Fellows - Judicial CRT K

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 Idahos 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-lawupheld-by.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
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. Its
one thing to withhold on national security grounds certain policy decisions
that require secrecy, but its 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
has refused to release the memos so that they could be scrutinized publicly.
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 self-entitlement 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 wellcrafted 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 Affs 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, 21049). 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-pointthe
narratives of Presidential War Power they tellare 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
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.
African world struggle and the search for an ideology of liberation."
n191
n190
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
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 antisubordination 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
dominated by barbarism."
n193
well to examine the life work of Charles Hamilton Houston and William Henry Hastie.
n197
CRT is not focused on one racethats 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.
Today.)
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.
As noted, the LatCrit movement is the best-organized form of race-conscious critical legal thought.
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
n140
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
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 related to their litigation work, however, is less well-known. I submit it is also
crucial. n112 This philosophy may perhaps be a starting point for progressive forms of
racial solidarity. n113
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.

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 doesnt 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, Lets 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 familys 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
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 dont 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

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 societys idea of race in America, become
marginalized, invisible, foreign, un-American.
Black white binary destroys coalition building

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 others 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 nations 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

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 Harlans 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 Californias 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, anti-immigration forces whip up public sentiment
against Muslims among minority and blue-collar communities by
appealing to patriotism.
Binary thinking can cause minority groups to id with whites at

the expense of other groups
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 states 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
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
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
from progressive or radical discourse on immigration. Namely, what
me to recognize it as such, it certainly did not take learning criminology for my students to apprehend the immigration issue in
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,
criminological terms.
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 Europes imperial project. Resource depletor is a more expansive formulation of job stealer, and both are
simply different ways of saying thiefa 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 Statesboth
documented and undocumentedhas 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
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. Consequentlyand I
believe this point is most salient for the overall intervention that Radical Teacher offers with this special issuethe basic
between crime and incarceration, the evidence shows that immigration does not contribute to increased rates of crime.5
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 Morrisons
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 lower-middle 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/Chicanosimmigrants, migrants, and long-time residents/citizensare 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 students geography remains well-segregated. Mexicano/Chicano and African American communities thrive throughout the
states 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 colorprincipally people of Mexican originsbut
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 capacitythe 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 states 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 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
the convict trade.
of the slaves and most of the landin other words, held the wealth in the societyhow 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 slavesin terms of poverty, self-determination, material securitythan 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 todays college students, most of whom have all
The problem, of
course, is that we continue to endure slaverys aftermath, both culturally and in terms of
societys structures: the criminal justice system evinces this legacy perhaps more than any
other institutional setting.15 Moreover, racism not only thrives today, but conventional
come up in a post-civil rights era in which slavery is recognized as a tragic evil in our nations past.
narrow understandings of it betray an implicit faith in the systems 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? Whos 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
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 values absence (blackness). A second principal lesson of slavery for the study of contemporary
study of criminology. First, that
criminology is that the function of policing historically has been to contain the political desires of the white worker by binding him to
It is not surprising, then, that the slave patrols were the first official organized police
force in this nations history. As DuBois noted, the white worker was kept from seeing himself in the black worker
the state.
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
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
runaway slaves.17 In class, we discussed how
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 Californias anti-immigrant Proposition 187 (which occurred before many of my students had reached kindergarten)
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
and how it won support from a significant number of black and Latino voters. 18
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 dont have proper licensing because theyre undocumented
and therefore can charge much less than he does. She was angry. Is this students story a specific illustration of the general failure
of this countrys immigration policies? It is, in part. We cannot verify any of the asserted facts, of course, but discursively this
students 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
fathers 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
Western
liberalism is also racialized at its core, lending the emotional investment in individualism a greater urgency given
prior to the social structures of this history, is deeply ensconced in the U.S. academy across its disciplines.
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 shouldnt 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, Its wrong that theyre treated unfairly, but they dont 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 concurand 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 discourseillegalsand the converse promoted by immigrant supportersno 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
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
responsibilitiessocial deathare reduced to nothing but the physical body, unprotected
against mutilation or torture.21 The functioning of social death is, again, premised on the
anti-black world and it belongs to the black.
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 society, and that in their capacities as law enforcers, they are not making things better for these millions of people.
These are tough ethical problems for young people emerging from a context in which their futures are
mortgaged ever more by the racial states commitment to the needs of capital. My 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
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
select few at the expense of people like themselves. They might recognize, should they dare to admit it, that
students across our differences in social positioning and emotional attachments, as a pedagogy of self-awakening? 25 James Baldwin,
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 historyoneselfhas been nothing but an intolerable yoke, a
stinking prison, a shrieking grave.26 Teaching about immigration within criminology shows me that black-brownwhite remain insoluble antagonisms. I remain open to what the answers may be, and, in the interim, try to act
as always, assesses the challenge with clarity:
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,
whitenessas critical-race-scholar Cheryl Harris wrotewas 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 ones profession, or control ones labor.45 Not having whiteness
infringed upon ones 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 convergence48 in maintaining Republican Party influence in the South,
was cut short by the HayesTilden Compromise of 1877, which ushered in the postReconstruction 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 Bells terms, the HayesTilden 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 civil-rights statutes by
using seemingly neutral strategies to disenfranchise peoples of color in
lockstep with sociopolitical forces that sought to restore the Souths
honor.
Courts perpetuated racial subordination

