JWW ON CRITICAL RACE THEORY PART II: TAKING ON THE MYTHS

Our last post laid out the definition of critical race theory (CRT) as developed by the legal scholars who’ve led and participated in the CRT movement since its inception in the mid-1980s.  We explained the differences among us about interpreting the definitions offered bythose scholars and we set out CRT’s six most fundamental principles for considering racial issues in legal contexts. Now we take on perhaps a bigger task – sorting through the misinformation about CRT perpetrated not only by right wing zealotseager for an attack on any effort at understanding the true history of race in America and its impact on our laws and norms, but also by ordinary people who’ve bought into the disinformation campaign now swirling around CRT.

CRT has become shorthand for every program, every effort aimed at uncovering America’s true racial history. Those

squawking loudest about CRT don’t want to uncover that history in hopes of maintaining the status quo. We think it important that Americans know CRT isn’t the enemy and that laws aimed at keeping the truth about our history hidden do liberty, justice, and equality no favors.  

The Myths

As we explained last time, right wingcommentators like Tucker Carlson and Mark Levine have blasted out dire warnings about what CRT could do to our society. Those warnings rest on falsehoods and myths the right has pushed about CRT:
·    Schools are using CRT to teach childrento hate America – as we pointed out, hardly any elementary or secondary schools incorporate CRT into their curriculum. More importantly, CRT does not advocate hating America. Only law schools (and maybe a few graduate schools) would dare trying to teach the complicated concepts that go with real CRT. We’ve watched the eyes of college graduates glaze over when we’ve delved into detailed CRT analysis. This may represent the most dangerous and outrageous falsehood ginned up in the current craziness.  

·    CRT “disregards” the idea all people are created equal -- buying into this mythdemonstrates the distinction between CRT’s real focus and what the right claims it does. Our study of original works describing or applying CRT makes clear this notion hasno basis in fact. We suggest anyone adhering to this idea read Derrick Bell’s Faces at the Bottom of the Well: The Permanence of Racism. The book endorses no such idea. Bell helped popularize the concept of CRT in the American lexicon during his distinguished academic career. 

·    CRT is inherently divisive – parents objecting to CRT have advanced this noble sounding idea in opposition to teaching CRT in schools.As we’ve pointed out, nobody is teaching CRT in schools, except perhaps colleges, law schools, and professional schools.  We suspect this kind of criticism actually aims at preventing a more honest picture of America’s racial history. Those who object to such honesty should at least get their facts straight. If they don’t want more honesty about America’s racial history, they should say so, not blame a theory they understand marginally or not at all.

CRT has come to encompass all efforts at greater honesty about America’s history withrace. Conservatives have tried equating CRT with the 1619 Project, an award-winning journalism program developed by the New York Times that promotes a more realistic look at how slavery,in particular, actually unfolded and affected race relations in America. The right hopes Americans can’t tell the difference between CRT and other anti-racism efforts.

What the Fight Really Means

We see it as unfortunate that CRThas become a  bogeyman/whipping boy in the culture wars. CRT has a meaningful place in legal scholarship. It represents the work of some of America’s best legal minds on a topic that has troubled this nation since its inception. If our grandchildren attend law school, we know they’ll still learn about the law and the impact of racial considerations on the law. They may find CRT useful in grasping that subject.

By grabbing on to CRT, an obscure, decades-old legal theory that only the most elite academics fully understand and making it the whipping boy for simmering racial grievance, the right has found a way to take attention from its failings of leadership and its lack of ideas for governing.   Republicans apparently have given up on being a party of ideas. They offer nothing at the federal level

and only voter suppression at the state level. Republicans now care about little more than acquiring and keeping power. If they have ideas about moving America forward on tough issues that affect people’s lives – health care, finishing the job on the, pandemic, infrastructure, climate change – they aren’t telling us about them. Instead, they’ve ginned up this CRT dust storm.  Such side shows demonstrate their immaturity and unfitness to lead.

 

·  CRT involves making white students hate themselves and their ancestors – CRT tools and principles offer methods of analysis of how law operates in our society and how racism often influences law. That’s a far cry from indoctrinating someone to hate themselves.

 

What they won’t find helpful is the debate that erupted over CRT in 2021. That debate concerns politics, not legal analysis. Republicans, looking at a shrinking portion of the electorate (remember, they’ve lost the popular vote in every presidential election since 1988 except one) apparently feel they must do two things : (1) keep their base agitated and (2) troll for more angry white voters potentially attracted to their grievance politics. Misrepresentations about the meaning and purpose of CRT offer the best possibilities.

People say America needs two vibrant political parties. At some level, that’s true. It doesn’t need this Republican Party.    

THE ELECTORAL COLLEGE: FAIR? UNFAIR?

