Critical Race Theory Wasn’t Always Like This

This is a companion discussion topic for the original entry at

Well done Jonathan. Nuance becomes you……

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The problem with this type of essay, is that the search for concession in the cause of common ground, can often lead to critiques which amount to point-scoring. For example, the concession that crack cocaine had stiffer sentences falls apart under the quite legitimate point that the predominant drug of poor whites, Meth, held sentences which were every bit as stiff as for crack cocaine.

So what’s the distinction? It’s about the American nonsense that poor drug users will necessarily assault their more affluent fellow citizens. Don’t get me wrong, it did and does happen- but the occurrences are far less common than one might think. An old NYPD analysis of drug-related crime showed that around 90% of it was inter-gang violence, 7% was property theft and around 3% was addicts assaulting people to obtain a fix. Wealthy drug abusers on the other hand, can be relied upon to only harm themselves and their loved ones.

This is where the real fingerprint of racial injustice inserts itself into American Criminal Justice. It’s our unjustified fear of the poor, cultivated through false tropes in media, TV and the corporate media, and when constituencies are fed a set of largely false availability heuristics, it’s inevitable that they are going to elect politicians who promise them what they want, even if what they want really isn’t justified.

Such simplistic notions also crowd out the completely justified use of empiricism to defeat real structural problems. For example, the human brain needs to completely different set of analytical tools, a different software for discerning minor differences in facial features. We may find it appalling that some people cannot discern the difference between Lawrence Fishburne and Samuel L. Jackson- the two men look nothing alike- but it’s too reductive to label it racism, when more accurately it’s a simple matter of a lack of experience with African facial types.

Eye witness testimony is notoriously unreliable, and the fact that large segments of the population don’t have the brain software to differentiate fine facial differences in minority populations only compounds the issue. And it’s not as though greater diversity in media is going to come swooping to the rescue, because often casting decisions- whether or not someone possesses natural magnetism in front of the camera- can all boil down to expressive and distinct facial features.

Political interference in judges ability to apply discretion in sentencing was the third pillar of American Injustice. Poverty, politicians and bad evidentiary rules and guidelines were the culprits. Racial disparities in Criminal Justice are a very real problem for America, but the real problem is the gullibility of American people in believing their politicians and their media. Question! Question! Question! It’s as useful in sales as it is in constructing an accurate model of the world.

No just system survives the onslaught of institutional stupidity. We can forgive ordinary people for their stupidity- garbage in, garbage out. But we should never forgive those who should have known better in the past, and even now lie to our faces in the pursuit of political and mercenary goals. Above all, distrust the activist- for their deceit extends even to themselves.

At the same time, we do need the inspiration of the likes of Crenshaw and Bell, if only to activate a more heterodox sense of healthy scepticism and to invite us all to be better detectives. We often forget in the modern context that the role of academic scholar used to be the posing of interesting and difficult questions in pursuit of truth. Who will serve that function now Academia has become so humourless, monolithic and tainted?


Noting that certain policies disproportionately affect individuals of one group or another (like the famous crack vs powdered cocaine example) is useful in order to pose the question if indeed the intention is to target one group rather than another, and if needed to effect legal redress to the disparity. But the existence of the disparity per se is not necessarily indicative of racism or any other -ism. And let us not forget that these “crit” analyses (critical legal studies being the 1960’s version of a type of analysis that started in the 1930’s) are a form of Marxist analysis, which posits that laws and rules are always part of a battle between classes, and which seeks a never-ending cycle of revolution.

Like Mr. Kay, I also don’t know when the switch from observing institutions to looking at individuals occurred, but I know the switch to focus on individuals is insidious and morally bankrupt. According to charlatans like Kendi, we’re all born into a caste and can’t escape it, which leads one to wonder why the USA still has a national holiday for a man who declared that he dreamed of the day when a man would be judged “not by the color of his skin by the content of his character”. It’s also remarkable how the charlatans continue to peddle their claptrap when there are so many counter-examples readily available (e.g. Beyonce, Jay-Z, Kanye West, Michael Jordan, Serena Williams, Ben Carson, Clarence Thomas, on the one hand, and the high rate of poverty in certain geographic areas that are predominantly populated by whites on the other).


Two thoughts: first the crack/powder-cocaine example is severely flawed as an example of systemic racism. Those of us old enough to remember the legislative push for harsher penalties for crack remember that the initiative for that came for leaders of the black community (who, alas, has bought into the drug-warrior delusion that one could really suppress illegal trade in drugs with harsh penalties) because they saw crack cocaine as a scourge on inner-city African-Americans.

