‘When you say “hill,”’ the Queen interrupted, ‘I could show you hills, in comparison with which you’d call that a valley.’
‘No, I shouldn’t,’ said Alice, surprised into contradicting her at last: ‘a hill can’t be a valley, you know. That would be nonsense—’
The Red Queen shook her head, ‘You may call it “nonsense” if you like,’ she said, ‘but I’ve heard nonsense, compared with which that would be as sensible as a dictionary!’
— Lewin Carroll, Through the Looking-Glass, chapter 2
‘But “glory” doesn’t mean “a nice knock-down argument,”’ Alice objected.
‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less.’
‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’
‘The question is,’ said Humpty Dumpty, ‘which is to be master—that’s all.’
Alice was too much puzzled to say anything.
— Lewis Carroll, Through the Looking-Glass, chapter 6
Hello again. What are you to think, dear readers, when I write on Tuesday that I don’t want to use Salida to enter culture warfare and then, in the very next post, address what is arguable the hottest culture war issue of all? Have I decided to get into the gutter with The Former Guy, despite all my protestations to the contrary? Is this a bait-and-switch operation? Let me explain.
Two of my friends send me potential links for a future aggregation post (which I’m thinking of calling “The Quick Loop”, since each is intended to be a quick look through posts addressing hot topics). The first one is an article from the Miami Herald by a woman named Dionne Polite (is that a pen name?) entitled “If we don’t truly understand critical race theory — minus the politics — we’ll never move forward”. I can’t argue with the title, but the content generates more haze than light.
Ms. Polite says about critical race theory (“CRT”, and we’ll learn why it got that name in this article):
At the heart of critical race theory is a way for us as a society to understand why and how distinct groups of people are oppressed and exploited. Why would we not want to learn about this and then address it?
Of course, Ms. Polite is going to need to prove that CRT theory provides a way to accomplish that, but I doubt that many people would disagree with her stated goal. But then comes this whopper:
The framework of critical race theory was scientifically established to help address, not hinder. To advance as a society representative of diverse cultures and identities, we must accept that a social construct exists deep within its legal systems and policies — a construct intended to hold groups of people behind.
“Scientifically established”? As we’ll see, it’s a legal theory. Did scientists create this theory? No. Did they even contribute to it? No. And worse than that fantasy is this phrase in the second sentence: “we must accept”. Must we? I’m willing to accept it — with proof, but not without. After all, that’s the way science works: you state a theory and then you try to prove it. If you can’t prove it, no one has to accept it, because it’s probably false. But, as this statement shows, CRT wants to begin with you accepting its basic premise without proof. Perhaps a few anecdotes will be offered, but basically you need to assume the conclusion.
Not for me, thanks.
I also received a link to an article by Neil Shenvi entitled “A Friendly Response to David French”. For those of you not familiar with him, David French is an evangelical ex-Army officer who went to Harvard Law School and used to be the co-director of the Foundation for Individual Rights in Education (“FIRE”). Currently, he is a columnist for The Dispatch on Substack, and he wrote a recent column defending CRT in part from some of the attacks against it, which he says stretch the meaning of CRT far beyond its actual meaning. French describes the attacks as progressing in the following fashion (emphasis in original):
The process went like this:
First, there was and is an interesting and highly technical academic and theological debate about the compatibility of Christianity and CRT, with a number of voices arguing that CRT clashed with the Christian faith.
Second, the definition of CRT was fundamentally and intentionally changed by conservative activists to encompass an enormous number of arguments and ideas about race, including arguments and ideas that have nothing to do with CRT.
Third, the result is that large numbers of Christians who now hear unfamiliar or unpopular arguments about race not only think those ideas are “CRT” but also that they’re positively unchristian and poisonous to their souls.
In response, Shenvi makes the following argument (emphasis and boldfacing in original):
However, French writes that the label “CRT” has been “fundamentally and intentionally changed by conservative activists to encompass an enormous number of arguments and ideas about race, including arguments and ideas that have nothing to do with CRT.” This statement is more questionable, mainly because the category of “CRT” has evolved substantially over the last three decades.
