for a period of three months -- seems blatantly
illegal, the reality is that Congress has been enabling and legalizing such surveillance for years....
Rather than challenging the administration's authority to secretly interpret and enact laws, however,
Congress instead twice authorized them to keep everything a secret. Last year, Ron Wyden, a
Democrat on the Senate Intelligence Committee, tried to prohibit secret legal rulings. He got voted
down[8]. That same year Senator Jeff Merkley, also a Democrat, added his own amendment to the
renewal of the 2008 wiretapping law. His amendment was voted down[9] by a strong margin in both
parties. The administration's response[10] is that the program is legal and is overseen by both
Congress and the courts. They also gesture towards, but don't really identify, 'numerous inaccuracies' in
the reports.
Seeking government oversight will not solve
Drezner June 13 professor of international politics at the Fletcher School of Law and Diplomacy at
Tufts University (Daniel W., Foreign Policy Online, June 7, 2013, “3 unoriginal thoughts on the NSA
revelations," http://drezner.foreignpolicy.com/posts/2013/06/07/
three_unoriginal_thoughts_on_the_nsa_revelations)
It speaks to a systemic acceptance of this kind of surveillance across the law and the Congress and the
oversight courts. It means this is not the action of an overzealous NSA or even an overzealous
administration but the consequences of a broad redefinition of the government's domestic
surveillance powers -- one that has managed to stick across both the Bush and Obama administrations,
and one that will thus be that much harder to uproot. This explains the congressional reaction to
yesterday's news stories, which overwhelmingly defended NSA activities. Surely, now that this is
public, however, this will change, right? I don't think so. If you dig into the latest New York Times/CBS
poll[12], you find pretty robust support for President Barack Obama's counterterrorism policies. So
you have a policy that the executive, legislative, and judicial branches have all signed off on, with
support from the American people. That doesn't make the policy the right one -- but it does make it
legitimate.
No Solvency: Courts racist
U.S. Supreme Court Justices has deprived natural born American Citizens of their
rights without due process of the law off the basis of race
Saxton 13 University of Sheffield, School of Law, Graduate Student
James, "Korematsu v United States; a basic judgement analysis in light of Hart's legal positivism, Finnis'
natural law, and Critical Race Theory " 2013, http://www.academia.edu/1512275/
Korematsu_v_United_States_a_basic_judgement_analysis_in_light_of_Harts_legal_positivism_Finnis_n
atural_law_and_Critical_Race_Theory)
The most obvious point to raise in light of Korematsu at this point would be the involvement of the US
Constitution, especially in light of the Ninth and Fifth Amendment, which concerns the rights of US
citizens to be protected from the deprivation of "life, liberty and property, without due process of
law" and that manipulation of the constitution cannot discharge these rights. For the purposes of the
rule of recognition, the authority of the Constitution would make these valid rules under the legal
system. Hart also contended with Austin's "command theory" by proposing his theory on the
"variety" of laws, that there should be a distinction between primary rules; rules that apply directly to
those bound by the rules, and secondary rules; rules that govern the creation or extinction of the rules
themselves. In terms of primary and secondary rules, these amendments offer direct protection to its
subjects, binding the legal system to provide adequate protocol when such deprivation occurs. Here
we find an interesting feature, as the rule contains elements of both primary and secondary rules, yet
both are to be applied simultaneously. Yet Justice Black insists that the curfew was necessary, "…
because we could not reject the finding of the military authorities that it was impossible to bring
about an immediate segregation of the disloyal from the loyal…" Justice Frankfurter also comments
that he could, "… find nothing in the Constitution which denies to Congress the power to enforce such a
valid military order." So both Black and Frankfurter approve of the idea that the Fifth Amendment can
forgo restricted application. Does this mean that there is a flaw in Hart's theory, or can primary and
secondary rules run together and Black and Frankfurter simply applied the law erroneously? I would
prefer the latter view, because given this situation where the Fifth Amendment has dual purpose to
both the citizens and the state; Black and Frankfurter by their own volition decided to exclude it from
relevance altogether as "it was impossible" to apply its secondary function of due process to those of
Japanese ancestry.
Supreme Court violated the unalienable rights of U.S citizens by taking away the
liberty of Japanese-Americans
Saxton 13 University of Sheffield, School of Law, Graduate Student
James, "Korematsu v United States; a basic judgement analysis in light of Hart's legal positivism, Finnis'
natural law, and Critical Race Theory " 2013, http://www.academia.edu/1512275/
Korematsu_v_United_States_a_basic_judgement_analysis_in_light_of_Harts_legal_positivism_Finnis_n
atural_law_and_Critical_Race_Theory)
Nonetheless in light of this principle of “unalienable rights” we have a prima facie case that the
decision in Korematsu successfully alienated the rights of en entire minority group by withdrawing
their liberty. As the movement developed, Thomas Aquinas proposed that natural law provides the
backdrop for positive law; man-made law.1 As a result, the rule of “lex iniusta non est lex”, or as
1
Aquinas, T, Summa Theologia, I-II, Question 91, in The Treatise on Law, (R.J Henle, trans. And ed., University of
Notre Dame Press, Notre Dame, 1993), pp 148-184
interpreted, “... no human laws are of any validity, if contrary to the law of nature.”2 On application
of this logic, Mr. Korematsu was correct in not submitting to Execution Order 9066, as it did not
conform to the natural rights provided by the US Constitution. In furtherance to this, Justice Roberts
submitted that the Order coupled with Proclamation No. 4, made Mr. Korematsu “... subject to two
conflicting laws and was not bound, in order to escape violation of one of the other, to surrender his
liberty for any period.”3 Justice Murphy also commented that the exclusion of Japanese-Americans
“goes over the very brink of constitutional power ”4. Both these attitudes would sit well with natural
theorists, as they bear in mind the principles of lex iniusta non est lex and constitutionally conferred
natural rights.
American institutions are inherently racist and unaware of their racism this is why
Minority rights have been infringed on and continue to be today
Saxton 13 University of Sheffield, School of Law, Graduate Student
James, "Korematsu v United States; a basic judgement analysis in light of Hart's legal positivism, Finnis'
natural law, and Critical Race Theory " 2013, http://www.academia.edu/1512275/
Korematsu_v_United_States_a_basic_judgement_analysis_in_light_of_Harts_legal_positivism_Finnis_n
atural_law_and_Critical_Race_Theory)
One of the fundamental CRT beliefs is that racism is a built in part of the American lifestyle.5 This
thought is complimented in Lawrence’s theory of “unconscious racism ”, as stated above; this is when
racial matters are present in a situation although not unanimously recognised.6 In Korematsu, Black
took the approach that the principle to be decided was if a minority’s rights can be outweighed by
public necessity; noting that racial antagonism never can.7 This is a perfect example of unconscious
racism, deduced since the public necessity was brought about by the war against Japan; the racial
antagonism towards Japanese-Americans was a foregone conclusion. Gardum comments that when a
norm regarding equality is adopted, it has “extreme indirect-horizontal effect”8 suggesting Black’s
judgement would not sit well with the race-crits.
2
Blackstone, W, Commentaries on the Laws of England, (Clarendon Press, Oxford, 1765-1769)
Toyosaburo Korematsu v. United States, 323 U.S. 233 (1944)
4
Toyosaburo Korematsu v. United States, 323 U.S. 233 (1944)
5
Bell, Faces at the Bottom of the Well: the Permanence of Racism, 1992
6
Lawrence, The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism, 39, Stanford Law Review
317 (1987)
7
Toyosaburo Korematsu v. United States, 323 U.S. 216 (1944)
8
Gardum, S, Where the (state) action is, 2006, I.J.C.L 760-779, 776
3
No solvency: Social racism
Orientalism rampant throughout the media and other aspects of society they leave
untouched
Ali 12, J.D., University of California, Berkeley
(Yaser, August, 2012 “Shariah and Citizenship - How Islamophobia Is Creating a Second-Class Citizenry in
America,” 100 Calif. L. Rev. 1027)
Nowhere were these stereotypes memorialized more vividly than in Hollywood, as cultural productions
tend to replicate and render more explicit the dominant paradigms in society. n55 Jack Shaheen, author of Reel Bad
Arabs: How Hollywood Vilifies a People, conducted a comprehensive review of Arab dehumanization in over 900 films;
he described the popular stereotype of Arabs:
From 1896 until today, filmmakers have
collectively indicted all Arabs as public enemy #1 - brutal, heartless,
uncivilized religious fanatics and money-mad cultural "others" bent on terrorizing civilized
Westerners, especially Christians and Jews ... . Arabs are brute murderers, sleazy rapists, religious fanatics, oil-rich dimwits, and
abusers of women. n56
Shaheen argued that viewers internalized these stereotypes through constant repetition. n57 He explained this
process by use of a powerful Arabic proverb, "Al tikrar biallem il hmar. By repetition even the donkey learns." n58 Not surprisingly, out of over
900 feature films he reviewed, only a handful depicted Arabs as the protagonist. n59 Each of the remaining films brandished stereotypical
depictions of Arab men as notorious villains and womanizing sheikhs, while Arab women were either hypersexualized, scantily clad belly
dancers or weak and oppressed objects draped in black robes and desperately seeking liberation by Western heroes. n60
Legal and legislative change not enough. The deep-seated racism they are talking
about will resurface in other ways.
Bell 92, Professor of Law at NYU,
(Derrick, Faces at the Bottom of the Well. The Permanence of Racism. p. 97)
Erika began with a series of statements all too familiar to me: That the litigation
and legislation based on the belief in
eventual racial justice have always been dependent on the ability of believers both to remain faithful to
the creed of racial equality and to reject the contrary message of discrimination. That, despite our best
efforts to control or eliminate it, oppression on the basis of race returns time after time--in different
guises, but it always returns. That all the formal or aspirational structure in the world can't mask the
racial reality of the last three centuries.
Oppressive forces do not vanish when criticized. After their advocacy and the
restriction of war powers, the original forces of racism and brutality will still exist and
will still divide communities.