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-rightsera 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 nineteenthcentury 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
Following World War II, the second reconstruction or mid-twentieth-century civilrights 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 Courts colorblindness principle scrupulously failed to
capture the laws long-running complicity with white supremacy and
equally failed to undo its effects. As established previously, the laws 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 selfserving legal rationales, distinctions, and foundational principles. In this sense,
formal discriminations 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 societys own self-perceptions, and ironically,
the value of whitenessa 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
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 discriminations 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 societys own selfperceptions, and ironically, the value of whitenessa 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.
Here, redemption is used mainly in a property sense, while secondarily in a quasi-religious

sensea 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 Northto comply with Brown. Meanwhile, antidesegregation 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 supremacys 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

The elevation of Warren Burger to Chief Justice of the Supreme Court in
1969 furthered the racial-redemptive 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 19531986 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-civil-rights 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.

William Rehnquists 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 ReaganBush 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 supremacys victims and beneficiaries. Using this
approach, the Courts 1989 cases heralded a new order. In City of
Richmond v. J.A. Croson Co., the Court restated the de factode 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 defendants evidentiary burdens in Wards Cove,92 and the reemergence 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, Congresss first repudiatory
attempt, the KennedyHawkins Civil Rights Act of 1990 failed.94 The
KennedyHawkins bill passed both the House and the Senate, but
President George H.W. Bush vetoed it. The Senates 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.
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 Rosss analysis of affirmative-action
jurisprudence98was no longer necessary to justify striking an
affirmative-action plan. Instead, the Court decided Adarand in the raceneutral 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 Amendments
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 Obamas
dollar bill comment is as morally culpable as Geraldine Ferraros
diminishing comment that Obamas 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
privilegeracial and otherwiseand 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

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 plaintiffunfriendly 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 Courts 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 scrutinys imperative as applied to racial
classifications is clearly reflected in the two-prong 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, forward-looking 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 Executives 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 Idahos 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-lawupheld-by.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 Obamas claim of authority to order targeted killings, and the other seeking release of the
memo defending the FBIs 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
Alicein-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 Nixons 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-doctorsoppose-force-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
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.
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,
n137
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/guantanamo-lawsuit)
(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 naturethat 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 Mens

Freedom and Womens Subjugation

Mens 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. Mens freedom and womens
subjection are created through the original contractand the character of
civil freedom cannot be understood without missing half of the story that
reveals how mens 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 partriarchalthat is;
the contract established mens political right over womenand also sexual
in the sense of establishing orderly access by men to womens 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 Judiciarys Historical Decisions Have Upheld Sexist

Legislation
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, womens 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 Courts reasoning harks back to the story of the sexual contract; the argument
appeals to mans strength, womans 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 [womans] disposition and habits of life which will operate against a
full assertion of [civil] rights. 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
(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 sexright. 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 womens 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
(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
Attention to the subordination constituted by original contract, and by contract
more generally, is itself another possible source of misunderstanding. Michel
Foucaults 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 Foucaults
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 mens 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 womens bodies and womens 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
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