For example in 2001 – long before “CRT” had appeared on the radar of most conservative pundits – CRT cofounder Kimberle Crenshaw wrote: “the name Critical Race Theory [is] used as interchangeably for race scholarship as Kleenex is used for tissue.” Similarly, in their seminal text CRT: An Introduction, Delgado and Stefancic state plainly that “although CRT began as a movement in the law, it has rapidly spread beyond that discipline” (Delgado and Stefancic, CRT: An Introduction, p. 7). They go on to mention education, political science, ethnic studies, sociology, theology, and health care as fields in which critical race theory has taken root (ibid, p. 7-8). Even more recently, the African American Policy Forum –which is led by Crenshaw herself– wrote that “Critical race theory originated in law schools, but over time, professional educators and activists in a host of settings –K-12 teachers, DEI advocates, racial justice and democracy activists, among others– applied CRT to help recognize and eliminate systemic racism.” Consequently, suggesting that conservative activists like Chris Rufo were solely responsible for the broadening of the term “CRT” is incorrect.
Shenvi is correct that CRT supporters use the term CRT to mean more than actual CRT and that Christopher Rufo wasn’t the only person doing it, but isn’t that reminiscent of the Red Queen calling a hill a valley in the Lewis Carroll excerpt above? If the theory of CRT means anything, it means what it is defined as, not through extended meanings that others, supporters or opponents want to give it. And here’s what Rufo had to say in two tweets quoted by French (emphasis mine):
We have successfully frozen their brand—"critical race theory"—into the public conversation and are steadily driving up negative perceptions. We will eventually turn it toxic, as we put all of the various cultural insanities under that brand category.
The goal is to have the public read something crazy in the newspaper and immediately think “critical race theory.” We have decodified the term and will recodify it to annex the entire range of cultural constructions that are unpopular with Americans.
So, both the left and the right want to expand CRT: the left to make it include all race scholarship and the right to make it include all crazy race and cultural scholarship. But none of that is what CRT actually means. There is no way that any of us can stop that definition from being changed, and Lewis Carroll’s Humpty Dumpty had it right: the question is which definition is to be master — that’s all.
Well, this little article doesn’t have the cultural reach to influence that question of definitions over the broad American culture, nor do I have the time or the inclination to write the book that this topic merits (and anyway, who would want to read it?), but at least we can define what CRT actually means, or at least meant before both sides started trying to expand the meaning in the popular discussions about it. And to do that, probably the best place to start is the world during the 1960s, in the midst of the Vietnam War.
The toxic cocktail: student draft deferments and a colonial war
As we discussed with regard to Pax Americana, in the early years, immediately after WWII, the U.S. basically picked up where Britain and Pax Britannica had left off: as a colonial power. But Vietnam caused a re-examination of American ideals.
Prior to Vietnam, in the legal realm there were four primary but distinct academic theories regarding the origin of American law. Theory number one was positive law: the law that is actually codified (written in statutes). Per the positive law theoriticians, positive law should be interpreted according to its original intent. Number two was natural law: the law that protects the rights that people were given by nature, without having to be codified (a concept that we’ll discuss in more detail later with regard to substantive due process). These first two theories are quite formalist in nature, and they are consistent with a world view that the law is objective and reaches a legal result that should be unique and should apply to any equivalent situation.
But that view came into conflict in the twentieth century, when two new views were developed and argued. Number three was Marxist theory: the idea that the law was systematically biased in favor of the existing class structure, and those laws would be both written and applied for the primary purpose of preserving the existing class structure. Because Americans had long prided themselves on a classless society, this type of argument had generated little traction in the U.S. However, a real-life example of the law embracing a class distinction was taking place every day during the 1960s: the Vietnam-era draft included deferments for college and university students, who were generally at least upper middle-class, which led to a number of privileged young people pursuing doctorates to defer their drafting beyond the regular four-year undergrad window — and embracing more Marxist theory while pursuing those doctorates.
Number four, legal realism was much more widely accepted than Marxist theory throughout American society. It had become a hot topic during the New Deal, as it changed the focus of legal revisions from reluctant legislatures to activist judges. The underlying idea of legal realism was that even facially-neutral laws could be applied in a matter that made them not neutral, and so administrators and judges were the actual lawmakers, despite the formalities. Common examples cited of this type of distortion came from many different areas, from zoning maps (generally set up by administrators, not legislators, to exclude certain types of “nuisance” developments from certain, usually affluent, areas . . . and which eventually gave rise to the phrase “not in my back yard”, initialized as “NIMBY”) to civil rights, where cases like Plessy v. Ferguson (where the Supreme Court created the doctrine of “separate but equal” to exclude blacks from accommodations reserved for whites) and the Insular Cases (denying newly-acquired American territories a chance for statehood because the Supreme Court deemed that non-Anglo-Saxon natives were not fit to receive such status) showed that discrimination could persist even through the application of otherwise-nondiscriminatory laws. The legal realists wanted to use the judiciary to push the law in a different direction, which tied in to the entire discussion of a “living Constitution”. After all, if judges’ decisions made the law, then Constitutional law had been made at every court session since 1789.
