By Wayne Rash, III – Online Editor, National Security Law Brief
Critical Race Theory (CRT), once an “obscure school of thought in legal academia,” has become a central conversation in American politics. In the recent Virginia election discourse, candidates and pundits devoted significant lip service to whether CRT should be or already is taught in Virginia’s public schools. Across the country, at least seven state legislatures have banned CRT in public schools. Despite the public political controversy, national security policymakers should understand and apply CRT when analyzing homeland security issues.
Even though our idea of race often invokes biological phenotypes, scientists agree that racial differences are not biologically meaningful. (Gomez 2010) Instead, Critical Race theorists conclude that differences between races are the products of social norms and race is a social construct. (Gomez 2010) Theorists believe that social norms are not fixed; norms evolve. So, we can tackle racial inequity and inequality through understanding and addressing social norms. This idea should not be controversial to anyone who agrees that the theory of Social Darwinism is debunked. More controversial, and indeed the focus of recent public discourse, is the concept that race is hierarchical and racial differences are “fundamentally about power and [social] stratification.” (Gomez 2010) However, analyzing the law through CRT makes it clear that race and law are mutually constitutive. (Gomez 2010) The law has shaped racial hierarchies, while racial hierarchies have shaped the law. (Gomez 2010).
Nowhere, except perhaps Fourteenth Amendment law, is the concept of mutual constitution more apparent than in immigration and naturalization law. In Ping v. United States, we can see how racial hierarchy shaped the law. 130 U.S. 581 (1889). In Ping, the Court displayed how racial animus led to the Chinese Exclusion Act and justified the Supreme Court’s establishment of the Plenary Power doctrine. The Plenary Power doctrine granted Congress and the Executive near-limitless power over immigration decisions. We can see law shaping race when reading the Court’s evolving definition of “White” when it interpreted the term “free white person” under § 2169 of the Revised Statutes. Section 2169 limited United States citizenship to those “aliens being free white persons and aliens of African nativity and to persons of African descent.” In Ozawa v. United States, the Court determined that a Japanese person was not a Caucasian and thus was not a “free white person” when denying citizenship to a culturally assimilated Japanese man. 260 U.S. 178 (1922). Only a year later, the Court sharply reversed its use of Caucasian heritage to define a “free white person.” In United States v. Thind, a North-Indian veteran of the US Army argued that North-Indians were Caucasians and should be allowed citizenship as a “free white person.” 216 U.S. 204 (1923). However, the Supreme Court determined that Caucasian heritage was insufficient to grant citizenship because the American public would not accept Indians into the White race. These cases provide clear examples of CRT concepts in action. The Plenary Power doctrine remains a landmark precedent in immigration law. In 2018, The Supreme Court relied, in part, on the Plenary Power doctrine to allow the Trump Administration’s “Muslim ban” to remain in effect. See Trump v. Hawaii, 138 S. Ct. 2392 (2018).
Yet, the importance of applying CRT when analyzing homeland security issues does not end with immigration law. National security policymakers must understand America’s mutually constitutive history of law and racial hierarchies to create effective homeland security policies and plans. For example, disaster resilience and climate security planners cannot effectively plan for the impact of climate change without understanding and accounting for America’s history of “redlining” and racial Food Politics. Similarly, biosecurity and public health planners cannot plan for the next pandemic or bio-attack without understanding and accounting for the policies that drove the racial disparities experienced throughout COVID-19. And the American intelligence community cannot provide an accurate projection of threats and risks to the homeland without understanding and addressing racial bias in its collection and analysis methods (a topic we will visit in our Spring 2022 National Security Law Brief publication).
In conclusion, despite the recent public controversies over CRT, national security policymakers should understand the mutually constitutive roles law and racial hierarchies have played in American law and policy. Understanding and applying CRT is necessary to effectively analyze, plan for, and respond to emerging threats across the entire field of homeland security.
Cited: Gomez, Laura E. 2010. "Understanding Law and Race as Mutually Constitutive." Ann. Rev. L. & Soc. Sci. 6: 487 - 490.
Wayne Rash, III is a federal employee and evening law student at American University’s Washington College of Law. His views expressed here do not reflect the views of his employer or of American University.