Inside the Outsider: Critical Race Theory against Human Rights?
This article examines disturbing contradictions within critical race theory. Critical race theorists, such as Mari Matsuda, Richard Delgado, or Charles Lawrence, maintain that legal norms cannot be taken at face value, but must instead be understood in historical and social context. For example, the Fourteenth Amendment was adopted to guarantee ‘equal protection of the law’ to all citizens. However, on its face, that norm reveals little about the brutality and exclusion that ethnic minorities subsequently experienced, often with the complicity of legislatures and courts.
Matsuda applies that analysis to hate speech in the 1993 collection Words That Wound, which remains one of the movement’s seminal texts. She argues that freedom of speech cannot be understood in abstraction. History and context teach that hate speech disproportionately harms racial and ethnic minorities. In order to criticize First Amendment protections of hate speech, Matsuda praises the approaches that were advocated in the 1960s and 1970s by the Soviet Union and other socialist states, and eventually adopted within the United Nations.
However, she ignores those states’ oppression of their own racial, ethnic, national and religious minorities. Socialist states advocated limits on hate speech not out of concern for their minorities, but because the censored all speech in order to maintain fierce social controls. Many minorities in socialist states fared far worse than those in the United States, despite what Matsuda sees as those states ‘progressive’ stance on hate speech. Matsuda commits precisely the error that critical race theory constantly condemns: she looks only at the officially adopted norms within the United Nations, overlooking any historical, political or social context.
Matsuda is right to identify common concerns shared between critical race theory and international human rights law. However, she misconstrues the relationship between those two movements. Critical race theory still has an important role to play, but must hold international human rights law to the same standards to which it holds American law. Failure to do so is a betrayal of critical race theorists’ own stated aims.
Civil Rights and Discrimination
Date of this Version
Eric Heinze, "Inside the Outsider: Critical Race Theory against Human Rights?" (February 28, 2006). bepress Legal Series. bepress Legal Series.Working Paper 1013.