Spivak 04, Prof. Humanities Columbia U,
(Gayatri, “Righting Wrongs” South Atlantic Quarterly 103.2/3, p.523-581)
This narrative demonstrates that when the human rights commissions, local, national, or international, right state terrorism, police brutality, or
gender violence in such regions, the punishing victory is won in relatively remote courts of law. Catharine A. MacKinnon describes this well:
"The loftiest legal abstracts . . . are born . . . amid the intercourse of particular groups, in the presumptive ease of the deciding
classes, through the trauma of specific atrocities, at the expense of the silent and excluded, as a victory (usually
compromised, often pyrrhic) for the powerless."77 In the aftermath of victory, unless there is constant vigilance (a
"pressure" that is itself a species of terror), the very forces of terror, brutality, or violence that suffer a public
defeat, often come back to divide and oppress the community even further. If the community fights back, it does
so by the old rules of violence. The dispensation of justice, the righting of wrongs, the restoration of human rights,
is reduced to a pattern of abyssal revenge and/or, at best, a spirit of litigious blackmail, if the group that has been helped has a strong
connection to the regional human rights agencies or commissions (the dominant pressure groups described as "below), which is by no means
always the case. Legal awareness seminars, altogether salutary in themselves, can exacerbate the problem without the painstaking
foundational pedagogy which prepares the subject of rights from childhood and from within a disenfranchised culture of responsibility. And, if
we get away from such remote areas, human rights dependency can be particularly vicious in their neocolonial
consequences if it is the state that is the agency of terror and the Euro-U.S. that is the savior.
No solvency: US Support for Israel
Conflict with the Muslim world is not just excessive use of Presidential power. The US
feeds anti-Americanism in a number of ways, many which will continue to exist after
the affirmative. US support for Israel, for example, may make some clash inevitable.
Torok 04 CUNY Law Graduate and PhD candidate in ethnic studies, Berkeley
(John Hayakawa, Howard Law Journal, Fall, 2004 Doctoral Candidate, Department of Ethnic Studies,
University of California, Berkeley. J.D. 1991 C.U.N.Y. Law School. 48 How. L.J. 351, “Freedom Now! - Race
Consciousness and the Work of De-Colonization Today.”)
This anger
derives partly from the American government's long-standing support for Israel and tolerance
military aid to Israel
n169
is well-known and well-understood in the Islamic world. This knowledge is a significant element in
non-Israeli Middle Eastern and Muslim opposition in the region and elsewhere to America's foreign
policy. n170 The New York Amsterdam News recently had a rather telling headline about the war: "Young, Black, and Dead." n171
of Israel's repression of the Palestinian movement for national liberation. n168 While little-known here, American
No solvency: Patriarchy
No solvency. War Powers Issues require confronting the patriarchy for any hope of
institutional change.
Warren & Cady 94 chair of the Philosophy department at Macalester College and Professor of
Philosophy and Department Chair at Hamline University
Karen J. and Duane L., Hypatia vol. 9, no. 2 (Spring 1994) Indiana University Press
Conceptually, a feminist perspective suggests that patriarchal conceptual frameworks and the behavior they give rise
to, are what sanction, maintain, and perpetuate “isms of domination” –sexism, racism, classism, warism,
naturism and the coercive power-over institutions and practices necessary to maintain these “isms.” If
this is correct, then no account of peace is adequate which does not reveal patriarchal conceptual
frameworks; they underlie and sustain war and conflict resolution strategies. (Examples of why we think this is correct
are laced throughout the remainder of the paper.) One glaring example of how the dominant cultural outlook
manifests this oppressive conceptual framework is seen in macho, polarized, dichotomized attitudes
toward war and peace. Pacifists are dismissed as naïve, soft wimps; warriors are realistic, hard heroes. War and peace are
seen as opposites. In fact few individual warists or pacifists live up to these exaggerated extremes. This suggests a reconceptualization of
values along a continuum which allows degrees of pacifism and degrees of justification for war (Cady 1989). Feminist philosophers
regard conceptual considerations to be at the core of peace issues because many of the other womenpeace connections can be explained theoretically with an analysis of patriarchal conceptual frameworks
in place. The evidence for the existence of such conceptual connections comes from such a wide variety of sources: empirical data and
history; art; literature, and religion; politics, ethics, and epistemology; language and science. Although we cannot discuss all of these sources
here, we do consider several. They are evidence of woman-peace connections that, in turn, help to establish the nature and significance of the
conceptual connections.
Discourse of “Nationality” backfires. Isolating groups and emphasizing nationality in
the eyes of the law will actually reify those categories and allow for a hardening of
national norms.
Hall 04 associate professor of education and anthropology at the University of Pennsylvania
Kathleen D., “BEING HERE AND BEING THERE: FIELDWORK ENCOUNTERS AND ETHNOGRAPHIC
DISCOVERIES,” Annals of the American Academy of Political and Social Science, September, #595, 80-90
Legal discourse constitutes minority statuses in efforts to determine who belongs to a nation and to
protect the rights of those who do. These forms of political discourse designate minority status on
ethnic reductionist terms--terms that assume a homology between a community and a culture. These essentialist
constructs, in contradictory fashion, provide the basis for challenging discrimination while defining the
boundaries of national belonging in racial terms. Yet processes of social incorporation are not shaped only within
the designation of legal statuses and the provision of particular rights. They are founded upon and informed by visions of
national unity--visions that provide the rationale for different types of integration efforts. What is
assumed to preserve the social fabric of a nation or, contrastively, to tear it apart? and How are cultural
differences imagined to contribute to either of these social ends?
No solvency: Middle East Womyns' Rights -- Arab Experience Unique
Arab women discrimination is unique from other minority groups
Saloom 05, Attorney, Atlanta, GA, J.D. graduate, University of Georgia School of Law; M.A., Middle
Eastern Studies, University of Chicago (Rachel “I Know You Are, But What Am I? Arab-American
Experiences Through the Critical Race Theory Lens." Hamline Journal of Public Law & Policy, 27 Hamline
J. Pub. L. & Pol'y 55)
Third world women as a group or category are automatically and necessarily defined as religious (read
"not progressive"), family-oriented (read "traditional"), legal minors (read "they-are-still-notconscious-of-their-rights"), illiterate (read "ignorant"), domestic (read "backward"), and [*74]
sometimes revolutionary (read "their-country-is-in-a-state-of-war-and-they-must-fight!"). n84 This
mentality exists toward women who live in Arab countries; moreover, this way of thinking becomes
engrained in American society. Thus, Arab-American women are then viewed through this lens of
inferiority. One scholar argues "there is a tendency, first, to establish the essential otherness of Middle
Eastern women by juxtaposing Western and Middle Eastern cultures and images of Occidental women
with Oriental women." n85 Arab-American women are viewed as the "other" and as inherently different
from white women. n86 Arab-American women are also thought to be more foreign and exotic than
many other minorities. n87 This extra [*75] element of foreignness distinguishes Arab-American
women experience from some other minority groups. n88
CRT Alt Solvency
Critical Legal Studies breaks down social barriers and acts as a social revolutionary tool
for creating change in law and practical actions
Unger 83 Professor of law at Harvard Law School,
Roberto, The Critical Legal Studies Movement, June, http://www.jstor.org/stable/1341032)
The transformative activity carried out in these different settings may be understood as a distinctive
and perhaps even exemplary reaction to a specific historical circumstance. To grasp what exactly the reaction
exemplifies, we need to re- member a few elementary aspects of the situation. One such aspect is the disruption of the imagined
mechanism, and the disappearance of the real occasions, of revolutionary transformation. The conventional
concept of revolution combines at a minimum the notion of basic if not total change in the formative context of routine social life with the idea of more or less
widespread participation in the remaking of a social order that the state has temporarily ceased to con- trol. In the ruling traditions of historical and critical social
the only clear
alternative to the endless reproduction of society through reformist tinkering or to its slow and
obscure remaking through the accumulation of an enormous number of largely unrelated decisions
and conflicts. In this inherited picture, the core mechanism of revolution is the alliance of a counterelite with an oppressed mass. In the advanced Western
theory and in the vulgar beliefs that these traditions have inspired, revolution appears as the best hope of real social change,
countries, however, with their forms of mass-party politics, their extreme segmentation of the work force, and their more or less shared language of a culture that
combines attributes of the high and the popular, the simple hierarchical contrasts that this mechanism presupposes have been irremediably con- fused. Moreover,
the textbook cases of modern revolution almost invariably have depended upon the occurrence of a narrow range of enabling conditions besides the existence of a
well-defined and relentlessly expressed social hierarchy. One of these favorable circumstances was the paralysis of the re- pressive and coordinating apparatus of
the state in the wake of war and occupation. Another was the influence of the transformative commitments of those who seized government in the course of a
national struggle against a brutal tyranny. But wars in our own historical circumstance must be either too limited or too terrible to have this enabling effect, and
As the mechanisms and occasions of revolution disappear, we
seem to be left with nothing but the petty squabbles of routine politics. A second feature of the larger situation is the
brutal tyrannies do not exist in the industrialized West.
strange co- existence, in the rich North Atlantic countries, of constant revolution in the sphere of personal relations with repetition and drift in the struggle over the
the meanings and intentions of this
cultural-revolutionary practice. It may be enough to remember here that it wants to free the practical and passionate
relations among people from the constraining effect of some background plan of social division and
hierarchy and to recombine the experiences and opportunities associated with different social or gender categories. To the extent that it becomes cut off from the practical or imaginative contest over institutional structure, as it has in the career of the
uses of governmental power and the institutional structure of society. I suggested earlier a view of
advanced Western societies, this cultural-revolutionary practice undergoes a perversion: the un- happy search for gratification and self-fulfillment takes precedence over all other modes of subjectivity or solidarity. A third characteristic of our historical circumstance is the nature of the gap between the homogeneous
social space of citizens and property holders depicted by classical liberal the- ory and the real nature of social life. The whole of society appears in fact as a vast array
of overlapping but nevertheless discrepant sets of prerogatives .
These prerogatives, only partly defined by the law, establish a
system of social stations. Each place in the system is defined simultaneously by its relation to all the
other places and by the degree and character of its access to the favors of governmental power. These
favors include both the direct or indirect distribution of material resources and the making of legal
rules that turn transitory advantages into vested rights. Each place in the scheme of social stations serves as a haven within which
a distinctive form of life can flourish. Politics, narrowly understood as the contest over the control of the state, are largely played out as a struggle among more or
less fragmentary interest groups. This process, however, does not express the underlying char- acter of society. Instead, it helps explain why society, as a relatively
quiescent division of labor, should be so different from politics. This is truly a new ancien regime. Its great historical accomplishment is to have extended to the
masses of ordinary working men and women the experience of right- holding, at least of holding rights that are not just steps in a chain of personal dependence. Its
most striking defect is to have fallen short: not to have developed rightholding into active empowerment over the terms of social life and not to have overcome the
disparity between the organization of pol- itics, as a contest among fragmentary, crisscrossing interest groups and parties of opinion, and the organization of
society, as a system of fixed divisions and hierarchies that makes the individual the captive of a more or less rigidly defined station within a more or less stabilized
division of labor. A movement able to act transformatively in the circum- stance I have described must reject the false dilqmmas of conservative reform or textbook
revolution. It must find ways to override the contrast between the politics of personal rela- tions and the politics of the large-scale institutional structure. It must
take advantage of the highly segmented character of social life - its fragmentation into hierarchically ordered cit- adels of prerogative - in order to experiment with
forms of social life capable of overcoming the very oppositions - be- tween rightholding and empowerment or between the quality of grand politics and the reality
of practical social experience - that this segmentation helps strengthen. Our
movement exemplifies, very incipiently and
imperfectly, one such mode of activity, with the distinguishing opportunities and constraints that
come from working through the medium of legal thought and practice. A group acts in one of the institutional havens or
social stations of the system of prerogatives. In its corner of the social world, it pioneers in types of association and action that
serve as countermodels to the dominant scheme of social life and that, appropriately revised, can be
extended to other aspects of social life.
