Of all American legal journals, the California Law Review has published perhaps the richest and most extensive body of scholarship on the subject of race and equality in the country. With foundational articles by Tussman & tenBroek,1 Derrick Bell,2 Juan Perea,3 Angela Harris,4 Ian Haney López,5 and many others over the years,6 the California Law Review stands virtually alone in its contribution to and influence in this socially important field.
Centennial occasions like this one are opportunities to step back and examine accomplishments like these and to take a broad view of the path one has trod. In what follows I examine the Review’s race scholarship as a whole, looking for patterns, signs of strain, significant changes, and theoretical breakthroughs. I look primarily for broad outline and structure. Thus, I do not plan to critique any particular article, respond to ones I disagree with, or put any article or group of them under the lens. Instead, I shall be looking at all of them at once in search of contours that only emerge on taking this more encompassing view. In undertaking this survey, I hope to illuminate where we are today in our thinking on American race theory, and highlight the role that the California Law Review has played in bringing us here.
What I find, upon examination, is essentially two different binary paradigms of racial thought,7 one familiar to readers of this literature,8 the other less so.9 The first and more familiar paradigm conceives of American race relations as occurring within a black-and-white dichotomy. The second paradigm, which has emerged more recently, focuses instead on the relationship between individual rights and equality protection. What is most surprising is not so much the existence of two different paradigms, but rather that they are nested, with one inside the other.10 The black-white paradigm approaches racial discrimination, a subset of general equality concerns, by thinking in terms of racial groups, and has resisted approaching race in individualized terms. The individual rights-equal protection paradigm, which addresses broader equality issues, thinks in terms of classes of protection, and had resisted approaching equality in individual liberty concerns. Furthermore, recent scholarship has (separately) criticized both paradigms for their balkanizing approaches to equality concerns, offering more unifying approaches.
I begin by describing the two paradigms and the evidence supporting their existence. Again, the reader should not mistake my intention. I believe each paradigm is fully justified and analytically helpful.11 Attending to each can aid in the search for a more just society.12 Each one is thoroughly justifiable in light of social reality and the history of race.13 Each helps us understand the case law and the march toward a more humane legal system.14
After briefly describing the two paradigms, I turn to their relation. I explain how these paradigms are nested within each other and why I believe this relationship tells us something about the evolution of thought on a difficult subject.15 The California Law Review has published a large and impressive body of scholarship on race, most of it of the highest order. It has helped to introduce and critique two important paradigms of modern race theory, and, as I will argue, may be leading the way to a new paradigm that may help to transcend some of the problems with current racial thought.
1.Joseph Tussman & Jacobus tenBroek, The Equal Protection of the Laws, 37 CALIF. L. REV. 341 (1949) (discussing interpretation of the Constitution’s Due Process and Equal Protection Clauses and pointing out that the tide had been running against equality and in favor of due process. No longer “the last resort of constitutional lawyers . . . [and] a dubious weapon in the armory of judicial review[,] . . . after eighty years of relative desuetude, the Equal Protection Clause is now coming into its own” drawing attention to over- and under-inclusive laws and ones that permit too much administrative discretion).
2.Derrick A. Bell, Jr., Racism in American Courts: Cause for Black Disruption or Despair?, 61 CALIF. L. REV. 165 (1973) [hereinafter Bell, Despair] (exploring the impact on black defendants of implicit and explicit racial bias in the legal system); Derrick A. Bell, Jr., Bakke, Minority Admissions, and the Usual Price of Racial Remedies, 67 CALIF. L. REV. 3 (1979) [hereinafter Bell, Usual Price] (discussing reasons for the slow progress of civil rights law, including the conviction that remedies should harm no member of the white race); Derrick Bell, Foreword: The Final Civil Rights Act, 79 CALIF. L. REV. 597 (1991) (noting the deterioration of 1960s–era civil rights legislation and positing that minorities should back a “Racial Preference Licensing Act” allowing firms to discriminate on the basis of race by purchasing a license to do so, with the proceeds supporting black community development).
3.Juan F. Perea, The Black/White Binary Paradigm of Race: The “Normal Science” of American Racial Thought, 85 CALIF. L. REV. 1213 (1997) [hereinafter Perea, Black/White] (describing how contemporary civil rights scholarship places the problems of two groups, black and white, at the center of analysis).
