Bernard E. Harcourt | Some Thoughts (in Lieu of an Epilogue) on Critical Race Theory

By Bernard E. Harcourt

In their introduction to the classic collection of Critical Race Theory writings, Critical Race Theory: The Key Writings That Formed the Movement, Kendall Thomas and his colleagues conclude—this is actually the last sentence of their introduction:

It is our hope that the writings collected here will prove to be a useful critical compass for negotiating the treacherous terrain of American racial politics in the coming century.[1]

Critical Race Theory has been and continues to be a critical compass for so many of us. We could have predicted that back in the 1990s. What would have been less predictable at the time was that Critical Race Theory would become the target of a massive, nationwide, presidential-led misinformation campaign in the 2020s, with the mission of eradicating Critical Race Theory, and more broadly, race-consciousness, from our language, from our schools, from our public debates, from our very consciousness. It is hard to believe that a U.S. President and political leaders from Congress all the way to local school boards would target these critical ideas and place them at the very bullseye of our culture wars. But, as Kendall Thomas and his colleagues noted, racial politics can be a “treacherous terrain.”

In The Fateful Triangle: Race, Ethnicity, Nation, the W.E.B. Du Bois lectures Stuart Hall delivered at Harvard University in 1994, Hall argued that race and racial discourse are not “a form of truth in any case, but rather a ‘regime of truth.’” He was discussing there, provocatively, the recurring matter of biological and genetic racial discourse. Hall explained: “it is through its discursive operations that race gives meaning to the world, makes a certain kind of sense of the world, constructs an order of intelligibility, organizes human practices within its categories, and thus comes to acquire real effects.” Race, in Halls’ words, is a “sliding signifier.”[2]

In a similar way, as a result of the recent attacks, the term “Critical Race Theory” is no longer simply a set of writings and theoretical interventions, but has become, as well, a sliding signifier, a discursive operation that, for many now, means much more than the original writings and does much more work. It has come to mean, for many, any form of race-consciousness. It has become now a discursive formation that gives meaning to the world we live in—for better or for worse.

The objective of this seminar, Revolution 6/13, was to productively push those meanings of Critical Race Theory and of racial discourse, to help inspire practices that will have positive real effects.

Kendall Thomas’s Intervention

At Revolution 6/13, Kendall Thomas provided a brilliant historical account of the emergence of Critical Race Theory (“CRT”) in the 1980s and of the very different political context within which we find ourselves today. Thomas explained how CRT emerged at a time in which the civil rights settlement of the 1960s was being unsettled. It was a time marked by the eclipse of the civil rights paradigm, the election of President Ronald Reagan, and the advent of the Rehnquist Court. CRT developed in the face of a retreat—and of the failed promise—of a rights paradigm based on the framework of political liberalism and the ideas of possessive individualism.

CRT arose as an alternative, within the academic and institutional setting of American law schools, to both the liberal political theory paradigm and the Marxist alternative that subsumed race and gender issues to class. It positioned itself, on the one hand, against liberal legalism, which views race as a moral question: racism is conceived here as a moral error by individuals and takes the form of discrimination. This is the humanist, universalist, moral position. It also positioned itself, on the other hand, against a Marxist view that subjugated racial questions to class conflict. In effect, CRT viewed racial matters neither through the lens of morality, nor simply of class conflict, but more fundamentally through the lens of power. At base, Thomas demonstrated, CRT was a theory of power that tried to show that racial discourse had its sources and effects outside of the state, predominantly in the domain of culture. For that reason, it drew heavily on the field of cultural studies that Stuart Hall helped develop; many of the central interventions of CRT—that culture is power, that law is a cultural form—were influenced by cultural studies as well as by poststructuralism, deconstruction, queer theory, and the writings of Foucault, Derrida, and others.

Insofar as we now face today, in the United States, a very different political constellation composed of strands of neoliberalism and financialized racial capitalism, “authoritarian populism” as Kendall Thomas mentions in his Oxford Lecture, and identity politics, and insofar as Critical Race Theory is now part of the national political debate (rather than the academic law school debate)—the stakes, the meanings, the work that CRT does have changed dramatically and require, Kendall Thomas argued, a rethinking and retheorization.

