Foreword: 'racialism' and reason.

• Author: Michelman, Frank I.
• Position: Symposium: Representing Race

Clueless, I am not; but still I can wonder why I, of all people, was recruited to write a foreword for this symposium -- sight unseen, before its component papers had even been submitted. Neither legal representation nor the teaching of it has ever seen for me a main activity or focus of scholarly reflection. Although I have written occasionally about race -- in defense of busing,(1) on the side of affirmative action(2) -- no one could mistake me for a critical race theorist. I am the original-model imperial scholar,(3) as of last report only partially redeemed.(4) "Liberal" is the usual name for the brand of legal theorist I think I am and certainly intend to be. But isn't "liberal" an opposite to "critical?" So what am I doing here?

Okay, I'm publicly certifiable as a liberal who's been soft on critical race theory (CRT) -- a liberal who for whatever reasons has been expressly receptive to some of the characteristic contentions of CRT(5) and strongly supportive of its place at the legal academic spread.(6) Still, why would anyone want to solicit for this space the kind of diplomatic hedging with CRT (or, worse, the sort of noblesse oblige patronization of it) that you'd have to expect from such a compromised character? Ulterior motives are not beyond imagining: someone could be thinking to jack up the symposium's cachet or circulation by getting my name on its cover. If so, lotsa luck.

I lean to a different explanation for my invitation to be here: someone, I like to think, is pulling my chain. Someone got the idea that it would be interesting and fun to see what would happen if you took a bent-over-backwards liberal like me and locked him up (by a commitment to write a foreword) with a bunch of unvarnished calls to race-conscious social action that (someone thought) his liberal principles can't accept and his bleeding heart or PC reflex can't reject. Seems like a neat idea, too, although perhaps I'm not the one to say. Anyway, to find out how the guy's wheels come off -- or maybe don't -- read on.

To my (I'm afraid, incorrigibly modernist) cast of mind,(7) what the essays in this symposium most significantly have in common is not any commitment of manner, method, or metatheory, manifest and important as such commitments are in them and in the larger CRT corpus. The central concern here, as I see it, is not narrativity or irony or deconstruction; not the social metaphysics of position, perspective, and the constructedness of consciousness (with related explanations of the persistent systemic effects of race in American life); not the nemesis of essentialism; and not even the issue of law's possible transcendence of politics or morality's of experience. These essays' most telling shared commitment, I find, is to a highly contentious proposition of moral substance, one that I shall call "the race proposition."

To my understanding, the contentious CRT race proposition comes down roughly to the following. (1) Race in America is both real and socially (including legally) constructed; it is a real social phenomenon of groups constituted by projected and correlatively experienced relations among their memberships of superiority and inferiority, patronage and clientage, privilege and disprivilege. (2) Those projections and relations and their material correlates are a grave affront to justice, against which legal actors -- lawmakers, judges and jurors, legal advocates and counselors, teachers and scholars of law -- morally ought to direct their practices, pragmatically (to that end)...