Introduction
In a previous post, I argued that though I have not seen Crits (those who advocate for CRT) claim explicitly that humans are intrinsically valuable, nonetheless it is evident that they presuppose it. For instance, Ibram X. Kendi argues that due to their “common humanity,” people of color simply should be treated with justice, dignity, and equality.[1] Crits also appeal to oppression of humans (especially of minority groups) as wrong, and they seem to treat this as a deontological principle that is right in itself. Moreover, they seem to argue very similarly with their positions that all humans should be treated with equality, respect, dignity, and justice, as well as that humans should be free to self-define (auto-nomos) their “true selves.” That self-definition is not to be according to the majority’s ideology but their own particular conceptualizations.
Yet, intrinsic value means that we are valuable simply in virtue of the kind of being we are (human), and not based upon our functional abilities, our value in the eyes of others, or even how we conceive of ourselves. This requires essences, that we are valuable due to our essential nature. However, CRT also is explicitly antiessentialist. What then are the implications of CRT for preserving human dignity, value, etc.?
CRT and the Basis for Law
CRT seeks to shift power away from the dominant group to peoples who have been marginalized and oppressed. In part, this happens by their defining their “true selves.” In turn, these conceptions, or identities, become the basis for law and public policy. While for the moral reasons noted above, such appeals seem to presuppose that humans are intrinsically valuable, they do not attempt to ground rights in that basis. Instead, legislation and judicial rulings attempt to give rights and dignity to people based on their chosen, constructed identities.
Now, I am not surprised by their not grounding rights and dignity in the intrinsic value of humans, for in the west we largely have given up on the reality of essential natures, at least as far as law and policy goes. Why? Many take as axiomatic that the fact-value split is right. According to it, science, which uses empirically verifiable means, has the “corner of the market” on giving us knowledge of facts. But, we cannot know immaterial things like essences with our five senses, so those do not count as real. Moreover, to be “orthodox,” science needs to be Darwinian, which also rejects a need for essential natures.
Relegated to the value side are things that seem to be what science cannot verify, which includes religion, ethics, and metaphysical things like souls and essential natures. Instead of being things we can know are real, they are just opinions, preferences, or our constructs. Without recourse to an objectively real, intrinsic value of humans, another basis is needed to attempt to secure human dignity, equality, etc. Since such things are our constructs, and, on CRT, the oppressed need to be liberated from their oppression, the clear alternative is to base rights and morals in our chosen, constructed identities.
We should notice how this view stands in contrast to the mindset adopted in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Here, these rights cannot be taken away because they apply to all humans due to the kind of thing we are. Moreover, these rights are objectively real; they are not human products. In short, these are natural rights, due to our nature as humans.
We can witness principles found in CRT also at work in what is called the “new dignity jurisprudence” (NDJ). Both CRT and NDJ hold that law is a matter of power, and not a recognition and application of substantive, universal morals with their essential natures to humans with their natures. Justice Oliver Wendell Holmes helped express and champion this view in law when he claimed that “[a] law should be called good if it reflects the will of the dominant forces of the community even if it will take us to hell.”[2] Since on both CRT and NDJ law is basically power, the oppressed should be liberated from their oppression by seizing power.
Like CRT, NDJ finds “a deep connection between dignity and the autonomy of the inner self that seeks to realize its potential through a preferred lifestyle.”[3] According to Angus Menuge, we can see this development in American jurisprudence through two key Supreme Court cases. The first one, Planned Parenthood v. Casey, held that “at the heart of liberty is the right to define one’s own concept of existence, of meaning ….”[4] Importantly, here, dignity is not intrinsic to all humans; rather, it varies to “the degree to which the state allows people to make their own choices,” which makes it “an entitlement of our liberty.” That is, we have a right to define our “true selves,”[5] lest we be harmed.
In the second case, Obergefell v. Hodges, the Court held that “the state’s constitutional obligation to uphold equal protection under the law means that it must strike down any laws that humiliate or demean people by denying them the recognition and benefits available to other citizens, because of their chosen lifestyle.”[6] According to Justice Kennedy’s majority opinion, denying same-sex couples the right to marry “would disparage their choices and diminish their personhood.”[7] Here, personhood, as well as dignity, is not intrinsic to humans.
NDJ utilizes five principles which align very closely with CRT. First, due to our autonomy, “all people have the right to choose [without limitation or interference] a preferred lifestyle provided it does not infringe on the autonomy of others.”[8] That is, as long as we do not harm others’ autonomy, our right to self-definition is secure. Second, we self-define our identities by “certain fundamental choices about how we live our lives.”[9] Together, these align with CRT’s principle of autonomy to become our “true selves.”
Third, we are entitled to privacy, for society has “no right to interfere with one’s personal choices about how to live and who one is.”[10] Fourth, society should not infringe on “one’s fundamental rights of autonomy and self-definition”; doing so humiliates that person and inflicts “dignitary wounds.”[11] Fifth, the law can, and should, construct human dignity by “creating a private sphere in which autonomy and self-definition can operate without the humiliation of social intrusion.”[12]
CRT and the Undermining of Human Value
There is a good aspect to CRT’s influence on law and public policy. Crits rightly recognize that many groups (and not just racial ones) have been discriminated against and need protection. As just a few examples, we can think of African Americans, Native Americans, and women. Of course, CRT focuses on systemic racism and injustices, and while it draws our attention to the possibilities of such discrimination at work, we should not assume a priori that that is indeed the case in any given set of circumstances. (Why not? If we did, we would be importing an essentialist claim into CRT, namely, that systems are in principle racist. But that would make CRT internally contradictory.) We need to investigate and see if that is the case, and if so, then to bring remedies.
