Beyond Critical Legal Studies the Reconstructive Theology of Dr Martin Luther King, Jr., Anthony E. Cook

Brooks, Hannah 1/10/2014For Educational Use Only

BEYOND CRITICAL LEGAL STUDIES: THE..., 103 Harv. L. Rev. 985

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1

103 Harv. L. Rev. 985

Harvard Law Review

March 1990

BEYOND CRITICAL LEGAL STUDIES: THE RECONSTRUCTIVETHEOLOGY OF DR. MARTIN LUTHER KING, JR.

Anthony E. Cook a

Copyright 1990 by the Harvard Law Review Association; Anthony E. Cook

Critical legal scholars have sought to transform American society. By demonstrating the contingent and subjective nature of thelegal system they have hoped to liberate people to conceive of and create more just communities. In this Article, Professor Cookargues that CLS' theoretical critique of liberal society does not provide an adequate basis for reconstructing just communities.He demonstrates that consent to oppressive authority does not rest on reason and logic alone, but instead must be explainedas the result of concrete factors such as religious experiences, which may in turn undermine that authority. Only a historicallyspecific and experiential analysis, contrasted with a more abstract theoretical analysis, can expose both the liberating andlegitimating dimensions of hegemonic ideologies like Chrisianity and liberalism. Professor Cook argues that Dr. Martin LutherKing, Jr., grappled with many of the theoretical questions facing CLS but also engaged in three additional activities: experientialdeconstruction, reconstructive theorizing, and social struggle. Drawing upon the specific experiences of African–Americans,King synthesized disparate strands of theological and political thought and created a prophetic vision of a reconstructed society.Ultimately, through his analysis of King's method and work, Professor Cook offers us a blueprint for critical activity that isneither solely deconstructive nor dependent on abstract meaning.

In recent years, criticism of the Critical Legal Studies (CLS) movement by minority legal scholars has intensified the controversy

surrounding *986 this body of nontraditional scholarship. 1 Although initially inspired by the zeal with which CLS adherentsquestioned the legitimacy and exposed the oppressiveness of legal ideology, some minority scholars are troubled by CLS'

reluctance to acknowledge the unique relationship between law and the history of American racism. 2 These scholars assertthat CLS' critique of the liberal state, and that critique's implicit constructive vision, fail to appreciate the role the state can

play in neutralizing and eradicating ubiquitous racial oppression. 3 Furthermore, minority scholars have criticized the failureof the CLS movement to acquaint itself with the history and perspective of those who have, in different contexts, endured the

problems of most concern to CLS—problems associated with hierarchy, powerlessness, and legitimating ideologies. 4

Given this context, this Article has two goals. First, by focusing on the African–American Church and its role in the strugglefor African–American liberation, I hope to foster a greater knowledge of, and appreciation for, the concrete experiences ofthe powerless and oppressed. I contend that such knowledge and appreciation is indispensable to CLS' primary project of

deconstruction. 5 Second, I wish *987 to point out the particular relevance of the critical theology of Dr. Martin Luther King,

Jr., 6 for the increasing numbers of legal scholars who have begun to look to religion as a potential source for alternative

conceptions of community. 7 As the towering organic intellectual 8 of twentieth-century American life, King integrated theory,experience, and transformative struggle to create a rich and effective form of critical activity.




In attempting to reconcile the contradictions of various theological perspectives, King undertook a project similar to that of

CLS—to understand the hegemony of repressive ideologies 9 and to deconstruct the limits they appear to set on the possibilitiesof change. Moreover, *988 King was deeply committed to the reconstruction of a social reality based on a radically differentassessment of human potential, a vision he often referred to as the “‘Beloved Community.”’ As a result, a closer examinationof King's intellectual odyssey may provide valuable insight to those CLS scholars interested in not merely explicating an unjustsocial order, but reconstructing a just community.

My study consists of two parts. Part I begins with a general overview of deconstruction, starting with a jurisprudential historyintended to elucidate its general aims and purposes. A critical analysis of Lockean liberalism serves as a case study of theinsights and limits of deconstruction. Next, I examine how the limits of theoretical deconstruction constrain critical scholars intheir attempt to articulate an alternative conception of community. A myopic project of deconstruction may ultimately resultin a reconstructive vision as oppressive and alienating as the conception of community deconstructed. In Part II, I offer amore effective model of critical activity, illustrated by the thinking and works of Dr. Martin Luther King, Jr. I argue thatKing was an organic intellectual engaged in “philosophical praxis”' consisting of four interrelated critical activities: theoreticaldeconstruction, experiential deconstruction, reconstructive theorizing, and collective acts of transformative social struggle.Whereas CLS proponents are primarily engaged in the first and—to the extent of understanding how liberal ideology isexperienced—the second forms of critical activity, King embraced a full philosophical praxis that has, on the whole, eludedCLS proponents and hampered the development of critical legal theory.

I. THE LIMITS OF THE CLS PROJECT

A. The Project and the Problem

In many ways, the CLS critique built on the earlier work of the Legal Realist movement, 10 which argued that because one

could reasonably deduce opposite conclusions from any given rule or principle, legal rules were necessarily indeterminate. 11

According to the Realists, judicial decisions fostered the view of decisionmaking as a logically compelled and mechanicalprocess that foreclosed the need for empirical *989 research to inform the judge's choices, when in reality the principles and

rules from which decisions were supposedly deduced could as logically justify contrary conclusions. 12 Judges could therefore

not avoid a policymaking role. 13 The question was whether lawyers and judges would be informed and scientific policymakers,

enlightened by the insights of social science research, or would instead continue down a path of ignorance and darkness. 14

The Realists, however, failed to consider fully the implications of their insights. The Realists' commitment to empiricism—understanding reality through social science research—diverted them from critically examining the values and beliefs that

provided the backdrop against which research was conducted and judicial choices were made. 15 In addition, the assimilation ofmany Realists into Roosevelt's New Deal Administration hastened the turn to reforms that assumed the validity of the prevailing

backdrop values. 16

CLS has unabashedly challenged the accepted values of classical liberalism by undermining the interpretations of privateproperty, individual rights, equality of opportunity, meritocracy, and governmental power that sustain and reproduce oppressive

hierarchies of wealth and power. 17 Although liberalism purports to effect a neutral reconciliation *990 between individualfreedom and the collective constraints needed to preserve that freedom, CLS suggests that such neutrality is inherently illusory.Through structured argumentation based on manipulable legal categories, the legal system legitimates a status quo characterized

by vast inequalities of wealth and power. 18




The CLS challenge thus goes beyond the Realists' indeterminacy critique, not only by refuting the implicit values of the Realists'“scientific”' approach, but also by seeking to understand why people acquiesce in the social systems that oppress them. CLSasks how the backdrop values, which are in fact indeterminate, find their way into mass consciousness as conventional wisdom,

thereby limiting the range of acceptable—or even conceivable—social arrangements. 19 CLS scholars purport to show that our

social-political world, from which law is inseparable, is of our own making. 20 Just as there is nothing determinate, necessary,

or natural about the application of legal rules, the way we live and relate to others is also a matter of choice. 21 We *991can choose to structure our institutions in hierarchy and dominance, and limit our understanding of others and ourselves to thedistorted roles and images generated by social rules and laws. Or we can choose to alleviate the alienation and loneliness thatstifle our societal needs and impulses by restructuring those institutions and practices that distance us from others and cause us

to perceive others with trepidation and suspicion. 22 None of what we now experience and blindly accept is carved in stone.If we despair over our present social order—and CLS believes that many of us do, whether we realize it or not—we can “hew

out of the mountain of despair a stone of hope.”' 23

But how do we begin this reconstructive enterprise? What use do we make of our newfound liberation? If we are free to definecollectively our existence and to transcend our present context, are we any better equipped to act than before? How do we knowthat the community to which we aspire is better than the social order we transcend? How do we know that a world of love,understanding, and mutual trust awaits us, rather than a world of greater oppression and alienation, filled with the uncertainties

born of the knowledge that all that separates civility from brutality is our faith in the goodness of humankind? 24 In short, whatvalues and concerns will guide us in this reconstructive moment?

*992 The failure to address these important questions constitutes the most significant shortcoming of the CLS project, whichis in part explained by the fact that the “answers”' can only develop, tentatively and in fits and starts, through the concreteexperiences of struggle and survival. Yet CLS consistently deemphasizes the individual and institutional experiences of thosewho are subjugated. Thus CLS' theoretical deconstruction of liberalism fails to explain—or even ask—why subordinatedindividuals, those most disadvantaged by hierarchies of wealth and power, place such faith in the liberal state.

There are at least three possible explanations for this faith of subordinated peoples. The first possibility is false consciousness—that the rhetoric of liberalism has duped those at the bottom of the social and economic hierarchy. Liberalism's protestationsof equality, fairness, and neutrality have convinced them that their disadvantages are somehow just, perhaps because otherresults have advantaged them in the past or may do so in the future. The second possibility is denial—that people want tobelieve that the system is working as it claims, although they know that it is not. Continued faith in the disproven values ofneutrality and objectivity may allow us to avoid the onerous reality that life is what we make of it—no more and no less. Finally,individuals may suffer from neither false consciousness nor denial, but may simply be ostracized or marginalized, limited bythe existential constraints of enslavement, apartheid, intimidation, or poverty that make meaningful social struggle difficult if

not impossible. 25

The kind of deconstruction to which CLS is methodologically committed—what I characterize as “theoretical deconstructionwith a limited experiential deconstruction”'—may indeed liberate the first grouping, people duped by the rhetoric of liberalism.Such individuals have not perceived the contradictions of their belief systems and have not confronted the harsh realities oftheir existence. Thoughtful discussion and examination may liberate them from the mental constructs that limit their self-actualization.

People in the second grouping do not suffer from false consciousness. Although theoretical deconstruction can serve as acatalyst to generate a sense of empowerment, these people are most in need of constructive goals of social struggle and practicalstrategies of mobilization. They lack a sense of community with those who share their feelings and who are willing to engage




in various forms of collective social struggle to transform existing conditions. The knowledge that *993 they are not alonein their pain and isolation is often enough to shake these people from the stupor of their self-denial, and encourage them toformulate the goals of social struggle and adopt viable strategies for securing those goals.

People in the third grouping suffer from neither false-consciousness nor self-denial. Rather, the dominant powers' use of variousmethods of coercion and social control simply does not provide much space for substantive struggle. Critical activity must focushere on alleviating these existential constraints, as well as on exposing the role of ideology in maintaining those constraints.

Theorists in search of alternative foundations for human community, those seeking to replace one kind of faith with another, 26

must embrace a form of critical activity that deals with the problems of those suffering from false consciousness, denial, andexistential subjugation. By themselves, theoretical deconstruction and an experiential deconstruction preoccupied with theoppression of liberalism cannot achieve this objective. Although theoretical deconstruction is important, the ultimate goal ofcritical theory should be the reconstruction of community from the debris of theoretical deconstruction, a project capable ofreaching each of the groupings outlined above. I suggest in this Article that the prophetic Christianity of Dr. Martin Luther King,

Jr., 27 as well as the most enabling assumptions of liberal theory, 28 provide sturdy ground for this reconstructive endeavor.

B. The Theoretical Deconstruction of Lockean Liberalism

Theoretical deconstruction identifies underlying assumptions, exposes those presuppositions as value choices of the theorist,and demonstrates the indeterminacy of those values—that no one vision of *994 community is logically compelled by thevalues chosen. Yet, as a critical tool, theoretical deconstruction has several limits. In this section, I provide a framework for the

theoretical deconstruction of John Locke's liberalism, 29 and then illustrate the limits of theoretical deconstruction by showing

that Locke uses religion to legitimate an oppressive social order that reason alone cannot legitimate. 30

First, I outline Locke's conception of community and theoretically deconstruct his attempt to legitimate objective authority byderiving it logically from his assumptions about human nature. I argue that Locke's conception of human nature is incoherent,historically situated, and indeterminate; as a result, Locke's vision of community is neither natural nor necessary. Next, I explorehow Locke uses religion to develop a deference to authority that neither reason nor state coercion could fully compel. In otherwords, I argue that Lockean liberalism is based on both coercion and consent, the latter shaped by religion as well as by theunexamined assumptions of Locke's political theory. The role of religion in legitimating Lockean liberalism highlights the limitsof theoretical deconstruction and the need for critics to engage in what I call “experiential deconstruction.”DD'

1. Legitimating Authority: The Theoretical Deconstruction of Lockean Liberalism.—In his Second Treatise of Government,

Locke seeks to legitimate political power 31 by deducing it from an original state *995 of nature characterized by perfectfreedom and equality. Within the state of nature, all are perfectly free to appropriate that which was held in common as private

property and to dispose of their “[p]ossessions and [p]ersons as they think fit, within the bounds of the Law of Nature,”' 32

without having first to secure the permission of others. This freedom creates a formal equality among individuals because

each person enjoys the same relationship to the law of nature, 33 and is obliged by that law to do no harm to another's “Life,

Health, Liberty, or Possessions.”' 34 Political power is necessary to safeguard the disparate accumulations resulting from Locke'sformal freedom and equality. Because varying industry, conditions of birth, and skills among individuals will result in varyingaccumulations of private property, causing conflicts between the haves and have-nots, the state's task is to protect the naturalrights of property holders from the aggressions of the propertyless. The latter are subject to the laws of civil society, although

they cannot constitute the body responsible for the promulgation of such laws. 35 Locke objectifies the propertyless as “things”'

to be managed and controlled by the state, as mere means to the propertyholders' end of happiness. 36




*996 Locke's theory succeeds in casting a light of naturalness and necessity over grave inequalities of wealth and power, butfails to articulate an objective, neutral, and determinate foundation upon which to base a legitimate civil authority, one to whichall reasonable people should consent. From the presupposition that human nature is characterized by the rational appropriation ofprivate property, Locke seeks to legitimate his repressive social order. But the protection of private property does not constitutean objective and neutral criterion by which the state can establish the boundaries between permissible collective coercion andimpermissible invasions into spheres of individual right, because that conception of human nature is dubious. Indeed, Locke'stheory, which portrays individuals as equal before the laws of nature but subject to vast inequalities of wealth and power, issusceptible to three versions of theoretical deconstruction. First, Locke lacks a single unitary conception of human nature fromwhich a coherent theory of community can be deduced. Second, if he does have a consistent conception of human nature, heerroneously assumes that it is a universally valid one. Finally, even if Locke has one consistent and universally valid conceptionof human nature, that conception is indeterminate and does not dictate with any specificity the kind of community we shouldchoose.

Each of these critiques seeks to demonstrate that there is nothing magical or sacred about where Locke draws the line dividingthe public sphere in which all are deemed equal and the private in which inequalities are anticipated and legitimated. The public-private line is drawn according to his theory of human nature—the theory from which he deduces his conception of community.Thus, if we wish to demystify and delegitimize the latter, and thereby free the mind to consider alternative conceptions ofcommunity, we must begin with a critique of Locke's theory of human nature.

The incoherency critique observes that if Locke deduces what he considers a natural and necessary social order from anincoherent conception of human nature, his conception of social order need not be accepted as legitimate. It exposes how Lockeprivileges one conception of human nature over another and demonstrates that the dominant conception is as dependent on

its subordinate conception as *997 the latter is on the former. 37 Because both conceptions are essential to his theory, then,his privileging of one over the other is incoherent, and his supposed deduction of social order from the dominant conceptionis contrived rather than natural. Locke states at one point that his state of nature is a “State of Peace, Good Will, Mutual

Assistance, and Preservation”' rather than a “State of Enmity, Malice, Violence, and Mutual Destruction.”' 38 Thus, Lockeprivileges a conception of human nature that is fundamentally good, reasonable, and cooperative over a Hobbesian oppositethat is fundamentally evil, compulsive, and self-interested. He privileges the conceptions in this manner because he seeks toavoid the Hobbesian conclusion that sovereign power must be absolute. Such power constitutes an unacceptable threat to theprotection of private property that is the raison d'être of Locke's political theory.

But Locke cannot easily escape the Hobbesian conception, for his own conception of human nature must ultimately depend onit to justify the social order described above. For instance, individuals agree to enter civil society primarily because their private

property is threatened by others who are “‘noxious,”’ “degenerate,”' and have “quit the principles of human nature.”' 39 ThusLocke's conceptions of human nature appear to be divided between the “industrious and the rational”' and the “quarrelsome and

contentious.”' 40 Given Locke's initial description of the state of nature, however, from where did the latter persons come? 41

At one point, he characterizes these individuals *998 as constituting the majority of those in the state of nature. 42 TheseHobbesian types, and the threat they pose to Locke's privileged types, make civil society necessary. Locke's hierarchicalopposites are thus different but mutually dependent. Neither can be fully understood without the other, and, more importantly,each is equally necessary to explain Locke's social order.

On the one hand, if human nature is more like Locke's initial description, it is difficult to see why civil society is necessary. Onthe other hand, if individuals are capable of lawlessness and transgressions from the beginning, it seems unlikely that the peaceand order depicted by Locke's initial conception could ever have existed outside the bounds of a coercive civil society that creates




and enforces a particular set of property relations. If the latter is true, it is impossible to understand property relations as naturaland determinative of Locke's social order. Property and the laws that protect it are one and the same. Thus, the incoherencycritique delegitimizes Locke's oppressive social order and demonstrates that we need not accept it as natural or necessary.

The universality critique contends that even if we find Locke's conception of human nature coherent, we need not accept thatconception as universally valid. As one scholar of deconstruction observed:The principles of a social theory like Liberalism tell a story about human nature, which some accept and others criticize.