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
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
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 publics trust towards law

enforcement
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
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 wont 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-aboutnsa-phone-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_po
sitivism_Finnis_natural_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
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 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

One of the fundamental CRT beliefs is that racism is a built in part of the
American lifestyle.5 This thought is complimented in Lawrences theory of
unconscious racism , as stated above; this is when racial matters are
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
2 Blackstone, W, Commentaries on the Laws of England, (Clarendon Press, Oxford,
1765-1769)
3 Toyosaburo Korematsu v. United States, 323 U.S. 233 (1944)
5 Bell, Faces at the Bottom of the Well: the Permanence of Racism, 1992
present in a situation although not unanimously recognised. 6 In

Korematsu, Black took the approach that the principle to be decided was
if a minoritys 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 Blacks judgement
would not sit well with the race-crits.
6 Lawrence, The Id, the Ego and Equal Protection: Reckoning with Unconscious
Racism, 39, Stanford Law Review 317 (1987)
8 Gardum, S, Where the (state) action is, 2006, I.J.C.L 760-779, 776
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:
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
From 1896 until today, filmmakers
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)
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 .
Erika began with a series of statements all too familiar to me: That the
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.
Today.)
This anger derives partly from the American government's long-standing support
for Israel and tolerance of Israel's repression of the Palestinian movement for national liberation. n168 While littleknown here, American military aid to Israel is well-known and well-understood in the
Islamic world. n169 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
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 powerover 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 nave, 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
Feminist philosophers regard conceptual considerations to be at the

core of peace issues because many of the other women-peace 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:
war (Cady 1989).
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-not-conscious-oftheir-rights"), illiterate (read "ignorant"), domestic (read "backward"), and
[*74] sometimes revolutionary (read "their-country-is-in-a-state-of-warand-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 remember 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 control. In the ruling traditions of historical and critical social theory and in the vulgar
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
beliefs that these traditions have inspired, revolution appears as the best hope of real social change,
picture, the core mechanism of revolution is the alliance of a counterelite with an oppressed mass. In the advanced Western
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 brutal tyrannies do not exist in the industrialized West.
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 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 uses of governmental power and the institutional structure of society. I
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
suggested earlier a view of
has in the career of the advanced Western societies, this cultural-revolutionary practice undergoes a perversion: the unhappy
search for gratification and self-fulfillment takes prece- dence 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 theory 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 character 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 rightholding, 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 politics, 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 circumstance 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 relations 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 - between rightholding and empowerment or between the quality of grand politics and the reality of practical social experience - that
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.
this segmentation helps strengthen.
Targeting whiteness is crucial, we accomplish that critique

through our starting point.
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.
Today.)
n7
Moreover, given current American imperial overstretch,
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
Whether race consciousness is a progressive tool, of

course, depends on how it is defined . n14 Some critical race theorists are questioning the efficacy of
in progressive race consciousness.
race consciousness
n15
to our collective antisubordination project.
n16
I understand that the 2003 CRTW organizers
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
had this internal critique in mind when they named the first panel.
n17
Nevertheless,
Black anti-colonial thought can solve even if application is

necessary
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.
Today.)
A tradition of scholarship n88 grounds Black critical social thought n89 and antisubordination 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
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,
truth as a fundamental requisite [*364] for collective survival in a racist society.
women and children may build beyond th e 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
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
the Black Workers Congress all combined revolutionary Black Nationalism with socialist internationalism.
internationalist variety of, Black Nationalism.
n106
n103
Pan-Africanism has roots in the African diaspora and Africa. It was a
Scholars of the
American civil rights movement are increasingly acknowledging an international
dimension. n108 Pan-Africanism, it appears, also played a role in the twentiethcentury American Black freedom struggle. n109
major force in the twentieth-century de-colonization movement on the African continent.
n107
CRT with an anti-colonial emphasis is the best way to solve the

case.
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 antisubordination 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"
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
n125
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
Postcolonial
theory has not focused adequately on U.S. law
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
an analytical focus in critical legal studies on race, races, and racisms will require organization.
n132
n133
CRT: The Aff cannot solve. Selective democracy is the problem,

not war powers
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
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
grow through interaction with difference, not by reproducing what they already know[.] ...
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
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 affs problem much more effectively

without the risk of cooption.
Today.)
I now quote two quite well-known activist lawyers, from statements they each gave at their respective criminal
Fidel Castro, while on trial for armed insurrection against the U.S. 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
trials. In October 1953,
supported Batista regime in Cuba,
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
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
not produced even by war. Secondly, we felt that
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