Out of this explosive mixture came a new legal theory: critical legal studies (“CLS”). CLS was a deconstructionist movement that combined Marxist theory and legal realism, and the exact meaning and application of its key points will differ between the authors and legal philosophers who promulgated it (referred to as “crits”). However, in my simplified version (and any responsibility for mischaracterization is entirely mine), CLS argues for the following points:
The meaning of laws needs to be considered separately from the text.
Most laws are intentionally designed to maintain the status quo.
Laws that might change the status quo are intentionally drafted to be ambiguous, so that courts can apply them in ways that maintain the status quo.
Laws inherently have an intertwined political meaning, and courts should review laws in terms of their political content as well as their plain language.
Legal theories that depend upon the “free will” of the individual should not be utilized, as individuals do not possess free will but are constrained by their environment and class.
Courts need to utilize the ambiguity in laws to apply the laws in ways that favor lower-class, disadvantaged groups (since the upper-class, advantaged groups are the ones who created the laws).
We’ll discuss the practical implication of these tenets a little more later in this discussion. A brief review of them would note that they include the main elements of both Marxist theory and legal realism, which led to the justifiable perception among non-radicals that CLS was an attempt to mainstream Marxist class warfare. In a partial (albeit unintentional) endorsement of that view, a Harvard Law professor who was key to the development of CLS said in 1995 that, at the time that CLS originated, “just about everyone in the [crit] network was a white male with some interest in 60s style radical politics or radical sentiment of one kind or another. Some came from Marxist backgrounds — some came from democratic reform.”
But the lack of diversity among the crits directly led to the transition from CLS to CRT.
Class or race?
If you believed that class strife was a major issue in America, as the Marxists among the crits did, then the six principles of CLS listed above addressed what you believed were the most important issues in America in the 1970s. But, despite the fact that the draft deferments of the 1960s were clearly class-related, those deferments were eliminated in the early 1970s and replaced by a draft lottery without such deferments. And then the Vietnam War went away shortly after that. Without Vietnam to trigger disaffiliation from the American way of life, the plentiful economic opportunities of the time (and the class mobility provided by them) made it clear that a class-based theory was a nonstarter within the broader American society.
But what if you substituted race for class in this theory? After all, even the legal realists had noted the pernicious influence of race when it came to Supreme Court decisions, going all the way back to the pre-Civil War period and Dred Scott v. Sanford, which ridiculously had held that blacks could not be either state or American citizens even if free — a ruling that was clearly at odds with the original intent of the Constitution — and continued through Plessy and the Insular Cases. Although class distinctions generally hadn’t been an issue throughout American history, race distinctions had.
As a result, when the wave of CLS began to die off in the patriotic America of the 1980s, combined with the collapse of the Soviet bloc at the end of the decade, there were minority scholars eager to reformulate a new version of the theory, moving from the crits’ “critical legal studies” to a version focused on race instead of class, which they called “critical race theory”. The new name also had the advantage that CRT could actually be pronounced as “crit”, but that never caught on, perhaps because the Marxists among the crits weren’t willing to abandon their class focus, despite the Soviet belly-flop.
Problems with CRT as a universal theory
Of course, this change in focus from CLS to CRT created its own set of issues. For example, in an America defined by class, it would be possible to argue that the large-scale use of indentured servants was a feature of American life from the founding of the country. Indentured servants, like slaves, were bound to the holder of their indenture and could be bought and sold; however, unlike slaves, they had a contractual limit on their servitude and would become completely free from it at some point. Slaves were common among the Spanish, but the first Africans to have been brought to the American colonies, in 1619, appear to have been treated as indentured servants.
