Random Thoughts – Randocity!

Critical Race Theory is, as it is so named, a theory. The words ‘Critical’ and ‘Race’ define this theory, but not entirely. The handful of so-called academician drafters of this theory sought to explain the lack of improvement and standing from the mid-1960s into the mid-1970s for the continuance of societal inequality for people of color. Let’s explore.

What Critical Race Theory Isn’t

Too many people and so-called scholars believe that this theory encapsulates all law going back to the beginning of time. That’s false. Critical Race Theory was a theory designed in the 1970s to explain specifically why the Civil Rights Movement in the 1950s and 1960s didn’t bear much equality fruit for people of color… or more specifically, why that movement didn’t see changes to the body of law between the 1950s and 1970s. This theory is a thin attempt to explain why the racial divide didn’t shrink dramatically between these specific years. However, while CRT wasn’t intended to encapsulate every law in existence, there is certainly plenty of law to examine to determine if this theory might actually apply. In reality, it doesn’t apply to the word of law, but it may apply in other unexplored ways.

Complaint

In fact, Critical Race Theory is simply a complaint. It complains that the racial divide still exists and seeks to explain this continued divide simply by complaining. While the racial divide did shrink between the 1950s and the 1970s, those who put forth this theory weren’t at all happy with the overall amount of shrinkage in that 10-20 year span and, thus, those academicians penned this theory.

I’d argue the opposite. The Civil Rights Movement brought about significant change in the area of racial equality in that time period. No, the Civil Rights Movement results weren’t perfect. No, it didn’t give those of color the same standing in every single area of society that were afforded to white people by the mid-70s. However, anyone expecting that level of complete equality in that short time was honestly expecting way too much. Bodies of law simply don’t change that quickly. It’s a slow barge and it takes a very long time to turn.

Critical Race Theory, though, primarily seeks to offer a possible explanation over the existing body of law if viewed through a single solitary lens… a lens that is, by its every crafting, is already biased. However, complaints without solutions are also pointless… and here we arrive at the crux of the problem with Critical Race Theory. This article seeks to explain why CRT only complains, but offers no solutions.

Complaint Validity

Don’t get me wrong, complaints have a purpose, but only if there is some form of remediation attached to that complaint. For example, if you buy a defective item at Target and return it, the complaint is the reason why you returned the item. However, no one would head over to Target without said item in hand simply to complain that the item is merely defective. What point does that serve? The person you complain to doesn’t care about that and they’re not even in a position to do anything to solve your complaint. They’re there to accept exchanges and returns, not listen to complaints.

The one and only time filing only a complaint is useful is if injury or death is involved. However, you wouldn’t head to your local Target store to file that specific complaint. You’d file that complaint to a court in the form of a lawsuit.

No, complaints are only useful IF, as in the Target example above, you bring the defective item in for a return. Putting it all together, the complaint is why the item is defective, the remediation (or solution) is in the exchange or refund. The same goes for CRT. Simply that CRT postulates that law was created by “white” people for the agenda of favoring “whites” over “blacks” is merely a complaint. CRT doesn’t seek to change, alter or remediate that problem. It simply attempts to postulate such a problem exists.

Like the defective item returned to Target, a complaint over why the item was defective may not actually be true. For example, a so-called defect might, in fact, be simple user error. That the person using the product might not fully understand the use of said product. If you don’t fully read the instructions, you can’t know if the product functions in the way you want. For example, not all glues work on all surface types. If you bought a glue and assumed you could glue two pieces of Teflon coated plastic together and the glue fails, that’s not a defect, that’s user error. Even though Target will accept your complaint by calling it a defect and then exchange or return the product, that doesn’t mean the complaint is valid.

Likewise, Critical Race Theory doesn’t seek to modify new laws, change how laws are created or alter existing laws to “solve” a perceived racial injustice problem. Indeed, the complaint in CRT hasn’t really even been validated as a problem. It simply postulates that a problem might or might not exist.

Black Legislators

One issue with Critical Race Theory is that black legislators have been part of the body of lawmaking since at least 1868! Postulating that because “whites” have “always” crafted law and that law somehow disfavors “blacks” is, at worst, disingenuous and, at best, insulting to those black legislators who potentially helped craft some of that legislation.