. . . But the deconstructive critique reminds us that our social vision and system of laws are not based upon human nature asit really is, but rather upon an interpretation of human nature, a metaphor, a privileging. We do not experience the “presence”'of human nature; we experience different versions of it in the stories we tell about what we are “really like.”' These storiesare incomplete; they are metaphors and can be deconstructed. Too often we forget that *999 our systems of law are basedupon metaphor and interpretation; we mistake the dominant or privileged vision of people and society for real “present”' human

nature . . . . 43

Why should Locke's characterization of humans as universally rational appropriators of private property be accepted? Critics

have contended that Locke is reading into human nature the attributes of human behavior he most wanted to extol and justify. 44

Thus, Locke's rational appropriator of private property is merely an abstraction from his own emerging market society, and histheory is reduced to an apology for the emerging capitalist interests of his day. The moral of the universality critique is that whatone discovers as a universal attribute of human behavior depends largely on who is searching, what she hopes to find, and thebroader social context in which the search takes place. Thus, even if we believe that Locke's vision of community is predicatedon a coherent conception of human nature, the universality critique calls into question the static, universal applicability of hisinitial premises, and therefore delegitimizes the inherent necessity of Locke's oppressive community.

Finally, the indeterminacy critique contends that even if Locke's conception of human nature is coherent and represents auniversally valid description of what it means to be human, it fails fully to determine any specific conception of community.As Professor Balkin has put it:

Any social theory must emphasize some human values over others. Such categorizing necessarily involvesa privileging, which in turn can be deconstructed. But the goal of deconstruction is not the destruction ofall possible social visions. By recalling the elements of human life relegated to the margin in a given social

theory, deconstructive readings challenge us to remake the dominant conceptions of our society. 45

If we accept the contention that humans are rational appropriators of private property, we might deduce any number ofconclusions about the nature of community in which we are to live. We might accept Locke's vision as plausible but not logicallycompelled. For instance, Locke bestows the blessings of his social order on those who have private property as a reward fortheir understanding and use of the laws of nature. But this value choice does not necessarily follow from his presuppositions.

The natural impulse to appropriate and protect private property need not result in a pervasive system of private ownership.Perhaps the natural impulse is satisfied far short of the unlimited accumulation *1000 of private wealth legitimated by Locke'stheory. Even if the laws of nature obligate individuals to secure the greatest possible satisfaction of this natural impulse,this satisfaction may best be attained through the development of small scale cooperatives in which individuals share in theownership and responsibilities attending property with others of the community.




Thus, the indeterminacy critique delegitimizes the social order that Locke sees as natural and necessary by reminding us thatthe first principles and values on which social theories are based are so vague that they may be logically compatible with anynumber of social visions. We remain free to make our own world, and are not compelled to accept mechanically the one madefor us by others.

2. The Limitations of Theoretical Deconstruction: Locke and the Reasonableness of Christianity.—All three forms of theoreticaldeconstruction outlined above establish that we are free to question, reformulate, and reconstruct our conceptions of community,an effort that remains profoundly normative. Notwithstanding our commitment to postulates we feel are empirically true andtruly reflective of reality, nothing mechanically determines our choices. The problem is that logic and reason alone can bridgeneither the gulf dividing Locke's state of nature and the civil society he believes naturally follows therefrom, nor his conceptionof human nature and the theory of legitimate authority to which individuals should reasonably consent. The faith of religion isthe bridge that carries the theory from “is”' to “ought,”' from “‘dissension”’ to “consensus.”DD'

Experiential deconstruction, on the other hand, provides a more contextualized and historicized analysis. Its historical specificityenables us to see factors missed by a more abstract theoretical deconstruction. Experiential deconstruction might explain,for instance, how and why individuals continue to defer to oppressive authority even after theoretical deconstruction hasundermined the logical premises upon which the social order is built. Like the discussion of theoretical deconstruction above,the following is not a comprehensive experiential deconstruction but simply some initial observations about the ways such anapproach might reveal the role of religion, as part of the historically specific cultural framework within which Locke's theoriesdeveloped, in fostering deference to an oppressive social order. This is not to say that the approach would not have identifiedother factors like coercion, racism, sexism, and economic subjugation at work. By examining religion, the most obvious factorgiven Locke's work, I merely wish to illustrate how experiential deconstruction might enrich our understanding of oppression.

Locke used religion as a noncoercive means to legitimate and foster submission to authority. As he put it, “[t]he view of heaven

and hell will cast a slight upon the short pleasures and pains of this present *1001 state.”' 46 To understand how Locke couldexpect certain members of society to consent to his vision of community, a vision riddled with inconsistency, inequality, and

oppression, we must understand the bridges he built between religion and politics. 47

Locke believed that religion would lead even those most disadvantaged by his political philosophy and social compact to accepttheir subordination within the new hierarchy as necessary and the authority that maintained their oppression as legitimate. In

The Reasonableness of Christianity, 48 Locke concedes the deficiencies of “unassisted Reason.”' Under the philosopher's quill,the burden of virtue is too onerous, its teaching too complicated for the masses to grasp, and its practice too time-consuming

for those forced to survive by the sweat of their brow. 49 Political philosophy linked to true and saving faith, *1002 however,could for the first time instruct individuals in the elements of “a clean conscience . . . a steady course of virtue . . . [and] a strict

and holy life.”' 50 Locke claims that Christ's coming brought virtue within the common person's reach. With Christ, faith isreckoned unto the believer as righteousness, and belief in Jesus as the son of God is sufficient for salvation.

Thus, Locke encouraged instruction that emphasized simple articles of faith, and rejected the institutional history of the Church.Religious toleration and the separation of church and state meant that those at the top of the secular hierarchy could no longeruse religion to legitimate their power and their vision of world order. Nor could they use political power to impose religiousviews that would support their power. At the same time, the collapse of the oppressive link between church and state aided thedevelopment of a market economy and a social order based on wealth rather than birth.

Locke contended that religious toleration would educate people to respect political authority. As one student of Locke's theologyputs it: “Given toleration, churches will spontaneously educate their members in 'good citizenship' by teaching that political




claims cannot be [based on] man's inner life as symbolized by faith. Free churches teach and practice public distrust in the name

of men's private search for the highest and most intensely personal good.”' 51 Distrust of government and collective actionsupported, then, the natural right to an unlimited accumulation of private property free from the redistributive demands of the

collective—a position valorized by Lockean liberalism. 52

Locke believed that Jesus' coming and transcension of the written law of the Old Covenant of Moses created a religious state

of nature *1003 in which individuals had to depend on Reason to observe the law of the spirit, 53 a law transcending the letterof the law. Those who obey the law of nature in the secular context are the equivalent of good Christians who, in the religiouscontext, subordinate the evil weaknesses of the flesh to the law of God in the inward person. In this state of nature, the role ofthe political philosopher was to link the religious law of the spirit to the secular law of nature through rules of moral practice

that related to and reinforced both. 54

In this way, Locke's theology “solves”' the problems of incoherency and universality. Examined from the perspective ofChristian theology, Locke's seemingly contradictory conceptions of human nature in the state of nature now make sense asthe struggle between good and evil—a struggle between the desire to observe the laws of God and the frailties of sinful

flesh. 55 Locke's conception of human nature is not confused about whether people are fundamentally good or evil, law-abidingor transgressive. Instead, his theory might be viewed as a secularized version of the Christian dichotomy of human nature;individuals in the state of nature are both good and evil, lawful and transgressive. Furthermore, this Christian perspective onhuman nature may well be accepted by many as universally valid, especially if, as Locke urges, religious instruction significantlyshapes deference to authority.

The indeterminacy critique accepts the foregoing, but claims, nevertheless, that alternative visions of community can be deducedfrom these assumptions. Although we need not accept Locke's vision of community as the only legitimate one, Locke mighthave safely assumed that many, including those most disadvantaged by his vision of community, would nonetheless view theauthority that oppressed them as legitimate. Locke's political philosophy was ultimately a project of constructing a naturalmorality that resonated with and was reinforced by human experiences and religious beliefs.

It is unsurprising, then, that Locke's entire theory is replete with Christian symbolism, imagery, and explicit references toscripture—attempts to bridge the gap between the religion of the common people *1004 and the philosophy of the elite. WhenLocke declares his law of nature that “being all equal and independent, no one ought to harm another in his Life, Health,

Liberty, or Possessions,”' he supports it with religious argument. 56 We are the property of God, he tells us, because we areGod's creations. Therefore, we are “made to last during his, not one anothers Pleasure”' and, thus, we cannot suppose any

“Subordination among us, that may Authorize us to destroy one another, as if we were made for one anothers uses.”' 57

Similarly, Locke's assertion that the law of nature applies as much to a person's accumulated possessions as it does to his physicalperson was reinforced by religious tradition that individuals deserve to be rewarded in relation to the labor they have expended.Locke's argument would not seem outlandish to those conditioned by this conventional morality and religious instruction.Locke's argument that accumulation is the just reward of a person's labor closely parallels Jesus' parable of the talents:

Then he which had received the one talent came and said, Lord, I knew thee that thou art an hard man,reaping where thou hast not sown, and gathering where thou hast not strawed: And I was afraid, and wentand hid thy talent in the earth: lo, there thou hast that is thine. His lord answered and said unto him, Thouwicked and slothful servant, thou knewest that I reap where I sowed not, and gather where I have notstrawed: Thou oughtest therefore to have put my money to the exchangers, and then at my coming I shouldhave received mine own with usury. Take therefore the talent from him, and give it unto him which hathten talents. For unto every one that hath shall be given, and he shall have abundance: but from him that hath




not shall be taken away even that which he hath, And cast ye the unprofitable servant into outer darkness:

there shall be weeping and gnashing of teeth. 58

The parable operates at two levels in legitimating the Lockean vision of community. At one level the hearer understands thatthis is a parable and that Christ is merely using a familiar example to explain a not-so-familiar concept—the kingdom of God.Nevertheless, the juxtaposition of natural experiences concerned with property, acquisition, profit, and material wealth with asupernatural world focused on salvation and heavenly rewards provides a subtle and indirect legitimacy of the former when

there is faith in and admiration of the latter. 59

*1005 At another level, a preoccupation with the spiritual dimension of works for heavenly rewards directs attention awayfrom earthly inequities and disparities of wealth and power and toward a place unlikely to threaten the property interests ofthose most protected by Locke's theory. Locke saw Jesus as establishing a universal morality capable of directing individuals

toward obligation: “We have from him a full and sufficient rule for our direction, and conformable to that of reason.”' 60 Thus,a superficial reading of the parable seems doubly to support Locke's claim that while God gave the earth to people in common,He gave it especially to the industrious and the rational.

In conclusion, Locke's theory of religion is intricately woven into his political philosophy. As a result, a theoreticaldeconstruction too narrow in scope may fail to emphasize Locke's overall vision. Locke depended on the interplay amongreligion, political philosophy, and conventional morality to shape consensus and to legitimate authority in a way that reasonand coercion alone could not. Only a more contextual approach to deconstruction, one that more fully explains the conditionsof choice, can explain the legitimating role of religion in his theory. This supplemental perspective, which I call experiential

deconstruction, is a dimension of critical activity vital to the work of an organic intellectual. 61

C. Critical Legal Studies and Reconstructive Vision

Just as theoretical deconstruction may overlook the legitimating role of religion in reconciling the oppressed to their subordinatepositions, it may also fail to appreciate the legitimating role of race and other ideologies. Conversely, theoretical deconstructionmay overlook the liberating dimensions of ideologies like religion and rights. Yet such observations may significantly influencethe reconstructive vision. In this section I examine the relationship between a limited conception of deconstruction and thedeficient reconstructive project found in the CLS critique.

1. Critical Legal Studies: A Summary.—[W]hat happens is people start translating their political feelings into unconscionability arguments or right-to-privacy argumentswithout realizing that there is a weird dissociation taking place . . . . Without even knowing it, they start talking as if “we”' wererights-bearing citizens who are “‘allowed”’ to do this or that by something called “the *1006 state,”' which is a passivizing

illusion—actually a hallucination which establishes the presumptive political legitimacy of the status quo. 62

Many CLS scholars see the liberal conception of community as heavily dependent on the faith that the state can and does setcommunity-defining boundaries that establish the limits of collective action through the neutral application of objective and

determinate principles. 63 Although sovereignty is theoretically vested in “the people,”' the specific nature and conditions of

that sovereignty are the subject of a “legal”' text and subject to the interpretation of a “judicial aristocracy”' of federal judges. 64

CLS asks, “On what grounds can the people be legitimately robbed of this sovereignty?” One response is that the courts must




enforce the boundaries articulated by the Constitution that define the spheres of privacy within which the collective cannotintrude. This enforcement requires a delicate balancing between individual rights and duties. The apparatus of liberal rightsmediates the relationship between ourselves and others whose cooperation both threatens and is indispensable to our survival.Under liberal theory, the process of mediation requires the establishment of *1007 private spheres of autonomy into whichothers are not permitted to intrude. A liberal discourse of abstract rights and duties purports to map out the borders of theseprivate spheres of autonomy and to set the conditions under which they may be justifiably disregarded.

The most troubling aspect of this story of neutrality and dispassionate adjudication is that those in power draw the linebetween public and private to preserve the distributions of wealth and power that limit transformative change and preservehierarchies directly or indirectly benefiting them. How does CLS respond to this problem? One way is by showing the inherentindeterminacy of line-drawing. We have examined this approach; it deconstructs ideology at the level of both social and legaltheory. Another way is by offering an alternative vision of community, a new way of drawing the lines between rights andduties. CLS has not done very much of this, although its negative critique implies such a vision, and its analysis occasionallysupports such alternatives.

The alternative vision begins with a different conception of the self. Because liberal theory is thought to legitimize its socialorder by deducing it from specific conceptions of human nature, some have thought it necessary to posit a different conception

of human nature in order to deduce a different conception of community transcending the limitations of liberalism. 65 Thatalternative conception of human nature rejects the conceptions offered by classical and contemporary liberal theory. It impliesthat liberal theory has mistaken the symptoms of the individual's condition for its causes. That is, what Hobbes and Lockedescribe as natural merely reflects the individual's alienation from his true nature.

The individual is not, by nature, an autonomous and acquisitive being desiring to dominate others and appropriate property.Rather, her alienation and loneliness are socially produced. Individuals long for a genuine connection with others, a mutualacknowledgment of their humanity and need for empowerment. However, socially imposed roles temper their desires forconnection with fears of rejection. The regime of liberal rights establishes many of these roles through the distribution of abstractrights and duties that distance us from ourselves and others whom we long to experience in more meaningful ways than our

present social existence permits. 66

*1008 We are lonely because our relationships with each other are distorted by these abstractions, and thus the potential forgenuine connection is always limited by the socially contrived roles we adopt. Landlord/tenant, employer/laborer, professor/student, bank teller/customer, and judge/lawyer are all roles that distance us, diminish our intersubjectivity, and decrease the

likelihood of a sustained sense of community. 67 The liberal state, however, provides us with an alternative community thatreally is no community at all. To mediate the threat posed by others to ourselves, the state fosters an illusion of a communityconsisting of rights-bearing citizens said to be equal before the law and thus members of a community of equals.

This is problematic because at one level we perceive others as the bearers of rights, as equals in a community of equals. Ata different level, that of the market for instance, we perceive others as a threat, something to be dominated or neutralized inthe acquisitive world of “dog-eat-dog.”' The day-to-day realities of our private loneliness and alienation belie the image of ourcommunitarian existence as equal political citizens.

The illusory liberal community is held together by the manipulation of political symbols by elites through their access to themass media and our utter need to believe in community, even when it is utterly absent. That is, we long for community sodesperately that a chief executive's invasion of a small island, bombing of an African country, and general rhetoric of American

patriotism shape our conception of community and fill the emptiness we experience daily. 68




Given the pervasive sense of alienation characterizing their interactions with others, then, individuals place great faith inthe capacity *1009 of the state to define the nature of community. Part of that definition consists of the state's ability toarticulate and enforce neutral boundaries defining the liberal equality of individuals, their equal freedom within private spheresof autonomy protecting them from the arbitrary incursion of private and collective forces.

When a careful “trashing”' of legal doctrine reveals, however, that all things are infused with both public and private qualities,there no longer exists any supposed objective criterion by which to logically characterize all things as either public or private.Under the weight of this analysis, the private-public dichotomy collapses and with it the artificial limitations imposed uponthe possibilities of collective action needed to create alternative forms of community. We need not maintain faith in a state, “a

passivizing illusion—actually a hallucination,”' 69 proven incapable of objectively mediating the contradiction between publicand private life.

The prescription of some, therefore, is to eliminate the state as we know it and, along with it, the artificially generated socialroles that limit the possibilities of our communitarian impulses. In short, some call for a type of decentralized socialismwhere one need not hide behind the private for either protection or self-aggrandizement. Communities where relationshipsmight be just “us, you and me, and the rest of us,”' deciding for ourselves what we want, without the alienating third of thestate. In that setting . . . we might even make group decisions about reproduction, replacing our pervasive alienation and fear

of one another with something more like mutual trust, or love. 70

Given the description of legitimation discussed above, 71 the implications for social struggle are clear. Activist lawyers mustrecognize that every time they “bring a case and win a right, that right is integrated within an ideological framework that hasas its ultimate aim the maintenance of collective passivity. That doesn't mean you don't bring the case—it means you keep

your eye on power and not on rights.”' 72 By focusing on the role of law as power, critics constantly remind us that the liberaldiscourse of rights is “just one among many systems of meaning that people construct in order to deal with one of the most

threatening aspects of social existence: the danger posed by other people, whose cooperation is indispensable to us.”' 73

Therefore, nothing about law or our present social order is sacrosanct or compelled by forces independent of our own capacitiesto *1010 envision and construct alternative forms of community. Deconstruction that demonstrates the indeterminacy of bothlegal doctrine and the political assumptions undergirding legal doctrine emphasizes that the kind of community in which welive remains a matter of choice—the important question being who will make those choices.