By the late 1630s, though, Spanish-style slavery had appeared in the U.S., and the first state to pass a law permitting slavery was Massachusetts in 1641 — but the number of slaves remained small compared to the number of indentured servants right up to the American Revolution. And female indentured servants, who were generally white Europeans, were generally not treated any better during their servitude than female slaves; Virginia, for example, had laws that specified that female indentured servants could not marry during their servitude — but, if they got pregnant during their servitude, two years would be added to their terms to compensate the holder of their indenture (who, in the real world, was generally the baby’s father) for the loss of service.
Since one of the foundational beliefs of CLS was the Marxist belief that national legal systems were created to perpetuate the class status quo, a shift from CLS to CRT (class to race) would require a theoretical shift that American legal systems were created to perpetuate the racial status quo: slavery. Note that this is the exact claim made in 2019 by the New York Times’s “1619 Project”. However, as the prior example of indentured servitude showed, this claim is inconsistent with the historical facts, which makes it highly dubious (at best).
By the time of the Constitution in 1789, Massachusetts (the first colony legally to permit slavery) had abolished slavery via three court decisions in 1781 (which followed the adoption of a new colonial constitution the year before), and there was not a single slave in the state as of the 1790 census. Vermont, which was not yet a state, had also abolished slavery by 1790, although there were still a handful of slaves in the territory. And the Northwest Ordinance, largely drafted by Thomas Jefferson in 1787, adopted then by the United Colonies, and then re-ratified by the first United States Congress in 1789, permitted escaped and fugitive slaves from the other states to be reclaimed there but otherwise banned both slavery and involuntary servitude in the Northwest Territories. Whether Jefferson was responsible for the authorship of that provision has long been disputed, although Jefferson was previously on record as opposing slavery.
Further, the Constitution contained a provision permitting Congress to ban the importation of slaves as of January 1,1808 (which is exactly what it did effective as of that date), by which point many of the founders believed that slavery would likely be nonexistent. For example, James Madison’s notes from the Constitutional Convention (August 22, 1787) record Madison’s interpretation of a speech by slavery opponent Roger Sherman of Connecticut in favor of not further amending the clause in the Constitution that permitted the importation of slaves until 1808: “[A]s it was expedient to have as few objections as possible to the proposed scheme of Government, he thought it best to leave the matter as we find it. He observed that the abolition of Slavery seemed to be going on in the U.S. & that the good sense of the several States would probably by degrees compleat (sic) it”.
Sherman’s expectation was logical. In fact, slavery in 1789 was mostly used for house servants and a small number of tobacco farmers — but Eli Whitney’s cotton gin, developed in 1793 and patented in 1794, almost overnight made cotton the most profitable crop in the world. But cotton picking was as labor-intensive as it was mentally undemanding. Free workers preferred not to do it, and so cotton picking quickly turned into a slave-only occupation, which boosted both the demand for and the price of slaves and created the incentive for continuing (and even expanding) slavery in the cotton-growing regions of the American south . . . which led to the American Civil War just under 70 years later. A system that had been designed to perpetuate the status quo of slavery would never have contained the provisions that led to that war, because the entire direction of the country in 1789 was toward the abolition of slavery, which also disproves the CRT perspective.
Racial discrimination, without the Marxist intent
But simply accepting the obvious — that CRT is simply not an accurate method for analyzing American history because of its Marxist requirement that the American legal system was created with the intent of maintaining a racial status quo — does not negate the continuing problems with racial discrimination that the legal realists pointed out long prior to CRT: the United States (and, indeed, most of the world) has had a problem with racial discrimination throughout its history, and that problem generally was enforced by the laws of the time until the civil rights movement of the 1950s and 1960s. As late as 1968, the segregationist Alabama governor George Wallace won five states and 46 electoral votes in an insurgent campaign under the banner of the American Independent Party.
But, despite Wallace, racial segregation was not confined to blacks, as shown by the Insular Cases against Latinos and Asians and various race-based or ethnicity-based immigration quotas such as the Chinese Exclusion Act of 1882, which put a 10-year ban on Chinese immigration to the U.S. — and which Congress then renewed for another 10-year stretch in both 1892 and 1902 before extending it indefinitely; it was finally repealed in 1943. [Unfortunately, the appeal of such selective immigration exclusions is enduring, as The Former Guy proposed a total ban on Muslim immigration to the U.S. in 2015 during his presidential campaign, and then imposed a ban from selected Muslim-majority countries in 2017.]
