How Critical Race Theory Marginalizes the African American Christian Tradition

Brandon Paradise October, 2014

This Article offers the first comprehensive account of the marginalization of the African American Christian tradition in the movement of race and law scholarship known as critical race theory. While committed to grounding itself in the perspectives of communities of color, critical race theory has virtually ignored the significance of the fact that the civil rights movement came out of the Black church and that today more than eighty percent of African Americans self-identify as Christian. In practical terms, critical race theory’s neglect of the Christian tradition has meant that arguments developed in race and law scholarship are sometimes incompatible with the deeply religious normative frameworks that many Black Americans bring to bear on issues of law and justice. As a result, there is a significant disconnect between race and law scholarship and the comprehensive normative commitments of the community whose concerns that scholarship seeks to address. By offering the first comprehensive account of this disconnect, this Article supplies an important foundation for scholars who wish to close the gap between race and law scholarship and the larger African American community.

Introduction

Although joined by secularists, the civil rights movement was fundamentally a religious movement: born in the Black church and powered by the Black prophetic tradition.¹ Marching together in prayer and song,² the brave women and men who confronted and overcame the evil of racial apartheid did so with confidence that God was on their side and that victory against the evil of racism would, whatever the cost, ultimately be won.³ Yet, notwithstanding the undeniable and powerful role that the African American Christian tradition played in defeating the evil of Jim and Jane Crow, and notwithstanding the still central role of faith for overwhelming majorities of Black people,⁴ most race and law scholarship fails to articulate religiously grounded normative sources.

A thoughtful observer might assume that the marginalization of the African American Christian tradition in race and law scholarship reflects a general trend in American society toward secularization in the years following the civil rights movement.⁵ A thoughtful observer might also assume that race and law scholarship neglects African American religious sensibilities because academics are, on the whole, less religious and more secular than the general population.⁶ Yet, even if accepted, neither of these suggestions adequately explains the neglect of religion in race and law scholarship.

As a matter of principle, the major intellectual force in race and law scholarship, critical race theory (CRT), is committed to anchoring itself in and ensuring that the legal academy includes the perspectives of people of color.⁷ Considering CRT’s commitment to producing scholarship from the perspective of Black people together with the fact that seventy-eight percent of African Americans identify as Protestant and seventy-two percent of African American Protestants report that “God’s law” provides the basis for right and wrong⁸—notwithstanding the degree to which American culture or, more narrowly, the academy has undergone increasing secularization—the neglect of religious sensibilities in CRT requires further explanation. For the same reason, assuming, in arguendo , that race and law scholars are far less religious than the broader African American community, CRT’s commitment to including in legal scholarship the perspectives of communities of color would seem to require far greater attention than has been given to African American religious sensibilities.

It is the task of this Article to grapple with why—despite the prominence of the Black church in the civil rights movement, the still central role of faith for many African Americans, and CRT’s commitment to addressing racial subordination from the perspectives of Black people—religiously grounded normative arguments are rarely advanced and have played, at best, only a marginal role in race and law scholarship.

Although the importance of grappling with this question should be obvious, before describing my efforts to engage this puzzle, I will provide two reasons that this inquiry is significant. First, understanding how the religious character of the social movement that overthrew legalized racial subordination has been marginalized in the body of legal scholarship that seeks to continue that movement is a profound question about the nature and genealogy of social justice and antisubordination advocacy. Second, for persons of faith—who represent the overwhelming majority of African Americans—seeking to understand the marginal role of religious sensibilities in CRT scholarship constitutes an engagement with one of the most enduring foci of human life, the problem of self-knowledge, grounding, and orientation. It is to ask: how do one’s ultimate commitments relate to as well as orient and ground one with respect to CRT scholarship and its commitment to addressing racial subordination?⁹

Before describing how I engage the marginal role of religious reasons in CRT scholarship, a proviso is in order. While African Americans are overwhelmingly Christian and, specifically, Protestant, African Americans practice a wide variety of faith traditions, including Islam, Judaism, Buddhism, African traditional religions, and non-Protestant Christian traditions, including Catholicism and Eastern Orthodoxy.¹⁰ Accordingly, religiously grounded normative arguments from a wide variety of traditions can help to develop self-knowledge among African Americans. Despite the great diversity of religions among African Americans, in the interests of manageability, this paper’s examination of the role of religiously grounded normative arguments in CRT focuses on the neglect of normative arguments grounded in the Christian tradition. While aware of the limitations of this approach, I think it is justified by Christianity’s disproportionate role in African American history and by virtue of the fact that nearly eighty-four percent of contemporary African Americans identify as Christian.¹¹

Our inquiry proceeds in two parts. In the first part, I seek both to substantiate my claim that the African American Christian tradition has played only a marginal role in CRT scholarship and to develop my claim that legal scholarship grounded in the African American Christian tradition can further self-knowledge among African Americans. In the second part, I seek to understand why CRT has failed to develop a substantial literature engaging the law from the perspective of the African American Christian tradition. I essentially conclude that CRT’s deep debt to Black nationalist/Black power and left radical thought renders CRT at best indifferent to Christianity.

In light of the conclusions reached in Part II, I conclude that a substantial body of legal scholarship developed from the normative resources of African American Christianity is unlikely to develop within CRT. However, I also note that there is little discursive room to develop such a literature within the colorblind tendencies of mainstream scholarship. As a result, any effort to develop a substantial body of legal scholarship engaging the law from the perspective of the African American Christian tradition finds itself sandwiched between, on the one hand, left radical thought and, on the other hand, colorblind approaches to law. Accordingly, developing a substantial body of legal scholarship capable of furthering the self-understanding of African American Christians will require pioneering scholars who are willing to create new discursive space and, as I suggest in closing, a new and distinctive approach to legal scholarship.

I. Critical Race Theory, African American Christianity

and Self-Knowledge

A. Critical Race Theory and Christianity In light of the fact that a significant majority of African Americans are Protestants¹² and that a substantial percentage of this majority report that “God’s law” provides the basis for right and wrong,¹³ the Christian tradition constitutes an undeniably important source of normative meaning for a majority of African Americans. Yet, despite the deep, historical, and enduring connection between the African American community and the Christian faith, Christianity has neither been central to nor has it deeply informed CRT as a movement of legal scholarship.¹⁴ Of the twenty-seven articles that form the anthology, Critical Race Theory: The Key Writings that Formed the Movement (1995), only one article draws on the Christian tradition: Anthony Cook’s Beyond Critical Legal Studies: The Reconstructive Theology of Dr. Martin Luther King, Jr. ¹⁵ Even more starkly, of the sixty-three articles gathered in the anthology, Critical Race Theory: The Cutting Edge (2000), none interrogate race and law from the perspective of the African American Christian tradition.¹⁶ Similarly, none of the nineteen articles in the anthology, Crossroads, Directions, and a New Critical Race Theory (2002), focus on the intersection of race, law, and Christianity.¹⁷ Finally, in the introduction to their book, Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment , celebrated critical race theorists Mari Matsuda, Charles Lawrence III, Richard Delgado, and Kimberlé Crenshaw write that CRT is interdisciplinary, borrowing “from several traditions, including liberalism, law and society, feminism, Marxism, poststructuralism, critical legal theory, pragmatism, and nationalism.”¹⁸ Consistent with the marginal to nonexistent role that the African American Christian tradition has played in leading CRT anthologies, Christianity is not included among the traditions that four important CRT scholars list as contributing to CRT.¹⁹

While we can thus conclude that the African American Christian tradition has not been central to CRT scholarship, individual scholars have nevertheless authored articles examining race, law, and the Christian tradition.²⁰ Indeed, over a series of articles and a monograph, Anthony Cook has produced an invaluable body of writings drawing on the Christian tradition and developing arguments underscoring the importance of religiospiritual values to progressive politics and legal reform.²¹ While no other legal scholar has matched Cook’s sustained attention to critically examining the relationship between the Christian tradition and race and law, other scholars have also written in the area.²² Although this literature is but a spatter against the substantial volume of existing race and law scholarship, and has sometimes been written in the form of a book review or as a book chapter in a volume dedicated to examining the general connection between faith and law, a small and sporadic volume of literature examining the intersection of race, law, and the Christian tradition does exist.²³ What does not (yet) exist is a sustained body of scholarship in which legal scholars are developing the connections between race, law, and African American Christianity in dialogue with one another—a dialogue with an eye toward constructing a common conversation and set of understandings about the implications of the African American Christian tradition for American law.

Given the central role of Christianity among a strong majority of African Americans, as well as CRT’s emphasis on the importance of developing a body of legal scholarship that “looks to the bottom” and reflects the normative perspectives of communities of color,²⁴ developing a robust literature grounded in the normative resources of the African American Christian tradition appears to be consistent with CRT’s character as a project. Indeed, such a body of literature would represent the work of what Antonio Gramsci calls an “organic intellectual,”²⁵ who through a philosophy of praxis “construct[s] an intellectual-moral bloc which can make politically possible the intellectual progress of the mass and not only of small intellectual groups.’”²⁶ Moreover, such a body of critical scholarship would squarely fit legal scholar Mari Matsuda’s widely influential argument, inspired in part by Gramsci’s concept of the “organic intellectual,” that “the actual experience, history, culture, and intellectual tradition of people of color in America” should serve as the epistemological source for critical scholars.²⁷

If we take seriously the value of grounding critical scholarship in the perspectives of Black people, then the need for a greater and more cohesive engagement with African American religious sensibilities is obvious.²⁸ Moreover, as a scholarly movement that aspires to bridge the divide between the legal academy and communities of color, that the African American Christian tradition has not played a more central role in CRT is puzzling and calls for explanation.²⁹ However, before we explore potential explanations, we first discuss (1) what it means to draw on the normative resources of the African American Christian tradition and (2) how drawing on these resources can advance the self-understanding of African American Christians.

B. Self-Understanding and Arguments Grounded in the Normative Resources of the African American Christian Tradition

To engage law from the vantage point of African American religious sensibilities is to think about and critique law from the perspective of religiously grounded normative sources. To appreciate what this means, it is helpful to first think about what a legal norm entails. Although exactly what a legal norm entails is the subject of enduring dispute and inquiry,³⁰ I proceed from the view that legal norms are rules, standards, or principles³¹ enforced by the state, constructed from social practice, and specifying standards of behavior against which conduct can be criticized.³² Accordingly, we are talking about a legal norm when we say: the law requires that X ‘ought,’ ‘should,’ or ‘must’ do Y.³³

Legal norms can be grounded in a diverse array of normative sources. That this is so is particularly apparent in a society as diverse as the contemporary United States, whose members cannot be assumed to share similar values or even value structures. In particular, for some citizens, religious commitments constitute near comprehensive sources of normative orientations, whereas other citizens may develop their normative commitments from sources, such as Kantian ethics, Rawlsian liberalism, and libertarian thought. Still other citizens form their normative commitments from a diverse array of both religious and nonreligious sources, and it is possible that at least some citizens do not seriously reflect on the sources of their normative commitments.

Owing in large part to the diversity of its citizenry, legal norms in the United States are sometimes controversial.³⁴ This is largely because normative commitments that are elevated to the status of legal norms occasionally conflict with the social practices and/or value structures of at least some citizens. This rather obvious point can be seen in political conflicts over such things as laws relating to or governing marijuana use,³⁵ affordable healthcare,³⁶ and affirmative action.³⁷

At this point it is helpful to introduce a distinction. Although closely related, the terms ‘norm’ and ‘normative’ must be distinguished. Following legal philosopher Stephen Perry, the “term ‘normative’ refers in a general and rather diffuse way to the full range of reasons for action that people can have, and thus includes within its scope moral and prudential reasons as well as reasons that derive from norms.”³⁸ In contrast, “[a] norm . . . has social or behavioral existence conditions.”³⁹ Thus, “[a] norm cannot exist unless somebody thinks that it has some effect on someone’s reasons for action, although by the same token it can exist even if it does not, in fact, affect anyone’s reason for action at all.”⁴⁰

While legal norms can rest on a wide variety of underlying normative beliefs, and so may be deeply controversial, it should go without saying that citizens with radically distinctive and even conflicting normative commitments may converge to support the same legal norm.⁴¹ Thus, whether citizens agree to oppose or support a particular legal norm depends on the content of their normative sources and how those sources bear on the particular legal norm at issue—not on whether their normative sources may conflict. Accordingly, citizens who draw on religious normative sources can come to the same conclusion as citizens who draw on secular normative sources about whether to support or to oppose a particular legal norm, and citizens who draw on religious normative sources may find themselves in disagreement with other citizens who draw on religious normative sources. It is, of course, also true that citizens who draw on secular normative sources can disagree about the desirability of a particular legal norm.

Given the indeterminacy of categories of normative sources, the African American Christian tradition has supported a rich variety of normative orientations on issues of great importance to the Black community.⁴² African American Christian thinkers have disagreed with each other about a wide variety of topics, including the moral status of nonviolence⁴³ and the Black power movement,⁴⁴ and the desirability of integration as a goal⁴⁵ and the relative importance of Black Liberation vis-a-vis reconciliation with Whites.⁴⁶ In addition to coming to different conclusions about how Christianity bears on these historically important questions of race relations, diverse interpretations of Christianity within the African American community have led to different conclusions about major topics, such as conformity to consumer culture and whether abortion and same-sex marriage should be legal.⁴⁷

As is clear from this brief discussion of some of the major topics on which African American religious sensibilities lead to differing normative positions, the turn to religiously grounded normative sources is not necessarily a turn to particular conclusions about substantive policy issues. As a result, the political implications of developing a more robust literature examining race and law from the perspective of such sources are not clear. Indeed, one of the reasons to develop such a literature is to increase our understanding of how a critically important source of normative meaning in the African American community bears on questions of race and law. In this sense, race and law scholarship grounded in the African American Christian tradition constitutes a phenomenological exploration of what it is to relate to American law as an Black Christian. Through such an exploration, race and law scholarship can further self-understanding among African American Christians.

To illustrate how race and law scholarship developed from the normative resources of the African American Christian tradition can deepen self-understanding among African American Christians, I now want to discuss a concrete example. In particular, through considering the poststructural rationale that has been used to support arguments that anti-discrimination law should be reformed to protect “rights-to-difference,” I illustrate how including African American religious sensibilities in race and law scholarship can enhance self-understanding among African American Christians.⁴⁸ More specifically, I will argue that the post-structural rationale for rights-to-difference conflicts with traditional Christian metaphysical commitments and fails to grasp the nature of African American historical resistance to racial subordination, thereby impeding self-knowledge among contemporary African American Christians. I then show how an argument for rights-to-difference developed from the normative resources of the African American Christian tradition both renders Black historical resistance intelligible and enhances the self-understanding of contemporary African American Christians. Before proceeding, I ask readers to bear in mind that this example is illustrative and intended to emphasize the value of including African American religious sensibilities in CRT. As such, what follows is neither intended nor required to be a comprehensive discussion of the connection between the African American Christian tradition and the post-structural rationale for rights-to-difference.

1. Christianity and the Post-Structural Rationale for Rights-to-Difference

CRT scholars in favor of rights-to-difference have frequently employed post-structuralist understandings of language—in which language signifies but does not correspond to a reality external to “language games” or discourse⁴⁹—to advance the claim that things such as speech, clothing, and culture (all a part of discourse) constitute race itself and that these, in turn, constitute important aspects of personhood.⁵⁰ As a result, discrimination against speech, clothing, and culture can constitute racial discrimination and undermine personhood.⁵¹ In other words, adopting the post-structuralist notion that the human self is constructed out of social practices and performances,⁵² proponents of rights-to-difference have argued that foregoing performances of racial identity in response to discriminatory pressures undermines the human self.⁵³ As a result, proponents of rights-todifference argue that anti-discrimination law should be reformed to provide rights-to-difference.⁵⁴

While I suspect that African American Christianities—historically formed and rooted in the struggle against white supremacy—would overwhelming oppose discrimination against racially associated identities, the post-structural rationale for reforming anti-discrimination law to provide rights-to-difference relies on premises that may be irreconcilable with the African American Christian tradition. As I have already indicated, according to the post-structural rationale, the human self is constituted in language games.⁵⁵ This anthropological premise stands in deep conflict with the African American Christian tradition, which holds that the human being has an eternal self and soul whose dignity consists in its nature as imago Dei (that is, being made in the image of God).⁵⁶ Indeed, as philosopher Cornel West has written, the theology of the African American church “linked God’s plan of salvation to black liberation—and bestowed upon black people a divine source for self identity—for example, as children of God—that stood in stark contrast to the cultural perceptions and social roles imposed upon them by a racist American society.”⁵⁷

Importantly, although the African American Christian tradition would reject the post-structural rationale’s conception of the self, invidious discrimination against racially associated identities conflicts sharply with the Christian ideal of agape love towards all people. As a result, there is a strong basis upon which to conclude that the African-Christian tradition agrees with proponents of rights-to-difference about the wrongfulness of discrimination perpetrated against racially associated identities. Notwithstanding this normative agreement, the conflict between Christian anthropology and the post-structural rationale for rights-to-difference is important, for as I now argue, the latter renders unintelligible African American historical resistance and therefore African American self-understanding.⁵⁸ In contrast, an argument for rights-to-difference developed out of the normative resources of the African American church furthers selfunderstanding among African American Christians.⁵⁹

Broadly stated, because the post-structural rationale’s language bound analysis is essentially atheistic,⁶⁰ it impedes African American self-understanding. In particular, contrary to the view that the human being is constituted in and by language, generations of African Americans—going back to slavery—have believed that a personal God gave them self-worth and dignity.⁶¹ As a result, even in the most dehumanizing circumstances, and notwithstanding the ideology of white supremacy, many African Americans rooted their humanity in a God given, transcendent sense of self-worth.⁶² Thus, because the post-structural rationale implicitly denies the possibility of a transcendent, supernatural source of self-identity and self-worth, it implicitly fails to acknowledge and even erases the African American historical experience, in which many African Americans maintained a sense of self-worth and dignity in the most oppressive of conditions, including slavery.⁶³ As a result, the post-structural rationale cannot account for and even renders unintelligible the historical experience of African Americans, and thereby impedes African American selfunderstanding.