4.Angela P. Harris, Foreword: The Jurisprudence of Reconstruction, 82 CALIF. L. REV. 741 (1994) [hereinafter Harris, Jurisprudence of Reconstruction] (discussing critical race theory’s agenda, including an emphasis on transformation rather than incremental reform); Angela P. Harris, Equality Trouble: Sameness and Difference in Twentieth-Century Race Law, 88 CALIF. L. REV. 1923 (2000) [hereinafter Harris, Equality Trouble] (describing how race-reform law continually accommodates white supremacy, although the means by which it does so shift with the times).
5.Ian F. Haney López, Race, Ethnicity, Erasure: The Salience of Race to LatCrit Theory, 85 CALIF. L. REV. 1143 (1997) [hereinafter Haney López, Salience] (observing that race rather than ethnicity or some other feature best accounts for Latinos’ historical experience); Ian F. Haney López, Post-Racial Racism: Racial Stratification and Mass Incarceration in the Age of Obama, 98 CALIF. L. REV. 1023 (2010) [hereinafter Haney López, Post-Racial Racism] (noting that imprisonment rates for minority groups have increased dramatically since the 1960s, and exploring the possibility that President Barack Obama’s election presages a reduction in racialized mass incarceration).
6.See, e.g., Kathryn Abrams, Race and Races: Constructing a New Legal Actor, 89 CALIF. L. REV. 1589 (2001) (discussing the role of race in the legal curriculum); Anthony V. Alfieri, Book Review, Teaching the Law of Race, 89 CALIF. L. REV. 1605 (2001) (same); Anthony V. Alfieri, Book Review, Black and White, 85 CALIF. L. REV. 1647 (1997) (exploring critical race theory as an emerging reform movement with varying goals); Frances Lee Ansley, Race and the Core Curriculum in Legal Education, 79 CALIF. L. REV. 1511 (1991) (urging greater incorporation of race and racial analysis into mainstream legal education); Jody Armour, Stereotypes and Prejudice: Helping Legal Decisionmakers Break the Prejudice Habit, 83 CALIF. L. REV. 733 (1995) [hereinafter Armour, Stereotypes and Prejudice] (discussing the problem of jurors who harbor unconscious racial stereotypes); John O. Calmore, Book Review, Displacing the Common Sense Intrusion of Whiteness from Within and Without: “The Chicano Fight for Justice in East L.A.,” 92 CALIF. L. REV. 1517 (2004) (discussing race, white privilege, and Latinos with black ancestry); Devon W. Carbado, Yellow by Law, 97 CALIF. L. REV. 633 (2009) (noting law’s role in the construction of racial groups); Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 CALIF. L. REV. 1241 (1993) (arguing that traditional scholarship fails to address the unique legal issues confronting Asian Americans); Richard Delgado, Recasting the American Race Problem, 79 CALIF. L. REV. 1389 (1991) (positing that many of the defects of liberalism will yield to the insights of critical race theory); Richard Delgado, Rodrigo’s Third Chronicle: Care, Competition, and the Redemptive Tragedy of Race, 81 CALIF. L. REV. 387 (1993) [hereinafter Delgado, Third Chronicle] (describing obstacles to empathy across racial lines); Richard Delgado, Rodrigo’s Eleventh Chronicle: Empathy and False Empathy, 84 CALIF. L. REV. 61 (1996) [hereinafter Delgado, Eleventh Chronicle] (same); Richard Delgado & Jean Stefancic, Essay, Hateful Speech, Loving Communities: Why Our Notion of “A Just Balance” Changes So Slowly, 82 CALIF. L. REV. 851 (1994) [hereinafter Delgado & Stefancic, Loving Communities] (exploring why hate-speech reform has been so slow in arriving); Richard Delgado & David H. Yun, Essay, Pressure Valves and Bloodied Chickens: An Analysis of Paternalistic Objections to Hate Speech Regulation, 82 CALIF. L. REV. 871 (1994) [hereinafter Delgado & Yun, Pressure Valves] (discussing common objections to hate-speech regulation); Leslie Espinoza & Angela P. Harris, Afterword: Embracing the Tar-Baby—LatCrit Theory and the Sticky Mess of Race, 85 CALIF. L. REV. 1585 (1997) [hereinafter Espinoza & Harris, Tar-Baby] (analyzing black exceptionalism and its implications for interracial coalition); Daniel A. Farber & Suzanna Sherry, Is the Radical Critique of Merit Anti-Semitic?, 83 CALIF. L. REV. 853 (1995) [hereinafter Farber & Sherry, Critique of Merit] (charging critical theorists