Kendall Thomas argued for two major and related interventions: first, that the question of racial justice should be considered a political, rather than moral question; and second, that “the task of critical race theory is to develop a theory of racial power without resort to, that is not dependent upon, and that is not the same as a theory of racial identity.”

In this final post, I will raise one question about the first claim (moral vs. political) and offer a few thoughts about the second (on identity politics).

1/  Racial Justice: Moral versus Political

In Kendall Thomas’s presentation here and in his earlier essay, he argues against a moral understanding of racial (in)justice. He argues that questions of racial justice are not a matter of individual moral judgment (for good or bad), nor of individual virtue, but a matter of the broader political relations in a collectivity: a question of relations of power in society. As he wrote in his essay, “In my view, this ‘moral constriction’ of the public debate over racial justice fails to capture the distinctive and constitutive role of the political in racial claims-making.”[3]

I hear that as a confrontation between a certain kind of political or legal liberalism versus a more Foucaultian conception of power.

The moral view is tied to a type of possessive individualism of traditional modern political theory (Hobbes and Locke) that makes each one of us individually responsible for harm to others, in this case for racial harm to others. It is this underlying possessive individualism that grounds the conventional liberal legal responses of civil rights litigation: the idea that we have to identify the individual bad apples, who are in a sense morally culpable as individuals, and punish or correct them. This was the civil rights paradigm that CRT rebelled against, as is so well explained in Kendall Thomas’s and his co-author’s introduction to the CRT volume.[4]

The political view, I associate with the more modern conception of relations of power that Foucault, Stuart Hall, and others put on the table. It does not focus on individual acts of immorality, but rather on the collective practices and institutions to see how power and forms of domination are distributed and maintained. This is what gives rise to notions of systemic or institutional racism that Hall and Manning Marable wrote about.

Now if this is right, then race and racism is one domain that intersects others—gender, sexuality, class—where we need to shift our ways of understanding the world from a liberal political theory view to a more critical perspective. And the question here, then, is how those domains differ in terms of how to create the paradigm shift? How does racial justice differ and intersect with gender or class justice so as to shift the liberal paradigm to a new, more structural and institutional conception of relations of power?

Taking a political view of racial justice requires three tasks, Kendall writes:

  1. “to secure and maintain for vulnerable racial publics equal and meaningful access to the processes of self-governance through which democratic political identities are formed and given expression” (86-87);
  2. “to insure that the voices and interests of vulnerable racial publics are not excluded from the state institutions in which binding collective choices are discussed and made” (87); and
  3. “an ongoing effort to facilitate what Jane Mansbridge calls ‘enclaves of resistance’ within vulnerable racial publics, a protected space for developing oppositional ideas about racial justice and its opposite” (87) – what Nancy Fraser calls “subaltern counterpublics.”

I think these tasks rest on the idea of “vulnerable racial publics.” But the different political extremes would split on what vulnerability is and what it entails—or how a public is rendered vulnerable. The conservatives will likely argue that any race-consciousness will create “vulnerable” racial publics, not protect them. So we are back to square one. How exactly do we shift the paradigm without inserting that shift in our argument?

2/   The Question of Identity Politics

I hear in Kendall Thomas’s second argument two threads or strains of thought: an argument against essentializing identities, and an even more radical argument about “undoing” identity or “queering” racial identity. This raises three issues I would like to raise and formulate as preliminary thoughts.

a/ anti-essentialism

b/ undoing subjectivity or “de-subjectification”

c/ racial identity as a discursive formation

A.    Anti-essentialism

CRT, as originally formulated, contained a robust critique of essentialized identity politics, from the start. It formulated, as one of its main theoretical foundations, a principle of anti-essentialism.