2. Critical Legal Studies: A Critique.—The CLS emphasis on the legitimating role of liberalism and the dynamics of poweris accurate but dangerously incomplete. It is incomplete for several reasons. First, theoretical deconstruction does not tell thecomplete story. We need to know the full range of conditions that lead people to believe, or act as if they believe, that authorityis legitimate. It may be because of the way they experience liberal ideology and its various dichotomizations of life. It may be,as suggested in my study of Locke, partially related to the influence of religious beliefs on the lives of the oppressed. It may bebecause of such factors as race, gender, poverty, and state and private coercion that individuals remain indifferent, unwilling,or unable to challenge an oppressive status quo.

Second, when we adopt this more contextual and experiential approach to understanding oppression, we will realize that thereare some liberating as well as legitimating aspects of the line-drawing or boundary-setting enterprise we critique. Democraticsocialism, the American Revolution, the African–American civil rights movement, and other social movements were based, inpart, on the liberating dimensions of liberal theory. Failing to recognize this, some scholars unwittingly fall into too simplistican analysis of the problem and its possible solutions. When we appreciate the liberating dimension of ideology, revealed by




experiential deconstruction, we might conclude that there are many dimensions of the present system that are good and quiteenabling.

Thus, although I share critical methods, I question the conclusions of CLS. The CLS critique rightly points out that we neednot accept oppressive institutions and practices as unalterable expressions of truth, because the premises on which they arebased are contradictory and indeterminate at best. The critique suggests, therefore, that we are free to envision and constructalternative forms of community that represent a more accurate or at least more plausible conception of human nature—onebelieved to be fundamentally good, which may replace “our pervasive alienation and fear of one another with something more

like mutual trust.”' 74 But should we be so certain that this optimistic view of human nature is clearly more liberating than theinsights provided by Hobbes or Locke? From this optimistic view, one might envision emerging a quite oppressive communityin which groups, behind the guise of love and mutual dependency, legitimate *1011 behavior that is more oppressive thananything imagined by Hobbes' sovereign. When, therefore, CLS proponents argue that liberalism's public-private dichotomyundermines a society's transformative potential, we should also ask how and when does it advance those efforts. Indeed, if CLS'primary concern is one of legitimation and power, it is important to ask under what conditions the liberal discourse of rightsmay be strategically delegitimizing and substantively empowering.

The third problem with the CLS critique is that it threatens to conflate the unique histories of the various forms of alienationand oppression engendered by the subconscious acceptance and assimilation of liberal ideology. The experiences of racismand sexism—to name but two—are certainly related to the way individuals experience liberalism as oppressive but cannot bereduced to that experience. Therefore, exploration of the various histories of oppression, often ignored by CLS' sometimesreductionist and idealistic account of oppression, can provide an essential basis for any reconstructed community.

Finally, deconstruction should ultimately lead to a reconstructive vision, which will involve some line-drawing and boundary-setting. CLS should not only explain why liberalism's boundary-setting is problematic; it must also suggest how to redraw thoseboundaries to satisfy other goals.

In conclusion, I believe CLS too often falls victim to a myopic preoccupation with the limited role of theoretical deconstructionand a too narrowly tailored experiential deconstruction that focuses exclusively on how individuals experience liberalism.Hegemonic ideologies are never maintained by logical consistency alone. Knowledge of how people experience oppression,or knowledge of the full range of conditions under which they remain oppressed, exposes new problems and possibilities.When one begins to contemplate how alternative visions of community might look and be implemented, one must consider

carefully the view from the bottom 75 —not simply what oppressors say, but how the oppressed respond to what they say. Likethe examination of the role of religion in Locke's theory, the view from the bottom may offer insights into why individualsaccept their subordinate status in society despite the illogic and inconsistency of the dominant ideology.

It may also provide the basis and catalyst for transformative social change. As I argue below, this is the case with African–American prophetic religion. The view from the bottom may cause us to revise our strategy of struggle. If we knew that coercion,religion, race, gender, or some other reality shaped consensus and legitimated authority, *1012 we would devote more energiesto understanding and struggling against those phenomena rather than exclusively channeling our energies into a familiar critiqueof the inherent inconsistencies of liberal theory. In addition, we might begin to rethink the location of struggle, and to spreadour concerns from the sequestered legal academy to religious institutions, community organizations, and the streets.

II. KING'S CRITICAL THEOLOGY

The difference between the writings and works of Martin Luther King, Jr., and much CLS thought can be seen in King'sunderstanding of the possibilities and limitations of theoretical deconstruction, his use of experiential deconstruction, his




articulation of an alternative vision of community, and his development of strategies to realize that vision. 76 King'sdemonstration of the theoretical indeterminacy of political and religious theories reinforcing oppression drew on a knowledge ofthe specific histories and experiences of oppression. This engagement with history guided his theoretical project and informedhis struggles to reform American society. With the benefit of both theoretical and experiential deconstruction, he committedhis life to mobilizing people of conscience into organizations and movements capable of transforming the theories, institutions,

and practices of oppression that his critiques exposed as incoherent, historically situated, and indeterminate. 77 This projectrequired a normative vision of community encapsulated in his conception of “the Beloved Community.”DD'

A. King As an Organic Intellectual

Because he appreciated the dialectic of theory and the broad-based confrontational strategies of socially transformative action,King stands as the paradigmatic organic intellectual of twentieth-century American life. King's method and practice offerdirection to progressive scholars concerned about the exclusionary, repressive, and non-communal dimensions of American life.

*1013 Gramsci's conception of the organic intellectual provides a useful framework for understanding the thought of King andwhat it has to offer CLS. The organic intellectual brings philosophy to the masses, not for the merely instrumental purposes ofunifying them, “but precisely in order to construct an intellectual-moral bloc which can make politically possible the intellectual

progress of the mass and not only of small intellectual groups.”' 78 Gramsci's organic intellectual struggles to transform

those who are oppressed as a means of transforming the conditions under which they are oppressed. 79 Gramsci understandsdomination in terms of both coercion and consent, the latter constituting what he refers to as hegemony. Under his formulation,hegemony consists, then, of “[t]he 'spontaneous' consent given by the great masses of the population to the general direction

imposed on social life by the dominant fundamental group.”' 80 Gramsci argues that “this consent is 'historically' caused bythe prestige (and consequent confidence) which the dominant group enjoys because of its position and function in the world of

production.”' 81 Thus, oppression is not only physical and psychological but also cultural. 82

King, like Gramsci's organic intellectual, empowered his community through a practical effort to bridge the gap between theoryand lived experience. King's work consisted of four interrelated activities. First, he used theoretical deconstruction to free themind to envision alternative conceptions of community. Second, he employed experiential deconstruction to understand theliberating dimensions of legitimating ideologies like liberalism and Christianity, dimensions easily ignored by the abstract,ahistorical, and potentially misleading critiques that rely exclusively on theoretical deconstruction. Third, he used the insightsgleaned from the first two activities to postulate an *1014 alternative social vision intended to transform the conditions ofoppression under which people struggle. Drawing from the best of liberalism and the best of Christianity, King forged a visionof community that transcended the limitations of each and built upon the accomplishments of both. Finally, he created andimplemented strategies to mobilize people to secure that alternative vision. I refer to this multidimensional critical activity as“philosophical praxis.”DD'

Although many critical theorists engage primarily in theoretical deconstruction, and some appreciate certain forms of

experiential deconstruction, 83 few have embraced either a full experiential deconstruction or the third and fourth dimensions of

philosophical praxis— reconstructive theorizing and socially transformative struggle. 84 These dimensions of critical activitydirectly confront the material conditions of oppression whereas the preoccupation with deconstructing theory does not. Kingwent further than these critical theorists by examining the subtle and complex ways in which consent was shaped, while fullyappreciating the role of state and private coercion in legitimating authority in the lives of the oppressed.




This Part examines how King filtered his theoretical deconstruction of hegemonic theologies through his knowledge of thehistory and experience of oppression, and thereby made that theoretical deconstruction richer, more contextual, and ready toengage the existential realities of oppression. The interplay between King's theoretical and experiential deconstruction is bestillustrated by reference to the African–American Church—the institution providing the organic link between philosophy and

the masses, theory and praxis. 85

My analysis proceeds in four steps. First, I examine how African–American religion served at once to legitimate slavesociety, delegitimize that society, and inform alternative visions of community. Second, I examine King's use of theoreticaldeconstruction and illustrate its dependence on the historic mission of the African–American Church. Like a true organicintellectual engaged in a philosophical praxis, King used theoretical deconstruction to illustrate the possibilities *1015 ofhis reconstructive vision and the centrality of social struggle in realizing that vision. Third, I discuss King's experientialdeconstruction, his unwillingness to be distracted by the reified abstractions of theoretical deconstruction. Finally, I show howthe combination of theoretical and experiential deconstruction results in a more contextual framework—one more appreciativeof the conditions of choice within which authority is legitimated and challenged through reconstructive vision and struggle.

B. The Role of the African–American Church in the American Slave Experience

African–American religion was vital to the community-building enterprise necessitated by the social disintegration and chaosof the American slavery experience. Confronted by practices of social control that suppressed their West African heritage,language, and traditions, Africans were expected to conform to a community created by their slavemasters. Slavemasters

attempted to refashion the African's identity through the eradication of collective memory. 86 In the void created by the sociallyimposed atomization of the African community, the African–American Church served both to legitimate and delegitimate themoral authority of a slaveowning society.

1. The Role of Religion in the Legitimation of Authority.—Slavemasters believed Christianity had a stabilizing and disciplining

influence on the slave's disposition 87 and thought it would foster consent by Africans to the legal and extra-legal devices of

slavery. The conservative evangelicalism 88 of slave society was premised on five basic *1016 assumptions. The first was the

fallen nature of human beings 89 —the pervasiveness of human depravity and sin. The second was contrition 90 —a period of

mourning characterized by feelings of personal guilt and sorrow for sins. The third was conversion 91 —an intensely personalexperience with God in which the burdens of sin were lifted and the soul cleansed and made fit for the Kingdom of God. The

fourth was the separation of believers 92 —the sometimes physical but most times psychological separation of the community of

believers from sinful worldly concerns and pursuits. The last was the separation of church and state 93 —the extreme deferenceto the existing social order and dependence on the state for the laws and rules necessary to constrain the sinful nature of earthlybeings.

These features of conservative evangelicalism were considered rooted in an infallible scripture representing the untainted wordof God; they legitimated slavemasters' authority in several ways. Southern evangelicals elaborated the scriptural justifications

for slavery and invoked the will of God to reconcile slaves to their subordinate status. 94 Slavery could not be sin, they reasoned,since God sanctioned it in his infallible Word. Evangelicals frequently cited the Old Testament story of Noah's son, Ham, whose

progeny God supposedly *1017 condemned to a legacy of servitude for Ham's indiscretion. 95 These and other scriptural

evidences were, to the evangelicals, conclusive proof of God's authorization of African slavery. 96




Having provided the moral justification for slavery through scripture, evangelicals constructed an argument designed to avertany effort by the Church to transform the institution. Because the scripture supported slavery, and secular authority establishedand protected it under state law, the Church, mindful of its commitment to the separation of church and state, could not condemn

slavery. 97 Because slavery did not constitute sin, God's law did not contradict the civil law. Slavery fell under the latter and

the scriptures dictated obedience to secular authority. 98

Moreover, conservative evangelicalism dictated that because God would deal with the evil of Southern slavery and apartheidin His own way and time, the eradication of those institutions should await His divine deliverance as evidenced by the changedhearts and minds of women and men. Thus, patience and the implicit acceptance of one's subordinate status were exalted asthe highest of Christian virtues.

Conservative evangelicalism had made its position on the morality of slavery quite clear. Unresolved, however, was whetherthe separation of church and state permitted the Church to play any role at all in the relationship between masters and slaves.

Although scripture exhorted masters to provide their slaves with instruction sufficient for salvation, 99 evangelicals emphasizedthat salvation was the sole purpose of giving slaves the gospel. The evangelical message was that if slaves were faithful to thegospel—humble and obedient, faithfully serving in the station to which providence had assigned them—they too could enterthe Kingdom of God. As one evangelical contended: *1018 “‘ 'Our design in giving them [the slaves] the Gospel, is not to

civilize them—not to change their social condition—not to exalt them into citizens or freemen—it is to save them.’ ” 100

2. The Role of Religion in the Delegitimation of Authority.—Although the use of religion as an instrument of social control often

necessitated oversight by white masters, 101 strict enforcement was not maintained, and slaves often met separately for religious

services, including weekly and Sunday evening services. 102 It was within the freedom provided for religious worship thatAfricans began to assert some control over how the void created by the disintegration of their historical identity and communitywould be filled. In this small space of freedom, an alternative conception of community was defined and the history of a newAmerican people began to emerge. African–American religion and its primary vehicle of expression, the African–American

Church, supplied the needed catalyst for the reconstruction of community destroyed by slavery. 103

To the surprise and fear of many whites, slaves transformed an ideology intended to reconcile them to a subordinate status into

a manifesto of their God-given equality. 104 This deconstruction was both revolutionary and pragmatic in nature. The Africans'appropriation of conservative evangelicalism as a bulwark against the degradation and countless microaggressions of slaveryproved that there were alternate interpretations of the text that supposedly justified their subjugation. Slaves demonstrated thatscripture was subject to an alternative interpretation that called for the eradication of the very social structure evangelicals

sought to legitimate. 105 In short, slaves deconstructed ideology through their struggles against oppression.

Although slavemasters and evangelicals attempted to limit the transmission of counter-hegemonic interpretations of scripture,their *1019 efforts met with limited success. African gospel preachers and slaves who learned to read against their masters'wishes (and, many times, against state law as well) were determined to read the Bible in light of their own experiences. Manyslaves realized that the message of submission, docility, and absolute obedience to the master was a distorted picture of the

Bible's eternal truths. 106

Many slaves found in Christianity, and particularly in the historical Jesus, a call to revolutionary action. They read of a Jesuswho proclaimed that God had anointed him to “preach the gospel to the poor; . . . to preach deliverance to the captives, and . . .

to set at liberty them that are bruised”'; 107 who commanded those who would follow him to care for “the least of these”':

the hungry, naked, sick, and those in prison; 108 who entered Jerusalem to the revolutionary cry of Hosannah; 109 and who




defiantly asserted “[t]hink not that I am come to send peace on earth: I came not to send peace, but a sword.”' 110 DenmarkVessey and Nat Turner, for example, recognized the revolutionary potential of Christianity: “since God is on our side, we strike

for freedom, confident in his protection.”' 111 The Reverend Henry Highland Garnet contended: “ 'To such degradation [asslavery] it is sinful in the extreme for you to make voluntary submission. . . . Brethren arise, arise! Strike for your lives and

liberties. Now is the day and the hour . . . . Rather die freemen than live to be slaves.' ” 112

Those unwilling to act on the revolutionary impulses of the Bible found scriptural support for a more patient and pragmaticopposition to slavery that still fostered and preserved a healthy sense of self-worth. Conservative evangelicalism taught thatslavery was a divinely ordained practice instituted by the master race for the benefit of morally deficient Africans. But slavesread of Moses, the Hebrew children, and God's mighty deliverance from the hardships of Egyptian slavery. The story providedproof of God's intolerance of American slavery and his intention someday to divide the Red Sea of Southern oppression andlead His people out of Pharaoh's land.

Against the formidable oppression of slavery, segregation, and contemporary forms of subjugation, this deconstructed,pragmatic evangelicalism provided the means by which African–Americans could *1020 survive their daily travails. Itsemphasis on personal faith nurtured a forward looking people who could sing with conviction the words “I'm so glad, that trouble

won't last always.”' 113 Its emphasis on love bolstered a sense of self-esteem diminished by the debilitating and degradingpractices of a culture that relegated them to the status of objects. It nurtured an inward-looking people who could sing with

reassurance the words “The trumpet sounds within my soul. I know I ain't got long to stay here.”' 114

Conservative religious ideology portrayed slaves as inherently inferior and unequal creatures in need of white paternalism. Butslaves heard of a God who gave His only son to die for all human sins equally. They heard that God did not discriminate amongpersons—that in Him there was neither Jew nor Gentile, black nor white, slave nor free—that all were brothers and sisters in

Christ Jesus. 115 Slavemasters and evangelical preachers admonished slaves to render absolute obedience to their masters andto serve cheerfully in the position to which they were destined. But slaves read of and believed in a master superior to theirearthly masters—a master to whom their own masters were held in submission, and whose commandments their masters wereobligated to obey. The belief in Jesus as ultimate master undermined the suggestion that complete submission was owed to

one's earthly master. 116

The disparity between what slaves read and heard from their own preachers and the practices of whites in the slave systemhad two important consequences. First, it preserved and enhanced the self-esteem of the slaves; the realization that somewhites were not faithful to the Word provided them with a sense of moral superiority. Even in slavery, slaves could be thelight unto the sinner's path. Second, it provided a standard against which they could measure whites individually, rather than

collectively by their social status as master race. 117 It provided a framework for understanding the differences between cruelwhite overseers and whites who worked on the underground railroad to freedom. Even when the institutions of oppressionseemed most intractable, understanding their oppression as the sin of unfaithful whites maintained for the Africans a sense ofsanity and hope tempered only by the revolutionary focus on power and immediate liberation. In short, the appropriation ofChristian ideology by the African–Americans provided the basis for their survival of slavery's many brutalities and indignities.