Second, any view that asserts that denial of it is proof of its truth is functionally equivalent to the statement, “This statement will be denied,” and thus can be discounted out of hand as having any meaning beyond that of the logic puzzle. I would even propose this as a sort of philosophical razor, and unless someone can cite a prior claimant will be happy for it to be called “Yetter’s Razor”. (I would also be happy to know the name of a prior claimant so I could properly attribute it.) This applies to many of the positions of the current iterate of CRT and to a lot of psychological schools that assert that “denial” is proof of the truth of what the patient is being told. (It isn’t: it could be that the “insight” being told the patient is actually false, rather than the patient is “in denial”.)

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To a considerable extent, CLS and CRT reflect academia’s increasingly-dominant tendency to view everything through what Jonathan Haidt has called " Just one lens—power. Here’s your lens, kid. Look at everything through this lens. Everything is about power.

See my posts Professors and the Pornography of Power and Classics and the Public Sphere.


“Second, any view that asserts that denial of it is proof of its truth is functionally equivalent to the statement, “This statement will be denied,” and thus can be discounted out of hand as having any meaning beyond that of the logic puzzle.”

Arthur Koestler, himself a former Communist, wrote about the nature of intellectually closed systems:

A closed sysem has three peculiarities. Firstly, it claims to represent a truth of universal validity, capable of explaining all phenomena, and to have a cure for all that ails man. In the second place, it is a system which cannot be refuted by evidence, because all potentially damaging data are automatically processed and reinterpreted to make them fit the expected pattern. The processing is done by sophisticated methods of causistry, centered on axioms of great emotive power, and indifferent to the rules of common logic; it is a kind of Wonderland croquet, played with mobile hoops. In the third place, it is a system which invalidates criticism by shifting the argument to the subjective motivation of the critic, and deducing his motivation from the axioms of the system itself. The orthodox Freudian school in its early stages approximated a closed system; if you argued that for such and such reasons you doubted the existence of the so-called castration complex, the Freudian’s prompt answer was that your argument betrayed an unconscious resistance indicating that you ourself have a castration complex; you were caught in a vicious circle. Similarly, if you argued with a Stalinist that to make a pact with Hitler was not a nice thing to do he would explain that your bourgeois class-consciousness made you unable to understand the dialectics of history…In short, the closed system excludes the possibility of objective argument by two related proceedings: (a) facts are deprived of their value as evidence by scholastic processing; (b) objections are invalidated by shifting the argument to the personal motive behind the objection. This procedure is legitimate according to the closed system’s rules of the game which, however absurd they seem to the outsider, have a great coherence and inner consistency.

The atmosphere inside the closed system is highly charged; it is an emoional hothouse…The trained, “closed-minded” theologian, psychoanalyst, or Marxist can at any time make mincemeat of his “open-minded” adversary and thus prove the superiority of his system to the world and to himself.

(From Woe to the Shepherds in Bricks to Babel )


Nice source. Shelby Steele has called it poetic truth in the American racial context.

The documentary is available on Amazon.

this or that person’s “white fragility,” “internalized whiteness,” and “white-savior syndrome”

If the rules are to be rigged so that the hand I have been dealt, unasked-for, is unwinnable, I shall not play the game. Seems fair to me.


Overall, this is a nice article, but I have to say I think if you buy the idea that black neighborhoods were intentionally wrecked by building highways through them, you might want to have a family member manage your retirement funds or something, because that doesn’t make any sense. Where I live near Baltimore, I-83 runs north-south through what’s essentially the nicest part of the city, and has been for a long time. Typically, building highways nearby that make it quick and easy to travel to and from a given area increases property values rather than decrease them. And even if that weren’t true, the people from this once-thriving community couldn’t relocate and find somewhere else to thrive? That was the only neighborhood they could thrive in? Black people are not some island bird species; they can adapt to do well in more than one habitat, no?

This, I think, gets at a larger point here, which is that while CRT may have managed to score a legit point or two in its favor, it was never, as far as I can tell, a serious form of scholarship; it had various assumptions in mind, some of which were reasonable, some of which were not, it developed goals based on those assumptions, and then the literature was written to further those goals. The assumptions were never questioned, the analysis was self-serving, and the goals were utopian ‘equality of outcome’ type boondoggles.


The point about critical theory is that it goes back to Kant and his Critique of Pure Reason. It’s a good thing to critique our assumptions about reality, about the law, and even race. Maybe even climate science!

And it’s a good thing to use AGAINST the ruling class and its self-satisfied assumptions about its holy quest to bend the arc of history towards justice. Presumably that’s what Jonathan Kay experienced in ruling-class law school.

But obviously right now critical theory – in CRT – is a weapon that the ruling class uses against its enemies, real and imagined. When Ms. Fragility and Bro. Kendi are running around whacking on ordinary commoner whites with the enthusiastic support of the ruling class, ker-ching, then Houston We Have a Problem.