In Kendall Thomas and his colleagues’ introduction to Key Writings, there is a sharp critique of what they called at the time “racialism”:

black racialism yields a flat, fixed image of racial identity, experience and interest, which fails to capture the complex, constantly changing realities of racial domination in the contemporary U.S.[5]

In the introduction, the authors referred to this as “crude essentialism” and targeted in particular the support, in certain segments of Black communities, for the nomination of Clarence Thomas to the Supreme Court.[6]

At the same time, and on the other hand, Thomas and his colleagues rejected what they called “vulgar anti-essentialism”—the position which argued, from a critical perspective (here, primarily Critical Legal Studies), that, since race was entirely a social construction and did not really exist, it could not serve as the basis for critique. Some Crits wanted effectively to give up on the category of “race” as an anti-essentialist move.[7] And of course, other Marxist Crits (Žižek today for instance) want or wanted to subsume race to class—a well-known and ongoing controversy over class, race, and caste going back to the famous 1948 book by Oliver Cox by that name, Caste, Class, and Race.

To summarize these different strands, Thomas and his colleagues wrote back then:

It was obvious to many of us that although race was, to use the term, socially constructed (the idea of biological race is “false”), race was nonetheless “real” in the sense that there is a material dimension and weight to the experience of being “raced” in American society, a materiality that in significant ways has been produced and sustained by law. Thus, we understood our project as an effort to construct a race-conscious and at the same time anti-essentialist account of the processes by which law participates in “raceing” American society.[8]

In other words, anti-essentialism was core to CRT. And of course, we also find it in Hall and Marable. Marable, for instance, allows for an anti-essentialist “sorting” of African-Americans as between more assimilationist and more separatist thinkers and actors. In the “Third Reconstruction,” African-Americans will be able to decide whether to form part of the post-capitalist predominantly-white society or the Black nation.

The idea of anti-essentialism, of course, is not to get rid of identity entirely, but to push back on the essentializing claims about identity. This was also the move that many progressive thinkers deployed in response to the essentializing critiques of Carol Gilligan’s work on gender difference, In a Different Voice. Some responded that the contrast between genders was not a binary opposition, but slightly different Bell-curves; so that not all women are relationship-oriented and not all men are rule-oriented, but that the normal curves are a little different along these lines. It’s more likely that a girl or woman will be relation-oriented then a boy or man. A question of probabilities.

So one question here is whether anti-essentialism can do all the work Kendall Thomas might want to do in moving away from an identity politics – and if not, why not?

B.     Undoing Racial Identity and De-subjectification

Kendall Thomas’s critique of identity politics can be read as a form of undoing of identity, of de-subjectification, of queering of racial identity. By queering, I make reference to the way in which Queer Theory troubled and deconstructed gender binarities, drawing importantly on Foucault’s History of Sexuality. Stuart Hall develops this in his critique of race as fixed identity in The Fateful Triangle, when he proposes a discursive theory of race:

There is no escape from what Mikhail Bakhtin would call the “multiaccentuality” of racial meaning, no way of preventing culture from slipping and sliding within the indeterminate semiosis of meaning; hence there is no way of limiting or trying to fix the varieties of subjects that black people will become. The way in which the discursive structures of a culture become permeable, reconstitutable, and thus “historical” in the best and only sense of the word means that black identities are incapable of being harnessed to a mere repetition of their origins, however those origins may be construed, for the multiaccentuality of race as a sliding signifier means there is no way to limit the varieties of identity that the black experience will come to include.[9]

In the article we read, “Culture, Resistance, and Struggle,” but also in The Fateful Triangle: Race, Ethnicity, Nation, Hall explores the question of identity, trying to unearth the ways in which identities can be reclaimed and resignified. He is particularly interested in the ways in which Caribbean and South-Asian persons who immigrated to the U.K. were able to redeploy and resignify the identity of “black” in order to turn it into a form of solidarity.

Foucault found his inspiration for the notion of de-subjectification in Nietzsche, Bataille and Blanchot – actually his first steps toward it were with existential psychiatry in a text we will be publishing soon called Binswanger and Existential Analysis. De-subjectification was Foucault’s project: to create experiences that unsettled our experience of the present and our conceptions of self. For Foucault, drawing on the work of Nietzsche, the historical analysis of experience can lead to “the task of ‘tearing’ the subject from itself in such a way that it is no longer the subject as such, or that it is completely ‘other’ than itself so that it may arrive at its annihilation, its dissociation.”