2. A Christian Rationale for Rights-to-Difference and Its Advantages

In contrast to the post-structural rationale, the African American Christian tradition is capable of normatively justifying rights-to-difference while both being faithful to the African American historical experience and maintaining the self’s transcendent source. As I have already intimated, rather than justifying rights-to-difference by resorting to a performative notion of racial identity whose success depends upon the premise that the human self is constituted in language, discrimination against racially associated identities can be understood through the lens of the African American Christian tradition as a failure to act with agape love. Importantly, because failure to act with agape love can be harmful, this argument does not reject the claim that such discrimination is harmful. However, because its normative orientation is the ideal of agape love, and not the injury to the self that supports the post-structural rationale, the Christian argument that I have offered accommodates the possibility that the self can be sustained and maintained even when faced with assault. More specifically, because in the Christian view the self finds its origin and sustenance in God and is not originated in language, unlike the post-structural view of the self, Christian anthropology provides a basis for self-identity and resistance that transcends racially subordinating language games.

Thus, in addition to maintaining the self’s transcendent source, the Christian argument provides the God-oriented, metaphysical context in which many African Americans were able to maintain a sense of self-worth and dignity in the face of total institutional and cultural subordination. As a result, unlike the post-structural rationale, the Christian justification for rights-to-difference renders intelligible the profound strength and resiliency of the African American people. As such, because it avoids the poststructural rationale’s atheistic anthropology⁶⁴ and instead develops from a Christian conception of the self, the Christian argument for rights-to-difference furthers, rather than obscures, self-understanding among African American Christians. While this is but a single illustration of how drawing on the normative resources of the African American Christian tradition can advance the self-understanding of Black Christians, I could give many more.⁶⁵ But rather than providing additional illustrative examples, I now want to turn to possible explanations of why—despite CRT’s commitment to the looking to the bottom—the African American Christian tradition has to date played only a marginal role in CRT scholarship.

II. Illuminating Religion’s Marginal Rolein CRT

Scholarship This Part considers explanations of the peripheral role of the African American Christian tradition as a normative resource for CRT scholarship that are both endogenous and exogenous to CRT’s commitments and historical formation. As this Part makes clear, there are strong reasons to believe that CRT’s failure to develop a robust literature grounded in the African American Christian tradition is endogenous to CRT itself. However, there are exogenous explanations that may also limit the extent to which CRT scholars have sought to develop arguments from religiously grounded normative sources. We first examine plausible exogenous explanations.

A. Exogenous Explanations We have already mentioned the first exogenous explanation that we shall consider: that race and law scholars may be less religious than the African American population as a whole, and so are not inclined to construct normative arguments from the resources of the African American Christian tradition. While this explanation sounds plausible and could be explored through survey data on CRT scholars’ religious identifications, as far as I am aware, no such data has ever been collected.⁶⁶ However, it bears noting that more than half of Black law students report being very or extremely spiritual.⁶⁷ Indeed, it bears noting that only a tiny percentage of Black law students (3.8% of men and 0.8% of women) report being either atheists or agnostics.⁶⁸ Moreover, while significantly less than the percentage of the general African American population, well over fifty percent of Black law students identify as Protestant Christian.⁶⁹ Yet, because law professors tend to come from a rarified group of law students,⁷⁰ and because Black students who go on to become race and law scholars may not be representative of Black law students in general, the foregoing statistics may not bear a significant relationship to the religious beliefs of Black CRT scholars.⁷¹

Yet, even if data on religious affiliations of Black students does not correlate with CRT scholars’ religious identifications, attributing the Christian tradition’s marginal role in CRT scholarship to the religious affiliations or beliefs of CRT scholars is not particularly compelling.⁷² Whether or not a significant number of CRT scholars identify as Christian, we would expect CRT scholarship to explore a significant source of values for communities of color, because CRT is committed to examining law from the perspective of communities of color and a strong majority of the African American community identifies as Christian. Furthermore, while it is possible that the faith identifications of CRT scholars helps to explain the peripheral role that the African American Christian tradition has played in CRT scholarship, this explanation assumes that a CRT scholar’s commitment to including the perspectives of subordinated communities would fall away just because she does not identify with a certain faith. However, because there is no reason to believe that a scholar must subscribe to the Christian faith in order to consider how Christianity might bear on the normative perspectives that African American Christians might have on questions of race and law, there is no strong reason to conclude that non-Christian CRT scholars committed to including the perspectives of subordinated communities would refuse to draw on the normative resources of the Christian tradition.⁷³ Indeed, as I have intimated, precisely because CRT is committed to drawing on the perspectives of subordinated communities,⁷⁴ as a matter of self-consistency, CRT is called to give far greater attention to Christianity than it has so far given.

The second exogenous explanation arises from the possibility that there are disincentives against writing Christian-informed scholarship in a mainstream academic culture that some perceive to be biased against scholarship grounded in the Christian faith.⁷⁵ If such a bias in fact exists, one might plausibly believe that it would deter CRT scholars from drawing on the African American Christian tradition. While this hypothesis seems reasonable, if explanatory, it contradicts CRT’s self-styled status as a rebellious, fearless form of outsider scholarship that resists and overcomes efforts to exclude and silence the perspectives and values of subordinated communities.⁷⁶ As a result, this explanation of the marginal role of African American faith in CRT scholarship appears to be inconsistent with CRT’s own commitments as well as its character as an oppositional, outsider body of scholarship.

A third, plausible exogenous explanation of the marginal role of the African American tradition in CRT flows from the First Amendment’s Establishment Clause.⁷⁷ While there are no constitutional barriers preventing race and law scholars from offering religious reasons for their normative claims or from developing their normative claims from religious premises,⁷⁸ as a practical matter, the Establishment Clause may operate to constrain the effectiveness of scholarship grounded in religiously grounded normative arguments. More specifically, assuming that race and law scholarship generally seeks to influence the law, it is plausible to conclude that race and law scholars will craft arguments that are designed to persuade the legislative or judicial branch. As I argue below, notwithstanding the Establishment Clause, there may be advantages to offering religiously grounded arguments in the legislative context. In contrast, there are reasons to believe that the Establishment Clause operates to limit the effectiveness of legal scholarship developed from religious premises and directed to the judiciary. As a result, in contrast to CRT scholarship directed to the legislative branch, CRT scholarship directed to the judiciary may, for practical reasons, gain little by drawing on the normative resources of the African American Christian tradition.⁷⁹ But before reaching the question of the comparative practical efficacy of religiously grounded arguments in the legislative and judicial contexts, we first consider the constitutional standards applicable to each. We begin with the legislative context.

Under the Court’s Lemon test, laws adopted with religious motivations pass constitutional muster so long as they (1) have a secular purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) do not result in an excessive entanglement between state and religion.⁸⁰ Indeed, as Michael Perry has written:

Although the nonestablishment norm that is constitutional bedrock for us Americans forbids government to privilege one or more churches, it does not go so far as to forbid government to take action based on religiously grounded moral belief. No such rule is-no such rule has ever become-part of our constitutional bedrock. Nor does authoritative case law contain any such rule[.]⁸¹

Thus, although legislation must pass the Lemon test, the Constitution does not require a legislator to exclude her own “religiously grounded moral belief.”⁸² As a result, provided that a particular piece of legislation can satisfy Lemon , it follows that race and law scholars who look to religious traditions for normative sources are not for that reason incapable of influencing lawmakers.

Accordingly, provided Lemon is satisfied, legislators are free to adopt the proposals of scholars who draw on the normative resources of a religious tradition.⁸³ However, in light of the fact that much race and law scholarship, and much legal scholarship in general, is focused on developing arguments directed to persuading the judiciary, it is important to consider the effectiveness of addressing religiously grounded normative argument to a judicial audience. As I have already indicated but now explain in more detail, for practical reasons, constitutional considerations operate to limit the effectiveness of such arguments.

While in some cases judges may be required to create policy, their first task is to apply and interpret the law.⁸⁴ As a result, they are not free to resolve cases according to their own convictions but must justify their decisions within the terms of relevant case and statutory law.⁸⁵ Moreover, given the rareness, at least in the modern era, with which judges or legislators explicitly articulate religious premises,⁸⁶ sources of law relevant to a judge’s resolution of a case will nearly always rely on reasoning that does not reference religion. In other words, judges are nearly always required to resolve cases within the terms of legal authorities that do not employ religiously grounded thought.

Because judges will decide nearly all cases within discursive frameworks that are devoid of any reference to religious sources, arguments that can hope to effectively persuade a judge toward resolving a case in a particular way will usually engage the relevant sources of law in non-religious terms.⁸⁷ Accordingly, scholars and litigants who hope to influence the judiciary will almost never find appeals to religiously grounded normative sources very helpful.⁸⁸ Moreover, even while judges may decide “hard” cases by resorting to their own religious convictions,⁸⁹ constitutional constraints require their decisions to be justified in legal and not religious terms.⁹⁰ In particular, like legislators, judges are required to abide by the First Amendment, and so their decisions must meet the Lemon test.⁹¹ Thus, even if a religiously grounded argument were to persuade a judge that a particular normative position were correct, the judge would still be required to articulate a rationale for her decision that satisfies Lemon ’s three pronged test. As a result, whether litigants, scholars, or activists, those who hope to persuade the judiciary should provide a rationale by which a judge can justify her decision.

Because both legislators and judges must satisfy the Lemon test, it is tempting to conclude that religiously grounded normative sources are equally situated whether one is seeking legislative reform or whether one is addressing the judiciary. However, in light of practical considerations, this would be the wrong conclusion to draw. When addressing the judiciary, scholars, litigants, and activists are focused on persuading one and as many as nine people, who may or may not hold particular religious convictions, to adopt their view of how a matter should be resolved. In contrast, when pursuing legislative reform, the potential audience is much broader, including co-religionists or other allies who may join on behalf of lobbying for desired legislative reform. As a result, the impact of constitutional constraints on race and law scholars who seek to ground their arguments in the Christian tradition has very different implications in the legislative and judicial contexts. To put it bluntly, because religious motivations are not fatal to the justification needed for legislation to pass constitutional muster, and because approximately seventy-three percent of Americans identify as Christian,⁹² arguments grounded in the normative resources of the Christian tradition can be helpful in organizing political support on behalf of legislative reform.⁹³

Accordingly, given the importance of political support in the legislative context, the religious demographics of the country, and the terms on which judges are required to resolve cases, it is reasonable to conclude that race and law scholarship grounded in the Christian tradition can be more effective when addressed to the legislature than to the judiciary.⁹⁴ Thus, with respect to the marginal role of the African American Christian tradition in CRT, we can conclude the following: while Establishment Clause concerns do not in themselves relegate African American religious sensibilities to the periphery of race and law scholarship, as a practical matter, these concerns do limit the usefulness of including religiously grounded normative sources in arguments that are primarily designed to indicate how a judge should resolve an issue. Because much race and law scholarship, like legal scholarship in general, has a judicial audience in mind, as a practical matter, the Establishment Clause may operate to limit the extent to which race and law scholars draw on the African American Christian tradition, and in this sense, can be understood to act as a repulsive force against the inclusion of that tradition.

However, there are reasons to question the strength of this explanation of the marginal role of religiously grounded arguments in CRT. While the Establishment Clause may operate to constrain the extent to which race and law scholarship directed to the judiciary draws on religiously grounded normative sources, this explanation is difficult to reconcile with the fact that, although CRT has influenced the law and the judiciary,⁹⁵ CRT’s critics and allies have noted that CRT is overwhelmingly critique-oriented, largely lacks a positive program for legal reform, and has not been focused on developing positions that the judiciary is likely to actually adopt.⁹⁶ Thus, because it is reasonable to conclude that CRT has not been primarily concerned with developing critiques and programs that the judiciary is likely to actually adopt, Establishment Clause based constraints on the efficacy of religiously grounded normative arguments are not a particularly persuasive explanation for the marginal role of the African American Christian tradition in CRT. Indeed, reflecting, in my view, CRT’s willingness to develop critiques that courts are unlikely to adopt, legal scholar Penelope Andrews notes that in “a series of conversations . . . civil rights lawyers [told her] that they do not find much of critical race theory useful in their endeavors in the courts.”⁹⁷ Consistent with these conversations, Andrews also notes that while CRT has generated substantial attention, its influence “in this country has been somewhat limited. It has been of fairly significant theoretical value, but this has largely been confined to a few academics in law faculties.”⁹⁸

In summary of our discussion of potential exogenous explanations, while it is possible that CRT scholars’ religious identifications, disincentives against Christian-informed scholarship, and the Establishment Clause all contribute to the marginal role of the African American Christian tradition in CRT scholarship, these explanations are each in some respect inadequate. As mentioned, given CRT’s commitment to drawing on the values and perspectives of the communities about which it writes, there is no strong reason to assume that individual CRT scholars’ religious identifications are responsible for the neglect of the African American Christian tradition. Likewise, CRT’s proven willingness to challenge and confront the commitments of the mainstream legal academy would seem to belie the claim that biases against Christian-informed scholarship has led CRT to neglect an important source of values and normative meaning for the African American community.⁹⁹ Lastly, while the Establishment Clause may constrain the extent to which judiciary-directed race and law scholarship draws on religiously grounded normative sources, CRT’s proven and consistent capacity to resist the lure of narrowing its focus to arguments that the judiciary is likely to actually adopt calls this explanation into question. Moreover, whether or not practical considerations serve to limit the usefulness of including religiously grounded normative sources in arguments in the judicial context, the legislative context is another matter. Indeed, as we have seen, in the latter context, there may be distinct advantages to drawing on the normative resources of the African American Christian tradition. As a result, it is possible to draw the conclusion that legal scholarship directed to achieving legislative reform can hold particular importance for organic intellectuals who believe bottom-up scholarship cannot ignore the Black community’s central historical normative resource: the Black church.

B. Endogenous Explanations

For the reasons described above, the exogenous explanations that we have considered are not entirely satisfying accounts of why CRT has failed to develop a substantial body of literature examining race and law from the normative perspective of the African American Christian tradition.¹⁰⁰ In search of a more compelling explanation, we now consider endogenous explanations of CRT’s neglect of African American Christianity. In other words, we consider whether there is anything in CRT itself that helps to explain its failure to develop a substantial body of literature examining race and law from the perspective of the Christian tradition.

I develop this search for an endogenous explanation along three major lines of inquiry. First, I examine whether CRT’s internal commitments align CRT with scholars who oppose, as a matter of political morality, the use of religious reasons in public debate. Finding that CRT rejects the possibility of neutral discourse and is committed to particularity, I argue that CRT is actually better aligned with scholars who support religious reasons in public discourse. Second, I review CRT’s origins to evaluate how a movement formed primarily by Black scholars, committed to including in scholarship the perspectives of communities of color and focused on understanding and exposing American law’s complicity in perpetuating and reproducing racial subordination, essentially omits from consideration the most significant source of normative meaning for a significant percentage of the African American community and the primary engine of the civil rights movement: the Christian tradition and the Black church.¹⁰¹ From this review, I conclude that CRT’s deep intellectual debt to Black nationalist and Black power thought renders it at best indifferent to the African American Christian tradition. Third, I argue that CRT’s commitment to a secular constructionist conception of subordination, in which religion is treated as any other social factor, stands in tension with attempts to ground CRT arguments in the normative resources of the Christian tradition.