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. Its an artifact that is
deeply soaked in meaning through contexts. Manipulating,
more so policy wise, in time of conflict, creates a language that
isnt 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 Cornells 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 womens engagement with law and language,
considering how it constructs women, and the social violence that is
caused by the linguistic exclusivity of those constructions. Cornells 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. Cornells 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. Cornells 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. Cornells 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. Cornells 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 Cornells 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 individuals 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 Cornells 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 self-esteem in individuals.
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 Cornells imaginary domain Cornells version of
intimate relationships has been significant for LGBT refugees, particularly
in its engagement with and response to sexualitys 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. Cornells 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 Conventions 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.
Cornells 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. Cornells feminism
aligned with deconstructions breadth of openness to the Other, to
language, and the ethical, underpins Cornells analysis and ensures that
her work still sits at the cutting edge of a radical social transformatory
philosophy. Cornells 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 Cornells 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-whitehouse-claims-on-authority-in-drone-killings.html?_r=0)
WASHINGTON A federal judge on Friday sharply and repeatedly challenged
the Obama administrations 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 governments
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. Awlakis 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 governments 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
Kohs 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 Brechers 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
cyberattacks 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 Resolutionto ensure that Congress has a mechanism
to ensure its concurrent participation in the decision to involve the Nation in armed
conflictis 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
Jacksons 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 Jacksons
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 Nations steel mills. The mill owners argue that the
Presidents order amounts to lawmaking, a legislative function which the Constitution has expressly
confided to the Congress, and not to the President. The Governments 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 Nations
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
Presidents 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 Rosenbergs (and Dahls) 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 Rosenbergs 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.
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
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
entrenched in society. n6
Their link is off, and their alternative is too generic.

Yes, race plays a huge role in the treatment of Arab Americans, but its
a particular form of whiteness that must evaluate specific context and
history.
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. I DON'T WANT
Moreover, Arab-Americans
were also targets of the Ku Klux Klan because they were often
identified as "colored."
Arab-Americans faced problems in the voting
rights arena and were often disenfranchised in the South.
In cities
where the Ku Klux Klan had power, these early Syrian immigrants
were [*62] discriminated against because they were "colored,
Catholic, and foreign."
THEIR VOTE. If I can't be elected by white men, I don't want the office."
n25
n26
n27
n28
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 1ACour history can address their
impacts.
A popular misconception is that the stereotyping of Arab-Americans is
a post 9/11 phenomenon. The stereotyping of Arabs and ArabAmericans 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 ArabAmericans. 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
Another 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.
stereotypes of Arabs as "billionaires, bombers, or belly dancers--villains of choice."
n34
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.
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 antidiscrimination 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 anti-discrimination 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
ISLAMIC & NEAR E.L. 121, 121 (2008/09)
However, in this Section, to illustrate this point, I will focus exclusively on U.S.
anti-discrimination 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 Muslim-looking 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 supportsbroadening Equal Protection can

solve
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 antiSemitic 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 WisconsinMadison
(Gloria, Race isRace isnt, 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 you" without need for alteration. At one level,
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 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 mechanisms 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
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 radicalism, the coinage of hubris, whereby an
inauthentic and uneasy bureaucratic elite salvages its conscience by
buying in representatives of repressed, marginalized, or disadvantaged
groups. More than that, however, the American translation of European social 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 becomes, presumably by projection, marginal or foreign- and so
hiding behind a legitimizing romanticism which views political radicalism as a species of patronage:
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 intellectual departure from the earlier theory of Legal Realism,
it does so not least by virtue of its neo-scholasticism, 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
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
genealogy,1 7
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 culture 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 culture." '22 The irony to be observed in the present context not that of the isessentially puritanical or properly Protestant rejection of
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
images and of the intellectual imaginary, but rather that
of the self-referential culture of the contemporary university and the academicization or cooptation of the Left, it has been
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
encountered also in criticisms of the style and jargon of CLS. 23
visible or prominent of the movement 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 legal academic style, it is still appropriate to point out that
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 abandoned and which itself
was imported, the defining feature of the critics arguably has been a naive and somewhat bowdlerized translation of continental
the literature has only a

