Two ways to think about race: Reflections on the id, the ego, and other reformist theories of equal protection

Georgetown Law Journal, Jul 2001 by Delgado, Richard

INTRODUCTION

In one of the most influential Critical Race Theory articles ever written,1 Professor Charles Lawrence posited a new way of looking at discrimination. The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, published in the Stanford Law Review during the middle years of Critical Race Theory's ascent, takes forceful issue with the requirement of purposeful intent that pervades much of U.S. antidiscrimination law.2 This requirement, which demands that a litigant seeking redress for racial discrimination show that the defendant intended to handicap the plaintiff on the basis of race, bars recovery if the defendant inadvertently acted in a way that harmed the plaintiff.3

This requirement makes little sense, Lawrence asserts, because the source of much racism lies in the unconscious mind.4 Individuals raised in a racist culture, without knowing it, absorb attitudes and stereotypes that reside deep in their psyches and influence behavior in subtle, but pernicious ways.5 When such behavior takes the form of racial discrimination and the cultural meaning of the behavior is plain, Lawrence argues that the law should expand to encompass this subtler, more unconscious form of discrimination.6 This expansion will bring law into conformity "with the learning of twentieth century psychology"7 and enable it to tap the "considerable, and ... well respected body of knowledge and empirical research concerning the workings of the human psyche and the unconscious."8 According to Lawrence, consideration of "the division of the mind into the conscious and the unconscious"9 and the role of such psychoanalytic entities as primary process (or id) and secondary process (or ego) will help us understand and combat racist stereotypes, beliefs, taboos, and behavior.10

To his great credit, Lawrence succeeded in focusing attention on a major irrational feature of the law of racial remedies-namely, the requirement of intent. His article prompted scholars to reexamine the nature of racism,11 and nonscholars to reflect on how their actions might unintentionally be harming persons of minority races. It also may have played a part in Congress's decision, a few years later, to eliminate or soften the intent requirement in a number of federal antidiscrimination statutes.12 In addition, the article wielded influence well beyond civil rights: Scholars have cited it in calling attention to the role of unconscious discrimination in areas as diverse as critical lawyering,13 environmental law,14 legal history,15 immigration law,16 disability law, 17 and First Amendment theory.18

As felicitous as Lawrence's article was, it captured only a partial truth about race and racism. Ideal factors-thoughts, discourse, stereotypes, feelings, and mental categories-only partially explain how race and racism work.19 Material factors-socioeconomic competition, immigration pressures, the search for profits, changes in the labor pool, nativism-account for even more,20 especially today. Beginning in the 1980s, this country witnessed a decisive turn to the right, featuring a vigorous attack on affirmative action, a weakening of federal and state race-remedies law, a movement toward color-blind alternatives, and a shredding of the welfare net by which poor people and immigrants managed to stave off misery.21 In such a climate, a continuing focus on psychoanalytic understandings of race sacrifices both analytical clarity and strategic precision.22

The purpose of this Essay is twofold: first, to recall Critical Race Theory to its materialist roots, and second, to encourage it to consider making common cause with the incipient movement for economic democracy.23 I begin by demonstrating, through examples and argument, that idealist theories like Lawrence's, which explain racial dynamics in terms of thoughts, words, and internal urges, are analytically incomplete.24 I will then argue that attending to the material side of race and racism confers a number of benefits, while at the same time avoiding numerous drawbacks associated with the idealist approach.25 Finally, I will demonstrate that the approach I have recommended enhances the analysis of certain recurring social problems.26

1. "IT'S NOT YOUR ATTITUDE THAT BOTHERS ME..."

A. THE GREAT DIVIDE

Imagine that two businessmen pass a group of homeless people begging for change on a downtown sidewalk. One says something disparaging about "those bums always sticking their hands out. I wish they would get a job." His friend takes him to task for his display of classism. He explains that the street people may have overheard the remark and had their feelings hurt. He points out that we must all strive to purge ourselves of racism, classism, and sexism; that thoughts have consequences; and that how you speak makes a difference. The first businessman mutters something about political correctness and makes a mental note not to let his true feelings show in front of his friend again.

Or imagine that a task force of highly advanced extraterrestrials lands on earth and approaches the nearest human being it finds-a homeless person relaxing on a city park bench.27 They offer him any one of three magic potions. The first is a pill that will rid the world of sexism. The second, one that will cure racism. The third, one that will cure classism (negative attitudes toward those of lower status than oneself). Introduced into the water system, each pill will cure one of the three scourges effectively and permanently. The homeless person, unsurprisingly, chooses classism and throws pill number three into a nearby water department reservoir.