1. The Explanation from Political Morality

Having explained that the Constitution does not limit the role of religious reasons in public discourse and that there are reasons to believe that race and law scholars can more effectively employ religious reasons in legislative as opposed to judicial contexts, I now inquire whether debates over the political morality of using religious reasons in public deliberation help to account for the peripheral role of religion in CRT scholarship. Significantly, unlike the Establishment Clause’s potential role in deterring the development of a substantial body of CRT scholarship that draws on religious sources, the political morality of religious reasons is a question of political theory. Thus, for the simple reason that debates in political theory are theoretical and lack the force of law, they cannot be expected to have the practical, limiting effect that constitutional considerations may sometimes have on the arguments that legal scholars advance. As a result, to determine whether debates on the political morality of religious reasons has shaped CRT scholarship, it would be helpful to have empirical data on race and law scholars’ attitudes toward debates on democratic citizenship and religious reasons. Unfortunately, as far as I am aware, such data is unavailable. However, because such data would tell us about individual scholars’ attitudes about religious reasons in public discourse, and it would not interrogate CRT’s internal commitments, even if such data were available, it would form the basis of a potential exogenous, rather than endogenous explanation of religion’s marginal role in CRT scholarship. Moreover, because survey data indicates that, “compared with other groups, African-Americans express a high degree of comfort with religion’s role in politics,” such an explanation would not cohere with CRT’s commitment to including the values and perspectives of the community it seeks to represent.¹⁰² To avoid this problem, and because of its greater explanatory power, we pursue the following endogenous line of inquiry: whether CRT’s core tenets or methodological commitments serve to align it with opponents of religious reasons in public discourse, thereby helping to explain religion’s marginal role in race and law scholarship.

At the outset of an inquiry that seeks to learn what effect, if any, debates on the political morality of religious reasons have had on chilling the development of a substantial body of race and law scholarship that draws on religiously grounded norms, it bears noting that no one, as far as I am aware, has systematically approached this debate from the perspective of African American religious sensibilities and history. This omission in the literature is particularly striking in light of the positive role that religion played in the abolition and civil rights movements as well as religion’s negative role in justifying slavery and Jim Crow.¹⁰³ And yet, viewed from a certain standpoint, this omission is understandable. In particular, in contrast to the significant role that religion has played in the persecution of the Jewish people over the long course of their history in the Western world,¹⁰⁴ the subordination of African Americans has largely been a matter of race.¹⁰⁵ Thus, whereas Jewish Americans have given considerable thought to the role of religion in the Jewish struggle for equality,¹⁰⁶ and they have often been in favor of maintaining a strong separation between church and state, thereby minimizing the role of religion in public life,¹⁰⁷ for African Americans, race, and not religion, has been the defining feature of the struggle for equality.¹⁰⁸ As a result, even while the African American church was the central engine of the civil rights movement,¹⁰⁹ and African Americans remain deeply religious, it is not difficult to understand why theoretical debates on the political morality of religious reasons in public discourse have given little attention to the African American community or its churches.¹¹⁰

While this is not the place for such a systematic engagement, there are obvious questions that such a treatment should consider. For example, while concern with religious warfare and stability informs the debate on religious reasons in public discourse, African Americans have no direct historical connection to internal European religious wars, and have been oppressed by Whites who represent the range of European Christendom. From these facts we might ask whether the religious peace offered by the enlightenment; the First Amendment’s aim of avoiding religious division; and contemporary-era debates about the role of religious reasons are: (1) chiefly concerned with potential infighting among whites and (2) are simply not concerned with addressing the racial basis upon which Blacks are and have been oppressed. As anyone acquainted with the history of Western European and American efforts to avoid religious division and violence would reply, ending racial subordination was not a focus of efforts to resolve religious hostilities. Given the historical oppression of Black people on the basis of race and the central role that religiously-inspired movements have historically played in bringing about greater racial equality, it is necessary to ask—particularly if religious argument might reconfigure the racial status quo—what is at stake for the Black community in debates about the political morality of religious argument?

However, this is not the place to engage these and similar questions at any length. Here, where I am concerned with whether debates on political morality help to explain the marginal role of religion in race and law scholarship, I have set a more modest task. Rather than systematically assessing how African American history and religious sensibilities might respond to the debate on religious reasons, I inquire whether CRT’s core commitments or methods serve to align it with opponents of religious reasons in public discourse, despite the historical and contemporary centrality of religion as a source of values for many African Americans. In other words, because my goal here is to determine whether the debate on political morality helps to explain the marginal role of religion in race and law scholarship, I am asking whether there is reason to believe that CRT is aligned against the offering of religious reasons in public discourse. Of course, in part because CRT and debates over religious reasons have ostensibly disparate foci, this question is difficult to address. Nevertheless, given the centrality of religion in the Black community and religion’s marginal role in an intellectual movement that emphasizes the value of “looking to the bottom,” it is useful to grapple with whether CRT is implicitly aligned with opponents of religious argument in public discourse.¹¹¹

Let me begin by describing CRT’s general commitments. As Kimberlé Crenshaw has observed, CRT is “dynamically constituted,”¹¹² and as Rachel Moran has said, CRT is a “sprawling, unruly, and sometimes fractious field.”¹¹³ Thus, in the context of discussing CRT’s core ideas, Devon Carbado has said, “[w]e need more, not fewer, efforts to define the ‘dynamically constituted’ borders of CRT.”¹¹⁴ As a result, describing CRT’s general commitments is difficult. Nevertheless, following Carbado, we can ask, “[w]hat are (or should be) some of CRT’s core ideas?”¹¹⁵

As other scholars have indicated, CRT includes the following core ideas: (1) a critique of liberalism, particularly liberalism’s commitment to an ideal of objective, neutral, and ahistorical legal reasoning, and a commitment to historical and contextual legal analysis;¹¹⁶ (2) a concern with both theory and praxis;¹¹⁷ (3) as explained by Derrick Bell’s interest-convergence theory, racial progress in America is not linear but instead characterized by reform and retrenchment of racial hierarchy;¹¹⁸ (4) racial disparities cannot be explained by individual agency and merit but instead reflect “inherit[ed] advantages and disadvantages,” including “the historically accumulated social effects of race”¹¹⁹ and, as a result, colorblindness can perpetuate racial inequality while color consciousness can work to resolve race-based disparities;¹²⁰ (5) “race” is not a biological category but is instead the product of law, social relations, and ideology;¹²¹ (6) whiteness is property;¹²² (7) racial subordination is a structural phenomenon;¹²³ (8) racism is endemic to American democracy, constituting rather than opposing it;¹²⁴ (9) critical race theory aspires to be anti-essentialist;¹²⁵ and (10) CRT “insists on recognition of the experiential knowledge of people of color and [their] communities of origin in analyzing law and society,” with such knowledge “gained from critical reflection on the lived experience of racism and from critical reflection upon active political practice toward the elimination of racism.”¹²⁶

In addition to inquiring about core ideas, we might also ask whether CRT is methodologically distinctive. Although CRT lacks a unifying methodology, and individual race and law scholars employ a wide range of methodologies, including traditional legal analysis, interdisciplinary work, historical analysis, and deconstruction, perhaps because of its contrast with traditional legal analysis, narrative is perhaps most distinctively associated with CRT scholarship.¹²⁷ Most immediately, narrative enables marginalized communities to have their voices and perspectives heard. Thus, the counter-narratives of minority communities challenge and contest the dominant narratives that undergird American law. In this way, among other things, narratives “add the perspective of powerless people to the law,” and works to include “outsiders” and stories from the “bottomup.”¹²⁸

Although CRT is “sprawling” and “unruly,” I have briefly although not definitively, described the core ideas and methodologies that scholars have attributed to CRT. Now the task is to attempt to understand whether CRT’s commitments and methods align it with scholars who advocate against the inclusion of religiously grounded normative sources in public debate. To that end, I now briefly describe the debate on the political morality of offering religious reasons in liberal democracy.

As distinguished from inquiries about potential legal limits on the role of religious reasons in either lawmaking or judicial adjudication, the debate over the political morality of offering religious reasons in public discourse asks whether it is ethical, in a liberal democracy, for citizens to argue and act on the basis of religious views.¹²⁹ While the arguments in this area have been developed along a variety of lines and with great nuance, the issue that has historically divided most participants is differing judgments over whether religious reasons threaten the stability and/or viability of liberal democracy, with those who conclude in the affirmative arguing for rules of discourse that limit or exclude religious reasons, and those who conclude in the negative generally resisting substantial restraints on the use of religious reasons.¹³⁰ A second major source of division is over whether religious arguments are particularly divisive, threatening the legitimacy of the political order.¹³¹ A third source of contemporary division is whether respecting our fellow citizens requires us to refrain from offering religious reasons or at least requires us to also offer proper political justifications for our policy preferences.¹³²

Whatever the relative importance of the three foregoing fault lines in the debate over the political morality of religious reasons, for our purposes, it is not important to consider each of these potential reasons for limiting religious discourse in detail. Because many proponents of restricting religious reasons on the basis of any (or any combination) of the three foregoing rationales would not seek to limit religious reasons in legal scholarship, the appropriate focus is to determine whether CRT is aligned with arguments for limitations on religious discourse that would preclude the use of religious reasons in CRT scholarship.

To better understand the nature of the arguments that are our focus, it is helpful to distinguish between, on the one hand, justificatory uses of religious reasons, and on the other hand, political uses of religious reasons. As I am using the terms, justificatory uses justify the exercise of state power, whereas political uses occur when citizens offer arguments for their preferred coercive laws.¹³³ With this distinction in place, we are in a position to appreciate what is, for our purposes, a critical line of demarcation among opponents of uses of religious reasons in public discourse. That line is as follows. Scholars such as the later John Rawls and Robert Audi would, respectively, permit political uses of religious reasons for coercive laws with the “proviso” that they are followed in due course with proper, justificatory reasons (that is, reasons that all citizens can reasonably accept) and, more restrictively, provided that they are, in most circumstances, justified by a secular rational and secular motivation.¹³⁴ In contrast, scholars such as Bruce Ackerman and Thomas Nagel would altogether exclude religious reasons from public discourse about coercive laws.¹³⁵ As a result, because both Rawls’s and Audi’s positions are consistent with race and law scholars offering religiously grounded normative arguments, examining whether CRT is aligned with their positions will not help to explain the marginal role of religiously grounded normative sources in race and law scholarship. In contrast, examining whether CRT is implicitly aligned with either Ackerman or Nagel’s position, both of whom would preclude religiously grounded arguments in public deliberation, will help to determine whether CRT is biased against religious reasons in public discourse.

Ackerman argues for an ideal of “conservational restraint” in which citizens “engage in a restrained dialogic effort to locate normative premises that both sides find reasonable.”¹³⁶ While insisting on identifying such premises excludes religion, according to Ackerman, such restraint constitutes “a way of reasonably responding to [citizens’] continuing moral disagreement.”¹³⁷ Like Ackerman, Nagel would exclude religion from public political conversation.¹³⁸ Under his standard, which he calls “impartiality,” political argument should occur using a “common critical rationality and consideration of evidence that can be shared.”¹³⁹ As Nagel explains, “[t]his means that it must be possible to present to others the basis of your own beliefs, so that once you have done so, they have what you have, and can arrive at a judgment on the same basis;”¹⁴⁰ and “[b]ecause to report your faith or revelation to someone else is not to give him what you have,” religion must be excluded from political discourse about coercive laws.¹⁴¹

While in their particulars Ackerman and Nagel’s views differ, they share a commitment to altogether excluding religious reasons from public discourse.¹⁴² Specifically, unlike theorists such as Audi and Rawls, they do not appear to distinguish between deliberation and justification, and they favor an ideal public political discourse that is free from religious argument.¹⁴³ Moreover, underlying both Ackerman and Nagel’s arguments for excluding religion from the public square is an ideal of neutral discourse in which citizens deliberate according to shared premises.¹⁴⁴ Accordingly, a sensible way of determining whether CRT is aligned with Ackerman and Nagel’s arguments for excluding religion from public deliberation is to ask whether CRT can join them in their hope of achieving a neutral discourse.

Approached this way, it is not difficult to see that from CRT’s point of view Ackerman and Nagel’s arguments for excluding religious reasons do not even get off the ground. In particular, consider that Ackerman and Nagel can each be understood to argue the following: (1) that respect of persons requires some version of neutral or impartial discourse;¹⁴⁵ (2) that religious reasons are incompatible with such a discourse;¹⁴⁶ and (3) that it therefore follows that respecting persons requires the exclusion of religious reasons.¹⁴⁷ As against this position, CRT would join those opponents of Ackerman and Nagel’s position who argue that to bracket religion is not to achieve a neutral discourse.¹⁴⁸ Indeed, as one of CRT’s constitutive commitments is its rejection of the liberal ideal of neutral legal reasoning, self-consistency would seem to require CRT to reject Ackerman and Nagel’s position.¹⁴⁹ Accordingly, because arguments for altogether excluding religious reasons from public political argument are dependent upon a premise that CRT rejects, it is unreasonable to conclude that CRT’s internal commitments align it with Ackerman and Nagel’s position against the use of religious reasons in public discourse.

Furthermore, there are reasons to believe that CRT is aligned with a view that is radically opposed to the one that Ackerman and Nagel advance: that respect of persons actually requires the admission of religious arguments.¹⁵⁰ As Michael Perry has noted, because “religious convictions are (partly) self-constitutive . . . [t]o ‘bracket’ such convictions [in political deliberation] is therefore to bracket—to annihilate—essential aspects of one’s very self.”¹⁵¹ Given the importance much CRT scholarship attaches to identity and particularity, and the substantial body of CRT literature that argues on behalf of reforming anti-discrimination law to protect against harms to the self flowing from efforts to suppress or disrupt contested identities,¹⁵² CRT would seem sympathetic to Perry’s complaint against efforts to exclude religion from public deliberation.¹⁵³ Thus, CRT would appear to be sympathetic to a view that is directly opposed to the approach taken by Ackerman and Nagel.

As a result, it is difficult to see how CRT’s core commitments serve to bias CRT in favor of either Ackerman’s or Nagel’s arguments against religious reasons in public discourse. It is therefore unreasonable to conclude that CRT’s failure to develop a substantial body of literature drawing on the African American Christian tradition is due to CRT’s alignment with scholars who wish to exclude religious reasons from public discourse as a matter of political morality. Thus, our first, potential endogenous explanation fails to illuminate the marginal role of religious arguments in CRT scholarship. We now turn to our second and more successful endogenous explanation: CRT’s deep debt to Black nationalist and Black power thought. To this end, we begin with a brief review of CRT’s origins.