However, there is something very important to notice. On the one hand, CRT presupposes that humans are intrinsically valuable, as are certain morals (justice, human dignity and equality, etc.). On the other, CRT needs essences to preserve these intrinsic (essential) qualities. Yet, CRT rejects essences. This means that on CRT, human value, as well as the goodness and rightness of these morals, is nothing but our constructs. Our self-conceptions are what make us valuable. Thus, simply being a member of a common humanity is not sufficient to be valuable. Furthermore, several humans, such as the unborn, infants, people suffering from dementia, and those with severe mental illnesses, may not have self-concepts and thus would not be valuable. If so, it seems they could be mistreated, and perhaps even be killed.
That our value is just a construct also fits with CRT’s nominalism, too, for, as that term suggests, morals, including human value, is in name only. They are just a matter of the words to frame our conceptualizations. But, as the saying goes, talk is cheap, and without a deeper grounding for these morals, CRT cannot sustain them, regardless of the words we employ.
Moreover, according to CRT’s use of standpoint epistemology, all we know is from our limited, historically situated standpoints. We cannot “rise above” them and somehow gain a vantage point from which we can know what is objectively real and true. Instead, everything we claim to know is just our interpretation. But, of what? If somehow we cannot know what is indeed the case in reality, even if not exhaustively but at least accurately, then it seems we are working only with our interpretations. Moreover, these interpretations are just particular to given people groups, according to their interpretive “lenses.” But, if so, there is no objective truth of the matter, even of the many claims of CRT. Thus, why should one group (even the dominant group) give heed to the interpretations of another group, if it does not fit the former’s interpretive grid?
So, CRT (as well as NDJ) cannot preserve the very values and morals that Crits and others rightly presuppose – that humans are intrinsically valuable, and morals like justice are good. Indeed, taken consistently, on CRT humans are not intrinsically valuable; they have value only insofar as they conceive of themselves as valuable. Yet, Crits do not seem to live consistently with this view. They do not affirm the moral equality of all self-conceptualizations. For example, if someone on a job were to choose to self-define as a white supremacist, very likely that person would be ordered to take racial sensitivity training and perhaps be fired.
Moreover, why should others value someone’s (or some group’s) identity? On CRT, it is not because that group’s members are intrinsically valuable; rather, it seems it is because that without it, others are inflicting dignity wounds on those members. Indeed, this is why CRT leads to a demand for affirmation, and not mere tolerance, of someone’s chosen identity. It is a positive rights claim, not a negative one. For without such positive affirmation, we wound their very dignity.
Practically speaking, what does CRT imply? As mere humans, we are not intrinsically valuable. Yet, we know we deeply need it and even crave it, so much so that Crits cannot get away from it – they even presuppose we are intrinsically valuable. But, on CRT, that is a myth. So, we must (desperately) create our own value, and we must require that others affirm our construct of dignity, lest we be exposed as not having any.
Conclusion for Law and Public Policy
This result is incredibly ironic and sad. In law and policy making, we want to protect minorities from immoral discrimination, yet often we are doing so on the basis of CRT and NDJ’s principles. These principles hold that “we are valuable because we are ___,” where we get to fill in the blank with our chosen identities. Two brief examples include the Obergefell decision, and a recent bill that would allow children who self-identify as transgender to come to California to transition while being protected as wards of the court, even without parental approval.[13] They are members of an oppressed minority, and their parents (if they oppose those actions) could well be seen as the oppressors. Moreover, we must affirm these children’s self-concept(s). Yet, this basis can never preserve our dignity and equality, for it substitutes our constructs for intrinsic value. And, if people construct their value, others can deconstruct it and take it away.
[1] Ibram X. Kendi, How to be an Antiracist (New York: One World, 2019), 54, 198. While Kendi prefers the label “antiracist,” nonetheless I think his views draw deeply from CRT.
[2] Letter from Holmes to Felix Frankfurter, 1914, in Albert Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes (Chicago: The University of Chicago Press, 2000), 59.
[3] Angus Menuge, “The New Dignity Jurisprudence: A Critique,” in Barry W. Bussey and Angus J. L. Menuge, eds., The Inherence of Human Dignity: Law and Religious Liberty Vol. 2 (London: Anthem Press, 2021), 75.
[4] Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), § 851.
[5] Menuge, 76.
[6] Ibid., 77.
[7] Anthony Kennedy, majority opinion, Obergefell v. Hodges (2015) 14-556 U. S. Supreme Court. https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf, 19 (italics added).
[8] Menuge, 78-79 (italics added).
[9] Menuge, 79.
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] See https://twitter.com/Scott_Wiener/status/1516475367845892099?ref_src=twsrc%255Etfw%257Ctwcamp%255Etweetembed%257Ctwterm%255E1516475367845892099%257Ctwgr%255E%257Ctwcon%255Es1_&ref_url=https%253A%252F%252Fwww.them.us%252Fstory%252Fcalifornia-trans-refuge-bill-safe-haven-trans-youth. Accessed August 11, 2022.