*1021 Although this appropriation helped to restore the dignity of the African slave, it also had paradoxical effects. Pragmaticevangelicalism admirably served the cause of survival but its eschatological and inward orientation simultaneously served thefunction of social control. It saved black Christians from a debilitating hatred which, if permitted to fester, would have createda pervasive sense of despair and hopelessness that would have substantially impaired the moral will to survive. However, italso promoted as virtues patience and tolerance of the social institutions of oppression. Viewing morality in terms of individual




character thus undermined the possibilities of a sustained Christian radicalism against what was perhaps the most debilitating

and sustained system of subordination known to the modern world—American slavery. 118

3. The Role of Religion in the Shaping of Alternative Conceptions of Community.—The revolutionary and pragmaticfaith drawn from conservative evangelicalism represented the beginnings of what Cornel West has called “‘prophetic

Christianity.”’ 119 It drew heavily on the interplay between the individualist orientation of pragmatic Christianity and thecollectivist orientation of revolutionary Christianity. It encouraged an intensely personal relationship with God while nurturingthe possibilities of collective defiance and transformation.

The African–American Church rejected white Christianity's claim that the law and order of an oppressive secular authority werenecessary to constrain the evil proclivities of human nature. Many slaves never accepted the view that slavery was justifiedbecause the human nature of Africans necessitated African enslavement and white superiority. For these slaves, the spiritualfreedom and sense of equality that accompanied the conversion of the soul threw into question the morality of the social orderin which they lived. One student of this period writes:Contradicting a system that valued him like a beast for his labor, conversion experientially confirmed the slave's value as ahuman person, indeed attested to his ultimate worth as one of the chosen of God.

...

. . . [M]eetings encouraged participants to include references to individual misfortunes and problems in their prayers andsongs, so that they might be shared by all. This type of consolation . . . [was] the answer to the crucial need of individuals

for community. 120

*1022 The religious experience of conversion was central to the belief system of slaves. The process of conversion in African–American religion involved a period of sustained mourning in which the contrite sinner would assemble with worshipersin prayer for as many successive meetings as required to “bring the sinner through”'—a phrase used to express the sinner'scompletion of a right of passage from the alienated existence of sinner to the bonds of Christian fellowship and community. Theprocess of conversion often resulted in a cataclysmic seizure of the person by the Holy Spirit that catapulted all into a rapture

of ecstatic joy and praise. 121 The experience was collectively cathartic. 122 In the slave community, uninhibited shoutingand praise temporarily obliterated secular distinctions in status between the slaves. It was a process in which personalitiesdisintegrated by the social chaos of oppression found meaning and commonality by fusing with others in a collective act of

self-affirmation and even defiance. 123

The prophetic Christianity that resulted from this synthesis between revolutionary and pragmatic Christianity offered thealternative conception of community that would inspire King to develop his notion of a “Beloved Community”' and to struggle totransform American society. King's objective to rebuild community from the social death of slavery and segregation paralleledthe conversion experience in slavery. A sense of individual self-worth was essential to any social struggle; segregation laws andimpoverished conditions that diminished self-worth had to be challenged and abolished. Although the ideal was to break downthe barriers of hatred and misunderstanding that prevented individuals from seeing and respecting the God-given humanity ofall, King knew that only collective action and organized defiance could achieve the destruction of such barriers. Redistributionof wealth and power through the collectively cathartic experience of social conversion was a necessary part of this conceptionof community. Law and the power of the state would have to assist in the obliteration and amelioration of many of the seculardistinctions *1023 founded on race, class, and gender that were created and reinforced by public and private forces.




C. King and Theoretical Deconstruction

King, through both his writings and his works, masterfully engaged in the theoretical deconstruction of the central premisesof conservative evangelicalism. As discussed above, conservative evangelicalism maintained that because human nature was

fundamentally evil, God had ordained and placed government over people as a constraint on their evil proclivities. 124 Suchconstraint was essential to maintaining law and order in the face of Hobbesian chaos—an anarchy certain to ensue if each coulddecide the extent to which laws should be obeyed or disobeyed. Individuals were to be patient until God had so worked in thehearts of people that oppressive institutions like slavery and segregation would pass without the evil of breach of order andthe resulting chaos.

King theoretically deconstructed this theology, which privileged order over freedom in three ways. First, he showed theincoherency of conservative evangelicalism's privileging of order over freedom, and illustrated that these supposed oppositeswere mutually dependent and thus incapable of being objectively ranked. Second, King rejected the premise that human natureis fundamentally evil, and challenged the universality of conservative evangelicalism's conception of human nature. Third,he showed that even assuming the theological premise that human nature was fundamentally evil, a different conception ofcommunity could be derived; thus he exposed the theology's indeterminacy. Based on this deconstruction, King synthesized thecompeting views into a Christian existentialism supporting, although not determining, his alternative conception of community.

1. Deconstructing First Principles—The Incoherency Critique.—During the Birmingham demonstrations of 1963, the whiteclergy criticized King for the breach of law and order precipitated by his “untimely,”' nonviolent direct action protests to

desegregate the city. In his famous “Letter from Birmingham City Jail,”' 125 King responded that he had*1024 almost reached the regrettable conclusion that the Negro's great stumbling block in the stride toward freedom is not the

White Citizen's Counciler or the Ku Klux Klanner, but the white moderate who is more devoted to 'order' than to justice; . . .who paternalistically feels that he can set the timetable for another man's freedom . . . . I had hoped that the white moderatewould understand that law and order exist for the purpose of establishing justice, and that when they fail to do this they become

dangerously structured dams that block the flow of social progress. 126

King examined and exposed the mutual dependence of order and freedom. He understood that the primary difference betweenthe two was that a belief in the primacy of order assumed that human nature was fundamentally evil and in need of restraint,while a belief in the primacy of freedom assumed that it was fundamentally good and capable of autonomy. The privileging oforder over freedom assumed that the latter was only possible within the constraints imposed by sovereign authority. Otherwise,civil society would degenerate into a Hobbesian war of all against all. Like Hobbes and, at times, Locke as well, the whiteclergy of Birmingham privileged the conception of human nature as fundamentally evil over the conception of human natureas fundamentally good. Thus, the ordinances and injunctions prohibiting demonstrations in the city were necessary restraintson freedom needed to maintain order in the face of the human capacity for evil.

King's incoherency critique exposed the white clergy's preference of order over freedom and evil over good and demonstratedthat this preference lacked an objective foundation. The hierarchy could easily be inverted. If freedom presupposes order, as thewhite clergy contended, it is no less true that order presupposes freedom. For if humans are not also capable of substantial good,no social order is possible, because individuals would by definition be ungovernable. In this way, the social order supposedlynecessitated by human evil presupposes the freedom and human goodness it denies.

*1025 2. Deconstructing First Principles—The Universality Critique.—Even if the privileging of order over freedom and theconception of human nature as fundamentally evil over its opposite conception were not seen as incoherent, King realized that




these privileged conceptions need not be accepted as universally valid. They might be viewed as historically contingent andconditioned, and thus subject to change if individuals are willing to engage in transformative struggles to alter the conditionsunder which they appear coherent.

The evangelicalism of Dr. George Washington Davis, King's professor of theology at Crozer Seminary, and the social gospel

of Walter Rauschenbusch 127 gave King the theological perspectives to challenge conservative evangelicalism's conception ofhuman nature and its debilitating dichotomy between the spiritual and the secular and between order and freedom. Evangelical

liberalism 128 turned conservative evangelicalism's conception of human nature on its head and called into question theuniversality of that theology's assumptions. Evangelical liberalism posited the goodness of human nature, as reflected in andresulting from human moral reasoning, and conjectured that evil institutions had limited people's efforts to pursue the ideal of

the Kingdom of Value, what King would later call the Beloved Community. 129

From its theory of human nature, evangelical liberalism deduced a new role for the Church and the Christian. Given intrinsichuman goodness, social institutions could and should be transformed to reflect more accurately the ideals of universal kinship

and cooperation. 130 An infallible scripture reflecting the static will of God could not justify *1026 social institutions likeslavery and segregation. In addition, oppressive institutions could no longer seek justification by invoking the need to restrainthe evil nature of persons; such institutions were themselves the source of evil and thus in need of reform.

A second important source of King's universality critique was the social gospel of Walter Rauschenbusch. Consistent withevangelical liberalism, Rauschenbusch also saw humans as intrinsically good. Evil, he argued, was the product of an evil society;in America's case, the greed and selfish individualism of a spawning industrialism trampled the Christian values of kinship and

love, 131 created gross inequities of wealth, 132 and relegated thousands to abject poverty. 133 Rauschenbusch called for theabandonment of capitalism and the creation of a new social order that would socialize economic resources and allow people to

inhabit a sinless Christian commonwealth based on love, cooperation, and solidarity. 134

By closing the chasm between the individual and the society, religion and ethics, and spirituality and everyday existence,Rauschenbusch avoided the limitations of conservative evangelicalism. Social justice constituted the telos of the Christian faithin his view, and he evaluated Christian discipleship in terms of its commitment to this moral end. Thus, unlike the dichotomyof conservative evangelicalism, there was a necessary relationship between the sacred and the secular, the Church and social

issues. Evidence of a person's love for God, he contended, must be the fruits of love for suffering humanity. 135 Such lovenecessitated the conversion of all social institutions and practices that maintained and reproduced poverty, racial oppression,

and other social ills. 136 The social gospel turned Christian attention from the glories of the kingdom to come to the injustices

of the kingdom at hand. 137 It premised individual salvation on the transformation of the world's evil social institutions.

Evangelical liberalism and the social gospel repudiated the traditional conception of human nature; they replaced that traditionalconception with an antithetical view, and reached a different conclusion about the relationship between Church and state and

between Christians and the evil world in which they lived. 138 King used these two *1027 strands of theology to challengethe view of human nature that counseled African–Americans to be patient in the face of oppression.

3. Deconstructing First Principles—The Indeterminacy Critique.—In addition to challenging conservative evangelicalism bypositing an alternative conception of human nature, King argued that even if conservative evangelicalism's conception of humannature were valid, that conception would not necessitate any one vision of community. For example, when white ministersclaimed that the civil-rights protests resulted in a loss of law and order in Birmingham, and that King was primarily responsiblefor the tension and deteriorated relations that now pervaded the community, King responded with an indeterminacy critique.




Conservative evangelicalism assumed that scripture required the Church's deference to the authority of the state ordained byGod; but King pointed out that order must serve the end of justice. Even assuming that we each must defer to the state, Kingmaintained, we must respect the law of God:

A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a codethat is out of harmony with the moral law . . . not rooted in eternal and natural law. Any law that upliftshuman personality is just. Any law that degrades human personality is unjust. All segregation statutes areunjust because segregation distorts the soul and damages the personality. It gives the segregator a falsesense of superiority, and the segregated a false sense of inferiority. . . . So segregation is not only politically,

economically and sociologically unsound, but it is morally wrong and sinful. 139

King held that disobeying human law, even unjust law, must be done out of love and with a willingness to suffer the penaltyfor its breach. Through this unjust suffering, the transgressor evidences the highest respect for law and order while remainingtrue to his higher Christian duty.

King realized that even when first principles were accepted, they did not mechanically determine specific visions of community.How we lived in community remained a matter of choice that implicated a host of competing values. What could be deducedfrom the presupposition that human nature was fundamentally evil and deference to *1028 the laws of social order essential?Segregationists deduced that King should cease all protests because they were illegal activities and should accept African–American subjugation as the best of all possible worlds. Moderates deduced that King should cease all protests and pursue morepeaceful and orderly avenues for desegregating the city—a goal surely to be achieved in due time. For King, it meant respectingthe law and the need for social order through a willingness to suffer the penalty for breaching unjust laws. Each deduction islogical, although none are compelled. What one finds persuasive largely depends on other values related to human potentialand social relations, power, and community.

4. Synthesizing First Principles.—The incoherency, universality, and indeterminacy critiques gave King the intellectual freedomto posit a radically different conception of human nature that focused more on reconstructive struggle than theoreticaldeconstruction. Although he initially rejected conservative evangelicalism and its pessimistic view of human nature, King laterrealized that the optimistic view of human nature upon which evangelical liberalism and the social gospel constructed theirutopias posed significant dangers. The indeterminacy critique suggested, and historical experience made clear, that evil andoppression could as easily follow from an optimistic faith in human nature as from a more orthodox conception of humandepravity.

Evangelical liberalism stressed the power of human reason to discern the moral good of life and possessed an inexorableoptimism concerning human capacity for goodness. But the more King “observed the tragedies of history and man's shameful

inclination to choose the low road,”' the more he came to see the “depths and strength of sin.”' 140 His experiences convinced himthat evangelical “liberalism had been all too sentimental concerning human nature and that it leaned toward a false idealism”'that failed to see that “reason is darkened by sin”' and “is little more than an instrument to justify man's defensive ways of

thinking.”' 141

At the other extreme from evangelical liberalism was the neo-orthodoxy of Karl Barth, which emphasized the intractable nature

of sin and evil and the relative futility of utopian aspirations. 142 Barth *1029 maintained that many of the social injusticesof the world were necessary evils that could only be rectified by the apocalyptic return of the Kingdom of God. Although herecognized the insights of neo-orthodoxy, King could not fully accept this view—it cast too dark a shadow upon the possibilities

of social change. 143




King searched for a philosophical middle ground that saw human nature as a struggle between good and evil, 144 a philosophythat conceded humanity's finiteness, yet acted on the faith that God could use finite creatures to establish a Beloved Communitybased on love and justice. He found this philosophical common ground in a Christian existentialism influenced by his study of

Kierkegaard, Nietzsche, Jaspers, Heidegger, and Sartre. 145

Like the existentialists, King believed that liberalism failed to give serious consideration to humanity's finite freedom—ourexistential *1030 estrangement in an evil world from our essential nature of goodness as creatures of God. King described as“perilous”' the assumption by some liberal theologians that sin was but a mere “lag of nature that can be progressively eliminated

as man climbs the evolutionary ladder.”' 146 For King, the estrangement from perfection was fundamental. The individual wasalways in the process of becoming and could never fully realize the ideal of the Beloved Community in history. Nevertheless, hebelieved that the struggle to actualize the ideal in history could transform social relations. Only struggle to achieve the BelovedCommunity allows us to experience our essential nature and to change our limited knowledge and understanding of the world.

In summary, King's use of theory to deconstruct oppressive and hegemonic theologies was guided by the historic missionof the African–American Church to rebuild community from the socially imposed amnesia and atomization of slavery andsegregation. Seeing the individual as incorrigibly evil would make societal reform impossible. Similarly, viewing the individualas purely good would make coerced societal reform unnecessary because reasoned deliberation could simply usher in theBeloved Community. Instead, King understood that individuals were both good and evil, and that mind must be met with mindand power with power.

D. King and Experiential Deconstruction

The incoherency, universality, and indeterminacy critiques illustrate the open-ended character of organizing principles. Suchcritiques supply the intellectual courage to think differently. They demystify theories of their natural-law-like image and freethe mind to envision new conceptions of community. But this alone is insufficient; because these critiques are abstract andahistorical they do not provide the rich historical contextuality essential to an understanding of the actual operation of power.Like the theoretical deconstruction of Lockean liberalism, they may miss conditions of great importance that explain legitimacyin ways that logic and reason cannot. Furthermore, experiential deconstruction may provide insights into the ways in whichmarginalized groups transform powerless conditions into powerful possibilities, thereby informing a broader reconstructivevision than previously existed.

In other words, King realized that very few African–Americans probably ever believed that the assumptions of conservativeevangelicalism logically compelled their submission to authority. Their submission was not based on consent to asocial order they believed to be legitimate. Rather, coercion and its constant threat of death, injury, humiliation, orimpoverishment compelled their submission. Individuals *1031 may have fully agreed with King's incoherency, universality,and indeterminacy critiques, and yet been constrained by existential limitations that made collective struggle to attainalternative conceptions of community difficult if not impossible. King eloquently describes these existential limitations throughexperiential deconstruction:

[W]hen you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters andbrothers at whim; when you have seen hate-filled policemen curse, kick, brutalize and even kill yourblack brothers and sisters with impunity; when you see the vast majority of your twenty million Negrobrothers smothering in an airtight cage of poverty in the midst of an affluent society; . . . when you takea cross-country drive and find it necessary to sleep night after night in the uncomfortable corners of yourautomobile because no motel will accept you; when you are humiliated day in and day out by nagging signs




reading “white”' and “colored”'; when your first name becomes “nigger”' and your middle name becomes“boy”' (however old you are) and your last name becomes “John,”' and when your wife and mother are nevergiven the respected title “Mrs.”'; when you are harried by day and haunted by night by the fact that you area Negro, living constantly at tiptoe stance never quite knowing what to expect next, and plagued with innerfears and outer resentments; when you are forever fighting a degenerating sense of “nobodiness”'; then you

will understand why we find it difficult to wait. 147

King saw the world and evaluated the theories marshalled in support of it through the lens of these experiences of oppression.These experiences necessitated his eclectic appropriation of various theologies and philosophies, which he constantly revisedin light of his growing understanding of the problems of American life. King drew inspiration and instruction from the historyof African–American religion and the Church for dealing with these existential limitations. The history and experiences of

African–Americans under oppression taught King several valuable lessons. 148 First, submission to illegitimate authority didnot derive exclusively from a hegemonic ideology like conservative evangelicalism or political liberalism. Public and privatebrute force and coercion played a significant role in maintaining submission. Second, far from being duped by the political andreligious ideologies intended to oppress them, African–Americans had *1032 often successfully turned those ideologies ontheir heads and used them as instruments of survival and liberation. Third, within the space created by the interplay of coercionand hegemony, African–Americans articulated and implemented conceptions of community important to broader visions of areconstructed society.