with anti-Semitism in rejecting a conception of merit that Jews and Asians have used to advance themselves); Sheila Foster, Justice from the Ground Up: Distributive Inequities, Grassroots Resistance, and the Transformative Politics of the Environmental Justice Movement, 86 CALIF. L. REV. 775 (1998) (noting that existing legal structures provide little remedy for disproportionate placement of environmental hazards in minority communities but that grassroots activism offers promise); Gary A. Greenfield & Don B. Kates, Jr., Mexican Americans, Racial Discrimination, and the Civil Rights Act of 1866, 63 CALIF. L. REV. 662 (1975) [hereinafter Greenfield & Kates, Mexican Americans] (discussing application of federal civil rights statutes to Mexican Americans); Cheryl I. Harris, Book Review, Whitewashing Race: Scapegoating Culture, 94 CALIF. L. REV. 907 (2006) [hereinafter Harris, Scapegoating Culture] (noting that attempts to remedy racism and inequality often collide with deeply-held cultural norms described as “racial frames”); Lowell Howe, The Meaning of “Due Process of Law” Prior to the Adoption of the Fourteenth Amendment, 18 CALIF. L. REV. 583 (1930) (discussing the clause’s evolution as a limitation on arbitrary governmental action); Alex M. Johnson, Jr., Bid Whist, Tonk, and United States v. Fordice: Why Integrationism Fails African-Americans Again, 81 CALIF. L. REV. 1401 (1993) [hereinafter Johnson, Bid Whist] (citing variants of poker and bridge, popular within the African-American community, to explain the need to respect black distinctness in the process of desegregation); William C. Kidder, Comment, Does the LSAT Mirror or Magnify Racial and Ethnic Differences in Educational Attainment?: A Study of Equally Achieving “Elite” College Students, 89 CALIF. L. REV. 1055 (2001) (demonstrating racial bias in a common test of analytical aptitude); Linda Hamilton Krieger, Civil Rights Perestroika: Intergroup Relations after Affirmative Action, 86 CALIF. L. REV. 1251 (1998) [hereinafter Krieger, Perestroika] (reviewing the debate over affirmative action in light of social science evidence); Charles J. McClain, Jr., The Chinese Struggle for Civil Rights in Nineteenth Century America: The First Phase, 1850–1870, 72 CALIF. L. REV. 529 (1984) [hereinafter McClain, Chinese Struggle] (discussing periods of nativism and resistance toward the Chinese community during the nineteenth century); Dudley O. McGovney, The Anti-Japanese Land Laws of California and Ten Other States, 35 CALIF. L. REV. 7 (1947) [hereinafter McGovney, Anti-Japanese Land Laws] (criticizing state laws that deprived certain aliens of the ability to own farmland); Dudley O. McGovney, Naturalization of the Mixed-Blood—A Dictum, 22 CALIF. L. REV. 377 (1934) (same); Angela Onwuachi-Willig et al., Cracking the Egg: Which Came First—Stigma or Affirmative Action? 96 CALIF. L. REV. 1299 (2008) (investigating whether affirmative action stigmatizes its beneficiaries); Robert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 CALIF. L. REV. 1 (2000) (calling for sociological study of the purposes of civil rights law); Cristina M. Rodríguez, Language and Participation, 94 CALIF. L. REV. 687 (2006) (arguing for language rights as a way to strengthen participatory democracy in mid-level institutions such as schools and workplaces); Reva B. Siegel, Discrimination in the Eyes of the Law: How “Color Blindness” Discourse Disrupts and Rationalizes Social Stratification, 88 CALIF. L. REV. 77 (2000) (evaluating the effects of addressing racial injustice in colorblind terms); Stephen D. Sugarman & Ellen G. Widess, Equal Protection for Non-English-Speaking School Children: Lau v. Nichols, 62 CALIF. L. REV. 157 (1974) (discussing school policies that disadvantage non-English speaking children); Stephanie M. Wildman, Thinking About Race and Races, 89 CALIF. L. REV. 1589, 1653, 1656 (2001) (noting “silences, omissions, and strained reasoning” in judicial treatments of race and racism); Eric K. Yamamoto, Book Review, Teaching Race Through Law: “Resources for a Diverse America,” 89 CALIF. L. REV. 1641 (2001) (urging increased scholarly attention to the legal dimensions of Japanese internment and reparations for it).