Targeting whiteness is crucial, we accomplish that critique through our starting point.
Torok 04 CUNY Law Graduate and PhD candidate in ethnic studies, Berkeley
(John Hayakawa, Howard Law Journal, Fall, 2004 Doctoral Candidate, Department of Ethnic Studies,
University of California, Berkeley. J.D. 1991 C.U.N.Y. Law School. 48 How. L.J. 351, “Freedom Now! - Race
Consciousness and the Work of De-Colonization Today.”)
Every generation of race-conscious revolutionary has had to grapple with the knowledge, the
philosophy, the ideology of the white oppressor. n179 The "theories as developed by White western
thinkers are a product of their values and environment, like all other political thinkers." n180 National and
international political structures and organizations reflect the theories of those who created them.
Working for change requires a supple grasp of the history of theory as it relates to the creation of
specific political structures, organizations, and their political and organizational development over time.
For anti-subordination legal theorists, n181 it further requires a particular focus on change [*379] over
time in the law of subordination and the changing ideologies of subordination that mutually shape how
social power is distributed. n182
Applying Critical Race Theory the US imperialism through a Post-colonial emphasis can
target the same problems addressed by the aff.
Torok 04 CUNY Law Graduate and PhD candidate in ethnic studies, Berkeley
(John Hayakawa, Howard Law Journal, Fall, 2004 Doctoral Candidate, Department of Ethnic Studies,
University of California, Berkeley. J.D. 1991 C.U.N.Y. Law School. 48 How. L.J. 351, “Freedom Now! - Race
Consciousness and the Work of De-Colonization Today.”)
Moreover, given current American imperial overstretch, n7 the idea of a clash of civilizations merits rigid
scrutiny by American anti-racist activist intellectuals. n8 We are fortunate that we can draw on an
established African American tradition of critique that links domestic and global racism. n9 [*353] The following
Speech n10 was the opening presentation at the 2003 Critical Race Theory Workshop (CRTW). n11 I wrote and gave it as a response to my panel's
title: Race-Consciousness: Progressive Tool or Outmoded Instrument? n12 I wrote this preface later to give readers who have not participated in
the movement or read the Critical Race Theory (CRT) literature some context. n13 The preface also extrapolates some of the ideas that were
implicit in the Speech as given. In the Speech, I sought both to re-examine the life work of Houston and Hastie through the lens of a leftist Black
Nationalism, and to give a reading of contemporary world events through that same lens. I later realized that the Speech itself was an exercise
in progressive race consciousness. Whether
is defined.
n16
race consciousness is a progressive tool, of course, depends on how it
n14
Some critical race theorists are questioning the efficacy of race consciousness n15 to our collective anti- subordination project.
I understand that the 2003 CRTW organizers had this internal critique in mind when they named the first panel. n17 Nevertheless,
deconstructing American race consciousness was always part of CRT's work. n18 My argument in this Article is not
that all race consciousness is progressive. n19 Rather, I argue that since a progressive variety can be identified,
race consciousness as such is not an outmoded instrument. n20 I submit that anti-colonial, anti-subordination
race consciousness remains a progressive tool. I denominate n21 this post-colonial race consciousness. n22 I
contend, fundamentally, that CRT and its theoretical progeny build on a progressive history of race
consciousness. This tradition centers on work for justice and equality both domestically and
internationally. n23 We should spotlight this illuminating tradition in CRT. It can inspire us for our present and future
anti-subordination work. n24
Black anti-colonial thought can solve even if application is necessary
Torok 04 CUNY Law Graduate and PhD candidate in ethnic studies, Berkeley
(John Hayakawa, Howard Law Journal, Fall, 2004 Doctoral Candidate, Department of Ethnic Studies,
University of California, Berkeley. J.D. 1991 C.U.N.Y. Law School. 48 How. L.J. 351, “Freedom Now! - Race
Consciousness and the Work of De-Colonization Today.”)
Black anti-colonial thought affected the American "race relations" discipline. Berkeley's Robert Blauner
introduced the internal colonialism model, drawing upon "minority ideologists," into the sociological
literature in 1969. While the "fit" of this model to the African American "case" was limited, in 1970, Joan
Moore showed that it comported well with the Mexican American "case" in the Southwest. n71 [*361]
The intellectual history of Black Nationalism and Pan-Africanism, and a history of the effects of Black
anti-colonial thought in intellectual life and on racial order and power in the Black Atlantic, both remain
to be written. n72
CRT Best Approach to Nationalism. Extend the nationalism link argument. CRT and
decoloniality can solve all of the case without risks the reinscription of an American
nationalism. They critique nationalism as “security” and we celebrate it as Pan-Africanism.
Torok 04 CUNY Law Graduate and PhD candidate in ethnic studies, Berkeley
(John Hayakawa, Howard Law Journal, Fall, 2004 Doctoral Candidate, Department of Ethnic Studies,
University of California, Berkeley. J.D. 1991 C.U.N.Y. Law School. 48 How. L.J. 351, “Freedom Now! - Race
Consciousness and the Work of De-Colonization Today.”)
A tradition of scholarship n88 grounds Black critical social thought n89 and anti-subordination work. n90 About
thirty years ago, historian Vincent Harding, a founder of the Institute of the Black World, n91 discussed the question of vocation for Black
scholars. n92 Harding urged Black intellectuals to speak truth as a fundamental requisite [*364] for collective survival in a racist society. The
Black scholar's "calling," he said, was "to speak truth to our people, to speak truth about our people, to
speak truth about our enemy--all in order to free the mind, so that Black men, women and children may
build beyond the banal, dangerous chaos of the American spirit, towards a new time." n93 Harding stressed the
importance of understanding clearly the conditions facing Black communities. n94 Harding noted that colonized peoples cannot be
studied in isolation from their colonizers. n95 He thus urged: "we must produce and encourage precise,
carefully documented studies of the educational, political, economic, military, and cultural systems of
White oppression." n96 Finally, Harding noted that "becoming personally involved in the concrete, active struggle
for liberation, entering deeply into its life, and opening our own lives to its risks, is, of course, the most
unrespectable aspect of the vocation." n97 Black Nationalism is a complex political and intellectual
tradition. n98 Marcus Garvey's social thought represented the emergence of [*365] a racial nationalism that asserted racial identity and
pride. Garvey, however, remained within a liberal capitalist frame by affiliating himself with Booker T. Washington's ideology. n99 Socialist
and anti-imperialist components were added to Black Nationalism with the formation of the African Blood
Brotherhood, the "first Afro-American Pan-Africanist socialist organization in the United States." In the 1920s, several Brotherhood members
joined the earliest American communist parties. n100 Socialist Hubert Harrison and communist Harold Cruse broke with the Socialist and
Communist parties in the First and Second World Wars based on of critiques of White left racism. Harrison then edited a radical newspaper The
Voice. n101 Cruse became a leading theorist of racial nationalism in the Black Power period. n102 In the 1960s, following Malcolm X's
assassination, the Black Panther Party, which emerged in Oakland, California, the League of Revolutionary Black Workers of Detroit, Michigan,
the Revolutionary Action Movement, and the Black Workers Congress all combined revolutionary Black Nationalism with socialist
internationalism. n103 CRT's
progressive internationalism builds upon these traditions of Black critical social
thought. n104 [*366] Pan-Africanism is a political and intellectual "nationalist" movement that goes beyond
the borders of the United States. n105 It is related to, and can be seen as an internationalist variety of, Black Nationalism. n106 PanAfricanism has roots in the African diaspora and Africa. It was a major force in the twentieth-century de-colonization movement on the African
continent. n107 Scholars
of the American civil rights movement are increasingly acknowledging an
international dimension. n108 Pan-Africanism, it appears, also played a role in the twentieth-century
American Black freedom struggle. n109
CRT with an anti-colonial emphasis is the best way to solve the case.
Torok 04 CUNY Law Graduate and PhD candidate in ethnic studies, Berkeley
(John Hayakawa, Howard Law Journal, Fall, 2004 Doctoral Candidate, Department of Ethnic Studies,
University of California, Berkeley. J.D. 1991 C.U.N.Y. Law School. 48 How. L.J. 351, “Freedom Now! - Race
Consciousness and the Work of De-Colonization Today.”)
I submit, first, that rigorous critique of how White supremacy and White privilege were, and are ordered , n120 in
local, national, regional, and international law and legal institutions was and remains a key CRT task. n121
Second, this critical project must be informed by analyses of the relation of gender, sexuality, and class
formations to racial formations, and how these constitute each other. Our readings and analyses should in turn
inform CRT praxis. n122 Third, a further query was posed not long ago that applies to all CRT legal scholars: "How do we, as legal
scholars, collectively sustain and carry forward in a progressive way the outsider experiment in critical
jurisprudence as a form of anti-subordination struggle?" n123 Answering these questions is a collective project for the CRT
movement. n124 F. Post-Colonial Race Consciousness, or De-Colonization, as a CRT Emphasis In view of the debate on Black critical legal thought
that emerged in LatCrit, I sought in my speech to show that a closer reading of the "White over Black" n125 paradigm of race, examining
specifically Pan-Africanism, makes clear that the
Black, APA, Latina/o and Native American postcolonial/critical legal
theory projects are not so far apart as they may first appear. n126 Post-colonial race consciousness is
progressive and internationalist. n127 A "Pan-African" frame n128 for Houston and Hastie's work, and therefore the Brown
decision, gives us a new perspective on their life work. When one understands racism as integral to the colonial milieu and
as produced to support colonial power relations, their legal struggle [*370] and the movement against American
apartheid can be seen as part of a broader global justice movement against colonialism. n129 A race
conscious left internationalism - in other words post-colonial race consciousness - can help all those who
identify as and with CRT to understand the work that remains before us: (a) to eradicate colonialism's
legacies, and (b) to theorize and fight back against the global race/gender/sexuality power machine. n130
Global Critical Race Feminism has already moved in this direction with its incorporation of postcolonial theory. n131 CRT should follow suit.
