Vol. 14 No. 3 (March 2004)

JUSTICE AT WAR: CIVIL LIBERTIES AND CIVIL RIGHTS DURING TIMES OF CRISIS by Richard Delgado. New York: New York University Press, 2003. 219 pp. Cloth $30. ISBN 0-8147-1955-4.

Reviewed by Richard A. Glenn, Department of Government and Political Affairs, Millersville University, Pennsylvania.

Richard Delgado's JUSTICE AT WAR: CIVIL LIBERTIES AND CIVIL RIGHTS DURING TIMES OF CRISIS is not primarily about "justice at war;" nor is it primarily about "civil liberties and civil rights during times of crisis," at least not in the common understanding of those terms. Rather, it is about Critical Race Theory.

Critical Race Theory emerged in the 1970s in response to a perceived lack of critical analysis in existing civil rights scholarship and the relatively slow progress of racial reform in the post-Civil rights area. The central theme of the movement is simple: Law and legal scholarship in the United States have an overwhelmingly white voice. To counteract this imbalance, critical race scholars examine a wide array of racial issues through the methodology of the personal narrative, believing that to appreciate the perspective of persons of color, their voices must be heard. Richard Delgado, professor of law at the University of Pittsburgh School of Law, is one of the founding figures in the Critical Race Theory movement and among the most published-over one hundred law review articles and fifteen books-and cited legal scholars of the present generation. His academic productivity borders on the unbelievable.

JUSTICE AT WAR is the most recent installment of Delgado's RODRIGO CHRONICLES, a series of writings that examines America's racial scene through the conversations and experiences of fictional characters. Rodrigo Crenshaw-Delgado's "brash, gifted alter-ego"-is a young, black, liberal, highly intelligent law school graduate who has just returned to the United States from Italy to enroll in a graduate program in law. The narrator of the book, "the Professor," also a black man, is a well-established authority on race relations and a "grizzled veteran" of many civil rights struggles. Laz Kowalsky is a conservative member of a major law school faculty, whom Delgado introduces as "as far to the right politically as Rodrigo is to the left, but just as audacious and brilliant." Two other characters, Rodrigo's wife and mother-in-law, are also participants in many of these conversations. In each scene of the book, the characters are engaged in high-brow dialogues that traverse Critical Race Theory, exploring assumptions about affirmative action, immigration, attitudes toward noncitizens during times of war, terrorism, interracial love, the racial "IQ" gap, hate speech, economics, and black exceptionalism.

On some topics-hate speech and the black/white binary paradigm of race, for example-Delgado's analysis is fresh and thought provoking. Delgado's characters adeptly call into question the oft-referenced "marketplace of ideas" metaphor in free-speech jurisprudence. Clearly, our Constitution recognizes two values-freedom of speech and racial equality. Yet, there is little doubt that, in the so-called hate speech cases, courts have devoted insufficient attention to the issues of racial equality inherent in the Reconstruction Amendments. As of yet, judges have not forcefully framed and engaged the most difficult question hiding behind these hate speech cases-whether, and under what circumstances, words such as "nigger" and symbols such as burning crosses cease to be part of the freedom of speech protected by the First and Fourteenth Amendments, and instead constitute badges of servitude that may be prohibited under the Thirteenth and Fourteenth Amendments. Delgado's characters engage that question intelligently. (It is worth noting that the U.S. Supreme Court recently upheld a Virginia law that criminalized hate speech in certain situations. That decision, VIRGINIA v. BLACK (2003), was handed down after publication of JUSTICE AT WAR.)

Similarly, the characters' discussions concerning the black/white binary paradigm of race in the United States intrigue. Delgado's premise is that blacks-even though they no longer comprise the majority of those of minority racial stock-receive an inordinate amount of the minority attention. Some say that this attention is justified because of the severe history of black subordination. Delgado disagrees: Such a severe history does not necessarily imply a stronger claim on justice than that possessed by other minorities. Instead, each has a legitimate claim on justice. As such, the various races should band together to advance common goals, because working apart allows the dominant class to continue to play them against each other. As has often occurred in American history, political gains by one particular minority-say, blacks in the 1860s-are often met with political setbacks by another-say, Native Americans in the 1860s. In short, a minority group's openness to another minority group's struggles will often "redound to the benefit" of both. Unfortunately, though, nowhere in JUSTICE AT WAR does Delgado assemble his cast of characters for a meaningful discussion of why some minorities-Asian-Americans and Hispanics, for example-have had less difficulty with upward mobility than have blacks.

On other topics-affirmative action and the prevention of terrorism in the post-September 11 world, for example-Delgado's analysis is incomplete, unpersuasive, and, at times, even absurd. For example, per affirmative action, the characters are expectedly critical of those who oppose, and sympathetic to those who support, the practice. The conversants complain that modern-day opponents of affirmative action, such as Terry Eastland, simply rehash all of the "standard arguments" against the practice-affirmative action corrupts the noble civil rights ideal, discriminates against whites, stigmatizes blacks, and so on. This may be true, but it does not follow that those "standard arguments" are less worthy of consideration today simply because they were articulated forty years ago. Delgado's characters do not partake in a serious discussion of why those "standard arguments" are not legitimate criticisms. By the same token, Delgado's characters rehash all of the standard arguments for affirmative action, without advancing a compelling interest for its perpetuation. Neither "blacks are better off with affirmative action;" nor "think of all the interesting careers that would have been denied if Eastland had had his way;" nor threatened minorities are as "deserving of [legal] protection as snail darter" (in the context of advocating for a federal endangered species act for minorities) provides a compelling justification for affirmative action. This, of course, is not to imply that justifications for affirmative action do not exist. It is to say that the reader seeking those justifications will not find them here. The affirmative action dialogue is further marred by the character's near-certain conviction that the U.S. Supreme Court was on the verge of abandoning affirmative action when conducted in the name of educational diversity. Since the publication of JUSTICE AT WAR, a majority of the justices, in GRUTTER v. BOLLINGER (2003), affirmed the value of diversity in the educational setting when sustaining an affirmative action admissions policy at the University of Michigan School of Law.