That’s not to say that whites haven’t primarily been part of crafting and passing state and federal laws. However, few laws specifically include words such as race, creed, color or gender in its body of text. Most laws that actually touch on the topic of race are those laws which sought to free slaves or that specifically mandated such legislation as affirmative action.

Keep in mind that there are also many rules and regulations produced by private establishments that have nothing to do with federal, state and local laws. These rules and regulations are outside the body of law. While Critical Race Theory may be much more applicable to such rules and regulations, CRT reaches too far when attempting to explain (or rather, complain about) the vast majority of existing federal, state, county and municipal laws and statutes. While non-legal guidelines might have unfairly treated minorities, these guidelines were not issued by lawmakers, but by private owners and individuals. It can be difficult to establish where law ends and private rules begin.

Private Rules

Rules of private companies begin at the border of that private company, such as when entering a retail store (or even when using Twitter or Facebook). Every retail store has its own set of rules and regulations, some posted, some not. Every store adheres to these company chartered rules and regulations. For example, if a person enters with the goal of being loud, boisterous and with the intent of disturbing the peace, the store has every right to refuse service and eject that person from the premises. The difficulty comes not because the person was ejected, but the race of the person who was ejected.

If a white person is ejected, it would be seen as ‘fair’. If a black person is ejected, it will be seen as ‘unfair’. Herein lies one problem with Critical Race Theory. CRT doesn’t take into account this fair vs unfair argument, which is entirely subjective application of this theory. The store would then be seen as racist because they ejected someone of color, even though the store may have ejected just as many white people for the same exact reason.

Critical Race Theory then becomes less about actually being treated unfairly and more about ways to allow people of color to unfairly complain about racism in situations where they have actually been treated fairly. This also goes for application of laws.

Laws and CRT

Let’s get back to actual law. When a body of law is written, it is written and designed to solve a societal problem. Now, I won’t get into exactly how laws fail society simply because the philosophy behind law doesn’t actually do what it is designed to do… because that would make this article into a book. No. Instead, I’ll remain focused on a body of law as how people assume law functions.

Unless the verbiage of a specific law states that it excludes or includes a specific race, creed, gender or color, it doesn’t. That’s how laws work. Laws are written with specific words. Those words define the condition and resolution. Attempting to “read into” or “read between the lines” …. such as because the words may have been penned by a “white male”, that that situation, according to CRT, somehow makes the law biased towards whites and against blacks. CRT also doesn’t take into account that black and brown legislators may have read the wording of the law long before being adopted, and agreed with the text of it… even being given the opportunity to modify it if so needed.

Laws don’t work by reading between the lines. Laws should work as written. As I said, words matter. It’s all in exactly how the words are written. If no words define a specific condition, such as race, creed, gender or color, then no conditions around those qualities exist.

Critical Race Theory, nonetheless, seeks to apply its biased notion (complaint ), by reading between the lines across all laws regardless of how the laws are actually worded.

Legal Interpretation

With that said, CRT, in turn, fails to postulate legal interpretation. The written word defines the body of law. Unfortunately, it’s not the words that (fail to) do the job, it’s people. People must interpret those words into actionable content… and that’s where the police, attorneys and the courts come into the picture.

While words are merely words, people are free to take those words and twist the vagueness of those words into meanings that were not intended by the original author. This situation happens everywhere… with the Bible being probably the most prominent example of this. Part of the problem is intent. Because the Bible was written at a time and place that cannot be replicated today, anyone reading the text of a passage must interpret it with a current modern mindset. Today’s mindset didn’t exist when the Bible was originally written. Therefore, it’s almost impossible to understand a passage’s actual intent as written by the original author. That original intent has been long lost to time.

The same can be said of the body of law. A law written in 1870 might have been written for a condition which no longer exists today. The author of the law wrote it with a then existing mindset. In 2021, that condition doesn’t exist. Therefore, the law must be interpreted by someone to determine if a similar situation can be enforced today.

