Excerpted From: Francisco Valdes, Mapping and Mobilizing Legal Criticalities: Making the Move from Diaspora to Collective or Legal Scholars Making a Difference as Cultural Warriors, 100 Denver Law Review 625 (Spring, 2023) (133 Footnotes) (Full Document)


FranciscoValdesAs the Denver Law Review celebrates its centennial, the continuity of American fundamentals is truly sobering. In the 2020s, as in the 1920s, Americans are dealing with rapacious economic elites defined by race, gender, and religion. Today, as a century ago, the "rule of law"meant the rule of those elites' collective might. Today, as then, social groups traditionally subordinated and exploited by this top-down rule of law continue to struggle for equal justice, oftentimes using the law itself. As when this publication began, America's original compromises still torment the country and its people daily.

Despite the remarkable continuity of American fundamentals, many details of import differ. One key difference--both for law and for society--is the persistence and expansion of the "culture wars"examined in the 1998 precursor to this short Article. Those culture wars, formally declared as such from the podium of the 1992 Republican National Convention, claimed the nation's very "soul"to be at stake. Three decades after their formal declaration, the sitting U.S. President agreed, declaring in November 2022 that those conflicts had become "a struggle for the very soul of America itself."In the quarter century since the 1998 precursor article, those social aggressions indeed had expanded, deepened, and focused in various poisonous ways, as outlined below.

The national devolution wrought through these culture wars used to be thought unthinkable, and the ambition behind it was breathtaking when finally candidly revealed. By 2022, and by their own account, the very same forces proclaiming cultural warfare in 1992 fiercely and audaciously sought to emplace themselves as the one and only power over American law and society. The accumulating accounts of cultural warfare during these recent pivotal years depicted combined, coordinated, sustained, and determined efforts to dismantle democracy from within, as well as to demolish majoritarianism as a democratic norm or even a pretense. To impose minority rule in the here and now, as recent years have repeatedly shown, cultural warfare arrayed, orchestrated, and exploited techniques invented or refined in recent decades, including computer-generated gerrymandering, precise and pervasive voter suppression, ideologically vetted judges, vitriolic nonstop propaganda, unrelenting political intimidation, gutted public schooling, race -based mass incarcerations, and, most recently, open violence and its constant, growing, and ambient threat. By decade's dawn, threats and acts of physical violence, both organized and random, had become a staple of cultural warfare. All these momentous collective acts and their corrosive, compounding social ramifications can be only sketched here.

But, notably, confirming this new era of domestic terror as political technique, from January 2021 onward multiple federal agencies repeatedly singled out the mounting torrent of threats and acts of "domestic terrorism"from "extremist white supremacist"groups as the country's principal national security threat. As if to prove those multiple assessments correct, self-righteous supremacist talk of "civil war"was thick in the air and nightly on the news. Taking note of the palpable climate, the country's celebrated historians had been gathered presidentially at the White House, who likewise confirmed that, in their studied estimation, the nation in fact seemed thusly poised. The 2020s in the United States somehow had become like the 1850s.

Internet searches and social media during that same time showed millions of Americans similarly were comparing this historical moment to the 1850s in American history, which led to the Civil War of 1861-1865--but also to German history during the 1930s, which occasioned the Nazi's fascist Third Reich and necessitated a second World War between 1939-1945. As inquiring Americans of the 2020s then found out, and as this Article briefly sketches, the very same supremacist identity-based politics, themes, ideologies, and agendas of those two periods are unmistakably manifest in the culture wars of today and of recent decades--and not just coincidentally so. Thus, the response then is instructive now.

Facing analogous domestic dangers in January 1944, and even as Nazi Germany tottered toward unconditional surrender, Franklin D. Roosevelt warned all Americans of"the grave dangers æof rightist reactionÆ in this nation."Putting the matter plainly, as was his known way in one of his famed Fireside Chats, Roosevelt cautioned and predicted: "[I]f such reaction should develop,"he continued, "then it is certain that even though we shall have conquered our enemies on the battlefields abroad, we shall have yielded to the spirit of fascism here at home."After decades of rightist cultural warfare, this pointed warning hung over America heavier than any time since 1944.

In this still fraught and unfolding context, the 1998 precursor article had urged that, "as legal scholars in a legalistic society,"we "must employ our skills and resources to imagine and help assemble collectivities"capable of making a difference in that very context:

[A]s legal scholars, we possess a unique structural capacity for theorizing social reality and law's relationship to it: as critical legal scholars devoted to social justice, we have the responsibility to exercise that capacity to articulate frameworks of effective antisubordination resistance .... [A] responsibility to practice and promote the lessons and insights of our scholarship.

Thus, equally key is the remarkable emergence and salutary expansion since the 1990s of overlapping "critical networks"of legal scholars jointly developing today's bodies of "critical outsider jurisprudence"--a critical knowledge base in law and about law that never before had existed as such. This knowledge base, built up by generations of scholarly and activist networks, now provides a coherent worldview and practical framework for exposing and combatting the systemic riddles and webs that entrench injustice despite contrary laws and proclamations. This relatively recent critical legal knowledge and diaspora, and the resulting possibilities for collective action that they enable now, also are not just coincidence. Over time, the compelling truth, power, and potential of this knowledge has proven undeniable.