There are a number of obvious parallels between the witch hunts of the 1500s and 1600s and critical race theory. In both cases, society believes that the sins are abhorrent– but exactly what constitutes evidence is nebulous, and actual proof is difficult to establish. Back then there were witchfinders general, now we have diversity officers. Wherever employed, both invariably discover the sins they seek. The accused are members of expendable classes, and prosecution of the powerful is rare and even more rarely successful. And any claim of innocence is taken as proof of guilt.


The argument is more subtle and thus more complicated than that. It’s actually pretty similar to the banning assault rifles conversation happening in another thread. It’s not that racist city councils intentionally tried to harm black neighborhoods. It’s when there’s a problem and the highest costs to be paid in solving the problem have to be located, where are they gonna land? The government itself almost never pays the cost, big business rarely pays the cost, rich people rarely pay the cost. The easiest group to stick with the crap end of the stick that often accompanies something like building a freeway is the group who is least equipped, least likely to complain about it or your political enemies–preferably all three.

In poor white areas of course that includes poor white folks, and it happened frequently with railroads being built. But since most complicated freeway relocations happen in cities, it’s not the rich suburban section of town that typically gets upended or split in half. Not never, but more often than not.


That’s insightful. Good point.

Hmm, I wonder about this. I was thinking of writing a post about the right’s unwillingness to police itself and acknowledge issues like the crack-vs powder issue, but I get this idea and am re-thinking.

A couple of questions. First, crack vs powder happened in the 80’s before this issue was raised. Meth sentencing is a more recent phenomenon after this issue has been raised, so it would be harder to pull off. I’m not sure about that, but I wonder.

This is another idea against it being a demonstrable example of systematic injustice, but I’m not sure it works either. The fact that some members of a community want something doesn’t mean that the impact of the policy didn’t disproportionately harm African Americans. Lots of people argued in favor of this policy, but, one way of looking at is they got suckered. Lots of people advocated that smoking wasn’t a health problem, Nancy Pelosi told San Francisco residents it was fine to go out to eat right before Covid and lots of folks in smaller towns love a big box store moving into their area–until the big box store has driven many of the small stores out of business and now they’re dealing with employment issues, new higher prices and the constant threat of the store leaving.

The fact that proponents of a bad policy can quote experts, members of the affected community and all sorts of polling doesn’t mean they’re not full of %$#@

Last, what in your understanding was the reason why sentences were higher for crack vs powder? I get working backwards isn’t a great way to determine causality, but something caused that policy and it’s so discrepant and at least from hindsight, so clearly disastrous, that it seems hard to believe it was an accident that just happened to fall out the way it did.

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The construction of freeways did destroy communities. There are 2 possible explanations:

  1. Racism
  2. Geography

When you build a freeway, or a railway, or any large construction, you go for level areas. That is, you look for the areas between the bluffs. You don’t bulldoze the bluffs/hills unless you have to.

So when we look at the cities before the freeways, there were always valleys and hills. Often the rich people are on the hills. The poor people are in the valleys.

So, picking the valleys ended up destroying communities in the valleys, the poor communities, often those of color.

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Is America (the United States) systematically racist? There are a number of ways of looking at this, but they all yield the same answer. No.

  1. The US and Canada have very different racial histories. However, the black/white income gap is remarkably similar. See “Black Canadians and Black Americans: Racial income inequality in comparative perspective” (

  2. One clue is to look at societies where ‘racism’ (the white kind) hasn’t existed for a very long time. The Haitian Revolution was 218 years ago. If ‘white racism’ was really such a powerful force, then Haiti should be highly successful. That does not seem to be the case.

  3. The per-capita GDP of Singapore is only 34X of Haiti. The US/white role in each country has been quite small. Both countries are removed from the USA and yet show disparities even larger than found in the USA.

  4. In World War II, Japanese-Americans were interned in various camps and typically lost everything. Yet, by the middle 1960s, they were more successful than whites in America. Back then, racism towards Japanese-Americans wasn’t hypothetical or limited to the internment camps. See “ALIEN LAND LAWS IN CALIFORNIA (1913 & 1920)” (Alien Land Laws in California (1913 & 1920) - Immigration History).

It should be noted that the Japanese-Americans in question were hardly elite. They were brought to America as farm laborers. However, even after the Word War II camps, they were highly successful. See “"Success Story, Japanese-American Style” (New York Times (1923-Current File); Jan 9, 1966)

  1. It turns out that all of the most successful ethnic groups in America are non-white. Some are wildly more successful than white. Some statistics. Median Household income for Indian Americans ($107,390), Jews ($97,500), Taiwanese ($85,566), all Asians ($74,245) is greater than Whites ($59,698). As can you see, non-white ethnic groups are at the top and Jews earn (far) more than non-Jewish whites.