2. CRT: Black Nationalism, Black Power and Christianity

a. CRT’s Origins Several articles have reviewed and summarized CRT’s origins, including articles penned by two of its founding figures, Kimberlé Crenshaw and Richard Delgado.¹⁵⁴ In these articles we learn that there are competing accounts of CRT’s rise.¹⁵⁵ Yet notwithstanding the contestability of CRT’s causal origins, there appears to be no dispute that CRT developed as a response to the inadequate treatment of race in both traditional, liberal rights-oriented approaches to law and an intellectual movement known as critical legal studies (“CLS”).¹⁵⁶

In traditional, liberal rights analyses of law, racism is reduced to discrimination and bias, and neutrality and objectivity (i.e. colorblindness) are the law’s method for resolving racial inequality.¹⁵⁷ In contrast to the colorblind jurisprudence of liberal rights discourse, CLS denied that the law was or even could be neutral and objective.¹⁵⁸ It instead contended that law is rooted in hierarchies and underlying power arrangements and was therefore enmeshed in politics.¹⁵⁹ As a result, many CLS scholars had little use for rights-discourse (which, in their view, served to legitimate an illegitimate perception of law) and preferred to engage in deconstructionist critiques of rights.¹⁶⁰

However, while CLS was committed to exposing the way in which law functioned to preserve hierarchy and power interests, it gave little attention to exposing how the law perpetuated racial subordination. In fact, because CLS was foremost focused on critiquing law as a legitimating tool of underlying hierarchy, “arguments that cast doubt on the viability of race as a unit of analysis or the utility of race consciousness in deconstructing hierarchy” had some appeal within CLS.¹⁶¹ In particular, some CLS scholars rejected race consciousness on the grounds that, as a socially constructed category, race is neither a theoretically nor politically appropriate “category of analysis or . . . basis for political action.”¹⁶² As a result, on the question of race, many CLS scholars could not be distinguished from scholars who approached race vis-à-vis a liberal, anti-discrimination discourse.¹⁶³

While in agreement with the claim that “race” is socially constructed, in response to CLS, CRT scholars argued that, “race was nonetheless ‘real’ in the sense that there is a material dimension and weight to the experience of being ‘raced’ in American society.”¹⁶⁴ Thus, as against CLS, CRT constituted itself as an effort to develop a race-conscious but anti-essentialist approach to legal scholarship.¹⁶⁵ As a result, CRT’s “conditions of possibility” included liberal, anti-discrimination discourse’s rejection of race consciousness.¹⁶⁶ They also included CLS’s ambivalence about emphasizing race and its related neglect of the ways in which its critique of rights discourse overlooked the vital role that rights played in the struggle against racial subordination.¹⁶⁷ Moreover, unlike CLS, CRT sees “race” as central, is committed to “race consciousness,” and shares in common with liberal anti-discrimination discourse a commitment to rights discourse;¹⁶⁸ however, CRT also sees itself and CLS as “aligned—in radical left opposition to mainstream legal discourse.”¹⁶⁹

In the context of the alignment between CRT and CLS, to be in “radical left opposition to mainstream legal discourse”¹⁷⁰ essentially means to reject an enlightenment ideal of law that conceives of law as an autonomous, ahistorical phenomenon capable of and appropriately understood by objective, rational, and neutral analysis.¹⁷¹ In contrast to this enlightenment conception of law, CLS and CRT are allied in their commitment to demonstrating law’s historical, contingent and all but neutral nature.¹⁷² In particular, CLS scholarship exposes the lie of law’s neutrality by demonstrating that power relations and hierarchy undergird the neutral façade of rights discourse,¹⁷³ while CRT exposes the ways in which law’s false claim to neutrality is belied by its pervasive role in enacting and failing to address “racial subordination.”¹⁷⁴

b. CRT’s Deep Debt to Black Nationalist and Black Power Thought

In their co-authored introduction to the landmark anthology, Critical Race Theory: The Key Writings that Formed the Movement (1995) , founding critical race theorists Kimberlé Crenshaw, Neil Gotanda, Kendall Thomas, and Gary Peller write that “most of us [critical race theorists] ‘really’ identified with”¹⁷⁵ the Black Power movements, “whose political insights and aspirations went far beyond what could be articulated in the [then] reigning language of the legal profession and the legal studies we were pursuing.”¹⁷⁶ Suggesting that CRT as a movement has overcome the articulatory limitations that prevailed in both traditional liberal civil rights discourse and CLS, Gary Peller writes, “[i]n my view, the distinguishing and historic contribution of CRT has been to bring the kind of critical nationalist analysis of race that had been articulated in the 1960s and 1970s by Malcolm X, the Black Panthers, and others, to the world of scholarship and theory.”¹⁷⁷

As is perhaps most obviously perceived in both the ambivalence many CRT writings have toward integration and in the considerable body of CRT scholarship asserting and defending the importance of Black identity,¹⁷⁸ the politics of the Black nationalist/Black power era inflect much race and law scholarship.¹⁷⁹ Significantly, however, the same concerns that led Black power and Black nationalist thought to question integration and to emphasize Black identity had significant implications for Black America’s relationship to the African American Christian tradition.¹⁸⁰ For this reason, CRT’s deep debt to Black nationalist/Black power thought is essential to understanding the focus of this paper: the limited attention that the African American Christianity has received in race and law scholarship and the consequences of this neglect. In particular, as the next section explains, the Black nationalist and Black power thought that Gary Peller credits critical race theory with bringing to the legal academy played a critical role in challenging the legitimacy of African American Christianity. As I will argue, understood from this historical vantage point, CRT’s deep debt to Black power thought helps to explain the discontinuity existing between CRT as a body of scholarship that aspires to speak from a perspective of color but largely neglects the religious sensibilities that remain deeply important to a significant majority of African Americans.

c. Christianity on Trial

To understand the impact of Black Power on the relationship between Blacks and the African American Christian tradition, one must first understand the context in which Black Power gained wide appeal. Most importantly, it is essential to understand how Nation of Islam leader Elijah Muhammad’s vigorous critique of Christianity as the White man’s religion helped to set the conditions for the emergence of Black Power.¹⁸¹ While African Americans rejected the slaver’s version of Christianity and reinterpreted it to be a religion of empowerment and liberation,¹⁸² Muhammad’s critique played to longstanding ambivalence among African Americans about the fact that Christianity was the religion of their enslavers and packaged to render Blacks docile and resigned to their inferior, subjugated position.¹⁸³ Given this existing ambivalence, together with the fact that many African Americans perceived the contemporary black church to be accommodationist,¹⁸⁴ Muhammad (and his prominent disciple, Malcolm X) found a significant audience for the Nation of Islam’s “us” v. “them,” colored v. white critique of Christianity as aiding and abetting the White man’s oppression of not just African Americans but of colored people all over the world.¹⁸⁵

In his theology of racial nationalism, Whites were the genetic enemies of dark humanity,¹⁸⁶ and Christianity was a tool Whites used to teach Blacks to love their enemies and focus on the reward of a fictional afterlife.¹⁸⁷ Unlike the Black man’s true religion, Islam, Christianity could produce neither unity nor effective resistance against the White oppressor.¹⁸⁸ Muhammad also criticized Christianity’s universalism and called King’s preaching of the “brotherhood of white people” ignorant;¹⁸⁹ he likewise rejected King’s commitment to integration, reconciliation, and God’s universal love for humanity.¹⁹⁰ In Muhammad’s view, only dark, oppressed people deserved God’s love, whereas Whites deserved God’s punishment.¹⁹¹ Consistent with his theology, Muhammad also rejected the Christian message of loving one’s enemies and emphasized intraracial love and the right of self-defense as opposed to Black Christian leaders’ emphasis on interracial fellowship and King’s commitment to nonviolence.¹⁹² For Muhammad, the Christian call to love White people—Blacks’ oppressors and enemies—undermined the self-love and intraracial love critical to achieving the Black unity that was essential for achieving the nationalist, unified, and separatist vision that he believed to be the appropriate remedy to the problem of American race relations.¹⁹³

Frustrated with the results of the civil rights movement, and against the backdrop of the Nation of Islam’s vigorous critiques of Christianity as a White man’s religion and its rejection of integration and nonviolence, many African American youth were tired, weary, and disillusioned with the efficacy of Christian love, nonviolence, and integration.¹⁹⁴ It was in these conditions that the secular, Black Power movements came on to the national scene in the late 1960s and early 1970s.¹⁹⁵ Like the Nation of Islam, Black Power activists embraced Black nationalism and self-defense and rejected integration and nonviolence;¹⁹⁶ they also “dismissed Christianity as an irrelevant, white religion designed to oppress African-Americans.”¹⁹⁷ Combined with the Nation of Islam’s scathing critiques of Christianity, the rise of Black Power caused “the credibility of the Christian faith to be severely tested,” with young Blacks increasingly viewing the “black church as an ‘Uncle Tom’ institution that was irrelevant to the concerns of youth during a new age of Black Power and black pride.”¹⁹⁸ Indeed, in the era of Black Power “many militant young people believed that it was impossible to be both fully black and Christian at the same time.”¹⁹⁹ Accordingly, the rise of Black Power marked a significant shift among young Blacks away from the African-American Christian tradition.

d. Black Power, the Black Church and Black Liberation Theology

Black Power soon became “the litmus test of authentic black leadership.”²⁰⁰ Traditionally focused on interracial reconciliation and integration, in the age of Black Power, the Black church was faced with becoming irrelevant to the freedom struggle and to many young African Americans.²⁰¹ Moreover, there was a sense among many Black ministers and theologians that the Black church had failed to emphasize and develop a distinctively Black identity and needed to break free from white Christianity.²⁰² Thus, on July 31, 1966, the National Committee of Black Churchmen (NCBC) published a statement in major American newspapers, including the New York Times, embracing the slogan, “Black Power,” and turning away from a primary emphasis on interracial harmony, integration, and universality and toward “a new interpretation of black faith that focused on blackness and power .”²⁰³ As Mark Chapman has written, “[b]y emphasizing power instead of Christian love and interracial harmony, the NCBC signaled an important shift in African American religious thought.”²⁰⁴ But more significantly, by emphasizing the need for Black power, the NCBC hoped to make Christianity relevant to Black liberation and to thereby rehabilitate the credibility of the Black church.²⁰⁵

The turn toward Black power also had revolutionary theological implications.²⁰⁶ In particular, if the gospel was to be understood from the standpoint of Black Power and Black liberation, it was necessary to address the implications of Black Power for the Black church and to reconcile Black Power to the Christian message.²⁰⁷ While a full-blown, systematic Black theology would await James Cone’s “A Black Theology of Liberation,”²⁰⁸ some Black religious leaders and thinkers took up three themes that reflect earlier steps toward developing Black liberation theology.²⁰⁹ First, religious leaders took up a radical, internal prophetic critique of the contemporary Black church’s failure to maintain and practice the Black church’s historic commitment to Black liberation.²¹⁰ Importantly, however, in taking up this internal prophetic critique, Black church leaders sought to defend biblical Christianity against its nationalist and Black power critics and to persuade young Black people that the problem was not Christianity, but how the contemporary church had practiced it.²¹¹ Second, some Black religious thinkers argued that Black Power’s call for Black empowerment and independence is a necessary precondition for attaining genuine integration and the Beloved Community but is not a call for permanent separation.²¹² Third, they argued that the church’s embrace of Black Power and Black particularity was not “a retreat from the universalism of the Christian gospel” but a “necessary corrective to the ‘idol of integration’ and its negative impact on the black community.”²¹³ Moreover, contrary to the church’s embrace of Black Power representing a rejection of Christian universalism, some church leaders argued that, by accepting Black Power, the church was acknowledging that Black people must first love themselves in order to love others.²¹⁴

In addition to the above, three theological themes developed in response to Black Power, any discussion of the development of Black liberation theology must include the April 25-27, 1969, Interreligious Foundation for Community Organization’s (IFCO) National Black Economic Development Conference.²¹⁵ At this historic conference of more than 600 delegates drawn from both religious and secular African American organizations, a series of resolutions rejected Black capitalism in favor of “land ownership, cooperatives, and mass-based organizations for the political and economic control of urban areas where blacks predominated.”²¹⁶ Moreover, seeing the need for continued national focus on Black economic development the “Black Economic Development Conference” (BEDC) was voted into separate existence.²¹⁷ In addition, and more significantly, the conference approved by a vote of 187 to 63 secular activist James Forman’s Black Manifesto denouncing capitalism and imperialism and calling upon white churches and synagogues to pay $500 million in reparations to Blacks.²¹⁸

While the Manifesto was approved by a vote of the BEDC, it was Forman’s action of May 4, 1969 that gained the Manifesto national attention and sparked national controversy.²¹⁹ Boldly disrupting Riverside Church’s Sunday service, Forman proclaimed the Manifesto’s demands.²²⁰ As a result, outrage ensued among both liberal white Christians and Black church leaders, and Forman’s actions inspired similar disruptions across the country.²²¹

Although the leaders of major church denominations expressed contrition for complicity in historic racial oppression, not a single major church body acknowledged the legitimacy of the Manifesto’s demands for reparations.²²² Nevertheless, the NCBC and IFCO supported the Manifesto, and the BEDC in close cooperation with the NCBC worked to operationalize the Manifesto’s demands.²²³ Although complicated internal church politics ultimately frustrated the Black ecumenism that was needed to make those demands effective, the Manifesto nevertheless “spurred the formation of an ecumenical response on the part of African-Americans to the religion of the rich and powerful.”²²⁴ It also further underscored the need, sensed at least since the NCBC’s 1966 embrace of Black power, for a Black theology capable of articulating Christianity from the vantage point of oppressed Black people.²²⁵

As I have already indicated, James Cone was the first to develop a systematic Black theology.²²⁶ Defending biblical Christianity from both secular Black power advocates and the Nation of Islam’s critiques, Cone sought “to develop a systematic, black theology of liberation that was both fully black and fully Christian .”²²⁷ More specifically, seeking the “full emancipation of black people from white oppression by whatever means necessary,”²²⁸ Cone aimed to reinterpret the Christian faith in light of Black oppression and to “destroy the influence of heretical white American Christianity.”²²⁹ Thus, in contrast to pre-Black Power religious thinkers, such as Martin Luther King, Jr., Howard Thurman, and Benjamin Mays, who focused on interracial fellowship and Christianity’s universality, Cone emphasized Black particularity.²³⁰ Likewise, unlike pre-Black Power thinkers, for Cone, blackness was “ultimate reality,” not an abstract universalism.²³¹

Significantly, in seeking a fully Christian and fully Black theology, Cone did not reject the criteria of universality but reconfigured it.²³² Making Blackness and oppression the point of entry for Christian universalism, Cone argued that, “[b]eing black in America has very little to do with skin color. To be black means that your heart, your soul, your mind, and your body are where the dispossessed are.”²³³ Moreover, because “[e]ither God is identified with the oppressed to the point that their experiences becomes God’s experience, or God is a God of racism,”²³⁴ and biblical revelation reveals that God sides with the oppressed,²³⁵ “Christ ‘takes on blackness’ as a sign of God’s identification with the victims of society.”²³⁶ Therefore, to be reconciled to God, White Christians must “become black.”²³⁷

Having set up God’s identification with Blackness and the need for White Christians to become Black, Cone argued that his theology was both fully Christian and fully Black, and thus capable of reconciling Christianity and Black power.²³⁸ As Cone wrote in his first essay on the relationship between Black power and Christianity:

If Jesus is not in the ghetto, if he is not where men are living at the edge of existence, if he is somehow ensconced in the splitlevel hypocrisy of suburbia, the gospel is a prevarication and Christianity is a mistake. Christianity cannot be alien to Black Power; it is Black Power!²³⁹

While Cone did articulate a systematic theology that embraced Black power, some Black theologians questioned whether Cone’s theology was actually Christian.²⁴⁰ In particular, Cone’s theology was critiqued as: (1) compromising Christianity’s universality and God’s universal love for all people;²⁴¹ (2) neglecting “the Christian doctrine of reconciliation;”²⁴² (3) failing to emphasize the Christian message of the interrelatedness of all people;²⁴³ and (4) as presenting (in regard to his Malcolm X inspired “any means necessary approach” to racial liberation) an un-Christian ethics.²⁴⁴ However, in addition to these criticisms, some Black religious thinkers took Cone to task for being overly focused on satisfying the Christian test of universality.²⁴⁵ Finally, in light of the fact of Black oppression, some critics claimed that Cone’s theology did not provide sufficient reason to believe that God delivers the oppressed, and thus failed to engage the basic question of whether God is a racist.²⁴⁶

While Cone’s systematic Black theology was not without critics, he stands among the most influential theologians of American history.²⁴⁷ Indeed, as the founding father of Black liberation theology, Cone’s work has been at the center of an entire academic discipline.²⁴⁸ He has also deeply influenced church leaders, including President Barack Obama’s former pastor, the Reverend Jeremiah Wright.²⁴⁹ Nevertheless, while Black liberation theology has been the subject of sustained academic discussion and has adherents in the pulpit, it has not made deep inroads into the greater Black church.²⁵⁰ As Lincoln and Mamiya’s ten-year longitudinal study demonstrates, the influence of Black liberation theology is largely confined to “the educated elite of the black clergy.”²⁵¹ Its “major formulators . . . have been unable to move beyond their middle-class origins, even though a major tenet of black liberation theology is to do theology from the ‘bottom up,’ from the perspective of the oppressed in American society;”²⁵² and at least two-thirds of Black urban ministers have not been at all influenced by Black liberation theology.²⁵³ In addition to the foregoing empirical evidence on Black theology’s reception among Black clergy, Cone himself has said “that black church leaders were not open to criticisms from professional theologians teaching in white institutions.”²⁵⁴ Accordingly, it is reasonable to conclude that black liberation theology has found far more adherents in the academy than it has in the pews.

e. Black Liberation Theology Largely Failed to Rehabilitate Christianity

Among Politically Active and College Educated Black Youth

While Black liberation theology hoped, in part, to counter Black nationalist and Black power critiques of Christianity, its shallow penetration into the Black church raises questions about the extent to which it did so, especially when one considers that the 1970s and 1980s have been described as a period of decline in political activism for the Black church.²⁵⁵ Moreover, while this decline has been understood as mirroring American trends toward the secularization of public discourse, it is certainly not unrelated to Beverly Hall Lawrence’s observation that:

On college campuses [in the 1970s], middle-class blacks were embracing a kind of intellectual and cultural attitude called black nationalism. At the same time, in urban centers, the black consciousness movement with its slogans “black is beautiful” and “I’m black and I’m proud” were attracting followers with the same spirit of nationalism . . . . My generation was one that fled the churches filled with those who appeared to us to be helpless, sitting and waiting for (a white) God to intervene and settle problems for them. Many of my friends and I now admit that the idea of going to church was simply too embarrassing, because it taught people to wait for change to come and because of its reliance on European Christian symbols.²⁵⁶

Together with Lincoln & Mamiya’s data on Black theology’s shallow penetration of the Black church, Hall’s testimony on Black nationalist and Black power’s negative impact on young Blacks’ attitudes toward the church suggests that Black liberation theology did not restore the church’s credibility among a significant cohort of young Black people.²⁵⁷ Indeed, even decades after the era of Black power, the image of Christianity as a White man’s religion that “offers no solutions to the harsh realities that shape their everyday lives” continues among some urban youth.²⁵⁸

In light of the impact that Black nationalist and Black power critiques had on young Black intellectuals who came of age in the wake of the Black consciousness movement, it is possible to make sense of the marginal role of religious reasons in CRT scholarship even while African Americans remain overwhelmingly Christian. In particular, CRT’s deep debt to Black nationalist and Black power thought, together with many of its founders’ conscious identification with Black Power movements,²⁵⁹ means that race and law scholarship developed in an intellectual framework that saw Christianity as at best irrelevant and at worst harmful to efforts to address racial subordination. As a result, whatever the religious commitments of individual race and law scholars, a plausible explanation for the absence of a substantial body of race and law scholarship that draws on the normative resources of the African American Christian tradition is CRT’s roots in an intellectual frame that is at best indifferent to the African American Christian tradition.