And that serves to highlight many of the contradictions embraced by both the proponents and opponents of CRT. The proponents of CRT are also proponents of making the U.S. government pay reparations to the descendants of slaves, because racism limited their ancestors’ opportunities. But racism wasn’t limited to slaves; it was applied sweepingly across the board. Why should people who were oppressed in America over 150 years ago have a preferential claim on our resources now over all of the other people who were oppressed by American society then? Well, if you believe in CRT, it makes sense, because American society was structured from its origins to oppress blacks and turn them into powerless slaves. But, as we’ve seen, it wasn’t. It was even logical for the Continental Congress to believe that slavery, like indentured servitude, would disappear on its own — in those halcyon days before the cotton gin. The Marxist element of CLS that carried over into CRT is simply nonsense, and embracing it (as the New York Times did with the “1619 Project”) would make you into a laughingstock in a sane world (which 2022 America may or may not be).
The Marxist foundations of CRT also account for many of the excesses associated with it, including the contention that the current American system is an element of white supremacy, and also including some of the loonier “facts” cited by CRT proponents, such as the slanderous claim (made by a Biden nominee to a U.S. district court) that “the killing of unarmed black men by police happens every day in America.” And such slander has real consequences, as another survey showed that “more than a third of liberal and very liberal respondents thought that the number of unarmed blacks killed by police each year was ‘about 1,000’ or more.” [The actual number over the past three years is 67, or slightly less than one every 16 days.]
The inevitable counter-movement to CLS/CRT
At the same time, the political radicalism of the crits, with their emphasis on structural oppeession and redistributive justice in the political context, inspired an academic counter-movement opposed to that level of judicial interpretation of laws. This counter-movement said, basically, that laws should be applied based solely on their text, and the only fair interpretive question is to determine what the ordinary public meaning of the plain language in that law was at the time the law was adopted. To avoid the issues of courts distorting the plain meaning of prior laws at a later date by considering its original intent (perhaps because the people of the time might prefer for the law not to be applied consistent with its plain language, which was part of the background of Supreme Court cases like Dred Scott and Plessy), such rules of interpretation should not be applied if the language of the law is clear.
This counter-movement became known as “textualism”. And before long, textualism became the dominant method of textual interpretation among classical liberals, libertarians, and conservatives, excluding only the progressives who still wanted to follow CLS/CRT. Yet textualists can still fall victim to the hazard noted by the legal realists of paying too much attention to the original intent of the law and thus importing non-textual discrimination into it.
Bostock and textualism
One case that flirted with that issue in the 2019-20 Supreme Court term was Bostock v. Clayton County, a case that began when an employer fired an employee for being gay. The (then) six textualist members of SCOTUS split 3-3 on the proper interpretation of the Civil Rights Act of 1964 regarding this issue.
On one side were Justices Gorsuch, Roberts, and Kagan. In their opinion (which was the majority opinion because the three progressives sided with them), the plain language of the statute, which provided that it was “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . , because of such individual’s race, color, religion, sex, or national origin”, was determinative. As Justice Gorsuch wrote:
No doubt, Congress could have taken a more parsimonious approach. As it has in other statutes, it could have added “solely” to indicate that actions taken “because of ” the confluence of multiple factors do not violate the law. . . . Or it could have written “primarily because of ” to indicate that the prohibited factor had to be the main cause of the defendant’s challenged employment decision. . . . But none of this is the law we have. * * *
From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred. * * *
The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.
The three dissenters, Justices Alito, Thomas, and Kavanaugh, argue instead that firing someone on the basis of sexual orientation is different than firing them on the basis of sex. To get around the argument adopted by the other three justices, they contend, in Justice Kavanaugh’s words:
There is no serious debate about the foundational interpretive principle that courts adhere to ordinary meaning, not literal meaning, when interpreting statutes. As Justice Scalia explained, “the good textualist is not a literalist.” . . . The ordinary meaning that counts is the ordinary public meaning at the time of enactment—although in this case, that temporal principle matters little because the ordinary meaning of “discriminate because of sex” was the same in 1964 as it is now. * * *
Next is a critical point of emphasis in this case. The difference between literal and ordinary meaning becomes especially important when—as in this case—judges consider phrases in statutes. (Recall that the shorthand version of the phrase at issue here is “discriminate because of sex.”) * * *
By contrast, this case involves sexual orientation discrimination, which has long and widely been understood as distinct from, and not a form of, sex discrimination. Until now, federal law has always reflected that common usage and recognized that distinction between sex discrimination and sexual orientation discrimination. To fire one employee because she is a woman and another employee because he is gay implicates two distinct societal concerns, reveals two distinct biases, imposes two distinct harms, and falls within two distinct statutory prohibitions.