Centering de-colonization as an analytical focus in critical legal studies on race, races, and racisms will require organization. n132
Postcolonial theory has not focused adequately on U.S. law n133 and legal culture, and their
internationalization, n134 as an object of critique. De-colonization may be a theoretical basis for
international solidarity in both the domestic U.S. and international "race" and racial justice contexts. n135
CRT: The Aff cannot solve. Selective democracy is the problem, not war powers
Torok 04 CUNY Law Graduate and PhD candidate in ethnic studies, Berkeley
(John Hayakawa, Howard Law Journal, Fall, 2004 Doctoral Candidate, Department of Ethnic Studies,
University of California, Berkeley. J.D. 1991 C.U.N.Y. Law School. 48 How. L.J. 351, “Freedom Now! - Race
Consciousness and the Work of De-Colonization Today.”)
A long time ago, in a land far away, the army of a city-state invaded another country. The city-state from
which the army came prided itself on its democratic ideals. The occupying army treated the inhabitants
of the invaded country as invaders usually do--poorly. n147A citizen of the occupied country asked: "what about
democracy and the rule of law?" n148 An officer in the army replied: "For us there is the law of
democracy; for you, there is the law of empire." n149 In 1989, Derrick Bell said that the "traditional way of
doing legal scholarship doesn't do justice to our experience... . We need new ways of addressing a
situation many of us feel is abominable. But minorities who are trying to blaze new trails in legal academia are meeting
opposition and silencing." n150 In 1988, Mari Matsuda wrote to encourage "specific action to end the apartheid in legal knowledge... Human
beings learn and grow through interaction with difference, not by reproducing what they already know[.] ... A system
of legal
education that ignores outsiders' perspectives artificially restricts and stultifies the scholarly
imagination." n151 CRT has been defined as using the tools of critical theory in the task of dismantling racial
hierarchies in the United States. n152 At the closing plenary of the Fall 1997 Conference on Critical Race Theory, Francisco Valdes
proposed "post-reconstruction vision as jurisprudential method." Harlon Dalton rephrased the proposal, posing it as a question: "What would
heaven on earth look like?" n153 This moment represented another move from mapping, or critique, of existing subordination, to becoming the
architects of a post-subordination world. [*374] Since then, CRT as a self-organized legal intellectual movement has been dormant; until now.
n154 I hope this workshop marks the renewal of CRT as a self-organized movement. In developing my remarks for today, I spent some time
reading about the critical social thought and life work of Pan-African and other revolutionaries, and also that of Charles Hamilton Houston and
William Henry Hastie. n155 With Derrick Bell, I share Jeremiah's lament: "The summer is past, the harvest is ended, and we are not saved." n156
The winter of our discontent has indeed been long.
Viewing the treatment of Muslims through a Lens of Racism is Critical to solutions
Ibrahim 09 civil rights attorney with the lawfirm of Hadsell Stormer Keeny Richardson & Renick. She is
also an alumna of the UCLA School of Law Critical Race Studies Program (Nagwa, The Origins of Muslim
Racialization in U.S. Law, 7 UCLA J. ISLAMIC & NEAR E.L. 121, 121 (2008/09)
Understanding the mistreatment of Muslims in the United States and abroad as a form of racism,
and not only as religious discrimination, is important, not just in terms of appropriately capturing
what is really happening to Muslims and Muslim-looking peoples, but because it also significantly
changes and expands the legal remedies available both under international law and U.S. antidiscrimination laws. n96
Decision rules for the K
Vote negative for insurgency
Torok 04 CUNY Law Graduate and PhD candidate in ethnic studies, Berkeley
(John Hayakawa, Howard Law Journal, Fall, 2004 Doctoral Candidate, Department of Ethnic Studies,
University of California, Berkeley. J.D. 1991 C.U.N.Y. Law School. 48 How. L.J. 351, “Freedom Now! - Race
Consciousness and the Work of De-Colonization Today.”)
CRT praxis takes many forms. As within the broader left, there is a debate about the varieties of, and the relationship of, activism to
theorizing. n137 In my view, it includes scholarship, teaching, writing, cause lawyering, public service, and
personal participation in political and social movements within and outside legal academia. n138 Finally, it
includes organizing ourselves for the CRT workshops and conferences. The major priority of black intellectuals should be
the creation or reactivation of institutional networks that promote high quality critical habits primarily for
the purpose of black insurgency. An intelligentsia without institutionalized critical consciousness is blind,
and critical consciousness severed from collective insurgency is empty. The central task of postmodern
black intellectuals is to stimulate, hasten and enable alternative perceptions and practices by dislodging
prevailing discourses and powers. This can be done only by intense intellectual work and engaged
insurgent practice. n139
Insurgency tackles the aff’s problem much more effectively without the risk of
cooption.
Torok 04 CUNY Law Graduate and PhD candidate in ethnic studies, Berkeley
(John Hayakawa, Howard Law Journal, Fall, 2004 Doctoral Candidate, Department of Ethnic Studies,
University of California, Berkeley. J.D. 1991 C.U.N.Y. Law School. 48 How. L.J. 351, “Freedom Now! - Race
Consciousness and the Work of De-Colonization Today.”)
I now quote two quite well-known activist lawyers, from statements they each gave at their respective criminal trials. In October 1953, Fidel
Castro, while on trial for armed insurrection against the U.S.-supported Batista regime in Cuba, said: "The right of
rebellion against tyranny, Honorable Judges, has been recognized from the most ancient times to the present
day by men of all creeds, ideas and doctrines." He went on to cite authorities, including the American Declaration of
Independence, for this proposition. n157In April 1964, while on trial for sabotage and conspiracy to overthrow
the South African government, Nelson Mandela spoke about the reasons for the formation of Umkonto we Sizwe, the military
wing of the African National Congress (ANC). Mandela said:
I, and the others who started the organization, did so for two reasons. Firstly, we believed that as a result of Government policy, violence
by the African people had become inevitable, and that unless responsible leadership was given to canalize and control the feelings of our
people, there would be outbreaks of terrorism which would produce an intensity of bitterness and hostility between the various races of
this country which is not produced even by war. Secondly, we felt that without
violence there would be no way open to
the African people to succeed in their struggle against the principle of White supremacy. All lawful
modes of expressing opposition to this principle had been closed by legislation, and we were placed
[*375] in a position in which we had either to accept a permanent state of inferiority, or to defy the
Government. We chose to defy the law. n158
Engagement in critical race praxis solves
Wing 03 Bessie Dutton Murray Distinguished Professor of Law at the University of Iowa
College of Law (Adrien, "Civil Rights in the Post 911 World: Critical Race Praxis, Coalition
Building, and the War on Terrorism." Louisiana Law Review, 63 La. L. Rev. 717, Spring 2003)
Another tenet that Critical Race Theorists espouse involves the necessity to engage in
praxis, the combining of theory and practice. n153 According to Eric Yamamoto, "critical
race praxis focuses on developing and then translating critical theoretical insights about
race, culture, and law into operational ideas and language for antisubordination practice
and, in turn, rethinking theory in light of new practice experience." n154 Sumi Cho and
Robert Westley have [*736] called for synergism, an "interaction of agents or conditions
that produces a combined effect that is greater than the sum of the individual effects. We
envision a mode of synergistic movement theorizing that contains both substantive and
methodological commitments . . . Such a project is necessarily collaborative, requiring
information and insights gleaned from movements in order to formulate discursive
strategies that must ultimately be tested in the context of actual struggle." n155 My own
explanation for the need for praxis is based upon the historical realities of many
minorities. "Since many of us come from disenfranchised communities of color, we feel
compelled to 'look to the bottom,' n156 to involve ourselves in the development of
solutions to our people's problems. We can not afford to adopt the classic, detached,
ivory tower model of scholarship when so many are suffering, sometimes in our own
extended families. We do not believe in praxis instead of theory, but that both are
essential to our people's literal and figurative future." n157 Praxis can take many forms
ranging from counseling a client, filing a brief, making a speech, doing op-ed pieces,
writing popular press books, appearing on talk shows, serving on boards, testifying
before Congress, supporting/attacking federal judicial nominees, or working officially or
pro bono with various public interest, governmental, or international organizations.
Language Critique
Language takes forms in different ways, ways that cannot be manipulated to perform
a certain task. It’s an artifact that is deeply soaked in meaning through contexts.
Manipulating, more so policy wise, in time of conflict, creates a language that isn’t
language.
Johnson, ‘11
(Toni A.M. Johnson, “Beyond Accommodation: The legacy of feminist critique and the search for
justice”, Vol 1, No 1 (2011), http://journals.kent.ac.uk/index.php/feministsatlaw/article/view/17/61 LE)
Throughout her works Cornell posits justice as an ideal, as aspiration, as inherently elusive and always
‘to come’. The nature of Cornell’s exploration ties these ‘possibilities’ of justice to questions of judging
and judgment, to equality and the law, to the impact of Lacanian psychoanalytic theory, to the place
of women in the symbolic as compared to the imaginary and to the nature and composition of
language. The critical response and critical reflections on language found in deconstruction have
informed her political position and profoundly influenced her revisionary legal projects.6 For Cornell
language is far from neutral. It is influenced by and invested in multiple cultural and contextual
referents.7 Furthermore, language perpetuates new cycles of meaning, whereby meaning is neither
static nor containable. As Susan Williams has written, ‘language is a social artifact, created, in part by
the language we use to describe it...the interpretation that is an inevitable aspect of knowledge
formation is deeply permeated by the cultural values and concepts encoded in the language through
which that knowledge is expressed’.8 When this system of language production is viewed in the
context of the legal system it becomes apparent that the linguistic system upon which law rests, a
system that brings us influential definitions of ‘justice’, ‘liberty’, and ‘equality’, is deeply invested and
entrenched in the linguistic precedents, histories and contexts via which meaning is given. Thus, the
possibility of the legal system providing a way of contesting ‘encoded’ language would seem, if not
impossible, certainly challenging.
Deconstructing the gendered view in language is the only way to create a new model
of language in the legal sphere. Law needs to protect language.