King's Christian existentialism was significantly informed by experiential deconstruction, the past and present experiences ofAfrican–American people. The tension between pragmatic and revolutionary evangelicalism suggested a profoundly personalrelationship between the individual and God with implications for the community as a whole. King maintained that althoughGod was indeed working to change the sinful hearts and minds of white oppressors, collective organization through nonviolentdirect action would be His instrument of salvation. King saw this as an empowering synthesis of the Old Testament's concernfor justice and the New Testament's emphasis on love. “‘Greater love has no man than this, that a man lay down his life for

his friends.”’ 149 Justice and love were inseparable. It was a necessary expression of one's love for God, then, to lead soulsblinded by the darkness of sin to the light, to raise consciousness and to challenge the injustice anywhere that threatened justice

everywhere. 150

King's synthesis of pragmatic and revolutionary evangelicalism was most powerfully expressed in his “Letter from Birmingham

City Jail.”' 151 Conservative evangelicalism's dichotomy between the spiritual and the secular caused many religious leaders,just as in the days of slavery, to continue to oppose any interpretation of Christianity demanding that equality before God in thespiritual realm also be embodied in the legal and social relations defining the secular realm. These leaders still offered patienceas a panacea for the pain of persecution and the joys of an afterlife as an answer for the sufferings of this life. If integrationwas the will of God, He and not humans would change people's hearts in His own way and time. Be patient, they urged, and

wait on the Lord. 152 King discerned the hegemonic role of this theology and boldly challenged the injustice to which it gaverise wherever he encountered it. To those who urged that nonviolent, *1033 direct action was “‘unwise and untimely,”’ Kingsharply retorted:We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by theoppressed. Frankly, I have never yet engaged in a direct action movement that was “well-timed,”' according to the timetable ofthose who have not suffered unduly from the disease of segregation. For years now I have heard the words “Wait!” It rings inthe ear of every Negro with a piercing familiarity. This “Wait”' has almost always meant “Never.”' . . . We must come to see

with the distinguished jurist of yesterday, that “justice too long delayed is justice denied.”' 153




King expressed his great disappointment with this otherworldly orientation of the white Church:In the midst of blatant injustices inflicted upon the Negro, I have watched white churches stand on the sideline and merely mouthpious irrelevancies and sanctimonious trivialities. In the midst of a mighty struggle to rid our nation of racial and economicinjustice, I have heard so many ministers say, “‘Those are social issues with which the gospel has no real concern,”’ and I havewatched so many churches commit themselves to a completely otherworldly religion which made a strange distinction between

body and soul, the sacred and the secular. 154

Thus, King spent his life leading African–Americans into direct confrontation with oppressive institutions and practices.Through direct action the African–American community exposed the contradictions and violence endemic to American society.In this way, the civil rights movement King led was itself a powerful form of experiential deconstruction, one that providedfertile ground for a new vision of community in America.

E. King and the Reconstructive Vision of Community

King's reconstructive vision emanated from the interplay of theory and experience, 155 and from the synthesis of rights andduties. Rights represent the pragmatic, individualist orientation focusing on formal equality before the law in the politicalcontext; duties represent the *1034 collectivist, revolutionary orientation focusing on justified coercion by the collectiveto implement alternative conceptions of community. This section examines how King's reconstructive vision of the BelovedCommunity synthesizes both dimensions of this traditional dichotomy. It demonstrates how King used the insights of theoreticaland experiential deconstruction discussed above to posit a reconstructive vision in which rights limited duties in a sociallyconscious and egalitarian manner rather than in a manner that preserved a status quo permeated with hierarchy and inequality.

1. Pragmatic Rights and Revolutionary Duty.—Many of the communal and cooperative dimensions of King's theory of thestate depended on the optimistic view of human nature posited by evangelical liberalism and the social gospel. Individualscould harness the powers of the state to usher in a Beloved Community here on earth. Conversely, King understood thelimitations and dangers of this optimism—that the reality of sin and evil must never be forgotten. This awareness was capturedin his commitment to a Christian existentialism that posited a human nature fragmented by an alienated and anxiety-filledexistence that severely circumscribed one's ability to know, much less change, the world. Individual rights represented, underthis existentialist view, a hedge against our imperfect attempts to reconcile our existential and essential selves and extended farbeyond the traditional litany of liberties and rights against the state espoused by classical and contemporary liberalism. These

rights were “inherent rights that are God-given and not simply privileges extended by the state.”' 156 For King, the rights oflife, liberty, and the pursuit of happiness meant that “all individuals everywhere should have 'three meals a day for their bodies,

education and culture for their minds, and dignity, equality and freedom for their spirits.' ” 157 This required *1035 that thestate affirmatively create the institutions necessary to realize these natural rights.

Unlike some CLS scholars, King understood the importance of a system of individual rights. CLS proponents have urgedthat rights are incoherent and indeterminate reifications of concrete experiences; they obfuscate, through the manipulation of

abstract categories, disempowering social relations. 158 King, on the other hand, understood that the oppressed could makerights determinate in practice; although “law tends to declare rights—it does not deliver them. A catalyst is needed to breathe

life experience into a judicial decision.”' 159 For King, the catalyst was persistent social struggle to transform the oppressivenessof one's existential condition into ever closer approximations of the ideal. The hierarchies of race, gender, and class define thoseconditions, and the struggle for substantive rights closes the gap between the latter and the ideal of the Beloved Community.




Under the pressures of social struggle, the oppressed can alter rights to better reflect the exigencies of social reality—a realityitself more fully understood by those engaged in transformative struggle.

King's Beloved Community accepted and expanded the liberal tradition of rights. King realized that notwithstanding its limits,the liberal vision contained important insights into the human condition. For those deprived of basic freedoms and subjectedto arbitrary acts of state authority, the enforcement of formal rights was revolutionary. African–Americans understood theimportance of formal liberal rights and demanded the full enforcement of such rights in order to challenge and rectify historicalpractices that had objectified and subsumed their existence.

Although conservatives contended that the emphasis on rights disrupted the gradual moral evolution that would ultimatelychange white sentiment, King contended that “[j]udicial decrees may not change the heart, but they can restrain the

heartless.”' 160 On the other *1036 hand, although radicals contended that such rights were mere tokens and created a falsesense of security masking continued violence, King understood that the strict enforcement of the rule of law was essential toany struggle for social justice, whether that struggle was moderate or radical in its sentiment and goals. Freedom of dissent andprotest; freedom from arbitrary searches, seizures, and detention; and freedom to organize and associate with those of commonpurpose were necessary rights that no movement for social reconstruction could take for granted.

Furthermore, King saw the initial emphasis on civil rights, 161 I believe, as a necessary struggle for the collective self-respectand dignity of a people whose subordination was, in part, maintained by laws reproducing and reinforcing feelings of inadequacyand inferiority. The civil rights struggle attempted to lift the veil of shame and degradation from the eyes of a people who couldthen glimpse the possibilities of their personhood and achieve that potential through varied forms of social struggle. King'sricher conception of rights provided limitations on collective action while broadening the scope of personal duty to permitmovement toward a more socially conscious community.

King's conception of duty complemented his conception of rights; it called for individual action, but action consistent with amore humane and contextual rule of law. Although clearly inspired by the revolutionary tradition, King's conception was notas consuming as that of the revolutionary Christians. The duty orientation of revolutionary Christianity required individuals tosee themselves as part of some larger and similarly situated community. Each had a personal duty that ran to the communityat large, thereby subordinating personal welfare to the welfare of the community. One's duty to God could only be understoodby reference to one's duty to others, and one's duty to others obligated the individual to be his brother's and sister's keeper, tomeet power with power in the struggle for justice.

King too called for the immediate transformation of American institutions and practices, but he rejected the use of violence inthis transformative struggle. He refused to place the goal of a reconstructed community above the means used to achieve it.Moreover, he believed that nonviolent direct action and mass civil disobedience *1037 could secure the revolutionary end ofdismantling Jim Crow and winning the war against poverty. Through nonviolent direct action, one could be both moral andrevolutionary. It provided oppressors the opportunity to redeem themselves voluntarily from a sinful past while providing thecoercive dimension of a disruptive and crisis-packed boycott, march, or protest to urge them along.

In this way, King balanced pragmatic and revolutionary Christianity, as well as rights and duties. King's prophetic Christianityrecognized the importance of both rights and duty as a practical matter. Rights were prerequisites to survival; nonviolent civildisobedience was the heart of duty. Duty was consistent with rights because through civil disobedience one could simultaneouslydemonstrate respect for the rule of law in preserving social order while opposing laws supportive of unjust social orders. Thus,King envisioned a rule of law rooted in experience and responsive to the conditions of oppression that denied the humanityof so many.




2. Prophetic Christianity and the Struggle for the Beloved Community.—The revision of rights and duties was only thefoundation of King's prophetic Christianity. Although a complete study of King's theology is beyond the scope of this Article,several features of that theology are worth noting here because they suggest the contours of the constructive product of acritical enterprise. First, King sought a total transformation of society, the secular equivalent of religious conversion. Both socialtransformation and conversion situated the individual within the context of community. While conversion was personal, it was

also a community good—it addressed the salvation of one's soul as well as one's need for affirmation within a community. 162

Similarly, liberal rights in the context of social transformation expressed the equality of all before the law and thereby affirmedthe individual's dignity in the face of collective coercion. Liberal rights, though personal, were given meaning by referenceto collective experiences.

Second, King rejected the liberal effort to reconcile the individual's natural freedom and equality with a social order thatsubordinated human rights to the security of property. In liberal thought, the state existed to promote the pursuit and protect the

appropriation of private property. 163 To King, this epitomized the misplaced priorities of American democracy. “A life,”' hewrote, “is sacred. Property is intended to serve life, and no matter how much we surround it with rights and respect, it has no

personal being. It is part of the earth man walks on; it is not man.”' 164

*1038 Third, King's prophetic Christianity remained fundamentally aspirational. America, King believed, must neverrelinquish its right to dream—to reach beyond the limitations of its present to grasp the possibilities of its future. The state neednot be thought of as a potential enemy of liberty or as some mystified “other”' perennially threatening to rob us of individualliberty. King sought to dereify this conception of state by making people see that we, living human beings, are the state. To theextent we have become alienated from the very power we would wield to create the Beloved Community, we must recapturethat power and vest it in those who are disempowered by electoral, political, and socio-economic processes of which they nolonger feel a part.

This view of the state was based neither on the pessimistic view of human nature espoused by aspects of Lockean theory noron Christian neo-orthodoxy. Nor was it based on the optimistic view of human nature found in some CLS theories and theprogressive Christian theories of evangelical liberalism and the social gospel. It was based on a synthesis of both interpretations

that evinced an awareness of the limitations and possibilities of each. 165 Thus, for King, the Beloved Community would not besatisfied with classical notions of civil order based upon a public/private dichotomy limiting the role of the state to the protectionof individual autonomy within a private sphere shaped by capitalist relations of production. Nor could it be content in its slightlymore progressive posture of removing publicly created obstacles (legal segregation) to mutual dependency (integration). Rather,the state must serve the greater purpose of promoting human unity and mutual dependency through the removal of both publiclyand privately produced impediments to the Beloved Community.

The disintegration of the civil rights movement in the mid-sixties and the erosion of the liberal consensus undergirding that

movement, 166 combined with King's ardent commitment to social justice, *1039 compelled his move to the left—to a formof democratic socialism that represented the best of two ideologically opposed systems. King noted that “the good and justsociety is neither the thesis of capitalism nor the antithesis of communism, but a socially conscious democracy which reconciles

the truths of individualism and collectivism.”' 167

King's suspicion of American capitalism and the evils of economic exploitation was nurtured by his early witness of thesymbiosis of racism and poverty, segregation and economic exploitation. Racism reproduced a distribution of wealth and powerthat perpetually relegated African–Americans to the lowest rung of the economic ladder. Through early experiences of racism

and segregation, King would later recall, “I grew up deeply conscious of varieties of injustice in our society.”' 168




Experience would not allow him to be naïve about the creation of such a just community. He clearly realized that his publicministry *1040 was at a crossroads in 1966 and that the path of moderate liberal reform down which he had journeyed had nowreached a dead end. Faced with the demands of a militant left and an accomodationist right, King, in typical fashion, struggled

toward a new ideal that placed him to the left of his previously moderate stance. 169

The following year, King delivered perhaps his most radical address:I want to say to you as I move to my conclusion, as we talk about “Where do we go from here,”' that we honestly face the factthat the movement must address itself to the question of restructuring the whole of American society. There are forty millionpoor people here. And one day we must ask the question, “Why are there forty million poor people in America?” And whenyou begin to ask that question, you are raising questions about the economic system, about a broader distribution of wealth.When you ask that question, you begin to question the capitalistic economy . . . . We are called upon to help the discouragedbeggars in life's marketplace. But one day we must come to see that an edifice which produces beggars needs restructuring. Itmeans that questions must be raised. You see, my friends, when you deal with this, you begin to ask the question, “Who ownsthe oil?” You begin to ask the question, “Who owns the iron ore?” You begin to ask the question, “Why is it that people haveto pay water bills in a world that is two-thirds water?” These are questions that must be asked . . . .

Now when I say question the whole society, it means ultimately coming to see that the problem of racism, the problem of

economic *1041 exploitation, and the problem of war are all tied together. These are the triple evils that are interrelated. 170

Dr. Martin Luther King, Jr., was assassinated before he had the opportunity to develop many of the themes suggested by hisnewfound commitment to democratic socialism. Thus his program lacks many specifics about where to draw lines betweenindividual rights and duties. Several things are clear, however. First, for King, prophetic Christianity and democratic socialismrequired, at a minimum, a quaranteed minimum income and guaranteed employment, and the democratization of political and

economic institutions in order to promote a truly participatory democracy. 171 King believed that this democratic socialism 172

must be coupled with a program of wealth redistribution to the poor. 173

Second, this country's experience of 250 years of slavery and close to 100 years of Jim Crow segregation and exploitation cannotbe discounted. Racist traditions, thought patterns, and behavior cannot be eliminated either with the passage of a “color-blind”'statute or by a court ruling prohibiting discrimination on the basis of race under the equal protection clause of the fourteenthamendment. The state and its arbiter of the law—the courts—must take affirmative steps to educate the population on the valueof difference and diversity, to provide the victims of discrimination with the education and resources to actualize their potentialin a society that has systematically suppressed that potential. Further, the state must ensure that institutions previously excludingindividuals on the basis of race do not continue to do so on the basis of some other “racially neutral”' criterion the neutrality

of which has been corrupted by racism itself. 174

*1042 IV. SUMMARY AND CONCLUSION

I began this Article with two purposes in mind. The first was to foster a greater appreciation for African–American social andintellectual history. One cannot reasonably engage in a study of how individuals experience oppressive ideologies like liberalismwithout consulting the history of those whose oppression fundamentally shaped that ideology within the American context.To study the marginalization, alienation, setbacks, and accomplishments of African–Americans is to study a microcosm of theAmerican experience. Before there was a United States, Africans were responding to and shaping the experiences of oppressionthat would come to characterize so much of the American ethos.




A system's strengths and weaknesses are best tested at the system's margin. There one appreciates the possibilities and limitationsof hegemonic ideologies that supposedly reconcile individuals to their subordinate status and thereby legitimate oppressiveauthority. Historically specific, contextual, and experiential analysis discovers much that the theoretical deconstructioncharacteristic of CLS fails to see. Experiential deconstruction reveals that authority is very seldom legitimated by logic andreason alone, but rather by an interplay of hegemonic ideologies and various forms of public and private coercion reflectedin the experiences of slavery, segregation, and socio-economic subjugation. This more contextual examination of oppressionalso exposes the liberating dimensions of hegemonic ideologies like conservative evangelicalism and political liberalism. Itsuggests, then, the possibility of appropriating some and expunging other aspects of the ideology in an effort to reconstructcommunity from the debris of theoretical deconstruction. Recognizing this, I hope that critical scholars will acquaint themselveswith the work of contemporary minority scholars writing in the area of critical race law, and incorporate our concerns andinsights into their own projects.

My second purpose in writing this article was to point out the particular relevance of Dr. Martin Luther King, Jr.'s project topostmodern critical activity. I have portrayed King as America's towering twentieth-century organic intellectual, engaged in aphilosophical praxis intended to bring philosophy to the masses and to facilitate transformative social struggles. In this sense,King anticipated the decline of postmodernity by more than two decades, and posited a reconstructed conception of community—the Beloved Community—to which all should aspire.

*1043 At the level of theoretical deconstruction, King deconstructed conservative evangelicalism's dichotomy betweenthe spiritual and the secular. He accomplished this deconstruction in four steps. First, he used the incoherency critique todemonstrate that conservative Christianity's privileging of order over justice and freedom could not be objectively justified.Second, by replacing conservative evangelicalism's conception of a fundamentally evil human nature with a conception of afundamentally good human nature, he demonstrated that the conception of human nature as fundamentally evil need not beaccepted as universally valid. Third, he appropriated the indeterminacy critique to illustrate that the specific vision of communitywe embrace is not determined by the first principle governing our conception of human nature. Finally, when he realized thelimitations of debating various theories of human nature, King synthesized opposites and embraced a Christian existentialismthat permitted struggle for the Beloved Community within the limitations imposed by our incomplete knowledge of what wewould transform and how we would transform it.