As for the prevention of terrorism in a post-September 11, 2001, world, Delgado's analysis is woeful. After a one-sided discussion of the inherent tension between liberty and security-replete with references to the Third Reich and warnings of "It could happen here"-Rodrigo proposes a solution to the collective security problem. I cite it in full, because of its sheer preposterousness: "It's nothing out of the ordinary. It's simply to make friends with your neighbors . . . ." If the United States "makes friends" with terrorist nations, those nations will not attack the United States, for terrorists do not attack people with whom they are friendly. When "the Professor" asks if this strategy is a bit idealistic, Rodrigo responds incredulously, "It is our only chance." Huh? For all of Delgado's obvious intellect, this solution is far too optimistic and amazingly na•ve. It fails to consider thousands of years of evil persons who were swayed neither by reason nor by right. Granted, September 11, 2001, may prove the folly of security measures such as the missile defense shield; but woe unto the nation whose collective security is wholly dependent upon a Department of Friendship.

When the conversation turns to racial profiling, the characters are equally quick to condemn. To paraphrase their objections: "Muslims are not that bad. What about the one billion Muslims who did not bomb the World Trade Center? The Unabomber, Oklahoma City bombers, and snipers at numerous schools were all non-Muslim white American citizens. But nobody suggests profiling whites." These statements, of course, are factually accurate. Yet, in making these statements, the characters commit the fallacy of the illicit converse: Most Muslims are not terrorists; therefore, most terrorists are not Muslims. But most anti-Western terrorists are Muslims. Witness, for example, in addition to the attacks on the World Trade Center (in 1993 and 2001) and the Pentagon (in 2001), terrorist attacks in Baghdad, Bali, Bombay, Casablanca, Istanbul, Jakarta, Jerusalem, and Riyadh. The relevant number is the percentage of terrorists who are Muslim, not the percentage of Muslims who are terrorists. No doubt, racial profiling offends our constitutional sensibilities. It should. But when the risks are unparalleled in human history and the nation's anti-terrorism resources are scarce, one can make the case that, in some instances, security should trump liberty; in short, that one of war's necessities may be the impermanent curtailment of certain civil liberties. Unfortunately, none of Delgado's characters were prompted to do so. A defender of President Lincoln's position, even if excoriated by the rest of the group, would have engaged the reader in a more balanced analysis of an issue that, by all indications, will remain part of the public debate for decades to come.

For those readers not accustomed to having complicated legal arguments presented in the form of a personal narrative, Delgado's methodology may take some "getting used to." Yet, this interplay of different voices and viewpoints in fact does allow "for the probing exploration of complex issues while avoiding the dry-as-dust quality that afflicts much legal writing," just like Delgado promises in his introduction. Sure, at times the storytelling is far-fetched, such as when Rodrigo has to spend months underground (and, as a result, misses his daughter's birth) because he is mistakenly placed on an INS watch list and prohibited from reentering the United States after a short trip to Baja. Sometimes the storytelling is distracting, such as the romance between "the Professor" and Rodrigo's mother-in-law and the wailing baby interrupting the conversations. Occasionally, the conversations appear contrived, such as when Rodrigo, "the Professor" and Laz coincidently meet up in an airport in London and discuss the "proprioceptive derangement" of the law. (Do people, even academics, really talk this way in an airport immediately after a transatlantic flight? Often I sympathized with "the Professor," who commented that high-Crit talk was so far over his head that he "felt like a first-year student.") And at times, I was disappointed that the "audacious and brilliant" Laz acted neither audacious nor brilliant, but rather simple-minded and far too easily persuaded. All that said, this storytelling approach has real potential for communicating legal realities in a manner that is much more easily understandable and enjoyable than the typically dense and dry language that is so prevalent in legal scholarship.

JUSTICE AT WAR is the first full-text on Critical Race Theory that I read. I was not surprised by the positions espoused by the characters. Being familiar with Richard Delgado, I expected as much. What did surprise me, however, was how the characters could be at times so intellectually adept-discussing complex legal, political, and economic theories while engaged in genuinely thought-provoking debate-and at other times so intellectually inept-presenting half-baked arguments without addressing responses to, or acknowledging problems with, those arguments. I know that a reviewer is supposed to review the book written, not the book I wish had been written. Even so, I hope that in the next volume in the RODRIGO CHRONICLES, Delgado's characters will encounter some good-willed, intelligent, yet dissenting, voices. As iron sharpens iron, Critical Race Theory will only benefit from a more balanced discourse.

CASE REFERENCES:

GRUTTER v. BOLLINGER, 123 S.Ct. 2325 (2003).

VIRGINIA v. BLACK, 123 S.Ct. 1536 (2003).

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Copyright 2004 by the author, Richard A. Glenn