 

One consequence of the 2016 Presidential election has been calls for abolishing the Electoral College. Hillary Clinton received 2.8 million more votes than Donald Trump, but lost the Electoral College, 304-227.  About 107,000 votes in Pennsylvania, Wisconsin, and Michigan gave Trump his victory.

               

                                 Trump vs Clinton 2016 Presidential Election

Massachusetts Senator and 2020 Democratic hopeful Elizabeth Warren now leads the charge for dropping

the Electoral College. She, and others, see it as an undemocratic anachronism that violates the principle of one-person-one vote and unfairly blocks popular will. Conservatives (some support it only because it helped the Republican nominee last time) argue eliminating it will diminish the importance of small states and rural areas while unfairly advantaging big cities.

A Little History

The Electoral College resulted from compromises in drafting the constitution. The framers preferred letting electors choose the President, fearing demagogues would unduly influence uninformed, uneducated voters. They sought a balance between popular will and the risk of a tyranny of the majority. States with large populations might have outsized sway if the popular vote elected the President. The drafters discarded the alternative of letting Congress pick the President in favor of the Electoral College.  

            

The popular vote winner usually has also won the Electoral College. The 2016 result represented only the fifth time a candidate who didn’t win the popular vote captured the White House. It happened, of course, most recently before 2016 in 2000 when Al Gore won the popular vote, but lost the Presidency to George W. Bush in the Florida debacle.

 

Bush vs Gore 2000 Presidential Campaign - The fight over Florida

The Debate

Fear of harming small states now stands as the principal argument for keeping the Electoral College. Supporters say candidates would focus nearly all their attention on big cities like New York, Chicago,

Los Angeles, and Houston, not thinly populated rural states in the South and Rocky Mountain West. Wyoming, with a population of 577,000, has become the poster child for keeping the Electoral College. No Presidential candidate would pay it any attention, the story goes, if the country abolishes the Electoral College.

Fear of third parties also now gets raised as a reason

for keeping the Electoral College. Former Reagan administration official Peter Wallison contends America runs the risk of spawning a multitude of minor parties with strong, single issue focus, any one of which could elect a President in a three, four, or five party race in which the winner would only need a plurality of the popular vote. In his nightmare scenario, we’d require a run-off system or we’d face the prospect of coalition governments now seen in parliamentary systems. 

Those advocating change focus on the unfairness of the Electoral College. In a democracy, getting the most votes should translate into winning office. The popular will should prevail and protecting small state or rural state interests, while important, shouldn’t become the tail wagging the dog. In a system predicated on majority rule, this principle carries a great deal of weight.

A better view

Persuasive as the pure democracy rationale is, a better argument for abolishing the Electoral College may lie in the fact it doesn’t do what its supporters say it does. It doesn’t protect small state and rural state interests because candidates ignore those states in Presidential elections anyway. Voters in small states and rural areas might get more attention in a popular vote system than they do now. Presently, having a divided electorate, as measured by partisan affiliation, determines where candidates put their emphasis, not size or rural/urban status.

In 2016, two-thirds of all general election campaign

events occurred in six states – Pennsylvania, North Carolina, Florida, Virginia, Ohio, and Michigan. The nine smallest states received zero attention as measured by candidate appearances. Big states didn’t fare better. California, New York, and Texas hosted three campaign events between them. Why?  Only the “swing states” mattered. It wasn’t rural/urban status or size that determined where the candidates campaigned. They appeared where people hadn’t made up their minds. Neither Clinton nor Trump needed time in California (a cinch for Clinton) or Idaho (locked up for Trump).

Now, rural voters in New York and California (both states have plenty) get ignored, as do urban voters in Memphis and Atlanta. If every vote mattered, Republicans might see the value of appealing to blacks and browns in Seattle, Chicago, and New York. Democrats might find risky blowing off white farmers and small town dwellers in Tennessee, South Carolina, and Nebraska.

The Electoral College is part of our history.  As one advocate for keeping it wrote, “a deal is a deal.” But, the reasons for changing it now outpace the value in keeping it.

Eliminating the electoral college probably means a constitutional amendment -- a two-thirds vote in both houses of Congress and ratification by 38 states or calling a constitutional convention, which requires 34 states and has never happened. Twelve states, all controlled by Democrats except one swing state, have signed the National Popular Vote Interstate Compact in which they pledge they will vote electors for the national popular vote winner if states controlling 270 or more electoral votes agree they’ll do the same. All routes to constitutional change seem unlikely now, given the political dynamics.  

                 

 

Who currently benefits shouldn’t determine this issue. As journalist Ryan Cooper put it, “if a Democrat ever wins the presidency while losing the popular vote, it’s a safe bet the Electoral College will be gone in about five minutes.” That’s not how a democracy should operate. Principle should dictate this decision. Increasingly, it appears principle dictates ditching the Electoral College.