Johnson 11 Lecturer in Law, University of Leicester, UK
(Toni A.M., “Beyond Accommodation: The legacy of feminist critique and the search for justice”, Vol 1,
No 1 (2011), http://journals.kent.ac.uk/index.php/feministsatlaw/article/view/17/61)
In Beyond Accommodation, Cornell takes up this challenge by addressing this linguistic bind. Drawing on
Derrida, Lacan and Levinas, she explores the nature and language of law. She considers the way the
legal system has both gained and continues to gain from and function via that empowered status
through the oppression and exclusion of alterity/the Other. Cornell specifically addresses the position
of women’s engagement with law and language, considering how it constructs women, and the social
violence that is caused by the linguistic exclusivity of those constructions. Cornell’s turn to
deconstruction is an exploration of the way in which women are positioned within language and
consequently within law. It is her intent to deconstruct the linguistic foundations of that order and
acknowledge the necessity of exposing that order if any notion of justice or ethical response to the
Other is to bear legitimacy. Cornell’s call to deconstruct gender, as part of a response to engaging with
justice in Beyond Accommodation, The Imaginary Domain and At The Heart of Freedom, continues to
provide key insights for a radical and transformatory politics. Cornell notes ‘it is time to deconstruct
the gendered opposition that pervades western reason, and so to reinvent the model of the legal
subject’. Cornell’s project in the Imaginary Domain and At the Heart of Freedom is an engaging attempt
in how to manifest this new legal subject.10 The ‘imaginary domain’ is not just about addressing the
position of women within the symbolic and within the imaginary. Cornell’s project is much wider in
terms of the way in which it seeks to touch the very foundations of gender for both men and women
and their status as bearing legal personhood. Cornell’s vision of an alternate legal system, as developed
through the imaginary domain, feminism and deconstruction, provides a new way of thinking about
personhood. She writes: Our emancipation from state-imposed sexual choices and from their
reinforcement by the basic institutions of society demands much greater social equality than we have
now...When all persons have this right to the imaginary domain, states can no longer force women to
play the role of primary caretaker in families, either directly by law or indirectly by the manipulation
of social institutions.11 Cornell’s development of the ‘imaginary domain’, deployed as a psychological
space in which to reimagine personal understandings of gender and sexuality, and bearing the
protection of law, was a revolutionary reimagining of legal personhood. Within the conceptual
framework of the ‘imaginary domain’, law is the social mechanism that protects the version of
‘private’ life envisaged by the individual. Law does not determine the form of the imaginary domain,
but protects the individual’s right to it and the conditions in which that private life can be lived out.
Furthermore, the conceptual framework of the imaginary domain has at its heart a concept of
‘freedom’ rather than formal equality. For Cornell, the freedom to orient ourselves as individuals, to
create our own visions and versions of ‘the good life’, is at the heart of the imaginary domain.
Subsequently, the freedom to become a person is dependent on the minimum conditions of
individuation; namely, the conditions necessary in order to ‘transform ourselves into the individuated
beings we think of as persons’.12 Cornell’s use of ‘freedom’ rather than ‘equality’ is part of a critique of
formal equality provisions that she claims are based on an aspiration to particular positions of privilege.
Cornell argues that these positions of privilege are normative and delimited constructs of identity that
stifle the imaginary possibility of those who occupy them and those who wish to ascend to them.
Critical discourse should view language as a social practice. Specifically, language
should not re-conceptualize the LGBTQ community. The imaginary claim allows for
more conceptualization, giving legal claims and rights to validate the worth and selfesteem in individuals.
Johnson 11 Lecturer in Law, University of Leicester, UK
(Toni A.M., “Beyond Accommodation: The legacy of feminist critique and the search for justice”, Vol 1,
No 1 (2011), http://journals.kent.ac.uk/index.php/feministsatlaw/article/view/17/61)
The emphasis on the ability of individuals to shape their own lives outside of and unhindered by
legislative constructs of appropriate familial formations encouraged me to take advantage of the
theoretical premise of the imaginary domain in order to re conceptualize the position of lesbian and
gay refugees and the contexts from which they had fled. Relying on the freedom associated with the
imaginary domain provided a theoretical site to rethink and reframe identity within the legal structure
of the Refugee Convention. In lieu of taking a more radical position that would call for a practice of no
border regulation and the rendering of law as moot, I instead relied on a new language of law. This
reliance upon a new theory of legalism on which the right to legal personhood turned, a legal
personhood that called for freedom rather than equality was intrinsically shaped by Cornell’s ‘imaginary
domain’ Cornell’s version of intimate relationships has been significant for LGBT refugees, particularly
in its engagement with and response to sexuality’s boundedness within nationalist politics and
identity politics. Her version of ‘freedom’ is able to assert itself within these controlling structures,
toying with the language of rights and deploying alternative definitions deeply influenced by
Derridean understandings of the ‘slippage’ and ‘seepage’ inherent in language. Cornell’s ‘right’ to
‘freedom’ is dependent upon a legal system that recognises the absolute agency and legal personhood
of the individual, irrespective of their gender or sexuality. I argue that recognition of a specifically
Cornellian version of legal personhood leads to an inviolable responsibility on the part of the UK asylum
court. Social and state behaviours that preclude, discriminate against, or persecute non-normative
intimate relationships/family forms, directly counter the ethos of the imaginary domain and would
therefore establish eligibility for refugee status. Additionally, the imaginary domain I claim, troubles
the Refugee Convention’s understanding of identity as fixed. The ‘imaginary domain’ would allow for a
more open conceptualisation of the grounds of the Convention, providing an understanding of
identity that does not function on the basis of immutability or the compartmentalization of identity
traits, but on the indivisibility of gender, race, religion, class and how these facets are informed by
context, by politics and by self-conceptualisation.
By giving individuals freedom to explore their own being, the imaginary domain also
provides a mechanism to engage in the law while trying to deconstruct the language
at its core.
Johnson 11 Lecturer in Law, University of Leicester, UK
(Toni A.M., “Beyond Accommodation: The legacy of feminist critique and the search for justice”, Vol 1,
No 1 (2011), http://journals.kent.ac.uk/index.php/feministsatlaw/article/view/17/61)
Cornell’s legal reformist project of the imaginary domain, which has at its heart a desire to give
individuals the freedom to ‘create ourselves as sexed beings, as feeling and reasoning persons’,
provides a useful tool to both engage with law whilst at the same time trying to deconstruct the
language that gives law its power.15 The imaginary domain gives individuals the space to
conceptualise their optimum vision of private life and legally protects the practice of living out that
life. Cornell’s feminism aligned with deconstruction’s breadth of openness to the Other, to language,
and the ethical, underpins Cornell’s analysis and ensures that her work still sits at the cutting edge of
a radical social transformatory philosophy. Cornell’s analysis refrains from any definitive
conceptualisations or limitations placed on identity, with such impositions and assumptions viewed as a
violent assertion. These tropes inform Beyond Accommodation, The Imaginary Domain and At the Heart
of Freedom and underpin Cornell’s conception of law, which is informed by a feminist, ethical,
postmodern analysis.
AFF ANSWERS:
A2: Courts bad for topic areas
Federal judges are challenging executive authority on target killings
Shane, July 13 reporter, New York Times
(Scott , July 20, 2013 “Judge Challenges White House Claims on Authority in Drone Killings.”
http://www.nytimes.com/2013/07/20/us/politics/judge-challenges-white-house-claims-on-authority-indrone-killings.html?_r=0)
WASHINGTON — A federal judge on Friday sharply and repeatedly challenged the Obama
administration’s claim that courts have no power over targeted drone killings of American citizens
overseas. Judge Rosemary M. Collyer of the United States District Court here was hearing the
government’s request to dismiss a lawsuit filed by relatives of three Americans killed in two drone
strikes in Yemen in 2011: Anwar al-Awlaki, the radical cleric who had joined Al Qaeda in the Arabian Peninsula;
Mr. Awlaki’s 16-year-old son, Abdulrahman, who had no involvement in terrorism; and Samir Khan, a 30-year-old
North Carolina man who had become a propagandist for the same Qaeda branch. Judge Collyer said she was
“troubled” by the government’s assertion that it could kill American citizens it designated as
dangerous, with no role for courts to review the decision. “Are you saying that a U.S. citizen targeted
by the United States in a foreign country has no constitutional rights?” she asked Brian Hauck, a deputy
assistant attorney general. “How broadly are you asserting the right of the United States to target an
American citizen? Where is the limit to this?” She provided her own answer: “The limit is the
courthouse door.”
Courts show no signs of leaving detention policy to executive discretion
Dehn 11 Assistant Professor, Department of Law, United States Military Academy; J.S.D. Candidate,
Columbia University Law School. (John C, Spring, 2011, Temple Law Review, 83 Temp. L. Rev. 599, 35085
words, "THE COMMANDER-IN-CHIEF AND THE NECESSITIES OF WAR: A CONCEPTUAL FRAMEWORK.")
Whatever the precise limits , there is no indication that the Court would leave everything to complete
executive discretion or allow Congress to arbitrarily sanction extreme measures, such as torture or
inhuman treatment. n377 It would seem that governmental necessity and judicial strict scrutiny are
related in this context. All permit the derogation of rights only so far as justified by a clear, identifiable,
and compelling public interest. n378 Then again, as Koh’s observations suggest, without a viable legal or
political forum to vindicate those rights, their existence or preservation may depend entirely upon
executive self-restraint. n379 Ironically, this condition was precisely what the Colonists sought to
remedy by declaring independence, and what the Framers sought to avoid by separating national
powers over war and the military.
Ultimately, arguments relying on political question doctrine or Court deference should
not be used to eliminate the Court as a plausible and desirable agent of action.
Fisher 05 senior specialist in separation of powers with the Congressional Research Service, the Library
of Congress (Louis, “Judicial Review of the War Power” Presidential Studies Quarterly 35.3, September
2005)
A close examination of judicial rulings over the last two centuries reveals that the automatic
association of war power with the political question category is a misconception. Not only did courts
decide war power issues, they sometimes spoke against the authority of the president to venture in
warmaking activities against the express will or the silence of Congress. The fact that some of the
earliest of these decisions were written by justices who had been members of the Constitutional
Convention or participated in state ratifying conventions lends additional weight to the importance of
these early interpretations.
Brecher supports court action for cyberattacks.
Despite Brecher’s argument advocating an Executive Order for a covert framework, he
still admits that judicial review matters and that the Constitutional issues deserve
consideration. He might even favor the Court in an instance where “fiat” or
hypothetical adoption is available.