I think that the effort to resignify racial identities—and to make it possible to undo the trappings of race—is of critical importance. Here too, the question is how it differs in the domain of race versus gender or sexuality or class, and at the intersections.

C.     The Paradox of Identity and Becoming

Stuart Hall ends his Du Bois lectures on a beautiful and inspiring note. He sketches an alternative imagination of diasporic subjects, a conception of diaspora as a form of subjectivity, that is fluid and changing and multi-dimensional, that does not fall victim to the fixity of identity or to the sliding nature of race and ethnicity. He speaks there of a conception of the “politics of identity” as not being a rigid form of identity politics, but rather what he calls “a field of positionalities.”[10] The politics of identity that he develops is one that is fluid, moving, becoming.

Hall does not want to talk about identity so much as “moving positions of identity that are transformed by history and culture.”[11] Relying on earlier work,[12] Hall suggests that “identity is not a matter of essence but of positioning, and hence there is always a politics of identity, a politics of position and positionality…”[13] He concludes there, “I am arguing that cultural identities matter not because they fix us into place politically but because they are what is at stake—what is won or lost—in cultural politics.”[14]

Hall reaches for a “positionality” of fluid identities. He writes, “rather than a binary structure in which positions can only repeat one another, are always in the same place, and stay fixed there until the end of time.”[15]

The notion of diaspora allows for a much more fluid and cosmopolitan subject, that negotiates spaces of travel and different languages. “Such subjects,” he writes “must learn to inhabit more than one identity, dwell in more than one culture, and speak more than one language.”[16] There is a romantic element to this ideal of the diasporic subject as having an openness to difference and being a kind of becoming in the final paragraph of the lectures. He writes, “such identities are always open, complex, under construction, taking part in an unfinished game.”[17] And then he concludes: “The question is not who we are, but who we can become. The task of theory in relation to the new cultural politics of difference is not to think as we always did, keeping the faith by trying to hold the terrain together through an act of compulsive will, but to learn to think differently.”[18]

There is here, too, a notion of becoming in the Nietzschean sense, becoming rather than being—a notion of transformation, fluidity, openness. This notion of becoming, and its paradoxical relation to identity, is what I feel I need to explore further. I will in a forthcoming essay for Social Research. So, farewell for now, but more to come soon…


[1] Kimberlé Crenshaw, Neil Gotanda, Gary Peller, and Kendall Thomas, Introduction to Critical Race Theory: The Key Writings That Formed the Movement (New York: New Press, 1995), xxxii.

[2] Stuart Hall, The Fateful Triangle: Race, Ethnicity, Nation [1994] (Cambridge, MA: Harvard University Press, 2017), 77.

[3] Kendall Thomas, “Racial Justice: Moral or Political?,” in Looking Back at Law’s Century, ed. Austin Sarat, Bryant Garth, Robert A. Kagan (Ithaca: Cornell University Press, 2002), 85.

[4] Crenshaw, Gotanda, Peller, and Thomas, Introduction to Critical Race Theory: The Key Writings That Formed the Movement.

[5] Crenshaw, Gotanda, Peller, and Thomas, “Introduction,” xxxi.

[6] Crenshaw, Gotanda, Peller, and Thomas, “Introduction,” xxxi.

[7] Crenshaw, Gotanda, Peller, and Thomas, “Introduction,” xxvi.

[8] Crenshaw, Gotanda, Peller, and Thomas, “Introduction,” xxvi.

[9] Hall, The Fateful Triangle, 76.

[10] Hall, The Fateful Triangle, 172.

[11] Hall, The Fateful Triangle, 127 [find quote, not sure of page].

[12] Hall, The Fateful Triangle, see footnote three on page 190.

[13] Hall, The Fateful Triangle, 130.

[14] Hall, The Fateful Triangle, 130.

[15] Hall, The Fateful Triangle, 172.

[16] Hall, The Fateful Triangle, 173.

[17] Hall, The Fateful Triangle, 174.

[18] Hall, The Fateful Triangle, 174.