Confirming and reacting to the cumulative social power of this legal knowledge, Donald Trump announced in September 2020 a new executive order attacking this very knowledge--attempting to undercut this critical stance, this fact-based perspective, this bottom-up worldview. In effect, that Orwellian order commanded state suppression of critical knowledge about law, about history, about society, and, most of all, about the intersecting identity castes that saturated 2020s American society in every way despite the solemn, longstanding prohibitions against the same. That 2020 order--and its many copycats banning iconic books and policing library shelves, censoring basic ideas about human existence and re-criminalizing their expression, and stigmatizing minority cultures, histories, traditions or identities based on supremacist ideology--confirmed (again) that law itself remained the spearhead of this deliberate, historical, structural, and epistemic racist violence. The combination and coordination of legal, social, physical, material, informational, and cognitive attack, which had become so salient in the 2020s culture wars, increasingly showed, tracked, and built upon the constitutionally repudiated vestiges and legacies of the 1850s and of the 1930s.

This charged detail points to the elephant in the culture wars of the 2020s, which any current analysis must acknowledge. Ever since his filmed, choreographed escalator descent in 2016 on his way to declaring himself a Republican presidential candidate while calling "Mexicans""rapists,"Donald Trump has embodied--and has played like no one else--the reactionary "identity politics"of the culture wars. Since 2016, he has accelerated cultural warfare in every way, including, as sketched below, an unprecedented concentration and coalescence within the modern-day Republican Party of white supremacist, misogynistic, anti-Semitic, Islamophobic, xenophobic, homophobic, transphobic, and most recently, fascist elements of American society. Under Trump's tutelage, these reactionary elements were congealing into a shared rightist ideology rallying under the banner of the so-called "Great Replacement"theory, in which Jewish and nonwhite people were cast as threats to the group supremacy of Anglo whites through sheer numbers --a literal "replacement"that had to be stopped even if domestic terror, political violence, and mass murder became the only means of resurrecting or imposing white Christian nationalism. Any updated analysis must reflect these new, post-1998 facts while also recognizing how the terrorist violence of this extremist concoction has been long, long in the Republican making. Within the party that declared, launched, and waged these culture wars for consecutive decades, Trump is just their grossest symptom or outgrowth, and perhaps their most destructive operative; but to critical observers, he himself is not the systemic problem. As outlined below, this bigger picture history also underscores the pronounced partisan unilateralism of the culture wars during the quarter century of political and recently physical aggression seen throughout the United States since the publication of the precursor article--and signals for all alert observers the heightened dangers of intentionally or inadvertently false analogies and equivalencies in this particular historical moment.

To help make sense of this gnawing systemic derangement, and to help mobilize effective responses from legal scholars and allies in these times of extended, expanding cultural warfare, this brief centennial Article updates the 1998 article in two key ways. First, by highlighting some key developments during the intervening quarter century that outline the targeted expansions of cultural warfare as they threatened to spill over into civil chaos. And second, by concluding with a brief sketch that maps the critical diaspora emerging within U.S. legal academia during those very same recent decades. This cautionary yet celebratory sketch shows how bottom-up knowledge and critical networks respond actively and collectively to the spreading racist malevolence and social damage of abiding cultural warfare, even as rightist reaction and its "spirit of Fascism here at home"continue to escalate the culture wars, attempting to erase, suppress, or punish what we--as critical legal scholars with social responsibility--know, do, and represent.

[. . .]

As the 2022 midterm election results and their aftermath showed again, the Republic's troubles are likely to persist through continued cultural warfare. As the ongoing exacerbation and devolution of relentless rightist reaction made clear during the first two decades of the twenty-first century, little has budged in American fundamentals since the 1787 compromises in Philadelphia, or since the antebellum brews of the toxic 1850s, or since the first publication of this Review in the 1920s, or since the threats of "Fascism here at home"in the 1930s, 1940s, 1950s, or after. By the 2020s, the riptides of rightist cultural warfare therefore highlighted the structural need for a cohesive critical counterbalance embedded in the institutions and frameworks of academia--a counterbalance designed not only to help counteract the moment but also to serve as a long-term incubator, promoter, and reservoir of critical knowledge, research, and pedagogy through systemic advocacy projects geared both for these times and dangers as well as for the long haul. As the diaspora sketched above shows, this next step is possible in the 2020s due to the cumulative labors and gains of previous critical generations and networks.

The (very) limited research of 2021-2022 cannot and does not purport to map criticality across U.S. law schools scientifically or comprehensively. However, this preliminary research does provide a substantial snapshot from which we can draw some reliable observations to help inform our choices, agendas, and actions. The findings summarized above show nearly four known critical contacts per school in the CLC list of 200. In addition, dozens of schools have in place at least one deanship dedicated to concerns that overlap with critical scholarship, education, and literacy. Similarly, all but 68 of the 200 schools are on campuses with at least one established justice-related center. As a whole, this bottom line points to a somewhat variegated yet relatively well-populated critical ecosystem in legal academia, at least on paper.

This tentative bottom line is both promising and challenging. This summary indicates that the stage is set to go from diaspora to collective--if enough parts (persons and groups) of this critical diaspora are ready, willing, and able to stitch together from these solid beginnings an array of flexible and sustainable collaborations designed for the long run and, for that reason, organized as networks with coequal community partners. What comes next, both for better and for worse, we soon shall see: A preservation and reconstruction of democracy, or a resurrection and imposition of racial totalitarianism? Inevitably, everyone is complicit in shaping the outcomes of this pivotal historical moment, either through action or inaction. In this fraught and volatile context, the 2021-2022 coalescence of the CLC shows how legal scholars and networks have innovated and continue to innovate collaboratively in order to make a systemic difference as cultural warriors, even as--or precisely because--the spiraling uncivil chaos of the culture wars continues to explode all around us, and our loved ones, exponentially.

Professor of Law and Dean's Distinguished Scholar, University of Miami.