These are but a sample of the many notable articles on race and equality that have appeared in the pages of the Review since 1912; I introduce a few others later in this Essay. The list does not include symposium issues on specialized topics such as voting, economic development, or the Bakke decision, nor articles on narrow technical topics such as Indian jurisdiction or affirmative action. Nor does it contain many pieces predating the 1960s, when writing on civil rights exploded. See, e.g., Chester James Antieu, Equal Protection Outside the Clause, 40 CALIF. L. REV. 362 (1952) (analyzing non-Fourteenth Amendment legal avenues to ensure equal protection of the laws); Edward E. Ferguson, The California Alien Land Law and the Fourteenth Amendment, 35 CALIF. L. REV. 61 (1947) (attacking a 1913 California alien land law as a discriminatory and unconstitutional measure aimed at denying Japanese-Americans the right to own their own land); Ira Michael Heyman, Federal Remedies for Voteless Negroes, 48 CALIF. L. REV. 190 (1960) [hereinafter Heyman, Federal Remedies] (surveying legal avenues through which African Americans could enforce their right to vote); Jacobus tenBroek, Thirteenth Amendment to the Constitution of the United States—Consummation to Abolition and Key to the Fourteenth Amendment, 39 CALIF. L. REV. 171 (1951) (exploring the historical impetus for the Thirteenth Amendment).
The earliest reference to race or racial traits in the Review is Henry Winthrop Ballantine, Military Dictatorships in California and West Virginia, 1 CALIF. L. REV. 413, 413 (1912) (noting Mexico’s “penchant for dictators” and observing that not a few U.S. Army generals and mayors exhibited the same trait in the wild West).
7.See infra Part II (describing two paradigms of civil rights thought, a black-white binary paradigm and an equal-protection/due process one).
8.The black-white binary paradigm of race is likely familiar to most Americans, and particularly to intellectuals familiar with critical race theory. See, e.g., Perea, Black/White, supra note 3, at 1214 (noting that the black-white racial paradigm is “one of the most salient features of past and current discourse about race in the United States”); Espinoza & Harris, Tar Baby, supra note 6, at 1593 (arguing that “[c]ritical race scholars see race as a black/white binary problem” and that this shortcoming “leads to failure to understand racism”).
9.See infra Section II.B, describing a second paradigm that focuses on individual rights and equality protection.
10.See infra Part III (describing this relation).
11.By “analytically helpful,” I mean that each paradigm is relatively clear and well defined, is a relatively accurate picture of how we talk, think, reason, and decide cases at a given moment in history, and is to that extent helpful in understanding the social reality of racism in American society. Paradigms, however, are like frost crystals that disappear on exposure to the sun. As soon as one starts talking about a paradigm, its days are numbered. See infra notes 133–41 and accompanying text. Labeling a paradigm—giving it a name and speaking of it as such—is thus a sign of its impending demise. One only speaks of paradigms in the past tense (“the way we used to speak and act”). See infra notes 133–37 and accompanying text.
12.More just, that is, from the perspective of those who operate within the dominant paradigms and have mastered the social understandings associated with them. See infra notes 134–35, 142–44 and accompanying text (describing some of the benefits that accompany this mastery of the most common binary paradigms of racial thought).
13.Of course, new outsider groups will someday come to question the justifiability of existing paradigms when they find no room within them for the questions they find pressing. See infra notes 131–53 and accompanying text; Greenfield & Kates, Mexican Americans, supra note 6; McClain, Chinese Struggle, supra note 6.
14.I explore the mechanism by which ousting outdated paradigms contribute to a more inclusive legal system in Section II.A infra, by explaining how an inchoate sense of dissatisfaction always attends recognition of a paradigm, legal or otherwise. When the paradigm is binary, the discontented faction is apt to be a third group that finds itself marginalized by the current one. See supra note 13; infra notes 131–46 and accompanying text; see also Tanya K. Hernandez, Afro-Mexicans and the Chicano Movement: The Unknown Story, 92 CALIF. L. REV. 1537, 1544 (2004) (noting that many Chicano scholars carefully ignore their black roots); Bill Ong Hing, Beyond the Rhetoric of Assimilation and Cultural Pluralism: Addressing the Tension of Separatism and Conflict in an Immigration-Driven Multicultural Society, 81 CALIF. L. REV. 863 (1993) (considering whether separatism is a viable approach to achieving racial justice in a culturally pluralist United States); McClain, Chinese Struggle, supra note 6; Rachel Moran, What if Latinos Really Mattered in the Public Policy Debate? 85 CALIF. L. REV. 1315, 1316 (1997) (noting the absence of Latino issues from social-policy agendas and arguing that this absence “can obscure the special concerns of Latinos and prevent them from emerging as a complex and compelling people in their own right”).
15.See infra Part III.A–C (describing some of the respects in which current racial paradigms may be breaking down); see also infra Part III.C and Conclusion (describing the gains I hope will emerge from this inquiry), and in particular note 167 (outlining what a larger, more inclusive paradigm might look like).