Brecher 12 (JD candidate, University of Michigan Law School
(AaronP., 111 Mich. L. Rev. 423 “Cyberattacks and the Covert Action Statute: Toward a Domestic Legal
Framework for Offensive Cyberoperations”)
Though separation of powers analysis is normally applied as a tool for judicial scrutiny, whether a major
cyberattack can be said to have been conducted with the blessing of both Congress and the president is
of serious constitutional import. The fact that activities may not be subject to judicial review n143
makes it even more important that the two other major constitutional actors in the American system
conduct themselves with their constitutional obligations in mind. Also, a careful understanding of how
the separation of powers applies to a novel means of statecraft and warfare can contribute to the
public understanding of the national constitutional ethos. n144 A cyberattack’s massive potential for
unintended consequences demands a cautious constitutional approach to the conduct. The covert
action statute serves this function by enabling the president to act with congressional approval.
Courts has the ability to update the WPR to reach a resolution that maintains
constitutional provisions
Patera 12 First Lieutenant at United States Air Force and Judicial Law Clerk to the Honorable M.
Jacqueline Regis at State of Minnesota (John, 33 Hamline J. Pub. L. & Pol'y 387, Spring 2012, “War
Powers Resolution in the Age of Drone Warfare: How Drone Technology has Dramatically Reduced the
Resolution's Effectiveness as a Curb on Executive Power”)
The Resolution came into being during a time when there was strong popular support for curtailing
unilateral action by the Executive Branch. There are, however, two factors that have dampened its
effectiveness. First, scholars and jurists have argued that the Resolution is an unconstitutional
exercise of legislative power. Second, commentators have questioned its effectiveness because it has
yet to be judicially enforced. If the intent of the War Powers Resolution—“to ensure that Congress has
a mechanism to ensure its concurrent participation in the decision to involve the Nation in armed
conflict”—is enforced, than drone strikes would be included in the definition of action requiring
consultation. yes, this is something Congress could very easily do (and Patera advocates legislation to
update the WPR), but the Court could also accomplish the same goals in a number of different way,
even pursuing angles outside the WPR and rooted more directly in the Constitution or previous
precedent.
The Supreme Court is the key war powers arbiter.
The importance of the Youngstown decision, in particular Justice Jackson’s concurring
opinion in the case, proves it.
Dehn 11 Assistant Professor, Department of Law, United States Military Academy; J.S.D. Candidate,
Columbia University Law School. (John C, Spring, 2011, Temple Law Review, 83 Temp. L. Rev. 599, 35085
words, "THE COMMANDER-IN-CHIEF AND THE NECESSITIES OF WAR: A CONCEPTUAL FRAMEWORK.")
In spite of its status as only an element of a concurring opinion, Justice Jackson’s three-tiered analytical
framework continues to dominate scholarship over the relative powers of Congress and the Executive
in matters of war and foreign affairs. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952) (exploring the
limits of executive power under the Constitution, stating that it “is an inadmissibly narrow conception of American constitutional law to confine
it to the words of the Constitution and to disregard the gloss which life has written upon them.”).
The President possesses
constitutional powers as the Commander in Chief. The Court determines whether particular actions
taken by the President are within those constitutional powers. Justice Black, 1952 in Youngstown (Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 641 (1952) (Jackson, J., concurring) (commenting on the commander-in-chief power).
BLACK, J., Opinion of the Court MR. JUSTICE BLACK delivered the opinion of the Court. We are asked to decide whether the
President was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take
possession of and operate most of the Nation’s steel mills. The mill owners argue that the President’s order amounts to
lawmaking, a legislative function which the Constitution has expressly confided to the Congress, and not to the President. The
Government’s position is that the order was made on findings of the President that his action was necessary to avert a national
catastrophe which would inevitably result from a stoppage of steel production, and that, in meeting this grave emergency, the
President was acting within the aggregate of his constitutional powers as the Nation’s Chief Executive and the Commander in
Chief of the Armed Forces of the United States.
Court balancing is the most useful way to frame the question of war powers
Barron & Lederman 08 Professor of Law at Harvard Law School & Associate Professor of Law at the
Georgetown University Law Center (David J. and Martin S. "The Commander in Chief at the Lowest Ebb
– Framing the Problem, Doctrine, and Original Understanding," 121 Harv. L. Rev. 689 (2008) Barron &
Lederman I, supra note 15, at 726-31)
The most useful way to frame the question is to draw important distinctions among the authorities
that the Commander in Chief Clause conveys to the President – to identify the preclusive core, if any,
of the President’s war powers and to distinguish it from the remaining, more “peripheral”
Commander in Chief powers that are subject to statutory and treaty-based regulation.
Courts produce social change through the symbolic impact on public opinion
Tucker 95 Professor of Political Science at the University of Melbourne,
D.F.B., The Rehnquist Court and Civil Rights, p35-36)
One important issue is whether Rosenberg’s (and Dahl’s) ‘constrained court’ view overlooks the indirect
impact that landmark decisions may have. What I have in mind is whether courts can act as some sort
of catalyst to facilitate the mobilization of political forces for change. Perhaps they can influence
outcomes by shaping the political agenda so that issues that would otherwise escape attention are
brought into public focus. Perhaps important cases serve as symbols so that the members of social
movements are prevented from despair and even inspired to increase their efforts to work for change.
In a review of Rosenberg’s The Hollow Hope Malcolm Feeley suggests that judicial decisions do produce
indirect effects of this kind.27 He wonders whether Rosenberg has overlooked the various and subtle
ways that courts can raise expectations and, by offering a hope of victory motivate reformers. Certainly
the cases that Rosenberg focuses on in his study (Brown v. Board of Education, Roe v. Wade, Mapp v.
Ohio, Miranda v. Arizona and Baker v. Carr) do serve as important symbols in United States cultural life.
A2: CRT takes out case solvency
Pushing back against racism through action will succeed.
Linking together the kinds of state-sponsored racism in World War II internment to the
blatant Islamophobia we are witnessing today is one mechanism of pushing back.
Ali 12, J.D., University of California, Berkeley
(Yaser, August, 2012 “Shariah and Citizenship - How Islamophobia Is Creating a Second-Class Citizenry in
America,” 100 Calif. L. Rev. 1027)
At this crucial stage, where Islamophobia continues to strip away the citizenship of
American Muslims, Justice Stone's powerful statement regarding the treatment of Japanese Americans in World
War II serves as an important reminder: "Distinctions between citizens solely because of their
ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of
equality." n254 While there is a concerted and institutionalized attempt to perpetuate those distinctions
towards the Muslim community, there are also increasing opportunities and platforms to push back
against this discrimination, just as past groups were able to do. Through such efforts,
American Muslims will be able to regain equal citizenship and exercise, alongside their fellow
citizens, "the rights of Americans as Americans." n255
Turn: CRT compounds conflation between Arabs and Muslims.
CRT can be useful, but not for Arab Americans or Muslim Americans. Our advocacy is
necessary for the application.
Saloom 05, Attorney, Atlanta, GA, J.D. graduate, University of Georgia School of Law; M.A., Middle
Eastern Studies, University of Chicago (Rachel “I Know You Are, But What Am I? Arab-American
Experiences Through the Critical Race Theory Lens." Hamline Journal of Public Law & Policy, 27 Hamline
J. Pub. L. & Pol'y 55)
CRT contends that racism is "like a cancer that permeates the body ... despite a massive blitzkrieg, racism may
persevere, spread, and even appear to be in remission for awhile, only to reappear in a more virulent form." n4 The term CRT encompasses a
wide variety of scholarship and thought. Most CRT scholars, however, agree that race plays a role in the way the legal system operates. More
broadly CRT views racism as "endemic to American life." n5 CRT theorists argue that racism is a "normal" part of American life and is
entrenched in society. n6 Another
tenet of CRT is that "race is not biologically determined." n7
Therefore, recognizing that race is socially constructed is very important to CRT scholars. This social
construction of race is particularly vital to understanding the plight of Arab-Americans.
Unfortunately, CRT scholarship has often overlooked Arab-Americans as a category of analysis.
There may be many reasons for this, including how Arab-Americans are defined. There is much confusion
surrounding the examination of race and Arab-Americans. This confusion is only compounded by the conflation of the
terms Arab and Muslim. There is a popular misconception that all Arabs are Muslim and vice versa,
but this is not true. In fact, only 12% of Muslims are Arabs, while 90% of [*58] Arabs are Muslims
worldwide. n8 In the United States, however, a Zogby survey showed that only 23% of Arab-Americans
were Muslim. n9
Their link is off, and their alternative is too generic.
Yes, race plays a huge role in the treatment of Arab Americans, but it’s a particular form
of whiteness that must evaluate specific context and history.
Saloom 05, Attorney, Atlanta, GA, J.D. graduate, University of Georgia School of Law; M.A., Middle
Eastern Studies, University of Chicago (Rachel “I Know You Are, But What Am I? Arab-American
Experiences Through the Critical Race Theory Lens." Hamline Journal of Public Law & Policy, 27 Hamline
J. Pub. L. & Pol'y 55)
Arab American discrimination occurs long before 9/11
Under a CRT analysis, the examination of racism and stereotyping is paramount. Racism against
Arab-Americans has a long history. Arab immigrants that were called Syrian were often
discriminated against in a variety of ways. Janice Terry, professor of Middle Eastern history, in her study of Arab
stereotyping defines stereotype as "a "mental package' in which a collection of traits or characteristics are combined to delineate or identify a
group or a member of that group without reference to particular individual differences or complexities ... these "identifying characteristics' are
half-truths which distort or obfuscate the full reality." n24In Birmingham, Alabama in the 1920s, a candidate for coroner handed out flyers that
said, "They have disqualified the negro, an American citizen, from voting in the white primary. The Greek and Syrian should also be disqualified.
Arab-Americans were also
targets of the Ku Klux Klan because they were often identified as "colored." n26 Arab-Americans
faced problems in the voting rights arena and were often disenfranchised in the South. n27 In cities
where the Ku Klux Klan had power, these early Syrian immigrants were [*62] discriminated
against because they were "colored, Catholic, and foreign." n28
I DON'T WANT THEIR VOTE. If I can't be elected by white men, I don't want the office." n25 Moreover,
Our historical approach solves their race arguments and impacts.
Because terrorist profiling of Arab Americans occurred long before 9/11—something we
emphasize in our 1AC—our history can address their impacts.