At the level of experiential deconstruction, King's appreciation of the historic mission of the African–American Church informedhis synthesis of two competing conceptions of African–American Christian activity—pragmatic and revolutionary Christianity—into what has been called prophetic Christianity. In combining the individualist/pragmatic and collectivist/revolutionarydimensions of the African–American religious experience, prophetic Christianity focuses on both the faith and love of pragmaticevangelicalism and the call to works and struggle for power central to revolutionary evangelicalism.

At the level of reconstructive theorizing, King synthesized capitalism and communism into a democratic socialism that, towardthe end of his life, came to represent his conception of the Beloved Community. Just as communism sacrificed individualfreedom in favor of duties running to the state, capitalism sacrificed the possibility of a truly democratic community upon thealtars of a rampant, inequitable, and selfish individualism. King believed that an alternative social order was both desirable andobtainable; he envisioned a community that respected the need for individual freedom, yet realized the need for a state thatprotected and substantively promoted that freedom.

Finally, at the level of transformative social struggle, King always stood willing and ready to carry his philosophy to the masses.His involvement in social struggle—from the Montgomery Bus Boycott to the Poor People's Movement and the MemphisGarbage Workers Strike—built upon, refined, and redefined his theories of Christian existentialism, prophetic Christianity, anddemocratic socialism.




In conclusion, I believe the postmodern preoccupation with deconstruction is but a precursor to serious reflection on how weshould live in community. Critics—scholars, activists, organizers, and citizens—must *1044 turn their attention and energiesto reconstructive theorizing and struggle. Although theoretical deconstruction provides some with the intellectual freedom tothink and act, the more contextual experiential deconstruction discussed in this Article illustrates that what we see as plausiblesolutions to our oppressed existence will largely depend on what we perceive as the problem. In this regard, our assessment ofthe problems can be no better than the lenses through which we examine those problems. I have argued that those lenses mustreflect the different histories and experiences that constitute our community. The process must be deliberative, participatory,and respectful of difference and diversity.

Experiential deconstruction tells us that we should pay more attention to the specific kind of community we envision withreference to the specific experiences of oppression characterizing our histories. We must question how that alternativecommunity will better protect African–Americans and others from the subjugation of racism, bigotry, sexism, and graveinequalities of wealth and power. This can only be achieved through the detailed examination of American institutions and thesystematic development of alternative institutions designed to rectify present oppression and injustice.

In this regard, King was ahead of his time, and although there is much we can learn from a study of his life and thought, hisassassination in 1968 prevented him from fully developing his alternative vision of community. That task is ours. It is oftensaid that the hottest places in Hell are reserved for those who in times of moral crisis remain neutral. Let us not fall victim tothe paralysis of neutral analysis. Instead, we must meet and talk together, appreciating our respective histories and experiencesof alienation and oppression. We must talk specifically about the kind of community we would fashion and how the rules,laws, and rituals defining the roles we adopt can be mutually empowering and facilitative of a community of equals. We musttalk specifically about how we should organize, protest, agitate, and struggle to achieve our objectives, realizing that we areperennially engaged in a dialectic in which the program shapes our practices, which in turn refine and redefine our program.With such mutual respect and openness to each others' pain, suffering, and faith we must work out more fully and struggletoward King's ideal of the Beloved Community and thereby hew from our mountain of despair a stone of hope.

Footnotesa Associate Professor of Law, University of Florida. I would like to thank my colleagues Charles Collier, Barry Currier, Kermit Hall,

Winston Nagan, and Mary Twitchell for guidance and suggestions along the way. I would especially like to thank Adeno Addis,

Derrick Bell, Alan Freeman, Duncan Kennedy, Elizabeth Mensch, and Cornel West for their careful reading and comments on an

earlier draft of this Article.

1 The Harvard Civil Rights–Civil Liberties Law Review dedicated an entire issue to this minority critique. See Minority Critiques of

the Critical Legal Studies Movement, 22 HARV.C.R.–C.L.L.REV. 297 (1987). These minority scholars have created an informal

group for purposes of encouraging research and scholarship in the area of race law and critical theory. The group held its first annual

conference in July 1989 in Madison, Wisconsin, the 1977 site of the first CLS conference. For a response to this series of critiques, see

Freeman, Racism, Rights and the Quest for Equality of Opportunity: A Critical Legal Essay, 23 HARV.C.R.–C.L.L.REV. 295 (1988).

2 Professor Delgado identifies the specific elements of CLS scholarship that are most worrisome to minorities. He writes:

[T]he CLS negative program contains elements that repel and in fact threaten minorities. These elements include: (i) disparagement

of legal rules and rights, (ii) rejection of piecemeal change, (iii) idealism, and (iv) use of the concept of false consciousness. Much

of CLS scholarship in these areas is either risky, since it asks minorities to give up something of value, or unreliable, because it is

based on presuppositions that do not correspond to our experience.

Delgado, The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?, 22 HARV.C.R.–C.L.L.REV. 301, 303

(1987) (footnotes omitted).

3 Professor Crenshaw convincingly argues:




Critical scholarship clarifies the crisis of antidiscrimination law, identifying the potential costs of engaging in liberal reform discourse.

The key flaw in CLS writing on legal ideology and hegemony, however, is that it overlooks the relationship of racism to hegemony.

Critical literature focuses primarily on legal consciousness and on consensual domination, leaving coercion and popular consciousness

unexamined. Because racism is intimately connected to both coercion and popular consciousness, the Critics' failure to examine them

undermines the utility of their critique in analyzing the oppression of Black people and in explaining domination and legitimation

in society as a whole.

Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV.L.REV. 1331,

1335 (1988).

4 See, e.g., Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV.C.R.–C.L.L.REV. 323, 343 n. 90

(1987) (making specific recommendations for dealing with the problems of ethnocentric scholarship).

5 The term “deconstruction”' can be traced initially to critical literary theory, particularly the work of Jacques Derrida. See generally

J. DERRIDA, DISSEMINATION (B. Johnson trans.1981); J. DERRIDA, MARGINS OF PHILOSOPHY (A. Bass trans.1982);

J. DERRIDA, OF GRAMMATOLOGY (G. Spivak trans.1976); J. DERRIDA, POSITIONS (A. Bass trans.1981); J. DERRIDA,

SPEECH AND PHENOMENA (D. Allison trans.1973); J. DERRIDA, SPURS (B. Harlow trans.1979); J. DERRIDA, WRITING

AND DIFFERENCE (A. Bass trans.1978). For an introduction to Derrida's theory, see Rorty, Philosophy As a Kind of Writing:

An Essay on Derrida, 10 NEW LITERARY HIST. 141 (1978). By deconstruction, I mean the technique of exposing hierarchical

oppositions and demonstrating their difference and mutual dependence for purposes of illustrating the ideological basis of privileging

one opposite over the other.

One author has contended that Derrida's definition of deconstruction sometimes differs from the meaning given by legal scholars

who appropriate the term. See Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743, 743–44 (1987). The author

points out that Derrida's conception of deconstruction is encapsulated in the concept of différance:

Différance simultaneously indicates that (1) the terms of an oppositional hierarchy are differentiated from each other (which is what

determines them); (2) each term in the hierarchy defers the other (in the sense of making the other term wait for the first term), and

(3) each term in the hierarchy defers to the other (in the sense of being fundamentally dependent upon the other).

Id. at 752 (emphasis in original).

One critical legal scholar, Alan Freeman, has described the use of deconstruction by critical legal scholars as follows: “The point of

delegitimation is to expose possibilities more truly expressing reality, possibilities of fashioning a future that might at least partially

realize a substantive notion of justice instead of the abstract, rightsy, traditional, bourgeois notions of justice . . . .”' Freeman, Truth

and Mystification in Legal Scholarship, 90 YALE L.J. 1229, 1230 (1981).

6 For two excellent treatments of King's evolving theology of community, see J. ANSBRO, MARTIN LUTHER KING, JR.: THE

MAKING OF A MIND (1982); and K. SMITH & I. ZEPP, JR., SEARCH FOR THE BELOVED COMMUNITY: THE THINKING

OF MARTIN LUTHER KING, JR. (1986).

7 See, e.g., M. BALL, LYING DOWN TOGETHER: LAW, METAPHOR, AND THEOLOGY at xiv (1985) (offering a new conceptual

metaphor for the law based on a systematic theology that may “support[] rather than stifle[] human flourishing”'); K. GREENAWALT,

RELIGIOUS CONVICTIONS AND POLITICAL CHOICE (1988) (examining the extent to which individuals rely on religious

convictions when making political decisions); M. PERRY, MORALITY, POLITICS, AND LAW 183 (1988) (contending that secular

leftists have not begun “to explore some of the richest sources for thinking about the human: the resource of the great religious

traditions”'); Mensch & Freeman, A Republican Agenda for Hobbesian America?, 41 U.FLA.L.REV. 581, 620 (1989) (calling on

the left to explore religion as a viable source of alternative conceptions of community).

8 The term “organic intellectual”' was introduced by Antonio Gramsci. See infra p. 1013.

9 By “repressive ideology,”' I mean the belief systems and processes of socialization that cause the subordinated to acquiesce to their

own subordination. See infra note 20.

10 For treatment of the relationship between Realism and Critical Legal Studies, see Tushnet, Critical Legal Studies: An Introduction

to Its Origins and Underpinnings, 36 J. LEGAL EDUC. 505 (1986); and Note, 'Round and 'Round the Bramble Bush: From Legal

Realism to Critical Legal Scholarship, 95 HARV.L.REV. 1669 (1982).

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11 See, e.g., O.W. HOLMES, Herbert Spencer: Legislation and Empiricism, in JUSTICE OLIVER WENDELL HOLMES: HIS BOOK

NOTICES AND UNCOLLECTED LETTERS AND PAPERS 104 (H. Shriver ed.1936) (criticizing the position that judges can make

objective decisions on the basis of a broadly shared consensus of values); Cook, The Logical and Legal Bases of the Conflict of

Laws, 33 YALE L.J. 457 (1924) (discussing indeterminacy).

12 See, e.g., J. FRANK, LAW AND THE MODERN MIND 111 (1936) (“The peculiar traits, disposition, biases and habits of the

particular judge will, then, often determine what he decides to be the law. . . . To know the judge's hunch-producers which make the

law we must know thoroughly that complicated congeries we loosely call the judge's personality.”').

13 See Lasswell & McDougal, Legal Education and Public Policy: Professional Training in the Public Interest, 52 YALE L.J. 203

(1943). Lasswell and McDougal typify the attempt of some Realists to develop a full-blown model of law as policymaking. To these

authors, the judicial decisionmaking process was a science that could be mapped out by scholars committed to understanding the

multitudinous factors that contribute to sound policymaking.

14 Oliver Wendell Holmes, Jr., was one of the great influences on the American Legal Realist movement. His criticism of the “notion

that the only force at work in the development of the law is logic”' represented a call for more social science research in the law. See

Holmes, The Path of the Law, 10 HARV.L.REV. 457, 465 (1897). Presaging the future turn in legal scholarship, Holmes observed:

For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and

the master of economics. It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.

Id. at 469. For a more general discussion of Realist empiricism and attraction to social science, see E. PURCELL, THE CRISIS

OF DEMOCRATIC THEORY 74–94 (1973); and Schlegel, American Legal Realism and Empirical Social Science: From the Yale

Experience, 28 BUFFALO L.REV. 459 (1979).

15 See Tushnet, supra note 10, at 625; White, From Sociological Jurisprudence to Realism: Jurisprudence and Social Change in Early

Twentieth–Century America, 58 VA.L.REV. 999, 1025 (1972); Note, supra note 10, at 1676.

16 For a discussion of what happened to the Realist Movement, see Purcell, American Jurisprudence Between the Wars: Legal Realism

and the Crisis of Democratic Theory, 75 AM.HIST.REV. 424 (1969).

17 See generally THE POLITICS OF LAW (D. Kairys ed.1982); A Symposium of Critical Legal Studies, 34 AM.U.L.REV. 929 (1985);

Critical Legal Studies Symposium, 36 STAN.L.REV. 1 (1984); Symposium: A Critique of Rights, 62 TEX.L.REV. 1363 (1984).

18 For examples of CLS deconstruction of a range of legal doctrines, see Brest, State Action and Liberal Theory: A Casenote on Flagg

Brothers v. Brooks, 130 U.PA.L.REV. 1296 (1982) (state action doctrine); Freeman & Mensch, The Public–Private Distinction in

American Law and Life, 36 BUFFALO L.REV. 237 (1987) (public/private distinction); Freeman, Legitimizing Racial Discrimination

Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 MINN.L.REV. 1049 (1978) (equal protection);

Kelman, Trashing, 36 STAN.L.REV. 293, 306–18 (1984) (law and economics); and Kennedy, Form and Substance in Private Law

Adjudication, 89 HARV.L.REV. 1685 (1976) (individualism and altruism).

19 A useful illustration of the difference between the CLS and Realist approaches can be found by examining the jurisprudence of Roscoe

Pound. Pound did not deny that judges make choices among competing values. He simply claimed that there existed sufficiently

objective boundaries within which those choices could be neutrally made. See 3 R. POUND, JURISPRUDENCE 287–91 (1959).

In cases of competing interests, Pound reconciled the conflict by reference to a set of values, which he believed were fundamental,

broadly endorsed, and sufficiently determinate to inform a choice between competing interests. Judicial decisionmaking continues

to rely on Pound's backdrop values, which have come to appear so natural and necessary that many fail to question the specific

interpretations of liberty, private property, and equality, for example, that arise out of the law's concrete application.

For CLS scholars, these backdrop values are no less contingent than legal doctrine, and are as capable of legitimating existing

oppression. The rhetoric of consensus makes people feel that the state has impartially resolved conflicts through the application of

neutral principles of law, and obfuscates the relations of power maintained by judicial decisions premised on Pound's liberal-capitalist

values. Over time these values have been imbued with specific meaning that results in the legitimacy of the status quo. CLS' objective,

then, is to demonstrate that we cannot depend on the state to mediate our conflicts objectively.
















20 Robert Gordon, for example, suggests that an ideal means of scrutinizing “‘belief-structures”’ is to demonstrate their historical

contingency. See Gordon, New Developments in Legal Theory, in THE POLITICS OF LAW, supra note 17, at 281, 289. Gordon's

demonstration of contingency is a response to the problem of “reification,”' the

process of allowing the structures we ourselves have built to mediate relations among us so as to make us see ourselves as performing

abstract roles in a play that is produced by no human agency . . . . It is a way people have of manufacturing necessity: they build

structures, then act as if (and genuinely come to believe that) the structures they have built are determined by history, human nature,

economic law.

Id. at 289.

21 Some have characterized the indeterminacy critique as an exercise in nihilism or as otherwise more troubling that CLS admits. See,

e.g., Fiss, Objectivity and Interpretation, 34 STAN.L.REV. 739 (1982); Hutchinson & Monahan, Law, Politics, and the Critical Legal

Scholars: The Unfolding Drama of American Legal Thought, 36 STAN.L.REV. 199, 236 (1984). The best response to the argument

that CLS leads to moral relativism is that of Professor Singer:

[T]he absence of determinacy, objectivity, and neutrality does not condemn us to indifference or arbitrariness, nor make it ridiculous

to ask, or impossible to answer, the question of what we should do or how we should live. The lack of a rational foundation to

legal reasoning does not prevent us from developing passionate moral and political commitments. On the contrary, it liberates us

to embrace them.

Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1, 8 (1984).

22 See Gabel, The Phenomenology of Rights–Consciousness and the Pact of the Withdrawn Selves, 62 TEX.L.REV. 1563, 1566–72

(1984) [hereinafter Gabel, Phenomenology]. According to Gabel, although we all desire to reach out to others in mutually affirming

ways, we fear rejection. The need for, yet fear of, connection is mediated by the social roles we adopt to deal with our fears of

rejection. See id. at 1566–69. The problem is that many of these roles diminish the potential for genuine human connection and

reciprocal self-affirmation, and that the law helps to reify our alienation through its structures of sovereign authority and “rights.”' See

id. at 1569–71; see also Gabel, The Mass Psychology of the New Federalism: How the Burger Court's Political Imagery Legitimizes

the Privatization of Everyday Life, 52 GEO.WASH.L.REV. 263, 264 (1984) (stating that “[c]ontemporary American society is a

network of hierarchies within which people feel profoundly isolated from one another”'). This problem is discussed in greater detail

at pp. 1005–09 below.

23 I Have a Dream, Address by Dr. Martin Luther King, Jr., at the March on Washington, D.C. for Civil Rights (Aug. 28, 1963), reprinted

in A TESTAMENT OF HOPE: THE ESSENTIAL WRITINGS OF MARTIN LUTHER KING, JR. 217, 219 (J. Washington ed.1986)

[hereinafter A TESTAMENT OF HOPE].

24 See Freeman & Mensch, supra note 18, at 256 n. 51 (concluding that “[o]ur doubt about the degree we can trust one another, embedded

in the public-private split, leads to reliance on an outside authority to resolve the problem. Yet, so long as the authority remains

outside, the doubt cannot be overcome.”'); see also Gabel, Phenomenology, supra note 22.

25 These “possibilities”' are not mutually exclusive groupings of the oppressed. This is a fluid typology, with individuals sometimes

moving in and out of each grouping and often occupying more than one at a time. My point is that critical activity must account for

all three possibilities and the different problems associated with each.

26 It may strike some as odd that I speak of “liberal faith”' and “liberal religion”' in this Article. I hope that the similarities between

liberalism and certain interpretations of Christianity will become more apparent as I progress. One scholar has noted:

Liberalism is often associated with a rejection of corporate authority in favor of individual autonomy and with a belief that important

questions can be resolved by rational inquiry. What is called liberal religion . . . is religion that emphasizes rationality and individual

discovery of truth and downgrades emotional commitment, scriptural revelation, and hierarchical control.