For example, there’s a California law that states, “You can’t pile more than six feet of horse manure on a street corner.” In the 1870s, horses were a thing. In that age, piling more than six feet of horse manure might have been a substantial city problem. Today, we don’t ride horses other than for recreation and not very often down city streets. Therefore, this law was penned to solve a specific problem using a specific mindset. That mindset no longer exists today and, thus, this law is outdated. Though, in some cities in California, horses might still be allowed down main thoroughfares even in 2021.

Mindsets and Words

With the above example in mind, Critical Race Theory was written in the 1970s under a 1970s mindset. Attempting to apply a 1970s mindset to every law that has come before (or, indeed, after) is both fallacious and disingenuous. It seeks to explain-complain about how laws may have been written. Though, laws are not about race, laws came to exist to solve a problem that may no longer exist today. The older the law, the more likely it is to be outdated. However, interpretation can read-into the word of law ideas which weren’t intended. It’s the vagueness of those written words which, unfortunately, allow these modern (mis)interpretations.

This is how CRT fails us (and how laws can fail us)…. not only in the fact that CRT is a complaint which offers no actual solutions, but because it attempts to apply a modern mindset and word definitions to much older laws… laws which may not even have applicable uses today. Unfortunately, both judges and attorneys alike prefer to find such nebulous and vague written laws which tie into and support their cases to uphold personal and legal convictions. Such laws may not have even been intended for such use, but modern interpretation lends itself to that agenda. This means that it is the people who are interpreting the laws and who may be adding racist intentions, not the laws themselves.

It goes deeper. Laws must start with police officers. Police are tasked to enforce laws, by force if necessary. However, because laws are written with words that don’t always express clear intent, too many laws must be interpreted. That means that, “Beauty is in the eye of the beholder.” More specifically, because words are easily misinterpreted and because meanings of words can change over time (just check out Urban Dictionary), the current meaning of a word might not be the same as when the text of a law was penned.

Police officers are not necessarily hired because of their prowess with the English language. Instead, they are hired because they have the wherewithal to carry a weapon and put their lives on the line each and every day. However, because they are also tasked to enforce laws that don’t always have clear intent, they must interpret those legal words through their own personal lens. That means, once again, a potential for racism to creep in… not because of the words, but because a living breathing person is tasked to take those potentially vague words and interpret them in ways that they can enforce.

Is Critical Race Theory useful?

Critical Race Theory might have limited value in that it seeks to draw attention to the existing body of law in a way that shows that it needs oversight. However, it seeks to do so in the wrong way. Bodies of law, in fact, need both oversight and to be kept up-to-date. When laws become outdated either because the original intent no longer applies (manure doesn’t pile up on street corners) or because the condition no longer exists (we don’t use horses for general transport), these laws need to be stricken. In fact, new laws need to be written which enforces oversight upon the body of law and which can auto-stricken and invalidate outdated laws.

Unfortunately, such oversight is still missing in our body of law. This allows useless and pointless laws to continue to exist in perpetuity. This is the the kind of oversight that Critical Race Theory should attempt to put forward with functional solutions, but which it fails to do. In fact, having this entire theory named ‘Critical Race Theory’ both misnames it and turns it into something that makes it controversial. The word ‘race’ in its title automatically makes this theory divisive by the word’s very inclusion.

Though, I personally ignore that problem entirely. Words are just words. Just as laws are also just words. It’s the word interpretation by living breathing people where the words become ideas and where ideas can become a problem. It’s these misinterpreted ideas that are causing the problems, not the words. As long as attorneys, judges and juries all incorrectly agree on word definitions, then laws (even if not originally intended for a purpose) can apply incorrectly to situations unintended.

In other words, it takes people to interpret laws to determine if that law’s text applies to a specific situation. It is this interpretation where problems come to exist, not in the body of written law. Interpretation is the bane of human existence. It’s where people determine what is valid and what isn’t. To interpret, people must bring in their own prejudices, thought processes, teachings and values to reach a conclusion… conclusions which, yes, can become racist.

In short… It isn’t the body of law that’s racist, it’s the people who interpret those laws who are. This is exactly where Critical Race Theory fails us.

↩︎