Saloom 05, Attorney, Atlanta, GA, J.D. graduate, University of Georgia School of Law; M.A., Middle
Eastern Studies, University of Chicago (Rachel “I Know You Are, But What Am I? Arab-American
Experiences Through the Critical Race Theory Lens." Hamline Journal of Public Law & Policy, 27 Hamline
J. Pub. L. & Pol'y 55)
A popular misconception is that the stereotyping of Arab-Americans is a post 9/11
phenomenon. The stereotyping of Arabs and Arab-Americans as terrorists, among other stereotypes,
however, has occurred for years. One of the most important works that discusses Arab stereotyping is Edward Said's Orientalism,
first published in 1978. Said's book demonstrates that post 9/11 stereotyping and racism is not a new
phenomenon. Said argues that the Orient is viewed as the "other" as compared to the West. The
Western attitude toward Arabs is imbued with stereotypical tendencies. Said states that "the
web of racism, cultural stereotypes, political imperialism, dehumanizing ideology holding in the
Arab or the Muslim is very strong indeed." n29 In the South in the 1950s, many Arabs were often subjected to racism and
were not allowed into the facilities that were exclusively white. n30 Racism against Arab-Americans continued to be a problem in the United
States. Terms such as "camel jockey" and "sand nigger" were used to describe Arab-Americans. n31 Arab-Americans are often viewed as being
racially distinct and different from dominant white culture. n32 The Merriam-Webster Thesaurus in 1978 defined synonyms of Arab as
"vagabond," "peddler," "bum," derelict," and "tramp." n33 Jack Shaheen, an expert on the media and the Middle [*63] East, has described
stereotypes of Arabs as "billionaires, bombers, or belly dancers--villains of choice." n34Another
popular theme is that Arabs as
a group become even more racialized during crisis. Joanna Kadi eloquently recounts this
phenomenon: As Arabs, like other people of color in this racist society, our race is simultaneously
emphasized and ignored. For long periods of time no one can remember that Arabs even exist
... Of course, this forgetfulness changes once there is another "crisis' in the Middle East... During
crises, Arabs can be reassured we exist as a distinct racial group. We will remember it, in the dark of
night and the light of day. We will feel the effects of the social construction of "the Arabs' that has
cast us as enemy, other, fanatical terrorist, crazy Muslim. n35
Court action against racism that targets Muslims can solve.
Applying anti-discrimination laws to racism experienced by Muslims could be a huge
step forward in terms of color consciousness and the larger struggle against racism.
Ibrahim 09 civil rights attorney with the lawfirm of Hadsell Stormer Keeny Richardson & Renick. She is
also an alumna of the UCLA School of Law Critical Race Studies Program (Nagwa, The Origins of Muslim
Racialization in U.S. Law, 7 UCLA J. ISLAMIC & NEAR E.L. 121, 121 (2008/09)
First, the Court recognizes that race is not fixed but ever changing and as such Jews, while now
considered white, were at a particular moment in history not white and therefore a racial "other."
Second the Court, for the purposes of anti-discrimination law, is implicitly expanding the notion of
immutability as it relates to race through recognition of Jews, a religious group, as being once a
racial "other." This precedent can be used to argue that the Court, while recognizing that race is
not fixed, has expanded the definition of racial discrimination, to include discrimination based in
part on religious differences. This expanded definition of race that includes religious differences
should equally be applied to Muslims and Muslim-looking peoples employing antidiscrimination laws including the Equal Protection Clause to fight against profiling by the
government and private perpetrators. This is especially true because, as illustrated, Muslims have
experienced a history of societal discrimination, a history of political powerlessness, status as a
discrete and insular minority, and characteristics of immutability based on religious differences
from the dominant Christian majority. n108 Achieving this step of expanding the definition of race
to include characteristics beyond just phenotype by having the courts recognize Muslims' and
Muslim-looking peoples' claim of racial discrimination on the basis of religious or perceived
religious differences would have a huge impact, not just in protecting the rights of Muslims, but
also in helping establish more expansive, inclusive, race-conscious remedies for other groups of
color.
Equal protection can be broadened to help protect Muslims against racist actions by
the government
Ibrahim 09 civil rights attorney with the lawfirm of Hadsell Stormer Keeny Richardson & Renick. She is
also an alumna of the UCLA School of Law Critical Race Studies Program (Nagwa, The Origins of Muslim
Racialization in U.S. Law, 7 UCLA J. ISLAMIC & NEAR E.L. 121, 121 (2008/09)
However, in this Section, to illustrate this point, I will focus exclusively on U.S. antidiscrimination laws. The exercise of religious freedom, under the Free Exercise Clause, is so
fundamental a right that government attempts to deny that right are subjected to the highest form
of scrutiny by the courts. n97 However, the Free Exercise Clause, while important, does not address
the full scope of what is happening toMuslims and Muslim-looking peoples for it only protects
against the denial of a religious group's right to practice. Moreover, religious minorities, such
as Muslims, are much less successful in winning Free Exercise claims in court. n98 The Equal
Protection Clause, as opposed to the Free Exercise Clause, more adequately addresses the injustice
occurring against Muslims and Muslim-looking peoples, who are being discriminated against on the
basis of religious or perceived religious identity. However, while one can bring a claim under the
Equal Protection Clause for discrimination based on religious group identity, such claims are scarce
and have been largely unsuccessful. n99 Moreover, the profiling of Muslims is occurring on the basis
of religious conduct and the Equal Protection Doctrine does not easily support this type of religious
discrimination claim, even if the conduct defines or is thought to define group
identity. n100 However, expanding the Equal Protection Clause to protect Muslims and Muslimlooking peoples against racial discrimination on the basis of religious differences might more readily
subject government profiling of Muslims and Muslim-looking peoples to greater skepticism by the
judiciary. Furthermore this expanded definition of racial discrimination would more accurately
address the type of racial subordination occurring today. The Equal Protection Clause prohibits the
state from discriminating based on race, national origin, alienage, or religious affiliation because
these are suspect classifications (i.e., laws that categorize on the basis of one of these protected
categories are deserving of the greatest judicial scrutiny.) n101 What makes a classification suspect is
contingent upon a group's history of being subjected to societal discrimination, its history of
political powerlessness, the extent to which it is a discreet and insular minority, and the
immutability of the characteristic being classified. n102 The categories, which satisfy the immutability
criteria, are race and national origin. As such, race is still largely defined by phenotype despite the
fact that the construction of racial identities involves attaching social meaning to physical as well as
linguistic, religious and cultural differences. n103Therefore, in order to more fully address issues of
race, the immutability criteria should be interpreted to include the historical and social processes
that attach immutability to attributes, whether or not such attributes are in fact immutable. For
example, skin color is an immutable characteristic whereas one's religious affiliations are perceived,
although not always, as a choice. However, as demonstrated with Muslims in the U.S. both
historically and currently, social meanings of inferiority can be attached to both skin color and
religious identity, which then translates into legal initiatives that deny civil and human rights to
those who possess or are perceived to possess "innate, inferior attributes."n104 This interpretation
of immutability to include religious differences that are treated as innate inferior attributes more
accurately reflects the complexities of race, racial formation and racial discrimination in the United
States today. For example, as explained by Margaret Chon and Donna E. Arzt in Walking
While Muslim, "when religion is factored into 'race,' it is easier to see that the profile of Muslims
and Muslim-looking peoples expands far beyond the young Middle-Eastern looking male." n105 This
expanded definition of race to include various intersections such as phenotype and religious
identity is necessary to establish anti-discrimination laws that are more relevant and effective.
Legal precedent supports—broadening Equal Protection can solve
Ibrahim 09 civil rights attorney with the lawfirm of Hadsell Stormer Keeny Richardson & Renick. She is
also an alumna of the UCLA School of Law Critical Race Studies Program (Nagwa, The Origins of Muslim
Racialization in U.S. Law, 7 UCLA J. ISLAMIC & NEAR E.L. 121, 121 (2008/09)
Additionally there is legal precedent that supports a more broadened interpretation of race and
anti-discrimination law. In the 1987 Supreme Court case, Shaare Tefila Congregation v. Cobb, a
synagogue was painted with anti-Semitic slogans, phrases, and symbols. Petitioners brought suit in
federal district court, alleging that the desecration by respondents amounted to racial
discrimination in violation of 42 U.S.C § 1982. The district court dismissed petitioners's claim, and
the court of appeals affirmed, arguing that [*154] Jews cannot make a racial discrimination claim
under § 1982. However, the Supreme Court reversed the decision, holding that Jews can state a §
1982 claim of racial discrimination since they "were among the peoples considered to be distinct
races and hence within the protection of the statute at the time it was passed."n106
Justice White, delivering the opinion of the Court, states:
We agree with petitioners, however, that the Court of Appeals erred in holding that Jews
cannot state a § 1982 claim against other white defendants. That view rested on the notion that
because Jews today are not thought to be members of a separate race, they cannot make out a
claim of racial discrimination within the meaning of § 1982. That construction of the section we
have today rejected in Saint Francis College v. Al-Khazraji. Our opinion in that case observed
that definitions of race when § 1982 was passed were not the same as they are today and
concluded that the section was "intended to protect from discrimination identifiable classes of
persons who are subjected to intentional discrimination solely because of their ancestry or
ethnic characteristics." As Saint Francis makes clear, the question before us is not whether Jews
are considered to be a separate race by today's standards, but whether, at the time § 1982 was
adopted, Jews constituted a group of people that Congress intended to protect. It is evident
from the legislative history of the section reviewed in Saint Francis College, a review that we
need not repeat here, that Jews and Arabs were among the peoples then considered to be
distinct races, and hence within the protection of the statute. Jews are not foreclosed from
stating a cause of action against other members of what today is considered to be a part of the
Caucasian race. n107
AT: CRT framework good
Advocating CRT theory rather than plan action guarantees academic failure
Ladson-Billings 99 Professor of Education at the University of Wisconsin-Madison
(Gloria, Race is…Race isn’t, Pg. 26-27)
It is the pattern in educational research for a new idea or innovation to take hold and proliferate. Sometimes an idea takes a
while to take root, but once it does, most likely its creators lose control of the idea. Consider what happened with the notion of
cooperative learning. When Cohen and Roper (1972) proposed cooperative classroom structures to equalize the status of White
and African American students, their work held great promise for helping teachers to develop curricular and instructional
strategies for improving the academic performance of all children in desegregated classrooms. However, somehow their
findings got distilled into day-long workshops and five-step lesson plans. School systems throughout the United States were
adopting cooperative learning without any thought to improving the performance of children of color. A similar transmutation
of theory is occurring in the area of multicultural education. Although scholars such as James Banks, Carl Grant, and Geneva
Gay7 began on a scholarly path designed to change schools as institutions so that students might be prepared to reconstruct
the society, in its current practice iteration, multicultural education is but a shadow of its conceptual self. Rather than engage
students in provocative thinking about the contradictions of U.s. ideals and lived realities, teachers often find themselves
encouraging students to sing "ethnic" songs, eat ethnic foods, and do ethnic dances. Consistently, manifestations of
multicultural education in the classroom are superficial and trivial "celebrations of diversity." What, then, might happen
to CRT in the hands of educational researchers and school personnel? Well, to be honest, like Lani
Guinier, I doubt if it will go very far into the mainstream. Rather, CRT in education is likely to become
the "darling" of the radical left, continue to generate scholarly papers and debate, and never
penetrate the classrooms and daily experiences of students of color. But, students of color, their
families, and their communities cannot afford the luxury of CRT scholars' ruminations any more than
they could afford those of critical and postmodern theorists, where the ideas are laudable but the
practice leaves much to be desired.