limited audience which is in the legal academy itself. Its success was its failure, its external
social theory into an American legal idiom. 2 6 One consequence has been that
visibility was its strongest form of internal secession, and its text was its context. More 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
CLS could be termed "critique without

copula" in that it 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
and to the immediate politics of the institution which it otherwise supports and publicizes.
most distant signals to the lifeworld of the legal pedagogue. If CLS purportedly offers a local politics, 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.

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Judicial Courts CRT Kritik Index

1NC Judicial Courts CRT Kritik

at Boise State University where he holds appointment as the Cecil D. Andrus

If matters could be made

Unchecked executive power justified the conflation of the INS

Unchecked governmental power leads to an ongoing

That desperate circumstances generate desperate responses is no

they/their acts "insane." Insanity is a condition readily associable with

response of the inexcusable variety to which it has long entitled

The Alternative is to reject the Affs usage of Federal power in

issues involving military operations. Most of those lawsuits were brought

Aff is Shallow: Anti-colonialism is key

The search for an ideology of

De-colonization involved and involves not only access to state

CRT is not focused on one racethats another net benefit for

Perm Answers: CRT is Best Starting Point

Houston and Hastie's philosophy of race-conscious

Houston engaged in planned litigation campaigns with what Brazilian social

Critical Race theorists should start with an inward focus.

Black and white binary doesnt address non-black minority

The black and white binary is said to operate in everyday culture

to each other, Lets have minority sitcom. The group is well

Black-white binary marginalizes nonblack minority groups

historical and ongoing relationship between balck and white

Black white binary destroys coalition building

Consider some of the ways this can happen . The history of

Binary thinking hinders progress for all minority groups

owners urged replacing their former slaves with Chinese labor.

army recruited newly freed slaves to serve as Buffalo Soldiers

Binary thinking can cause minority groups to id with whites at

Any kind of binary can cause minority groups to fall into

kind of binary thinking can also cause a minority group to go

Link: Starting Point Analysis

my criminology students have shown me is

Students come to my classroom well-versed in the prevailing misperceptions of

characteristics of black positionality provide the fundamental parameters for understanding

narrow understandings of it betray an implicit faith in the systems capacity to be reformed

white supremacy is a hierarchy in which all groups are pitted against

the act of policing entails an unconscious identification with

Was this not an example of how

As DuBois once put it, blacks are constructed not as people

when they fight

Link: Government Judicial Action

(Sumi, "Post-Racialism." Iowa Law Review. vol. 94, 2009)

left no significant federal support in place to enforce the rights of formerly

dictatorship era provided little relief. Indeed, courts eviscerated the

Courts perpetuated racial subordination

theaters, neither constitutional amendments nor civil-rights statutes

Courts failed to address the issue of white supremacy within

Courts attention on de jure equality focused as a tool for white

this sense, formal discriminations elimination failed to address the

In an attempt to redeem the white race reputation, The

Here, redemption is used mainly in a property sense, while secondarily in a quasi-religious

damages to the reputational and property value of whiteness caused by

Warren Burger Court despite being famous for establishing

(Sumi, "Post-Racialism." Iowa Law Review. vol. 94, 2009)

nineteenth-century states-rights rationale in an attempt to explain why

In the 1980s-90s Post Civil Rights era Chief Justice of Supreme

(Sumi, "Post-Racialism." Iowa Law Review. vol. 94, 2009)

We are now in an era where the idea of civil rights is turned on

Recent Supreme Court decision in 2007 Parent Involved case

(Sumi, "Post-Racialism." Iowa Law Review. vol. 94, 2009)

Judicial courts sustains Executives unconstitutional laws

at Boise State University where he holds appointment as the Cecil D. Andrus