These numbers are real, but have two major problems. First, Asian households tend to be larger than non-Asian households. Using personal income provides a better measure than household income. Asian personal income is also higher than non-Asian personal income. However, the positive gap is not as large as the household income gap. The second problem is the nature of the 1965 Immigration Act. The 1965 Act favored (rightfully so) highly educated immigrants over less educated immigrants. The cliché Indian-American immigrant to the US is a doctor. Of course, that is a cliché. However, it is a cliché because it has some element of truth to it.

  1. It turns out the school funding is not equal across the United Sates. New York state spends the most (over $24K per-student, per-year) and Utah spends the least (around $7K per-student, per-year). However, the results almost exactly the opposite of what ‘white racism’ theory predicts. Utah has higher test scores that New York state. Of course, ‘white racism’ theory would predict the Utah would spend more than New York state. That isn’t even remotely true.

  2. Police fatalities are not equally distributed by race. In 2019, just 17 Asians were killed by the police. For whites the number was 406, and blacks 259. ‘White racism’ can not possibly explain the amazingly low number of Asians shot by police. For a typical factoid, in one year, two Japanese-Americans were arrested for murder. Not 200, or 200,000. Just two.

  3. The Asian incarceration rate is 74.5% lower than the white incarceration rate and 95% below the black incarceration rate. ‘White racism’ can not possibly explain these astounding differences.

  4. It turns out that schools discipline rates are tracked by race. See Figure 15.3 of “Indicator 15: Retention, Suspension, and Expulsion” (Indicator 15: Retention, Suspension, and Expulsion). ‘White racism’ can not possibly explain these astounding differences.

  5. That statistics for SAT scores, college enrollment/completion, arrests, etc. are all readily available by race. You can even find COVID-19 vaccination statistics by race. Invariably, you will find racial disparities and invariably Asians will be on top. So much for the mythology of ‘white racism’.

  6. It turns out that other groups are almost as unsuccessful in American life as blacks. Of course, these groups have no history of slavery, Red-Lining, Jim Crow, etc. Why are these groups almost as unsuccessful as blacks? The traditional excuses don’t come close to explaining the disparities. For example, according to Pew median family income for the Hmong (in 2015) was just $48,000 vs. $71,300 for white (Pew, 2014). The rather large differences in family income amount Asians are used to claim that the “model minority” status is a “myth”. Its not a myth, but what people sometimes call a fact. Pew (2014) found that average household for Asians was $77,900.

  7. The Jussie Smollett case provides yet another proof that ‘systematic racism’ doesn’t exist (at least in the US). If ‘systematic racism’ was real, criminals such as Jussie Smollett wouldn’t need to go around inventing hate crimes, because they would have plenty of actual material to use. The fact that people like Jussie Smollett invent hate crimes is one indication of how rare such things are. Of course, some types of hate crimes do occur. No one talks about them because they aren’t PC.


Thinking more about this issue, I was doing some reading about the sentencing debates, what prompted them, how they happened, and it felt eerily familiar.

University of Richmond Law Review article on sentencing issues related to crack and powder cocaine as well as methamphetamines

First, the meth sentencing you’re describing happened 12 years later, after public outcry regarding the effects of crack sentencing was widespread. The crack bill happened in 1986, by the mid 90’s there were major arguments, legal cases and a growing body of critics regarding the crack-powder ratio of 100-1 (1 gram of crack was treated as 100 grams of powder in terms of possession and distribution with mandatory sentences at 5 grams). When the meth bill was passed in 1998, it both exemplified the we have to do something drastic mentality, the political climate had changed dramatically and, meth wasn’t a rich person’s drug either.

Second, the logic of the initial push for sentencing (admittedly from just a few sources, but the agreement and familiarity of the situation lead me to believe it plausible) is that congress needed to do something now!! Crack was an epidemic, they had to be tough on crime so they outdid themselves in their fervor with little to no evidence supporting the 100-1 ratio. It’s at least worth considering that the reason they could be so harsh was because of who would suffer the consequences. Even as data regarding the incorrectness of many of the assumptions underlying the original 1986 bill came in, it was not an era to be seen as soft on crime, so nothing changed.

Interestingly, one of the arguments regarding fixing the discrepancy between crack and powder was not to reduce crack sentencing rules but to increase powder sentencing rules. Strangely enough, that never made it into an actual law that was proposed.

So, the more I look at it, again, I don’t think it was pure intentional strategic racism that created the policy. I think that is part of the point the author is actually making. But when you look at the systematic effects of policies and the disproportionate ways those policies get structured and have their effects, it seems apparent that more care was taken to protect the rich and powerful and less care was taken to protect the poor and less powerful. The fact that meth laws were harsh as well later just proves that the government can make harsh laws that harm poor people of all colors, agreed.

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