3. The Normative Resources of the African American Christian Tradition Are Extraneous to CRT’s Antisubordination Agenda

Although not unrelated to the intellectual influence that Black Power movements have had on CRT, a more specific explanation of the marginal role of African American religious sensibilities in race and law scholarship is CRT’s anchoring commitment to what seems to be an exclusively secular, naturalistic conception of subordination.²⁶⁰ More specifically, as Francisco Valdes has noted, “Critical Race Theory argue[s] that structures of domination and subordination are manufactured by humanity rather than handed down by some ‘natural’ or ‘inevitable’ force.”²⁶¹ Thus, CRT seems to view domination and subordination exclusively as the product of power relations constructed by human beings, and therefore proceeds along a naturalistic theoretical framework that cannot easily accommodate the classical Christian notion that spiritual imperfections limit humanity’s capacity to build domination-free social structures.²⁶² In addition, and consistent with this naturalistic framework, according to the internal logic of CRT’s constructionist antisubordination principle, religion is a social factor, that, like all social factors, should be critiqued from an antisubordination perspective.²⁶³

Given this internal logic, CRT’s constructionist conception of antisubordination helps to explain the marginal role of the normative resources of the African American Christian tradition in CRT scholarship. Specifically, whereas according to the logic of CRT’s antisubordination principle religion should be critiqued like any other social factor,²⁶⁴ scholarship drawing on the normative resources of the African American Christian tradition involves taking a perspective internal to Christianity. As result, such scholarship, which would refuse to treat religion like any other social factor, sits uneasily with CRT’s constructionist, antisubordination principle.

As far as I am aware, CRT scholars have not engaged the implications of CRT’s constructionist conception of oppression and subordination for scholarship that draws on the normative resources of the African American Christian tradition. However, CRT’s cousin, Latina and Latino Critical Theory (“LatCrit”), has richly explored and debated whether LatCrit’s commitment to an antisubordinationist agenda requires LatCrit theorists to analyze Catholicism’s role in subordinating Latino/a identities and communities, as opposed to thinking about the law from the normative perspective of Latino/a Catholicism.²⁶⁵ Although LatCrit’s rich engagement with religion does not examine the relationship between antisubordination and the normative resources of the African American Christian tradition, CRT and LatCrit are committed to the same conception of antisubordination.²⁶⁶ As a result, examining what LatCrit theorists have said on the question of how antisubordination relates to religion serves to illuminate whether my claim is correct that CRT’s conception of subordination operates to marginalize the normative resources of the African American Christian tradition in favor of treating religion as a social factor.

a. LatCrit, Religion, and Antisubordination Before describing LatCrit Theory’s engagement with the relationship between its antisubordination agenda and religion among Latino/as, in the context of this Article, it is important to remark on the stark contrast between, on the one hand, LatCrit’s rich engagement with religion and, on the other hand, the sparse attention religion has received in CRT scholarship.²⁶⁷ In my view, together with the contemporary and historical importance of religion in African American communities, LatCrit’s engagement with religion gives greater plausibility to the explanation offered above that CRT’s historical/intellectual trajectory accounts for the marginal role of religion in CRT scholarship. Specifically, one does not find in Latino/a history an analog to the highly influential Black nationalist and Black power critiques of Christianity as a White man’s religion.²⁶⁸ As a result, it is plausible to conclude that, in light of the great importance of religion in both the African American and Latino/a community, CRT’s historical/ intellectual trajectory helps to explain why, in contrast to the focus LatCrit has given to Latino/a religion, CRT has given negligible attention to African American religion.

While “[f]rom its very inception, LatCrit Theory recognized the salience of spirituality and religion to its anti-subordination analyses,”²⁶⁹ LatCrit’s conception of antisubordination has led important LatCrit scholars to conclude that LatCrit should critique religion from the external perspective of its commitment to antisubordination, as opposed to developing LatCrit scholarship grounded in the internal, normative resources of Latino/a religion.²⁷⁰ For example, concerned that an uncritical turn to religion can reproduce subordination, in his forward to the first-ever LatCrit Annual Conference, leading legal scholar and LatCrit theorist Francisco Valdes notes:

The pending question for LatCrit theorizing . . . is whether “religion” and/or spirituality provide sources of Latina/o resistance to subordination or whether they serve as sources of Latino/a accommodation of disempowerment. In varied instances or contexts, the answer could be either or both. The task, then, is not a LatCrit assessment of the “correctness” or value attributed or imputed to any particular article of faith or dogma, but a searching analysis of religion’s impact on Latina/o lives to help fulfill the LatCrit goal of advancing Latina/o liberation from social or legal oppression. The lesson therefore, is that Lat- Crit projects focused primarily on religion and spirituality, like those focused primarily on race, ethnicity, class, gender or sexuality, should manifest a broadly-defined anti-subordination sensibility and purpose.²⁷¹

In other words, according to Valdes, an antisubordination agenda is not focused on grounding scholarship in a religious tradition but on examining religion’s relationship to empowerment and subordination.²⁷² As a result, drawing on the normative resources of a religious tradition is secondary to LatCrit’s anchoring commitment to a constructivist antisubordination principle.²⁷³ Indeed, in their Afterword article commemorating LatCrit II, Valdes and co-author Elizabeth Iglesias, express exactly this sentiment, writing:

[W]e conclude that religion, like any other social or political force or institutional arrangement, must be analyzed in terms of and engaged on behalf of the anti-subordination commitment that unifies the LatCrit movements’ multiple diversities—with critical attention focused on whether and how religion’s historical and contemporary agendas tend to promote and/or obstruct the liberation struggles and anti-subordination imperatives that have coalesced in and around the LatCrit movement.²⁷⁴

Iglesias’s and Valdes’s insistence that LatCrit’s commitment to antisubordination requires LatCrit to engage religion like it would any other social phenomenon supports my argument that CRT’s constructionist principle of antisubordination marginalizes the normative resources of the African American Christian tradition. Specifically, Iglesias’s and Valdes’s claim that critical scholarship must “analyze[ ] [religion] in terms of and engaged on behalf of . . . anti-subordination” imperatives teases out the inner logic of LatCrit’s and CRT’s constructionist antisubordination principle.²⁷⁵ According to this principle, the polestar of critical scholarship must be a secular conception of antisubordination rather than the normative commitments of a religious tradition.²⁷⁶

Although Iglesias and Valdes do not specify why LatCrit’s commitment to antisubordination requires critical scholars to treat religion like any other social factor, the reason for their position is quite evident. They believe that a secular conception of antisubordination is necessary to check religion’s role as a source of subordination.²⁷⁷ Indeed, describing the church’s alleged complicity in various human rights violations, they go so far as to claim that, in light of history, “the cumulative effects of Christianity on [the United States] cannot credibly be said to represent egalitarian respect for difference, or sincere accommodation of diversity on any of the points implicated by the recorded dogma of the various churches spawned by Judeo-Christian imperatives.”²⁷⁸ But, as we now discuss, Iglesias and Valdes do not really support this hasty conclusion nor could they.

While this is not the appropriate place for an extended discussion of this issue, somewhat ironically, Iglesias’s and Valdes’s argument about Christianity’s cumulative effects fails precisely because it disregards an essential teaching of CRT: the importance of historical, contextual analysis. In particular, as British philosopher Keith Ward has argued, it is “misleading . . . to oppose ‘religion’ to ‘culture,’ as though they were different and competing forces.”²⁷⁹ Because the two operate together, it is often very difficult to place responsibility for intolerance squarely on religion as opposed to other factors. For example, while Christianity was used to justify colonial conquest,²⁸⁰ racism,²⁸¹ and slavery,²⁸² economic interests also partly motivated all of these.²⁸³ In addition, while Christianity was interpreted to help to justify racism and slavery, pseudo-science and the Enlightenment thought of thinkers, such as Immanuel Kant, also played a critical role.²⁸⁴

More generally, while “[i]t is an error to see religion just in social terms . . . [i]t is equally an error to think that religions add nothing to the social context. They do add something, but what they add depends on the context and who is doing the adding.”²⁸⁵ Accordingly, instead of saying that the cumulative effects of Christianity “cannot credibly be said to represent ‘egalitarian respect for difference’ or ‘sincere accommodation of diversity,’” Valdes and Iglesias should have been careful to point out the great difficulty in determining whether Christianity was actually the cause of the moral wrongs that they identify.²⁸⁶ One must instead look to context and be mindful of the fact that Christianity cannot be easily separated from extra-religious forces, such as economic and political interests.²⁸⁷

Looked at this way, it is not difficult to see that Iglesias’s and Valdes’s suggestion that Christianity’s cumulative effects have been intolerant of difference both fails to adequately grapple with the difficulties of defining Christianity’s content across American history and to account for confounding variables.²⁸⁸ In particular, because Christianity’s precise content and impact on society is historically and socially contingent, and because Christianity often operates at the same time in history in different moral directions depending on who is acting in its name, it is very difficult, indeed impossible, to support the broad conclusion that Christianity’s net effects “cannot credibly be said to represent egalitarian respect for difference.”²⁸⁹ For example, how does one calculate the impact, on the one hand, of the abolition movement, and on the other hand, proof text justifications for slavery? Thus, while one can show connections between Christianity and pro- and anti-slavery forces, it is difficult to imagine, especially in light of numerous confounding variables, how one could calculate the relative contribution of these connections to a larger analysis of Christianity’s cumulative impact in the United States on “egalitarian respect for difference.”²⁹⁰

Nevertheless, I, of course, agree with Iglesias’s and Valdes’s weaker claim that religion can and has been a source of subordination²⁹¹ and believe that there is immense value in the kind of critical perspective that they urge. However, I reject any suggestion that antisubordination work must treat religion like any other social factor. In my view, arguments developed from the internal point of view of a religion can perform powerful work on behalf of oppressed people—a fact which Martin Luther King, Jr.’s “Letter From A Birmingham Jail” and the broader civil rights movement demonstrate quite clearly.²⁹² That said, I would nevertheless defend the value of two kinds of scholarship: one that engages religion as a social factor as part of a secular antisubordination agenda, and one that focuses on engaging the law from perspectives internal to religious traditions.

b. An Exclusively Constructionist Conception of Subordination Marginalizes

the African American Christian Tradition I now want to briefly indicate why an exclusively constructionist conception of subordination marginalizes the African American Christian tradition. In contrast to CRT’s and LatCrit’s exclusively constructivist understanding of subordination, the African American Christian tradition views oppression as both the product of constructed human arrangements and as the product of the spiritual, transcendental problem of human sin.²⁹³ Thus, contra the constructivist conception of subordination, in a certain sense it would not be far from the mark to say that, although particular structures of domination and subordination are in no way natural or inevitable, the view of human nature as fallen and subject to sin means that domination and subordination will find expression in human structures.²⁹⁴ Accordingly, from the perspective of the African American Christian tradition, it is incomplete to claim, as some CRT scholars have, that “the struggle against subordination must be understood as a struggle for power within the institutional arrangements through which power is legally organized and deployed.”²⁹⁵ It is also incomplete to claim, “that structures of domination and subordination are manufactured by humanity rather than handed down by some ‘natural’ or inevitable force.”²⁹⁶ In light of the problem of sin, in addition to struggling to redistribute power within institutions, it is necessary to acknowledge and address corruption at the individual level. However, because CRT’s constructivist position implicitly rejects the notion that individual corruption is in part independent of structural oppression,²⁹⁷ CRT’s antisubordination agenda simply cannot accommodate the robust conception of individual sin that is central to the African American Christian tradition and other Christian traditions that adhere to classical Christian doctrines of sin. As a result, to the extent that the African American Christian tradition understands individual sin to be a source of oppression and subordination, arguments developed on the basis of CRT’s constructionist conception of subordination fail to cultivate selfunderstanding among African American Christians.²⁹⁸

Despite my conclusion that CRT’s exclusively constructionist conception of subordination cannot easily accommodate traditional Christianity’s insistence that individual sin is, in part, responsible for oppression and subordination, legal scholar and Georgetown Law Professor Anthony Cook has produced a body of critical race scholarship drawing on the African American Christian tradition as exemplified in the life and work of Dr. Martin Luther King, Jr.²⁹⁹ However, as I argue in the next section, neither Cook’s foundational effort to interpret King in parallel with CLS and CRT³⁰⁰ nor his subsequent work manages to reconcile CRT’s naturalistic, constructionist antisubordination agenda with King’s and the African American Christian tradition’s emphasis on the role of personal sin in producing oppression and subordination. In fact, Cook’s foundational piece³⁰¹ (upon which much of his corpus builds) actually marginalizes those aspects of King’s thought that are arguably most deeply and squarely rooted in the Christian tradition.

C. A Critique of Cook’s Foundational Effort to Interpret King in Parallel

with CRT and CLS

In his path-breaking Harvard Law Review article, Beyond Critical Legal Studies: The Reconstructive Theology of Dr. Martin Luther King, Jr . (“Beyond CLS”), Cook lays the foundation for a corpus that constitutes the most sustained effort to examine American law and legal scholarship from the perspective of the African American Christian tradition.³⁰² In this seminal piece, Cook is primarily focused on demonstrating how King’s reconstructive theology provides guidance on how critical scholars can go beyond critical legal studies’ frequent failure to offer more than a “theoretical deconstruction” of liberalism.³⁰³ As a result, Beyond CLS is primarily concerned with demonstrating that King’s life and thought offer lessons on further developing the project of critical legal scholarship; its main focus is not on interrogating the compatibility between, on the one hand, King and the African American Christian tradition’s emphasis on personal sin, and, on the other hand, critical legal scholarship’s exclusively naturalistic, constructionist conception of subordination.³⁰⁴ In particular, according to Cook, like CLS, King engages in theoretical deconstruction.³⁰⁵ But unlike CLS, King then engages in a robust form of what Cook calls “experiential deconstruction”—a deconstructive activity that examines the specific experiences of oppressed people in order to gain “knowledge of the full range of conditions under which they remain oppressed.”³⁰⁶ Furthermore, by employing experiential deconstruction, critical scholars can provide a basis upon which “to reconstruct community from the debris of theoretical deconstruction,”³⁰⁷ which in turn provides “constructive goals” capable of informing the struggle for transformative social change.³⁰⁸ Thus, just as King offered a reconstructive vision of community, which he called the Beloved Community, and engaged in transformative social struggle in order to bring about his vision of society, by going beyond theoretical deconstruction and to experiential deconstruction, CLS can develop a reconstructive vision of community that will inform the struggle for social change.³⁰⁹ However, in contrast to the focus in CLS on “rights-trashing”³¹⁰ and CLS’s frequent failure to include in its analyses the perspectives and experiences of racial minorities,³¹¹ King insisted on the importance of individual rights and critiqued American law and society from the perspective of the experiences of Black people.³¹² As a result, while Cook interprets King in parallel with CLS, his argument creates an even closer parallel between King and the then inchoate CRT movement.