K. GREENAWALT, supra note 7, at 21.

27 See infra Part II.












28 For a discussion of why elements of liberalism are indispensable to struggles to transform society, see Sparer, Fundamental Human

Rights, Legal Entitlements, and the Social Struggle: A Friendly Critique of the Critical Legal Studies Movement, 36 STAN.L.REV.

509 (1984). Sparer describes the CLS attack on fundamental rights as

both ahistorical . . . and reactionary. It is sometimes blind to the significance of legal protections for certain fundamental human

rights. . . .

For example, the attack by some Critical theorists on entitlement theory, which in many ways parallels the attack on fundamental

rights, precludes an appreciation of how entitlement programs can be used to enhance social movement, rather than to legitimize

the status quo and promote hegemony.

Id. at 512.

29 No account of liberalism is complete without a discussion of Locke's political philosophy. Locke's emphasis on the primacy of wealth

accumulation and government's protection of private property under the civil contract are the pillars of American history and culture.

For a discussion of Locke's politics, see Aarsleff, The State of Nature and the Nature of Man in Locke, in JOHN LOCKE: PROBLEMS

AND PERSPECTIVES 99 (J. Yolton ed.1969); and Leites, Conscience, Leisure, and Learning: Locke and the Levellers, 39 SOC.

ANALYSIS 36 (1978). See also Mount, American Individualism Reconsidered, 22 REV. RELIGIOUS RES. 362, 365 (1981).

Locke's concept of natural rights in property profoundly influenced eighteenth-century American thinkers and was the centerpiece

of jurisprudence during the Lochner era. Indeed, some would argue that its influence continues as an unstated assumption of

contemporary legal theory. See, e.g., Sunstein, Lochner's Legacy, 87 COLUM.L.REV. 873 (1987).

30 While many critics of liberalism have paid close attention to Locke's political philosophy, they have paid scant attention to his

theology, which, in my opinion, is of equal importance. The hegemonic character of liberalism is more fully understood when we

appreciate how Locke bridges the gap between autonomous individualism and community, between freedom and the collective force

needed to maintain that freedom, with both the faith of religion as well as the logic of reason. For a discussion of Locke's theology, see

Balitzer, The Civil Religion Debate, 48 RELIGION IN LIFE 175 (1979); Biddle, Locke's Critique of Innate Principles and Toland's

Deism, 37 J. HIST.IDEAS 411 (1976); Moore, Locke on Assent and Toleration, 58 J. RELIGION 30 (1978); Pearson, The Religion

of John Locke and the Character of His Thought, 58 J. RELIGION 244 (1978); and Wallace, Socinianism, Justification by Faith, and

the Sources of John Locke's The Reasonableness of Christianity, 45 J.HIST. IDEAS 49 (1984).

31 Locke defines political power as “a Right of making Laws with Penalties of Death, and consequently all less Penalties, for the

Regulating and Preserving of Property, and of employing the force of the Community, in the Execution of such Laws.”' J. LOCKE,

The Second Treatise of Government § 3, in TWO TREATISES OF GOVERNMENT 305, 308 (P. Laslett rev.ed.1963) (3d ed.1698)

(emphasis in original).

32 Id. § 4, at 309.

33 See id. Locke seeks to reconcile the idea of equality with the existence of vast inequalities of wealth and power by resorting to a

conception of formal equality. In describing the state of equality, Locke contends that there is “‘nothing more evident, than that

Creatures of the same species and rank promiscuously born to all the same advantages of Nature, and the use of the same faculties,

should also be equal one amongst another without Subordination or Subjection.”’ Id. Locke's emphasis on equality of “faculties”'

and equal exposure to the “advantages of nature”' makes his equality a formal one, one of equal opportunity providing no assurances

about the ultimate distribution of power and wealth. In a later passage Locke reminds the reader:

Though I have said above . . . That all Men by Nature are equal, I cannot be supposed to understand all sorts of Equality: Age or

Virtue may give Men a just Precedency: Excellency of Parts and Merit may place others above the Common Level: Birth may subject

some, and Alliance or Benefits others, to pay an Observance to those to whom Nature, Gratitude or other Respects may have made

it due; and yet all this consists with the Equality, which all Men are in, in respect of Jurisdiction or Dominion one over another,

which was the Equality I there spoke of, as proper to the Business in hand, being that equal Right that every Man hath, to his Natural

Freedom, without being subjected to the Will or Authority of any other Man.

Id. § 54, at 346 (emphasis in original). Thus, all are equally free to pursue the accumulation of property according to certain rules,

and all are equal beneficiaries of the law's protection of private property.

34 Id. § 6, at 311.








35 As one of Locke's critics has pointed out, Locke's philosophy entails that, although the “labouring class is a necessary part of the

nation its members are not in fact full members of the body politic and have no claim to be so”' given their lack of rationality.

C. MACPHERSON, THE POLITICAL THEORY OF POSSESSIVE INDIVIDUALISM 221–22 (1964). Macpherson claims that

Locke does not rigorously establish the right of society to exploit and exclude from the political franchise the laboring class (a term

used to refer both to the idle poor and the laboring poor), because Locke's society widely accepted their exclusion and subordination

without any special justification. See id. at 222.

36 [T]he labourer's share [of the national income], being seldom more than a bare subsistance, never allows that body of men time or

opportunity to raise their thoughts above that, or struggle with the richer for theirs, (as one common interest) unless when some

common and great distress, uniting them in one universal ferment, makes them forget respect, and emboldens them to carve to their

wants with armed force; and then sometimes they break in upon the rich, and sweep all like a deluge. But this rarely happens but in

the male-administration of neglected or mismanaged government.

J. LOCKE, Some Considerations of the Consequences of Lowering the Interest and Raising the Value of Money (1691), reprinted

in 5 THE WORKS OF JOHN LOCKE IN TEN VOLUMES I, 71 (Scientia Verlag Aalen 1963) (London 1823) [hereinafter LOCKE

IN TEN VOLUMES], quoted in C. MACPHERSON, supra note 35, at 223.

37 For an example of the deconstruction of privileging in the legal context of contracts, see Balkin, cited above in note 5, at 767–72.

38 J. LOCKE, The Second Treatise of Government, supra note 31, § 19, at 321. Locke outlines his theory of human nature in his

discussion of the state of nature. His central objective is to justify the right to unlimited private property in the face of a received

religious teaching that God has given the earth to “Mankind in common.”' See id. § 25, at 327. The first part of his solution is to find

a personal property right in the “Labour of [a person's] Body, and the Work of his Hands.”' Id. § 27, at 329 (emphasis in original).

When a person mixes his labor with that held in common, he makes what was common his private property.

To establish that individuals have a right to appropriate private property, Locke simultaneously recognizes and transcends the law of

nature that permits only so much accumulation “as any one can make use of to any advantage of life before it spoils . . . . Whatever

is beyond this, [being] more than his share, and belong[ing] to others.”' Id. § 31, at 332. Locke contends that although the earth was

in some sense given to people in common, the fact that labor is a property right personal to the individual means that God especially

“gave [the earth] to the use of the Industrious and Rational, . . . not to the Fancy or Covetousness of the Quarrelsom and Contentious.”'

Id. § 34, at 333. Thus, Locke sees the appropriation of private property as a natural right because land was given by God for the

individual's use and sustenance. In addition, by viewing labor as a property right of the individual, Locke sets the stage for unlimited

and thus unequal appropriations of wealth and power.

39 Id. § 10, at 313–14.

40 See id. § 34, at 333.

41 Locke indicates that the introduction of money into the state of nature appears to be the root of all evil, contention, and inequality.

Money allows individuals to acquire property for investment purposes without violating the rule against spoilage, and thus to

accumulate more than is required for subsistence. See id. § 48, at 343. Inevitably, some individuals must look to others for the money

needed to purchase land and other necessities of life. Thus, the propertyless are forced to sell their labor to others in order to survive.

Locke permits this result, however, because labor is itself a freely exchangeable form of property. See id. § 85, at 365–66.

The resulting inequalities make civil society necessary. Those who possess property and who through ownership have learned to

respect the property rights of others follow the law of nature. Those without property are unpredictable and threaten the security of

the rational and industrious appropriators. It becomes impossible under these circumstances for individual property-holders to punish

the transgressions of these individuals. See id. §§ 8–9, at 312–13. Where there is no umpire to resolve the many disputes that will

necessarily ensue, the smallest of differences are apt to result in war. See id. §§ 19–21, at 321–23. “The great and chief end therefore,

of Mens uniting into Commonwealths, and putting themselves under Government, is the Preservation of their Property.”' Id. § 124,

at 395 (emphasis in original).

42 See id. § 123, at 395.

43 Balkin, supra note 5, at 762 (footnotes omitted).




44 See C. MACPHERSON, supra note 35, at 229.

45 Balkin, supra note 5, at 763.

46 J. LOCKE, THE REASONABLENESS OF CHRISTIANITY NO. 245.4, at 70 (I. Ramsey ed.1958).

47 See Biddle, supra note 30, at 411. Locke, like Hobbes, desired to establish an empirical basis for authority. Political rule by divine right

too often led to despotism—absolute power corrupting absolutely. It inadequately separated church and state, and provided theological

and religious support for political restrictions on speech, religious worship, trade and commerce, the ownership of property, the

payment of interest, and many more activities that moderns would come to see as fundamental liberties. For Locke, the Reformation

was intended to take the politics out of religion and usher in an era of tolerance for diverse religious practices and beliefs. It also

planted the seeds of a new political order in which the emphasis on the equality of all before an impartial God in the religious sphere

implied a similar equality of all before an impartial civil authority in the political sphere.

This conception challenged the traditional caste classifications of royalty, aristocracy, artisans, and serfs upon which arbitrary and

impartial restrictions were based. The new political order required a different political theory, just as the new religious order required

a different theology. The new political order employed Reason in its efforts to liberate individuals from the hierarchy of the old order

by asserting the inherent equality of individuals and the inability to predetermine worth and rank. But liberal theory had to achieve

this in a way that did not threaten the inequalities of wealth and power generated by the new order. I have suggested above that

Lockean liberalism accomplished this through the device of formal equality. See supra pp. 994–95. But the basis for this new order

in which individuals had an equal right to unequal existence had to be natural and empirical rather than supernatural and speculative.

Locke ultimately failed to find such a basis. Like medieval philosophers in effect, although not in design, he too had to depend on

faith and religion to establish the legitimacy of authority.

48 Published in 1695, The Reasonableness of Christianity was Locke's last completed work. Locke's scholarship on religion was

extensive. See, e.g., J. LOCKE, TWO TRACTS ON GOVERNMENT (P. Abrams, ed.1967) (1660–62); J. LOCKE, A LETTER

CONCERNING TOLERATION (1689), REPRINTED IN 6 Locke in Ten Volumes, SUPRA NOTE 36, AT 1; J. Locke, A SECOND

LETTER CONCERNING TOLERATION (1690), REPRINTED IN 6 Locke in Ten Volumes, SUPRA NOTE 36, AT 59; J. Locke,

A THIRD LETTER FOR TOLERATION (1692), REPRINTED IN 6 Locke in Ten Volumes, SUPRA NOTE 36, AT 139; Locke,

A FOURTH LETTER FOR TOLERATION (LEFT UNFINISHED AT HIS DEATH IN 1704), REPRINTED IN 6 Locke in Ten

Volumes, SUPRA NOTE 36, AT 547.

49 In Locke's words:

It should seem, by the little that has hitherto been done in it, that 'tis too hard a task for unassisted reason, to establish morality, in all

its parts, upon its true foundations, with a clear and convincing light. And 'tis at least a surer and shorter way, to the apprehensions of

the vulgar, and mass of mankind, that one manifestly sent from God, and coming with visible authority from him, should, as a King

and law-maker, tell them their duties, and require their obedience, than leave it to the long, and sometimes intricate deductions of

reason, to be made out to them: such strains of reasonings the greatest part of mankind have neither leisure to weigh, nor, for want

of education and use, skill to judge of.

J. LOCKE, THE REASONABLENESS OF CHRISTIANITY, supra note 46, at 60–61.

50 Id. No. 241.2, at 60.

51 E. EISENACH, TWO WORLDS OF LIBERALISM 82–83 (1981). The author quotes Locke as saying:

[H]ow much greater will be the security of a government, where all good subjects . . . enjoying the same favour of the prince, and

the same benefit of the laws, shall become the common support and guard of it; and where none will have any occasion to fear the

severity of the laws, but those that do injuries to their neighbors, and offend against the civil peace!

J. LOCKE, A Letter Concerning Toleration (1689), reprinted in 6 LOCKE IN TEN VOLUMES, supra note 36, at 51, quoted in E.

EISENACH, supra, at 83.

52 See Pearson, supra note 30, at 244 (discussing “Locke's essentially conservative quest to establish a defensible base for religious

faith”' and the relationship between this effort and his political thought).




53 See E. EISENACH, supra note 51, at 88.

54 See id. at 89.

55 The tension Locke emphasized can be seen clearly in the Apostle Paul's description of man's inner conflicts between good and evil:

For we know that the law is spiritual: but I am carnal . . . . For the good that I would [do] I do not: but the evil which I would not

[do], that I do. . . . I find then a law, that, when I would do good, evil is present with me. . . . For I delight in the law of God after the

inward man: . . . But I see another law in my members, warring against the law of my mind, and bringing me into captivity to the law

of sin which is in my members. . . . O wretched man that I am! who shall deliver me from the body of this death?

Romans 7:14–24 (King James).

56 J. LOCKE, The Second Treatise of Government, supra note 31, § 6, at 311.

57 Id.

58 Matthew 25:24–30 (King James) (emphasis in original).

59 The parable was simple and thus accessible to the masses. Locke believed that all of Christianity should be reduced to a few simple

beliefs that all could understand. He observed:

The greatest part of mankind have not leisure for learning and logic, and superfine distinctions . . . . Where the hand is used to the

plough and the spade, the head is seldom elevated to sublime notions, or exercised in mysterious reasonings. 'Tis well if men of that

rank (to say nothing of the other sex) can comprehend plain propositions, and a short reasoning about things familiar to their minds,

and nearly allied to their daily experience.

J. LOCKE, THE REASONABLENESS OF CHRISTIANITY, supra note 46, No. 252, at 76.

60 Id. No. 241.2, at 63.

61 See infra section II.A.

62 Gabel & Kennedy, Roll Over Beethoven, 36 STAN.L.REV. I, 26 (1984).

63 I interpret the CLS critique of law and society as incorporating a neo-Marxist perspective. Neo–Marxism emphasizes the role of

ideology and criticizes orthodox Marxism's focus on economic determinism. Neo–Marxists note that the ruling class has not always

been successful in imposing those policies that are in the best interest of production. Moreover, neo-Marxist analysis is historically

specific, focusing on how and to what degree the masses consent at any given time to the existing order. See E. THOMPSON, WHIGS

AND HUNTERS 258–69 (1st U.S. ed.1975); Trubek, Complexity and Contradiction in the Legal Order: Balbus and the Challenge

of Critical Social Thought About Law (Book Review), 11 LAW & SOC.REV. 529 (1977).

Gramsci, for instance, describes a new role for the state that directly conflicts with the traditional vision of the limited liberal state.

For Gramsci, the state “can only be understood if the dominance of a class is analyzed in all its aspects”' and if the state is viewed “as

the whole variety of activities in a whole range of sites which enable the social relations of production to be reproduced.”' Sassoon,

Hegemony, War of Position and Political Intervention, in APPROACHES TO GRAMSCI 94, 101 (A. Sassoon ed.1982). Gramsci's

influence “help[ed] Marxism to move away from . . . the view that the economic base determines the ideological superstructures of

religion, politics, the arts, law or education.”' R. BOCOCK, HEGEMONY 33 (1986).

The neo-Marxism of CLS is also distinct from instrumental Marxism. Instrumentalism implies a conspiratorial ruling class controlling

the state and using it as an instrument of oppression by manipulating the law to its own advantage. Critics argue that this instrumental

view fails to account for the support that the legal system receives from the dominated class. This “crude”' approach, in the view of

Hugh Collins, divorces ideology from the material world. See H. COLLINS, MARXISM AND THE LAW 75–76 (1982). Robert

Gordon explains that instrumentalism cannot explain why “[t]he capitalists did not seem to win all the time . . . : workers had been

granted rights to organize and bargain collectively . . . , blacks had received the abolition of slavery and some affirmative government

action promoting their rights, . . . [and] the poor had received some welfare entitlements.”' Gordon, supra note 20, at 285.

64 Freeman & Mensch, supra note 7, at 592–93 (explaining that “the people . . . through the constitutional text, [have] alienated their

active sovereignty to a set of abstracted institutions subject to judicial oversight”').




65 See, e.g., R. UNGER, KNOWLEDGE & POLITICS 191–235 (1975); Freeman & Mensch, supra note 18; Gabel, Phenomenology,

supra note 22.

66 Some would contend, for instance, that when we speak of the individual's right to privacy versus the right of the community to pass

laws regarding the use of contraception and abortion, or the rights of individual property owners to be free from the pollution of

their water supply versus the rights of individuals to dispose of their property as they see fit, or the rights of African–Americans to

attend nonsegregated schools versus the right of white Americans to attend neighborhood schools, or when we describe the collective

picketing of the South African embassy as an exercise of a first amendment right, much is lost through the abstractions used to express

the underlying realities. Once filled with life, suffering, pain, joy, and hope, these realities are filtered through the desensitizing and

sterilizing discourse of rights, and appear as reified pronouncements of law whose detachment from underlying realities only further

entrenches our own sense of detachment and loneliness, and rationalizes our continued oppression. See Freeman & Mensch, supra

note 18, at 239–40, 252–53; Tushnet, An Essay on Rights, 62 TEX.L.REV. 1363, 1382 (1984).