Critical race theory in critical legal studies abuses the identity of marginalized groups.
It is a form of tokenism, in order to gain status in the academia which feeds the elitism
Goodrich 93 professor of law at the University of London
Peter, University of London Professor of Law, “Sleeping with the Enemy”, New York Law Journal ,May,
http://heinonline.org/HOL/Page?handle=hein.journals/nylr68&div=23&g_sent=1&collection=journals
In an empirical sense, CLS has nothing to do with legal education, with the teaching practice of legal scholars, and it has only the most
marginal of relations to the academic discipline of law, if that discipline is defined in doctrinal or pedagogic terms. Instead, it obeys a mediological law: "For the
media, the objective world-the thing there is something to speak of-is what the other media are saying. Be it hell or heaven, from now on we are going to have to
live in this haunted hall where mirrors 3 1 reflect mirrors and shadows chase shadows." The
radicalism of American CLS does not appear
to extend to the lives of its practitioners. It does not threaten the institutional safety, tenured
security, economic comfort, or frequently elite status of the critics. Were its product not so frequently intellectually tawdry,
it would be tempting to regard the movement as a form of designer chic within the legal academy, an imported fashion, the latest in prepackaging "from the shelf to
it can simply and cynically be argued that legal academics in America
long ago were bought out by the size of their professional salaries, that they suffer "an enlightened false consciousness," a
you" without need for alteration. At one level,
thoroughgoing cynicism or modem form of "unhappy consciousness." '32 Such unhappy consciousness is a species of pseudo-critique in which critical stances are
subordinated to professional roles, the immediate politics of the institution to totalizing theories of the particular, and conflicts of value in the workplace to the
exigencies of privatized therapies which attempt to order happiness, goodrelations with colleagues, or at least a realistic deference to the mecha- nisms of
institutional advancement. Let us be more specific as to the features of the counter-revolution. The American law professor is too well paid to be politically
committed, too status conscious to be intellectually engaged, and too insular-too bound to the parochial and monolingual culture of the law review-to be scholarly.
This state of affairs is the legacy of mass legal culture, of the stupefaction which passes for legal education and at best produces a blend of intellectual naivety and
doomed political enthusiasm. Its history appears from the outside to have been one of therapeutic self-confir- mation hiding behind a legitimizing romanticism
critique is in pragmatic terms no more and no less than the
essentially liberal yet nonetheless imperialistic desire to embrace and to include any stranger, any other,
any nomad, any political infant, or any woman who can plausibly represent an outside within the academy . These, however, are the tokens of
radical- ism, the coinage of hubris, whereby an inauthentic and uneasy bureaucratic elite salvages its
which views political radicalism as a species of patronage:
conscience by buying in representatives of re- pressed, marginalized, or disadvantaged groups. More than
that, however, the American translation of European so- cial theory-of the "new philosophies" and the "new politics"-seems predicated upon the
belief that by supporting the marginal, the foreign, the peripheral, or the outsider, the intellectual
within the institution be- comes, presumably by projection, marginal or foreign-and so ipso facto politically radical
himself. It is as if the greatest injustice known to the world were the indignity of being fired from Yale, refused tenure at Harvard, or barred from promotion at
Stanford or Pennsylvania.
Critical race theory in critical legal studies perpetuates the problems
Goodrich 93 professor of law at the University of London
Peter, University of London Professor of Law, “Sleeping with the Enemy”, New York Law Journal ,May,
http://heinonline.org/HOL/Page?handle=hein.journals/nylr68&div=23&g_sent=1&collection=journals
Whatever the self-perception of CLS in America, whether marginal or central to the academy, its most striking attribute from a
sociological perspective is its media status and international profile. In superficially descriptive terms, CLS has had all the
glamour of schism within the Vat- ican, dissent amongst the synod, or Sister Teresa amongst the Spanish nuns. It also has had the high visibility of foreign fashion, of
being the importer of European trends, new vocabularies, and a commitment to political culture which for once aspires to extend beyond the cloisters of the legal
academy. To the extent that the movement represents an intel- lectual departure from the earlier theory of Legal Realism, it does so not least by virtue of its neoscholasticism, its return to the philosophical tradition, and its importation of European social theory. 16 While copious reference to the translated works of
continental philosophy are no guarantee of any substantial theoretical genealogy,1 7 they
do have the elite function of identifying a
community and of legitimating an esoteric marginality in relation to traditional doctrinal scholarship.
In terms of the sociology of intellectuals, however, there is an undoubted irony in the opposition between the critics' claim to an outsider status, to a leftist
marginality, and the elite hubris or kudos of the repeated invocation of continental theory.
CLS as an imported phenomenon, as a
politics of intellectual credentials, also finds itself bound to the patronage of the Ivy League law
schools and the media d6cor that those schools attract. The defining criterion of high intellectual culture in mediatic terms is simply the "ability to
gain access to the means of mass communication," ' 8 and that ability, more than anything else, defines the power of
the elite institutions. One interpretation of this phenomenon is that the postmodern path to intellectual success, star status, and political preferment
no longer lies exclusively in the traditional route through the academic institution. CLS may represent the first moment of an intellectual "mediology" within the
legal academy. 19 It would be in one sense a method of bypassing the established institutional route to preferment, while in a more substantial sense it would
reflect the changed political and technical context of intellectual work. Empirical studies of European intellectual cul- ture indicate that the social space of
intellectual success and of international recognition does not stem from institutional academic conformity but rather from marginal disciplines and from the
polemical work of the institutional outsider-the researcher or writer who defines her social identity in terms of writing rather than in terms of academic
commitment or institutional service. 2 0 While the American media may still reserve the full focus of publicity for intellectuals associated with the highest status
schools, the role and transhumant career of the media intellectual is an established fact of an electronic culture of "paratexts," 21 graphic simulations, and liquid
crystal transmission. The media intellectual is frequently presented as a figure of in- authenticity, one who is by nature immoral. The move from text to paratext,
from the linearity of script to the nodal constellation of video text, is viewed ethically as a move from a world of reference to a world of simulation, from substance
to fantasy, from signs that signal something to signs that signal nothing beyond themselves: "a degree xerox of cul- ture." '22 The irony to be observed in the
career
patterns or trajectories confirm the mediological proposition that there is a massive overproduction
of texts and, in more technological contexts, of signs. While this irony has been pointed out in criticisms of the self-referential
present context not that of the isessentially puritanical or properly Protestant rejection of images and of the intellectual imaginary, but rather that
culture of the contemporary university and the academicization or cooptation of the Left, it has been encountered also in criticisms of the style and jargon of CLS.
The new legal intellectuals, it is argued, write for themselves in an esoteric and exclusionary
rhetoric which circulates internally within the academy and signifies nothing much more than the fact
of having been published. Such publication confers a certain symbolic credit within the institution, but it has no wider significance
beyond creating a class of nouveau riche intellectuals whose publications represent a constant
aspiration toward upward mobility. There is a further significance to the critical aspirations of the more visible or prominent of the movement
23
scholars, those patrons, merchants, and middlemen of the new legal art. Without entering the debate on the politics of rhetoric or the institutional consequences of
the reproductive function of scholarship, its institution of an
order of succession, is predicated upon production. In mediological terms, the positivity of CLS must be viewed in
terms of its literary product, in terms of its material output and the institutional consequences of its graphematic
substance, its writing. Here the politics of CLS becomes more opaque. The claim to being "a political
location," "subversive," "oppositional," or simply leftist does not necessarily carry to the alternately
febrile and flippant products of its harbingers. Aside from an early and now dated Marxist sociology of law which has been largely
legal academic style, it is still appropriate to point out that
abandoned and which itself was imported, the defining feature of the critics arguably has been a naive and somewhat bowdlerized translation of continental social
the literature has only a limited audience which is in the
legal academy itself. Its success was its failure, its external visibility was its strongest form of internal secession, and its text was its context. More
theory into an American legal idiom. 2 6 One consequence has been that
interestingly and ironically, however, a literature bent upon importation and translation across languages, continents, and jurisdictions has only an indirect relation
to the immediate politics of the institution or practice of law. Such may yet, however, be 2 7the critics' greatest strength: not only does the repressed return, but
those that are either literally or figuratively expelled can use the rupture of institutional place as the most striking of emblems of injustice and as the strongest of
ethical grounds for the call to change. Although this opportunity is certainly one aspect of the critical movement's biography, it is not yet a defining feature of its
politics. In a bureaucratic age, the scholar is by profession a teacher. What is striking about the literature of critique is its almost complete absence of relation to
teaching practice and to the immediate politics of the institution which it otherwise supports and publicizes. CLS could be termed "critique without copula" in that
offers an order of succession of academics, a transmission of a self-referential and exclusory form of
symbolic capital, which refers by way of only the most distant signals to the lifeworld of the legal pedagogue. If CLS purportedly offers a local poli- tics, it
it
is not at all clear what or where that locale is; if it offers a "relational politics," it is equally hard to discern to what or with whom that relationship is intended. 29
The field would seem to be divided at best between heterotopias of literature and difference on the one hand, and the moralism of the outsider seeking domicile on
the other. While both projects may well have an ethical value, such value or ethics is not yet connected to the life or practice of the academic institution. The most
striking facet of American CLS is its failure to penetrate, subvert, or de- viate from the established norms of legal educational practice. With only occasional
exceptions 30 -and even these exceptions have not called for substantial changes in the syllabus or the classificatory grid of educational practice-the casebook and
the Socratic method reign supreme.