However, as I argue below, Cook’s effort to interpret King in close parallel with CLS and CRT is unpersuasive. Moreover, while Cook’s argument may mark a significant contribution insofar as his understanding of King enables him to construct a blueprint of how CLS can go beyond theoretical deconstruction, his effort to interpret King in parallel with CLS and CRT fails to address the divide between, on the one hand, King and the larger African American Christian tradition’s emphasis on the importance of personal sin and, on the other hand, CLS and the then inchoate CRT movement’s exclusively naturalistic conception of subordination and the anthropology that undergirds it.³¹³ More precisely, Cook elides the chasm between, on the hand, King’s emphasis on the need to address both structural and individual, spiritual corruption and, on the other hand, CLS’s emphasis on structural change and utter lack of attention to the role that spiritual purification has in ending oppression.³¹⁴ As a result, Cook’s argument develops a much stronger parallel between King and CLS than actually exists and thereby minimizes the tensions between CLS’s exclusively constructionist approach to antisubordination and that of the African American Christian tradition.³¹⁵ More importantly in the context of this Article, Cook’s unpersuasive effort to interpret King in close parallel with CLS and CRT does not undermine my claim that CRT’s commitment to a constructionist conception helps to explain the marginal role that the African American Christian tradition has played in CRT. Because a detailed examination of Cook’s argument is required to support my claim that Cook fails to persuasively interpret King in close parallel with CLS and CRT, it is to that examination that I now turn.

1. Implausibly Interpreting King as a Theoretical Deconstructionist

Cook’s effort to parallel King and CLS is anchored in his effort to interpret King as sharing CLS’s method of theoretical deconstruction.³¹⁶ More precisely, Cook offers a CLS-style theoretical deconstruction of the account of human nature that underlies Lockean liberalism and interprets King as having offered a parallel set of arguments deconstructing the account of human nature that underlies conservative evangelicalism.³¹⁷ However, as I argue in the next subsection, Cook’s effort to interpret King as having theoretically deconstructed human nature in the manner of a CLS-style critique runs into difficulty. More specifically, the evidence upon which Cook relies does not persuasively support Cook’s effort to characterize King as having made arguments that closely parallel CLS-style theoretical deconstructions.³¹⁸ Furthermore, based upon the evidence, it is implausible to describe King as holding the metaphysical commitments that underlie the CLS-style critique of human nature that Cook attempts to attribute to him.³¹⁹ However, before reaching Cook’s discussion of King, I first review the CLS-style critique of Lockean liberalism against which Cook attempts to parallel him.³²⁰

a. A CLS-style Critique of Lockean Liberalism

After explaining that “[t]heoretical deconstruction identifies underlying assumptions, exposes those presuppositions as value choices of the theorist, and demonstrates the indeterminacy of those values—that no one vision of community is logically compelled by the values chosen”—Cook offers three CLS-style arguments theoretically deconstructing the account of human nature that underlies Lockean liberalism’s conception of community.³²¹ More precisely, while Lockean liberalism offers a vision of community built upon characterizing human beings as individual, rational appropriators of property, incoherency, universality, and indeterminacy critiques show that we are free to reject Locke’s view of human nature and the vision of community that he believes that view requires.³²²

According to Cook’s incoherency critique, because Locke “deduces what he considers a natural and necessary social order from an incoherent conception of human nature, his conception of social order need not be accepted as legitimate.”³²³ However, even if Locke’s theory of human nature were coherent, Cook argues that “what one discovers as a universal attribute of human behavior depends largely on who is searching, what she hopes to find, and the broader social context in which the search takes place.”³²⁴ As a result, according to the universality critique, we need not accept “Locke’s characterization of humans as universally rational appropriators of private property” and are therefore free to reject Locke’s vision of community.³²⁵ Lastly, according to the indeterminacy critique, even if we accept Locke’s vision of human beings as rational appropriators of private property, we are not compelled to accept his vision of community as “a pervasive system of private ownership.”³²⁶ We might instead conclude that the natural impulses of individual, private-property appropriators could be satisfied “through the development of small scale cooperatives in which individuals share in the ownership and responsibilities attending property with others of the community.”³²⁷ Thus, according to the indeterminacy critique, “[w]e remain free to make our own world, and are not compelled to accept mechanically the one” that Locke or others claim to derive from first principles.³²⁸

As I now argue, Cook unpersuasively interprets King as having offered a trio of theoretical deconstructions whose mode and method parallel those that Cook offers of Lockean liberalism.³²⁹

b. Why Cook’s Effort to Interpret King as a CLS-Style Theoretical

Deconstructionist is Unpersuasive

I begin my critique of Cook’s effort to interpret King as offering CLS-style theoretical deconstructions with Cook’s effort to characterize King as having offered an “incoherency” critique of conservative evangelical Christianity’s account of human nature. Cook develops this argument from King’s famous “Letter From a Birmingham Jail”³³⁰ responding to eight Alabama clergy who had released a public statement criticizing King for organizing “unwise and untimely” civil rights demonstrations and inciting “hatred and violence.”³³¹ According to the clergymen, racial issues are properly resolved in the courts “and not in the streets.”³³² Based on the following excerpt from King’s “Letter From a Birmingham Jail,” Cook characterizes King as theoretically deconstructing the clergy’s contention that the fundamental evilness of human nature requires privileging law and order over freedom:

[I have] almost reached the regrettable conclusion that the Negro’s great stumbling block in the stride toward freedom is not the White Citizen’s Counciler or the Ku Klux Klanner, but the white moderate who is more devoted to ‘order’ than to justice; . . . who paternalistically feels that he can set the timetable for another man’s freedom . . . . I had hoped that the white moderate would understand that law and order exist for the purpose of establishing justice, and that when they fail to do this they become dangerously structured dams that block the flow of social progress.³³³

As Cook interprets this excerpt of King’s famous epistle, King is offering an incoherency critique that “expose[s] the white clergy’s preference of order over freedom and evil over good and demonstrate[s] that this preference lacked an objective foundation.”³³⁴ More precisely, according to Cook, if human nature is fundamentally evil, and freedom therefore requires law and order, then order also requires freedom.³³⁵ However, because human beings would be ungovernable if they were not capable of “substantial good,” order presupposes freedom, and it therefore presupposes the human goodness that the clergy’s view of human nature as fundamentally evil denies.³³⁶

However, there are two problems with Cook’s effort to characterize King as offering this incoherency critique. First, King’s dispute with the clergy did not on its face concern whether human nature is fundamentally evil or fundamentally good.³³⁷ Indeed, neither the clergy nor King made any reference to the connection between, on the one hand, conservative evangelical Christianity’s view of human nature as fundamentally evil and, on the other hand, the relationship between law, order, and freedom.³³⁸ As a result, Cook’s effort to interpret King as offering this critique relies upon the unusual claim that King was theoretically deconstructing as incoherent a position that neither he nor the clergy explicitly acknowledged was at issue. But even if one were to accept this unusual instance of theoretical deconstruction, there is a second, more substantive problem with Cook’s argument. Even if the dispute between King and the clergy were in fact (that is, implicitly) really about the relationship between a particular conception of human nature and the relationship between law, order, and freedom, Cook’s critique would not be persuasive. For contrary to Cook’s critique, conservative evangelical Christianity’s view of human nature as fundamentally evil is consistent with the substantial good associated with human governability.³³⁹ Specifically, the Calvinist doctrine of total depravity, which Cook sees as undergirding conservative evangelical Christianity’s view of human nature,³⁴⁰ does “not intend[ ] to deny human ability outwardly to uphold the law, but rather to indicate a pervasive inward distortion of character tainting all human acts and rendering the person utterly unworthy before God.”³⁴¹ In theological terms, according to Calvinism, although the imago Dei in human beings has been distorted, it has not been lost.³⁴² Accordingly, although human action is never perfectly good, human beings are able to perform good acts. As a result, even if King’s dispute with the clergy were about human nature (which it was not), the incoherency critique that Cook attributes to King would constitute a very weak theological argument. In my view, in light of the speculative nature of Cook’s argument and the fact that King held a Ph.D. in systematic theology, it is implausible to attribute such a theologically weak argument to King.

Before offering what I believe to be a more persuasive interpretation of the argument that King was developing in the excerpt upon which Cook relies, I want to first emphasize that, contrary to Cook’s claim, the clergymen offer a pragmatic position that is more pedestrian than any argument positing that the fundamental evilness of human nature entails that freedom requires law and order.³⁴³ In short, as opposed to offering a philosophically complex argument about the relationship between human nature and freedom and law and order, the clergy essentially (and wrongly) argue that recent developments in Birmingham provide reason to be optimistic that court action, and not civil disobedience, is the appropriate approach to resolving racial tensions.³⁴⁴ Moreover, although the clergy do urge the citizens of Alabama to maintain law and order, contrary to Cook’s argument, they do not argue for the claim that human nature is such that freedom requires law and order,³⁴⁵ but focus on blaming King for the violence that erupted following what the clergy characterize as “unwise and untimely” civil rights demonstrations.³⁴⁶ Thus, as King argues in his Letter From a Birmingham Jail, they blame the victims rather than the perpetrators of violence.³⁴⁷

In response to the clergy’s criticisms, rather than offering the incoherency critique that Cook ascribes to him, King argues that the clergy are mistaken about the purpose of law and order, and that they are objectively wrong.³⁴⁸ Appealing to a Christian understanding of natural law, King argues that segregation laws are unjust and explains why breaking an unjust law while willingly accepting the penalty actually expresses the highest “respect for law.”³⁴⁹ He then argues “that law and order exist for the purpose of establishing justice,” and that nonviolent direct action exposes the injustice of an “obnoxious negative peace,” and it thereby helps to bring about “a substance-filled positive peace.”³⁵⁰ As a result, it is far more plausible to understand King as arguing that natural law and the purpose of law and order lead to a different conclusion than the one for which the clergy advocate, than it is to read King as offering an incoherency critique that argues from a claim about human nature that the clergy’s preference for law and order and opposition to civil disobedience could be inverted and therefore lacks an objective foundation. Thus, in contrast to Cook’s effort to characterize King as offering a CLS-style response to the clergy’s preference for law and order, King’s response actually runs contrary to CLS’s understanding of the nature of law and reflects Western Christianity’s traditional belief in the existence of a natural, God-given law.³⁵¹

Cook’s effort to attribute a CLS-style universality critique to King is equally unpersuasive. According to Cook, by drawing on the liberal evangelical and social gospel view of human nature, King “replac[ed] conservative evangelicalism’s conception of a fundamentally evil human nature with a conception of a fundamentally good human nature, [and thereby] demonstrated that the conception of human nature as fundamentally evil need not be accepted as universally valid.”³⁵² Before reaching the merits of this argument, it is necessary to first say that it is difficult to identify the nature of Cook’s argument regarding his effort to interpret King as having offered the universality critique that Cook attributes to him. As I will argue, on the one hand, based upon the evidence he cites, it may be that Cook is attempting to impute to King the foregoing CLS-style universality critique through reconstructing or speculating about King’s intellectual process.³⁵³ Yet, on the other hand, the form and nature of Cook’s argument suggests that he is characterizing King as having actually offered the universality critique of conservative evangelicalism that he ascribes to King.³⁵⁴ Because it is difficult to be sure which of the two arguments Cook intends to make, I address each of them and argue that neither is persuasive.

Let us first examine the possibility that Cook is attempting to ascribe to King a CLS-style universality critique through reconstructing or speculating about King’s intellectual process. The starting point for this interpretation of Cook’s argument is the evidentiary material around which Cook develops his argument. Specifically, rather than citing King’s “Letter From a Birmingham Jail” or other sources from King’s vast body of writings and speeches to support his interpretation, Cook builds his argument around King’s exposure as a graduate student to both liberal evangelicalism and Walter Rauschenbusch’s social gospel’s view of human nature as fundamentally good and their related claims that social institutions, rather than human nature, are the source of evil.³⁵⁵ Cook then seems to conjecture that this exposure as a student enabled King to realize that conservative evangelical Christianity’s:

privileging of order over freedom and the conception of human nature as fundamentally evil . . . need not be accepted as universally valid . . . . [but] might viewed as historically contingent and conditioned, and thus subject to change if individuals are willing to engage in transformative struggles to alter the conditions under which they appear coherent.³⁵⁶

This in turn enabled King “to challenge the view of human nature that counseled African–Americans to be patient in the face of oppression.”³⁵⁷ In sum, then, in light of the fact that Cook does not point to any evidence that King actually offered the universality critique that he interprets him as having offered, it is possible to interpret Cook as arguing that King’s intellectual development entailed his offering the universality critique that Cook ascribes to him.

However, there are two reasons that I hesitate to read Cook as making this argument. First, such an argument would consist of speculation about the intellectual process that King may or may not have engaged in to challenge the notion that because human nature is fundamentally evil law and order should be privileged over freedom, African Americans should “be patient in the face of oppression.”³⁵⁸ Second, and perhaps even more problematic, such an argument would entail serious logical difficulties. Specifically, if King did not actually offer the universality critique and Cook is instead reconstructing King’s intellectual process, the argument would run as follows: King was aware that both liberal evangelicalism and the social gospel held an optimistic view of human nature, and so King realized that conservative evangelical Christianity’s conception of human nature does not need to be accepted as universally valid. However, such an argument cannot be sustained, for it entails conflating differing beliefs over whether human nature is fundamentally good or fundamentally evil with the very different issue of whether or not the conception of human nature as fundamentally evil is universally valid. Put differently, the fact that King knew that liberal evangelicalism and the social gospel hold a different view of human nature than does conservative evangelicalism does not entail the epistemological skepticism that the universality critique implies. As a result, although exposure to an optimistic view of human nature may have given King a reason to question whether the pessimistic view of human nature was correct, it would not have given him a reason to make a CLSstyle argument that the pessimistic view of human nature “need not be accepted as universally valid.”³⁵⁹ Accordingly, this interpretation of Cook’s argument in support of reading King as having offered a CLS-style universality critique fails on its own terms.

However, there is another way that we might interpret Cook’s effort to interpret King as having made this critique. As mentioned above, this alternative interpretation of Cook’s argument characterizes King as actually having offered the universality critique of conservative evangelicalism as an alternative to the incoherency critique that Cook finds in King’s “Letter From a Birmingham Jail.” While this argument thus avoids speculating about King’s thought process and for that reason is, in my view, a better interpretation of Cook’s text, it has a severe problem of its own: it anachronistically attributes to the mature King a view of human nature that he rejected as a graduate student.³⁶⁰ Despite its anachronistic nature, both the structure of Cook’s argument and certain of his statements strongly weigh in favor of this interpretation of his argument.³⁶¹

To begin, consider that the form of Cook’s effort to interpret King as offering a universality critique on the heels of his argument for the Kingincoherency critique strongly implies that King offered the universality critique as an alternative argument to an incoherency critique of conservative evangelicalism’s view of human nature. Specifically, Cook begins the universality-argument by writing, “[e]ven if the privileging of order over freedom and the conception of human nature as fundamentally evil over its opposite conception were not seen as incoherent, King realized that these privileged conceptions need not be accepted as universally valid.”³⁶² This clearly suggests that King viewed the universality critique as an alternative to the incoherency critique that Cook interprets him as having offered in his “Letter From a Birmingham Jail.” Cook thereby implies that King offered the universality critique contemporaneously with the arguments contained in his “Letter From a Birmingham Jail.”

But there are at least two additional and, in my view, stronger reasons to conclude that Cook intends to argue that for King the universality critique actually constituted an alternative to the incoherency critique that Cook claims to identify in the “Letter From a Birmingham Jail.” First, at the close of his argument characterizing King as offering the universality critique, Cook appears to allude to King’s response in his “Letter From a Birmingham Jail” to the clergy’s criticism that King’s demonstrations were untimely.³⁶³ In particular, he argues that King used liberal evangelicalism and the social gospel’s optimistic conception of human nature to formulate a universality critique that “challenge[d] the view of human nature that counseled African–Americans to be patient in the face of oppression.”³⁶⁴ Second, and more significantly, at a later stage of his argument, Cook describes King as rejecting the optimistic view of human nature after having offered his incoherency, universality, and indeterminacy critiques.³⁶⁵ Cook thus implies that King rejected the optimistic view of human nature only after his incoherency and indeterminacy critiques, both of which Cook constructs around King’s “Letter From a Birmingham Jail.”³⁶⁶ As a result, there is a strong basis to conclude that the best interpretation of Cook’s argument is the one that has King offering a universality critique that is predicated on the fundamental goodness of human nature as an alternative to the incoherency argument that Cook believes King to have offered in his “Letter From a Birmingham Jail.”