Which viewpoint is more valid? Actually, they are each equally valid. Textualism does not provide the answer as to which interpretation should be preferred. For anyone who believes that textualism provides a unique answer in each and every case, Bostock should suffice to disabuse you of that belief.
However, a legal realist likely would prefer Justice Gorsuch’s interpretation, largely because it doesn’t rely on the tradition cited by Justice Kavanaugh that “sexual orientation discrimination” is different from “sex discrimination”, since that tradition is more likely to introduce a distortion to the jurisprudence.
Your mileage may vary.
And yet . . .
So now we have discussed what CRT actually means, as well as its origin in CLS. We also have discussed that the Marxist origin of CRT may account for its excesses, and we have noted that textualism, the counter-movement to CLS/CRT, has its own interpretive issues as well.
But we aren’t likely to correct the misuse of the term CRT. And we’ve only scratched the surface on legal theories and interpretations. [I actually started writing this on Thursday, but it took until Monday for me to publish it, as even discussing these legal theories from a 30,000-foot overview required more analysis to describe them properly that I’d anticipated. No wonder I’m not writing a legal blog!]
Next week we’ll begin a deeper look at natural law and substantive due process, hopefully without the long analytical delays in my article composition. But let’s take a sneak peek at substantive due process right now, via a Supreme Court opinion from 1963, Ferguson v. Skrupa (footnotes omitted), that is still on the books. The doctrine being discussed in this excerpt is indeed substantive due process, although it is being described quite poorly:
The doctrine that prevailed in Lochner, Coppage, Adkins, Burns, and like cases -- that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely -- has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws. As this Court stated in a unanimous opinion in 1941, “We are not concerned . . . with the wisdom, need, or appropriateness of the legislation.” Legislative bodies have broad scope to experiment with economic problems, and this Court does not sit to “subject the state to an intolerable supervision hostile to the basic principles of our government and wholly beyond the protection which the general clause of the Fourteenth Amendment was intended to secure.”
It is now settled that States
“have power to legislate against what are found to be injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition, or of some valid federal law.”
Wait a minute — is the Supreme Court of 1963 actually saying that substantive due process is no longer applied by the Court? If so, then why do we care about it or need to talk about it?
And the answer is that yes, it did say that , but just two years after this case (1965), substantive due process came roaring back with a vengeance (although SCOTUS tried to mask its return by a widely-mocked description of constitutional “penumbras”), leaving this statement of its demise “no longer operative” (as we’ll see in an angry dissent in that 1965 case). and in 1973 substantive due process provided the underlying basis for Roe v. Wade. But we’ll exit on the note that the entire doctrine was tossed on the scrap pile exactly ten years before it occupied center stage in the second-most divisive Supreme Court case ever (behind only Dred Scott).
Be seeing you.
Gonna need serval weekends to absorb this. Studied CLS/CRT (Roberto Unger etc.: as an aside I keep thinking Umberto Eco - who wrote The Name of the Rose - instead of Roberto Unger for some bizarre reason) in law school. The problem with the theory is simply divides it will never unite. Like many things from my law school professors, I never imagined it had a future. Boy was I wrong. Ms Polite wrote CRT was “scientifically proven”? That is … interesting … once I read statement like that about a theory like CLS/CRT … I lose all interest in the author’s views.
Paul - back to your CRT discussion (and sorry for the stream of consciousness posting above - I was honestly utterly shocked by both the leaking of a draft SC opinion and the opinion itself - interestingly enough I should not have been surprised by either event). The common initial response to CLS/CRT discussions was CRT/CLS is an obscure legal theory taught in law schools ... of course it is not being taught in K-12 ... end of discussion (to be fair I actually would think it might be worthy of discussion in higher level AP US history courses etc.). The response to that is of course it isn’t but the theory is being used to redesign K-12 curriculums and that is what is potentially objectionable to those on the right. Do you have examples of CRT changing curriculum and have you looked at the changes?