However, if that is the case, Cook’s effort to interpret King as offering a universality critique has a serious difficulty: King abandoned the optimistic view of human nature as a graduate student.³⁶⁷ Specifically, as a graduate student in the early 1950s, King rejected (and never readopted) the liberal evangelical and social gospel view that human nature is fundamentally good, and concluded that human nature is neither fundamentally good nor fundamentally evil but a synthesis of the two extremes.³⁶⁸ Indeed, King writes that while social gospel founder Walter Rauschenbusch’s book “Christianity and the Social Crisis . . . left an indelible imprint on [his] thinking,” he felt, as a graduate student, “that [Rauschenbusch] had fallen victim to the nineteenth century ‘cult of inevitable progress,’ which led him to an unwarranted optimism concerning human nature.”³⁶⁹ Moreover, as a graduate student, King disagreed with Rauschenbusch that evil was social rather than personal and felt that Rauschenbusch “came perilously close to identifying the kingdom of God with a particular social and economic system.”³⁷⁰

Accordingly, in light of King’s own account of the development of his views on human nature, Cook’s reading of the mature King offering a universality critique premised on a view of human nature as fundamentally good does not find support in the evidence.³⁷¹ As a result, Cook’s effort to interpret King as offering a universality critique parallel to the universality critique that Cook offers of Lockean liberalism is unpersuasive. However, as will I argue below, this false parallel creates the erroneous impression that King’s mature views were quite close to the view of some CLS scholars that, because human nature is fundamentally good and “alienation and fear” are socially produced, structural reform can enable human beings to achieve a vision of community that reflects the positive view of human nature.³⁷² In contrast, as I argue below in Section c.2.a, although King understood the importance of structural reform, because of his belief in the reality of personal sin, unlike CLS, he emphasized the absolute necessity of internal, spiritual transformation in achieving the alternative vision of society that he called the “Beloved Community.”³⁷³

As his final argument interpreting King as having offered a CLS-style theoretical deconstruction of conservative evangelical Christianity, Cook attempts to ascribe an indeterminacy critique to King.³⁷⁴ According to Cook, even assuming the correctness of conservative evangelicalism’s view of human nature as fundamentally evil, “King realized [such a view of human nature] . . . d[oes] not mechanically determine [a] specific vision[] of community. How we live[] in community remain[s] a matter of choice that implicate[s] a host of competing values.”³⁷⁵ Cook cites King’s appeal to natural law as a basis for the argument that, even assuming that human nature’s fundamental evilness requires deference to state authority, human beings must nevertheless respect the law of God.³⁷⁶ According to Cook, this means that for King, the first principle of a fundamentally evil human nature does not compel any specific vision of community, including the community posited by conservative evangelicalism in which civil disobedience should be rejected in favor of deference to the state.³⁷⁷ As a result, King offered a CLS-style indeterminacy critique.³⁷⁸

However, Cook’s argument is unpersuasive. First, Cook’s framing of the issue implausibly characterizes King’s “Letter From a Birmingham Jail” as responding to the notion that human nature’s fundamental evilness requires deference to the state.³⁷⁹ However, as I have argued above, Cook’s effort to interpret the dispute between King and the clergymen to whom his Letter responds as being about the relationship between a pessimistic view of human nature and law, order and freedom is unpersuasive.³⁸⁰ Second, even accepting Cook’s characterization of the dispute, his effort to ascribe to King the above indeterminacy critique has fatal difficulties. Specifically, the very passage of King’s famous epistle that Cook cites to support his argument actually belies the critique that he is attempting to attribute to King.³⁸¹ In that passage, King writes:

A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law . . . not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority, and the segregated a false sense of inferiority. . . . So segregation is not only politically, economically and sociologically unsound, but it is morally wrong and sinful.³⁸²

First, as far as I can tell, this passage has nothing to do with an argument that a view of human nature as fundamentally evil does not “mechanically determine a specific vision of community.”³⁸³ Second, contrary to Cook’s interpretation, far from putting forward an indeterminacy critique that “first principals” cannot “mechanically determine a specific vision of community,” King is clearly arguing that first principles of both natural law and theology together dictate that human community should not be segregated.³⁸⁴ Therefore, contrary to Cook’s claim that King offered an indeterminacy critique illustrating that first principals cannot compel a specific vision of community, King actually appears to argue that first principals compel a desegregated vision of community.³⁸⁵ Moreover, immediately prior to the passage upon which Cook relies, King argues that, “one has a moral responsibility to disobey unjust laws,”³⁸⁶ and expresses agreement with St. Augustine that “an unjust law is no law at all.”³⁸⁷ Upon these first principals, as well as the theological first principal that sin is separation, King later concludes that “he can urge men to obey the 1954 decision of the Supreme Court, for it is morally right, and [that he] can urge them to disobey segregation ordinances, for they are morally wrong.”³⁸⁸ Again, far from offering an indeterminacy critique—the thrust of which illustrates that first principles cannot compel a specific vision of community—King resolutely argues that first principals of natural law compel him to reject a segregated vision of community in favor of a desegregated one.³⁸⁹

2. The Significance of Misinterpreting King as a CLS-style Theoretical Deconstructionist

According to Cook, “[t]he incoherency, universality, and indeterminacy critiques gave King the intellectual freedom to posit a radically different conception of human nature that focused more on reconstructive struggle than theoretical deconstruction.”³⁹⁰ Moreover, Cook argues that King’s use of theoretical deconstruction ultimately led him to realize that “the optimistic view of human nature upon which evangelical liberalism and the social gospel constructed their utopias posed significant dangers.”³⁹¹ However, there are significant problems with these claims and the evidence that Cook uses to support them.

First, King did not offer the theoretical deconstructions that Cook interprets King as having offered.”³⁹² Second, while Cook argues that King came to reject the optimistic view of human nature as a result of the freedom provided by the CLS-style critiques that Cook ascribes to him, as I have already indicated, King had actually rejected the optimistic view of human nature as a graduate student.³⁹³ However, Cook’s iteration of King’s intellectual development obscures this fact and implies a very different chronology of King’s intellectual development.³⁹⁴

Describing the evolution of King’s views after his “Letter From a Birmingham Jail” and incorporating various quotes from King’s account of his intellectual development as contained in his essay, “Pilgrimage to Nonviolence,” Cook writes:

[T]he more King “observed the tragedies of history and man’s shameful inclination to choose the low road,” the more he came to see the “depths and strength of sin.” His experiences convinced him that evangelical “liberalism had been all too sentimental concerning human nature and that it leaned toward a false idealism” that failed to see that “reason is darkened by sin” and “is little more than an instrument to justify man’s defensive ways of thinking.”³⁹⁵

However, in the quotes that Cook relies upon, King is not writing about his post-Birmingham intellectual development but about his development as a graduate student.³⁹⁶ It is therefore impossible that the CLS-style critiques that Cook claims to identify in King’s “Letter From a Birmingham Jail” led him to reject the optimistic view of human nature.³⁹⁷ Moreover, and even more dispositive, King’s own account of his intellectual development makes clear that it was his reading of the theologian Reinhold Niebuhr as a graduate student—and not CLS-style theoretical critiques— that led King to reject the optimistic view of human nature.³⁹⁸ As I explain in the next subsection, Cook’s unsustainable and anachronistic account of King’s intellectual development leads him to interpret King’s vision of the Beloved Community in terms that closely parallel CLS’s and CRT’s emphasis on structural reform. However, Cook’s effort to interpret King in these terms ignores and neglects King’s insistence on the importance of individual spiritual transformation in achieving the Beloved Community.³⁹⁹

a. Spiritual Transformation is Critical to King’s Understanding of Both

Human Nature and the Beloved Community

Due to his claim that King rejected the optimistic view of human nature as the result of CLS-style theoretical deconstructions that King never actually offered,⁴⁰⁰ Cook’s argument misunderstands how King’s doctrine of human nature leads him to struggle on behalf of what he called the “Beloved Community.”⁴⁰¹ More specifically, in arguing that it was CLS-style theoretical deconstruction that gave King the intellectual freedom to reject the optimistic view of human nature, Cook reads King in a CLS-style mode that rightly emphasizes the importance of structural reform in achieving the Beloved Community but which fails to capture the fact that King’s commitment to the Beloved Community was undergirded by a belief in the possibility of spiritual growth. Because the nature of my argument here requires a comparative examination of Cook’s account of King’s commitment to the Beloved Community and the one that I set forth below, developing this argument requires a careful examination of both accounts. To begin, I now set forth Cook’s account of King’s rejection of the optimistic view of human nature.

Cook correctly notes that King rejected both Karl Barth’s neoorthodox view emphasizing that human nature is intractably sinful and that “utopian aspirations” are therefore “relatively futile,” as well as liberal evangelicalism and the social gospel’s optimistic view of human nature and the utopian idealism that such a view entailed.⁴⁰² Moreover, as Cook rightly notes, “King described as ‘perilous’ the assumption by some liberal theologians that sin was but a mere ‘lag of nature that can be progressively eliminated as man climbs the evolutionary ladder.’”⁴⁰³ Moreover, although King concluded that the individual’s “estrangement from perfection was fundamental,” King believed that struggling to achieve what he called the “Beloved Community” “could transform social relations.”⁴⁰⁴ Thus, according to Cook, for King “[o]nly struggle to achieve the Beloved Community allows us to experience our essential nature [our capacity for goodness] and to change our limited knowledge and understanding of the world.”⁴⁰⁵

However, while Cook acknowledges that King came to reject the optimistic view of human nature and the liberal theological position that sin can be progressively eliminated, Cook interprets King’s understanding of struggle to bring about the Beloved Community in terms that emphasize King’s belief in the need for structural change.⁴⁰⁶ However, Cook’s interpretation fails to adequately address the connection between King’s Christian existentialist view of human nature and the possibility of spiritual growth.⁴⁰⁷ More specifically, contrary to critical portions of Cook’s argument, King came to reject the optimistic view of human nature after reading Reinhold Niebuhr as a graduate student.⁴⁰⁸ But importantly, King did not completely embrace Niebuhr’s Christian realism either.⁴⁰⁹ As Kenneth L. Smith and Ira G. Zepp, Jr. have written:

[T]he one major weakness King found in Niebuhr was his inability “to deal adequately with the relative perfection which is the fruit of Christian life.” For King this meant that Niebuhr did not deal satisfactorily with the possibilities of spiritual growth, Christian values in personality, and how agape is actually realized in human nature and history.⁴¹⁰

Thus, as Smith and Zepp emphasize, King’s “optimism regarding the possibility of realizing the Beloved Community” stemmed from his belief in the possibility of spiritual growth.⁴¹¹ However, because Cook’s argument neglects the importance that King attaches to spiritual formation, his argument fails to address the tension between, on the one hand, CRT’s exclusively constructionist conception of subordination and, on the other hand, King’s and the broader African American Christian tradition’s emphasis on the importance of personal sin.⁴¹² Furthermore, on this rendering of King’s views, Cook is able to interpret him in a broad CLS-frame that happens to coincide with the importance that CRT attaches to individual rights (and therefore rejects CLS’s emphasis on right-trashing) but which marginalizes the vision of Christian spiritual formation that undergirds King’s reconstructive vision of community.⁴¹³

In order to set forth the manner in which Cook parallels King with CLS and CRT, I wish to briefly return to Cook’s CLS-style critique of Lockean liberalism.⁴¹⁴ In that critique, Cook notes that although CLS largely lacks a positive, reconstructive vision of community, “its negative critique implies such a vision, and its analysis occasionally supports such alternatives.”⁴¹⁵ According to Cook, such an “alternative vision begins with a different conception of the self.”⁴¹⁶ Moreover, in a line of argument that appears to be of one piece with Valdes’s observation that CRT “argue[s] that structures of domination and subordination are manufactured by humanity rather than handed down by some ‘natural’ or ‘inevitable force,’”⁴¹⁷ Cook notes that some CLS scholars’ alternative conception of human nature “implies that liberal theory has mistaken the symptoms of the individual’s condition for its causes.”⁴¹⁸ Thus, “[t]he individual is not, by nature, an autonomous and acquisitive being desiring to dominate others and appropriate property. Rather, her alienation and loneliness are socially produced.”⁴¹⁹ In other words, while we may believe that individuals are wired to act to dominate others, what we call human nature is produced by social arrangements. As a result, “nothing about law or our present social order is sacrosanct or compelled by forces independent of our own capacities to envision and construct alternative forms of community.”⁴²⁰ Thus, according to Cook, CLS’s negative critique implies that “we are free to envision and construct alternative forms of community that represent a more accurate or at least more plausible conception of human nature one believed to be fundamentally good, which may replace ‘our pervasive alienation and fear of one another with something more like mutual trust.’”⁴²¹ Succinctly summarizing what he takes to be CLS’s faith in restructuring, Cook writes:

CLS scholars purport to show that our social-political world, from which law is inseparable, is of our own making. Just as there is nothing determinate, necessary, or natural about the application of legal rules, the way we live and relate to others is also a matter of choice. We can choose to structure our institutions in hierarchy and dominance, and limit our understanding of others and ourselves to the distorted roles and images generated by social rules and laws. Or we can choose to alleviate the alienation and loneliness that stifle our societal needs and impulses by restructuring those institutions and practices that distance us from others and cause us to perceive others with trepidation and suspicion.⁴²²

As I have intimated, Cook interprets King in parallel with CLS’s faith in an exclusively structural approach to subordination and oppression but interprets him in even closer parallel to the then inchoate CRT movement.⁴²³ According to Cook’s argument, like CRT, King both shares CLS’s method of theoretical deconstruction and (in contrast with CLS’s right-trashing) insists on the importance of individual rights.⁴²⁴ However, as I argue below, Cook misunderstands King’s doctrine of human nature and, as a consequence, interprets his belief in the possibility of the “Beloved Community” in a legalistic register that marginalizes King’s emphasis on the importance of spiritual formation but which thereby creates the impression that he shares CRT’s naturalistic, constructionist approach to subordination.⁴²⁵

To understand how Cook parallels King and the then inchoate CRT movement, it is necessary to examine the foundation upon which he develops it: his understanding of the relationship between King’s mature doctrine of human nature and King’s reconstructive vision of society, the Beloved Community.⁴²⁶ According to Cook, even after King rejected the optimistic view of humankind in favor of the “middle ground” of a Christian existentialism “that saw human nature as a struggle between good and evil,”⁴²⁷ “[m]any of the communal and cooperative dimensions of King’s theory of the state depended on the optimistic view of human nature posited by evangelical liberalism and the social gospel.”⁴²⁸ Thus, “many of the communal and cooperative dimensions of King’s theory of the state” depend upon the liberal evangelical and the social gospel claim that human nature is intrinsically good and that evil/sin exists in social institutions.⁴²⁹

However, because King rejected the view that human nature is intrinsically good,⁴³⁰ Cook needs some way to explain his claim that “many of the communal and cooperative dimensions of King’s theory of the state” nevertheless depend upon this view.⁴³¹ He finds this explanation in what he argues to be King’s understanding of the role of individual rights.⁴³² In particular, Cook claims that, although King concluded that the individual’s “estrangement from perfection was fundamental,” individual rights acted as a “hedge against” the dangers of a näıve optimism.⁴³³ Thus, although King rejected the optimistic view of human nature, he followed liberal evangelicalism and the social gospel insofar as he believed that struggling to achieve what he called the “Beloved Community” “could transform social relations.”⁴³⁴ As a result, while individual rights were needed as a “hedge against” the dangers of collective action in light of the reality of sin,⁴³⁵ according to Cook, King believed that “[i]ndividuals could harness the powers of the state to usher in a Beloved Community here on earth.”⁴³⁶ In other words, as Cook writes, for King, “rights provided limitations on collective action while broadening the scope of personal duty to permit movement toward a more socially conscious community.”⁴³⁷

Accordingly, on Cook’s interpretation, King’s mature Christian existentialist view of human nature as a struggle between good and evil corresponds to King’s belief that struggle to achieve the Beloved Community can transform social relations, even while individual rights are necessary to protect against our imperfect attempts to realize that community.⁴³⁸ Thus, Cook argues that King’s vision of the Beloved Community reflects the optimism of both evangelical liberalism and the social gospel but with a twist that accommodates King’s insistence on the reality of sin: individual rights function as a hedge against the dangers that can flow from efforts to reform the state in the image of an optimistic view of human nature.⁴³⁹ It is on the basis of this interpretation that Cook is able to argue that “[m]any of the communal and cooperative dimensions of King’s theory of the state [i.e., his vision of the Beloved Community] depended on the optimistic view of human nature posited by evangelical liberalism and the social gospel,” even while acknowledging that King actually rejected the view of human nature that Cook see as nevertheless undergirding his vision of the Beloved Community.⁴⁴⁰

As I indicated above, in his critique of Lockean liberalism, Cook argues that CLS’s negative critique implies that “we are free to envision and construct alternative forms of community that represent a more accurate or at least more plausible conception of human nature one believed to be fundamentally good, which may replace ‘our pervasive alienation and fear of one another with something more like mutual trust.’”⁴⁴¹ Likewise, as we have seen, on Cook’s interpretation, King also works toward an alternative vision of community predicated on the view that human nature is fundamentally good, with the difference being that, because he actually rejects the view that human nature is fundamentally good, he emphasizes the importance of individual rights.⁴⁴² As a result, on Cook’s reading, King is made to stand in parallel with CLS but in even closer parallel to the then inchoate CRT movement: like CRT he shares CLS’s method of theoretical deconstruction,⁴⁴³ but unlike CLS and like CRT he insists on the importance of individual rights.⁴⁴⁴

Thus, as a part of his effort to illustrate how King constitutes a model of how critical scholarship can go beyond theoretical deconstruction, Cook implies that an analogy exists between, on the one hand, the then inchoate CRT movement’s insistence on the importance of rights (as against CLS’s rights-trashing),⁴⁴⁵ and on the other hand, King’s approach to the role that rights play in his struggle to realize the Beloved Community.⁴⁴⁶ However, while King clearly insists on the importance of rights,⁴⁴⁷ on Cook’s interpretation, King’s approach to the Beloved Community is unduly legalistic and includes no focus on the paramount importance that King assigned to spiritual transformation.⁴⁴⁸ As we discuss in more detail below, the result is that Cook’s effort to parallel King with CLS and CRT marginalizes a significant aspect of the Christian normative order that underwrites King’s vision of the Beloved Community.⁴⁴⁹

As noted above, according to Cook, King understood rights and duties as complementary, such that “rights provide[ ] limitations on collective action while broadening the scope of personal duty to permit movement toward a more socially conscious community.”⁴⁵⁰ Moreover, consistent with his middle position on human nature, for King, “[i]ndividual rights represented . . . [both] a hedge against our imperfect attempts to reconcile our existential and essential selves [(respectively, our capacity for evil and good)] . . . [and] called for individual action, but action consistent with a more humane and contextual rule of law.”⁴⁵¹ Furthermore, while King “called for the immediate transformation of American institutions and practices . . . he rejected the use of violence in this transformative struggle. He refused to place the goal of a reconstructed community above the means used to achieve it.”⁴⁵²

Although Cook rightly observes that King “refused to place the goal of a reconstructed community above the means used to achieve it,”⁴⁵³ his argument suggests that the basis of King’s refusal is the limitations that rights place on collective action.⁴⁵⁴ However, Cook provides no support for this proposition and, as far as I am aware, there is no evidence that King actually held this view. To the contrary, King would not place the goal of a reconstructed community above the means used to achieve it because, for him, the means of achieving and the end of the Beloved Community are inextricably related.⁴⁵⁵ Specifically, because for King the Beloved Community is not just a change in social structures but a “qualitative change in our souls,”⁴⁵⁶ achieving the Beloved Community requires not only “avoid[ing] external physical violence, but also internal spiritual violence.”⁴⁵⁷ Thus, although King described the nonviolent movement as a struggle against an evil and unjust system,⁴⁵⁸ and therefore advocated for structural reform, he also emphasized the necessity of spiritual transformation, writing:

[o]nly a refusal to hate or kill can put an end to the chain of violence in the world and lead us toward a community where men can live together without fear. Our goal is to create a beloved community and this will require a qualitative change in our souls as well as a quantitative change in our lives.⁴⁵⁹

In other words, because achieving the Beloved Community involves not just changing an evil and unjust system but changing—on a spiritual level—the way we relate to one another, internal and external nonviolence are essential to bringing about the Beloved Community. As such, contrary to Cook’s interpretation, for King the duty of bringing about the Beloved Community is not somehow circumscribed by the limitations that rights place on collective action. To the contrary, because for King the Beloved Community is achieved only through internal and external nonviolence, there is no conflict between the struggle to achieve the Beloved Community and the limitations that rights place on collective action.⁴⁶⁰ As a result, the language of rights and duties is simply not the appropriate way to think about King’s refusal to resort to violence in his struggle on behalf of the Beloved Community.

However, while the language of rights and duties fails to capture King’s understanding of the relationship between nonviolence and the Beloved Community, by interpreting King in these terms, Cook’s argument conceals the radically different frameworks from which King, on the one hand, and CLS and CRT, on the other, seek to address subordination and oppression.⁴⁶¹ More specifically, because CLS and CRT believe that subordination reflects social structures and not anything endemic to human nature, whereas King believes that oppression originates from the spiritual problem of human sin, CLS/CRT and King approach the problem of oppression from radically different metaphysical assumptions.⁴⁶² Put differently, whereas CLS and CRT’s constructivist position proceeds from the assumption that the absence of inherent meaning in the world allows us to restructure human community on the basis of an alternative vision of human nature,⁴⁶³ King’s nonviolent struggle for the Beloved Community is rooted in the normative vision of the African American Christian tradition, which proceeds from a belief that there is a divine order that underpins the visible world and which justifies his hope that justice will eventually prevail.⁴⁶⁴ As King writes:

It is this deep faith in the future that causes the nonviolent resister to accept suffering without retaliation. He knows that in his struggle for justice he has cosmic companionship. This belief that God is on the side of truth and justice comes down to us from the long tradition of our Christian faith. There is something at the very center of our faith which reminds us that Good Friday may reign for a day, but ultimately it must give way to the triumphant beat of the Easter drums.”⁴⁶⁵

Accordingly, contrary to the view that the absence of inherent meaning or a fixed, pre-given human nature allows us to restructure human community based upon an alternative vision of human nature, King roots nonviolent struggle to achieve a better community in both his belief in the possibility of spiritual growth and in “the conviction that the universe is on the side of justice.”⁴⁶⁶ Indeed, underscoring his spiritual understanding of the civil rights movement, King states: “[t]his is a spiritual movement, and we intend to keep these things in the forefront. We know that violence will defeat our purpose.”⁴⁶⁷ Thus, like many African Americans across generations stretching back into the deepest and darkest period of slavery, King understood the cause of Black freedom as fundamentally rooted in a spiritual, teleological reality in which justice will ultimately prevail.⁴⁶⁸

Because Cook’s effort to read King in parallel with CLS and CRT does not address the obvious incompatibility between, on the one hand, King’s approach to racial oppression and the struggle to achieve the Beloved Community and, on the other hand, the naturalistic, constructionist antisubordination agenda to which CLR and CRT are committed, the argument in Cook’s seminal piece⁴⁶⁹ does not present a counterexample to my claim that CRT’s constructionist conception of subordination is a plausible explanation of the marginalization of the African American Christian tradition in CRT. Indeed, as I have argued, Cook’s effort to interpret King in parallel with CLS and CRT itself neglects King’s deeply Christian spiritual vision of the Beloved Community and the importance he attaches to the possibility of spiritual growth.⁴⁷⁰ Thus, in a very real sense, Cook himself marginalizes those aspects of King’s thought that are most deeply rooted in the Christian tradition.

3. Cook’s Subsequent Work Emphasizes Spiritual Transformation But Fails to Examine Its Implications for a Constructionist Antisubordination Agenda

While Cook’s 1990 article reading King in parallel with CLS marginalizes the importance King attaches to spiritual formation, in subsequent work, Cook eventually emphasizes that spiritual formation is essential to King’s vision of the Beloved Community.⁴⁷¹ However, he never addresses the ramifications of King’s emphasis on spiritual formation for his earlier argument paralleling King and CLS.

In a 1992 article, Reflections on Postmodernism , Cook emphasizes that nonviolence is a means as well as an end, and he comes very close to stating that spiritual transformation is essential to realizing the Beloved Community:

To King, nonviolence was an end in itself and not merely a means to an end. He understood moral ends could not be supported by immoral means because we are shaped as much by our means as we are by our ends. Caught between existentialism’s universal of the Beloved Community and its particularity of human frailty and limits, King realized that social struggle was a process of self-construction, humans caught in the process of Becoming, and that our choice of violence or nonviolence reflected not only who we are but shapes who we shall become as well.⁴⁷²

Accordingly, here Cook clearly emphasizes nonviolence’s role in self-construction and self-formation.⁴⁷³ Moreover, although postmodern notions of self-construction and Christian spiritual transformation are distinct and even at odds, they are mutually concerned with how our choices shape who we are and who we become.⁴⁷⁴ This overlap perhaps explains Cook’s seemingly natural transition from a discussion emphasizing the connection between self-construction and nonviolence to his claim that nonviolent action is “a call for greater spirituality in our struggles, a new orientation in our approach to others, their traditions and their histories.”⁴⁷⁵

Nevertheless, Cook’s 1992 article does not indicate how King’s view of human nature relates to his view of the connection between nonviolence and self-transformation.⁴⁷⁶ Similarly, it does not examine the implications of King’s emphasis on the relationship between nonviolence and self-transformation for the argument in his 1990 article that King employs arguments analogous to CLS in respect to method and emphasis on structural transformation.⁴⁷⁷ As a result, while his 1992 article emphasizes the importance King attaches to self-transformation, it does not overcome (or address) the differences between King’s and CLS/CRT’s approach to antisubordination.⁴⁷⁸ Thus, like his 1990 article, Cook’s 1992 article, Reflections on Postmodernism , does not undermine my claim that CLS’s and CRT’s conception of antisubordination operates so as to marginalize arguments grounded in the normative resources of the African American Christian tradition.⁴⁷⁹

Unlike his 1992 article on post-modernism, in subsequent work on related themes Cook does not focus on arguing for the relevance of the Social Gospel, Martin Luther King, Jr., and the Black prophetic tradition for critical scholarship, but instead focuses on showing how the Christian value of love can enrich liberal normative discourse.⁴⁸⁰ Moreover, in later work, Cook goes beyond postmodern notions of self-construction—a notion that overlaps with but which is distinguished in important respects from King’s Christian existentialism—and clearly emphasizes the importance Dr. King gives to spiritual transformation.⁴⁸¹ However, perhaps because in his later work Cook is writing as a critical scholar critiquing liberalism from a religiously grounded normative perspective, he never critically reexamines his earlier arguments on King and CLS.⁴⁸² More specifically, he does not examine the ramifications of King’s understanding of the inseparability of structural and spiritual transformation for achieving the Beloved Community for his earlier effort to parallel King and CLS. He likewise does not revisit his earlier, erroneous chronology of King’s views of human nature. Thus, even in later writings, Cook seems to be unaware of the fact that the interrelationship between both King’s views of human nature and his emphasis on both structural and spiritual transformation undermines critical portions of his earlier argument paralleling King and CLS.⁴⁸³ For the foregoing reasons, Cook’s later work does not constitute a counterexample to my claim that the tension between the constructionist view of antisubordination and the African American Christian tradition plausibly contributes to the marginalization of the latter in CRT scholarship.

III. Summaryand Conclusion

While I have closely engaged Cook’s work to illustrate why it does not constitute a counterexample to my claim that CRT’s exclusively constructionist conception of subordination stands in tension with scholarship grounded in the African American Christian tradition, Cook’s corpus stands as an all-too-rare example of a substantial body of work that attempts to ground race and law scholarship in the normative resources of the tradition that carried and sustained Black folks through slavery and Jim and Jane Crow, and which ultimately powered the Black freedom movement.⁴⁸⁴ Unfortunately, however, Cook’s efforts have not spawned a more wide-ranging body of race and law scholarship drawing on the Christian tradition.

Although I have framed the question in broader terms, in a sense, the task of this Article has been to understand why—despite the undeniable importance of Christianity among African Americans and CRT’s commitment to drawing on the normative resources of Black communities— Cook’s corpus has not led to a more substantial body of scholarship exploring the relationship between race, law, and the African American Christian tradition. I have addressed this question along two basic lines of inquiry: endogenous and exogenous explanations of Christianity’s marginal role in CRT scholarship.

First, as we have seen, there are powerful endogenous explanations of CRT’s failure to develop a substantial body of literature drawing on the normative resources of the African American Christian tradition.⁴⁸⁵ More specifically, given CRT’s deep debt to Black nationalist and Black power thought and its anchoring commitment to a principle of subordination whose internal logic entails treating religion as any other social factor, CRT’s genetic structure and intellectual frame renders it at best indifferent to scholarship grounded in the African American Christian tradition.⁴⁸⁶

Second, the exogenous factors of race and law scholars’ religious identifications, disincentives against producing Christian informed scholarship, and Establishment Clause concerns may help to explain the absence of a substantial body of CRT literature that engages the intersection of race and law from the perspective of religiously grounded normative arguments.⁴⁸⁷ However, as we have discussed, these exogenous explanations are either inconsistent with CRT’s commitment to drawing on the values and perspectives of communities of color or with CRT’s character as a form of outsider scholarship that is willing to cut against the grain of established academic expectations.⁴⁸⁸ Notwithstanding these observations, it is impossible to rule out the possibility that some or all of these explanations have and continue to contribute to CRT’s failure to more widely engage the African American community’s single most significant source of values and normative meaning.⁴⁸⁹ Yet, whether or not exogenous factors contribute to CRT’s neglect of the African American Christian tradition, as we have seen, CRT’s formation and commitments are at any rate consistent with and help to explain the limited attention CRT has given to the African American Christian tradition.

In light of this diagnosis and the important role that race and law scholarship engaged with the African American Christian tradition can play in developing self-knowledge among African American Christians, I would be remiss if I did not explicitly inquire whether CRT is likely to develop a literature that responds to this need. On this question, it is possible to draw the following strong but reasonable conclusion. In light of the fact that CRT’s intellectual frame and exclusively constructionist view of subordination are in tension with scholarship grounded in the Christian tradition, we should not expect CRT to generate a substantial body of legal scholarship examining how African American Christians’ ultimate commitments relate to the intersection of race and law and antisubordination projects in general. As a result, the important project of developing a legal literature that fosters self-knowledge among African American Christians’ vis-à-vis their relationship to American law is unlikely to evolve out of CRT (at least as it has been historically constituted).

Accordingly, if a body of legal scholarship grounded in the African American Christian tradition is to develop, it will be necessary to construct a form of scholarship that is capable of accommodating the African American Christian tradition’s prophetic, critical perspective on American law and society but also its anthropological and broader metaphysical commitments to a universe defined by an underlying spiritual reality. The complexity of such a project is difficult to overestimate but will undoubtedly entail the following two essential components. First, such a project would have to carefully delineate the Christian tradition’s influence on the development of Western law as well as an assessment (which will undoubtedly be controversial) of ways in which the African American Christian tradition compares with those Christian traditions that have had the most impact on the development of American law. The results of such a comparison would form the beginnings of an approach to American law that is distinctively rooted in the African American Christian tradition. Second, such a project will entail determining which (or which combination of) major philosophical and normative theories of law (natural law, legal positivism, critical, etc.) are best suited to how the African American Christian tradition would approach American law. From the foregoing two essential components, it would be possible to lay the groundwork for a form of scholarship that is able to accommodate both the metaphysical and the prophetic commitments of the African American Christian tradition.

Although here I cannot say more about this larger, future project, after 250 years of slavery,⁴⁹⁰ nearly 100 years of de jure second-class citizenship,⁴⁹¹ and approximately sixty years after Brown v. Board of Education ,⁴⁹² it is time to develop an approach to law that reflects the values and normative commitments of the African American Christian tradition. However, in addition to the difficulties arising from the scope of knowledge necessary to develop the project, there is a practical question of whether, given the current sociology of the legal academy, such a project can flourish. More specifically, if, on the one hand, accusations of anti- Christian bias among left-leaning academics are to some extent accurate, and if, on the other hand, we make the plausible assumption that scholars sympathetic to Christian-informed scholarship tend to be politically conservative, including on matters of race, then it is possible that an effort to develop a distinctively African American Christian approach to law will find itself alienated from (although for different reasons) the two groups of scholars who are most able to contribute to the project’s success.

Because of the possibility that developing an approach to law that reflects the African American Christian tradition will receive little support in the legal academy, scholars engaged in the project will have to be pioneering, prophetic voices who are willing to cut against the grain of the secular left as well as the predominantly colorblind, religious right. However, not all is grim. While the project may suffer marginalization within the halls of the legal academy, the Black community’s substantial identification with Christianity means that the effort to develop an African American Christian approach to law has a natural and substantial constituency outside of the ivory tower. Moreover, because such a project would in part seek to develop self-knowledge among African Americans Christians vis- à-vis American law, and because one of the primary goals of critical scholarship should be to reach beyond the academy, the project’s potential importance is undeniable. For these reasons, even if it faces headwinds and crosscurrents, we would do well to remember civil rights activist Fannie Lou Hamer’s words to a group of religiously skeptical, northern student activists: “Our religion is very important to us [her fellow poor black Mississippians]—you’ll have to understand that.”⁴⁹³ In the same spirit, I conclude this Article: Christianity remains deeply important to a significant majority of the African American community; it is time for legal scholarship to reflect this fact.