67 The family provides refuge from the isolation and loneliness of social reality but is equally dominated by the pervasive social roles

and expectations that limit, in every dimension of private life, the potential for genuine human connection and reciprocal affirmation

of self-worth. See Freeman & Mensch, supra note 18, at 252. Continued commitment, therefore, to a public/private distinction, even

when it has been exposed as contradictory and nonexistent, is an exercise of faith rivaling that of any religion. Life goes on until

individuals are shaken from the stupor of their complacency by some event or experience permitting them to see that the deficiencies

of human existence can be improved through collective action. Even during such a potentially consciousness-raising experience,

however, individuals may be mobilized in any number of directions, some of which may be antithetical to the communitarian impulses

thought to be expressive of their human nature.

68 See id. at 245–46.

69 Gabel & Kennedy, supra note 62, at 26.

70 Freeman & Mensch, supra note 18, at 256–57 (footnote omitted).

71 See supra pp. 1006–09.

72 Gabel & Kennedy, supra note 62, at 36.

73 Gordon, supra note 20, at 288.

74 Freeman & Mensch, supra note 18, at 257.

75 See Matsuda, supra note 4.

76 For discussions of the life and theology of Martin Luther King, Jr., see J. ANSBRO, cited above in note 6, T. BRANCH, PARTING

THE WATERS: AMERICA IN THE KING YEARS, 1954–1963 (1988); D. GARROW, BEARING THE CROSS: MARTIN

LUTHER KING, JR., AND THE SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE (1986); MARTIN LUTHER KING,

JR.: CIVIL RIGHTS LEADER, THEOLOGIAN, ORATOR (D. Garrow ed.1989) (3 vols.) [hereinafter MARTIN LUTHER KING,

JR.]; D. LEWIS, KING, A BIOGRAPHY (2d ed.1978); S. OATES, LET THE TRUMPET SOUND: THE LIFE OF MARTIN

LUTHER KING, JR. (1982); and K. SMITH & I. ZEPP, cited above in note 6.

77 L. Harold DeWolf, King's professor and advisor in his doctoral work at Boston University, has insightfully noted that “[t]he main

original theological contribution of his tragically shortened career was his remarkably consistent translating of . . . theology into

action.”' DeWolf, Martin Luther King, Jr., As Theologian, in MARTIN LUTHER KING, JR., supra note 76, at 257, 266.

78 A. GRAMSCI, SELECTIONS FROM THE PRISON NOTEBOOKS OF ANTONIO GRAMSCI 332–33 (Q. Hoare & G. Smith

eds.1971).

79 Of the “man-in-the-mass,”' Gramsci says:





One might almost say that he has two theoretical consciousnesses (or one contradictory consciousness): one which is implicit in

his activity and which in reality unites him with all his fellow-workers in the practical transformation of the real world; and one,

superficially explicit or verbal, which he has inherited from the past and uncritically absorbed. But this verbal conception is not

without consequences. It holds together a specific social group, it influences moral conduct and the direction of will, with varying

efficacity but often powerfully enough to produce a situation in which the contradictory state of consciousness does not permit of

any action . . . and produces a condition of moral and political passivity.

Id. at 333.

80 Id. at 12.

81 Id.

82 The problems with Gramsci's formulation of domination resemble those of many critical scholars that use his work as a point of

departure. First, Gramsci's work focuses primarily on consent or hegemony. Second, the coercion side of the equation is preoccupied

with state coercion and omits from consideration other nonpublic forms of coercion that also create the conditions of choice.

83 See, e.g., Gabel, Phenomenology, supra note 22, at 1586–90; Gabel & Harris, Building Power and Breaking Images: Critical Legal

Theory and the Practice of Law, II N.Y.U.REV.L. & SOC. CHANGE 369 (1983) (discussing the ways in which legal practice can

challenge and delegitimize the existing social order); Gordon, supra note 20, at 283–84.

84 But see R. UNGER, FALSE NECESSITY: ANTI–NECESSITARIAN SOCIAL THEORY IN THE SERVICE OF RADICAL

DEMOCRACY (1987); R. UNGER, SOCIAL THEORY: ITS SITUATION AND ITS TASK (1987).

85 For a discussion of the influence of the African–American Church tradition on King's thinking, see Baldwin, Martin Luther King,

Jr., the Black Church, and the Black Messianic Vision, in MARTIN LUTHER KING, JR., cited above in note 76, at I; Cone, Martin

Luther King, Jr., Black Theology—Black Church, in MARTIN LUTHER KING, JR., cited above in note 76, at 208; and Spillers,

Martin Luther King and the Style of the Black Sermon, in MARTIN LUTHER KING, JR., cited above in note 76, at 876.

86 According to one historian of slavery:

Slaves differed from other human beings in that they were not allowed freely to integrate the experience of their ancestors into their

lives, to inform their understanding of social reality with the inherited meanings of their natural forebears, or to anchor the living

present in any conscious community of memory.

O. PATTERSON, SLAVERY AND SOCIAL DEATH 5 (1982).

Rigidly enforced rules and practices forbade slaves to read and write English and yet prohibited them from speaking in their African

language. Slavemasters often separated slaves of similar backgrounds and dialects and, in most instances, prohibited African rituals

and ceremonies. The experience of being transported, shackled, and sold deepened the apparent loss of African community, and the

sporadic separation of slave families through contracts of sale and exchange constantly reminded each slave of her transformation from

a socially relevant human being into an object of property. See J. BLASSINGAME, THE SLAVE COMMUNITY 6–7, 10 (1972);

E. FRAZIER, THE NEGRO CHURCH IN AMERICA I–6 (1964); K. STAMPP, THE PECULIAR INSTITUTION: SLAVERY IN

THE ANTEBELLUM SOUTH 206–09 (1956).

87 See E. GENOVESE, ROLL, JORDAN, ROLL 188 (1976).

88 I understand conservative evangelicalism to be an eclectic blend of Calvinist dogma and the spiritualism of the eighteenth-century

Great Awakening.

Historians of Christian evangelicalism have noted its emphasis on individualism, an emphasis traced to the sixteenth-century

Protestant Reformation and vividly seen in the rebellion of Martin Luther against the hierarchy of the Roman Catholic Church and

in the universalization of the Lutheran faith by John Calvin. See, e.g., L. GASPER, THE FUNDAMENTALIST MOVEMENT 126

(1963) (arguing that “fundamentalism must not be regarded as an aberration in Protestantism,”' and that “the kind of individualism

which the Reformation encouraged, and revivalism [the Great Awakening] in America solidified, is one of the main characteristics of

fundamentalism”'). It should be noted that Gasper is characterizing the early history and Calvinist underpinnings of fundamentalism,

described above as conservative evangelicalism.




The antihierarchical and individualist tendencies of Protestantism prefigured the secular individualism that characterized the

liberalism of Hobbes and Locke much later. By the eighteenth-century Great Awakening, Calvinism had adapted to the demands

of the modern world and stood ready to provide the theological vehicle for American slave religion. Gasper describes the influence

of Calvinism as follows: “Calvin's ideals for all Christians were 'thrift, industry and sobriety,' which permitted men to prosper

economically without fear of being regarded as tainted by the sin of avarice.”' Id. at 4. But see M. NOVAK, THE SPIRIT OF

DEMOCRATIC CAPITALISM (1982) (arguing that the theological foundations of capitalism are fundamentally democratic).

89 See A. LOVELAND, SOUTHERN EVANGELICALS AND THE SOCIAL ORDER, 1800–1860, at 8 (1980).

90 See id. at 6–9.

91 See id. at 10–13.

92 See id. at 14–18.

93 See id. at 203–04. The biblical justification for this separation rested on Jesus' proclamation to “[r]ender . . . unto Caesar the things

which be Caesar's, and unto God the things which be God's.”' Luke 20:25 (King James).

94 For a more complete account of how the slaveowners used religion to oppress slaves, see Morrison, The Religious Defense of

American Slavery Before 1830, J. RELIGIOUS THOUGHT, Fall–Winter 1980–1981, at 16; and Stampp, To Make Them Stand in

Fear, in THE BLACK CHURCH IN AMERICA 54 (H. Nelsen, R. Yokley & A. Nelsen eds.1971).

95 “And Noah awoke from his wine, and knew what his younger son had done unto him. And he said, Cursed be Canaan; a servant of

servants shall he be unto his brethren.”' Genesis 9:24–25 (King James) (emphasis in original).

96 The Old Testament authorized the buying and selling of slaves as property. See Leviticus 25:44–46. The Fourth Commandment spoke

of the authority of the master over the servant and the Tenth Commandment referred to the servant as a type of property. See Exodus

20:10, 17. Evangelicals contended that although Jesus and the Apostles never expressly endorsed the practice of slavery, neither did

they condemn it. See A. LOVELAND, supra note 89, at 200.

97 See A. LOVELAND, supra note 89, at 202–03 (noting that evangelicals argued that because “slavery was not a sin [according to

the word of God], the church had no reason to take cognizance of it, and since it was established and protected by civil law, the

church had no right to interfere with it”').

98 See id. at 202–04.

99 The Bible specifically urges fathers to raise their children “in the nurture and admonition of the Lord.”' Ephesians 6:4 (King James).

Under the social organization of slavery, the slave was an extension of the family and thus under this same paternalistic care of the

father. See A. LOVELAND, supra note 89, at 206.

100 A. LOVELAND, supra note 89, at 206 (footnote omitted).

101 One scholar has observed that “[d]uring the eighteenth century there were more black and white Christians worshiping in the same

congregations, proportionate to their numbers as baptized Christians, than there are today.”' G. WILMORE, BLACK RELIGION

AND BLACK RADICALISM 74 (1983). This practice was largely “a matter of prudence on the part of the planters not to permit

the slaves to come together for religious services unless some white persons were present.”' Id.

102 See E. GENOVESE, supra note 87, at 236. Genovese contends that “[o] nly during insurrection scares or tense moments occasioned

by political turmoil could the laws against such meetings be enforced. . . . [Slavemasters] regarded their slaves as peaceful, respected

their religious sensibilities, and considered such interference dangerous to plantation morale and productivity.”' Id.

103 See E. FRAZIER, supra note 86, at 1–19.




104 To better understand how the slaves used religion to survive the harsh aspects of slavery, see Bradley, The Role of the Black Church in

the Colonial Slave Society, 14 LA.STUD. 413 (1975). See also Baldwin, Understanding Martin Luther King, Jr. Within the Context

of Southern Black Religious History, 13 J. RELIGIOUS STUD. NO. 2, at 1, 13 (1987).

105 See J. CONE, GOD OF THE OPPRESSED 31–32 (1975).

106 The revolutionary potential of scripture and sermon are discussed in G. WILMORE, cited above in note 101, at 32; and E.

GENOVESE, cited above in note 87, at 245–46.

107 Luke 4:18 (King James).

108 See Matthew 25:44–46.

109 See id. 21:9–11; E. GENOVESE, supra note 87, at 164.

110 Matthew 10:34 (King James).

111 Raboteau, The Black Experience in American Evangelicalism: The Meaning of Slavery, in THE EVANGELICAL TRADITION IN

AMERICA 181, 190 (L. Sweet ed.1984).

112 Id. (emphasis in original) (footnote omitted) (quoting Garnet, An Address to the Slaves of the United States of America (1843),

reprinted in S. STUCKEY, THE IDEOLOGICAL ORIGINS OF BLACK NATIONALISM 165, 168–72 (1972)).

113 Hush, Hush Somebody's Calling My Name, in SONGS OF ZION 125 (Abbingdon 1981).

114 Steal Away to Jesus, in SONGS OF ZION, supra note 113, at 180.

115 See Galatians 3:26–28.

116 See, e.g., Ephesians 6:9 (King James) (“And, ye masters, do the same things unto [servants], forebearing threatening: knowing that

your Master also is in heaven; neither is there respect of persons with him.”'); E. GENOVESE, supra note 87, at 165.

117 See E. GENOVESE, supra note 87, at 282.

118 See id. at 284.

119 See C. WEST, PROPHESY DELIVERANCE! 15 (1982). West, an African–American philosopher, describes prophetic Christianity

as having a “transcendent God before whom all persons are equal[,] thus endow[ing] the well-being and ultimate salvation of each

with equal value and significance.”' Id. at 16. He calls “this radical egalitarian idea the Christian principle of the self-realization of

individuality within community.”' Id. (emphasis in original).

120 Raboteau, supra note 111, at 193–94 (emphasis in original).

121 See J. CONE, supra note 105, at 142.

122 See E. GENOVESE, supra note 87, at 238.

123 See id. Genovese notes:

When the Catholic priests forbade shouting in Louisiana, Catherine Cornelius spoke for the slaves in insisting that “angels shout in

heaven”' and in doggedly proclaiming, “The Lawd said you gotta shout if you want to be saved. That's in the Bible.”' . . . The frenzy,

as W.E.B. Du Bois called it, brought the slaves together in a special kind of communion, which brought out the most individual

expressions and yet disciplined the collective. The people protected each other against the excesses of their release and encouraged

each other to shed inhibitions. Everyone responded according to his own spirit but ended in a spiritual union with everyone else.




Id. For a discussion of various concepts such as the celebratory character of religious worship, the kinetic energy of the call and

response of black preaching, and the impact of death on the general community, see id. at 238–41; and G. WILMORE, cited above

in note 101, at 12.

124 See supra p. 1016.

125 King referred to Birmingham as America's most segregated city. It was certainly among the most visibly violent against African–

Americans in the country. Police dogs, waterhoses, cattleprods, and unmerciful brutality were used against demonstrators and many,

including King, were jailed over the long period of protest. In his “Letter from Birmingham City Jail,”' King responded to an open

letter from a group of eight “liberal”' white clergymen that chastised King for fomenting the widely-publicized “direct campaigns”' in

the city, rather than relying exclusively on legal remedies through the courts. See T. BRANCH, PARTING THE WATERS, supra note

76, at 673–755; A TESTAMENT OF HOPE, supra note 23, at 289. For instructive discussions of King's “Letter from Birmingham

City Jail,”' see Bosmajian, Rhetoric of Martin Luther King's Letter from Birmingham Jail, in MARTIN LUTHER KING, JR., cited

above in note 76, at 127; Colaiaco, The American Dream Unfulfilled: Martin Luther King, Jr. and the Letter from the Birmingham

Jail, in MARTIN LUTHER KING, JR., cited above in note 76, at 171; Fulkerson, The Public Letter As a Rhetorical Form: Structure,

Logic and Style in King's Letter from Birmingham Jail, in MARTIN LUTHER KING, JR., cited above in note 76, at 379; Snow,

Martin Luther King's Letter from Birmingham Jail, in MARTIN LUTHER KING, JR., cited above in note 76, at 857; and Strum,

Crisis in the American Republic: The Legal and Political Significance of Martin Luther King's Letter from a Birmingham Jail, in

MARTIN LUTHER KING, JR., cited above in note 76, at 931.

126 M. KING, Letter from Birmingham City Jail (1963), reprinted in A TESTAMENT OF HOPE, supra note 23, at 295.

127 The major theological assumption that inspired the Social Gospel movement was that “salvation had a social and individual dimension

and that social institutions had to be 'saved.' ” K. SMITH & I. ZEPP, supra note 6, at 35. The Church had to concern itself, not

only with individual morality, but also with social justice and social structures. For a discussion of the influence of Rauschenbusch's

theology on King, see Oates, The Intellectual Odyssey of Martin Luther King, MASS.REV., Summer 1981, at 304–07.

128 Smith and Zepp use the term “evangelical liberalism”' to characterize the theology of Davis as distinct from “modern liberalism.”'

See K. SMITH & I. ZEPP, supra note 6, at 19.

129 Some attribute the rise of evangelical liberalism and the social gospel to the discontent of many theologians who believed that

conservative evangelicalism had outlived its usefulness by the turn of the century. H. Richard Niebuhr noted, for instance, that the

problem with conservative Christianity was that “it could not emancipate itself from the conviction . . . that the human unit is the

individual. It was unable therefore to deal with social crisis, with national disease and the misery of human groups.”' H. NIEBUHR,

THE KINGDOM OF GOD IN AMERICA 162 (1956).

130 For Davis, evangelical liberalism was, in part, a method of inquiry, in contrast to the inerrant creedal statements of conservative

evangelicalism. See, e.g., Davis, In Praise of Liberalism, 4 THEOLOGY TODAY 485 (1948). Thus, liberalism subjected conservative

evangelicalism's claims of scriptural authenticity and infallibility to the open and critical assessments of reason and contextual

analysis. See generally Davis, Liberalism and a Theology of Depth, 28 CROZER Q. 193 (1951); Davis, God and History, 20 CROZER

Q. 18 (1943).

131 See W. RAUSCHENBUSCH, CHRISTIANITY AND THE SOCIAL CRISIS 264–79 (1913).

132 See id. at 247–64.

133 See id. at 213–20.

134 See id. at 414.

135 See W. RAUSCHENBUSCH, A THEOLOGY FOR THE SOCIAL GOSPEL 52 (1917).

136 See id. at 55.




137 See id. at 21–22.

138 More specifically, evangelical liberalism and the social gospel posited a group of organizing concepts antithetical to those of

conservative evangelicalism discussed at pp. 1015–17 above. Evangelical liberalism and the social gospel also had five basic tenets:

First, inherent human goodness; second, the historical contextuality and fallibility of scripture; third, the conversion or transformation

of social institutions; fourth, an interaction with all humankind; and fifth, the role of the state in the creation of an egalitarian

community founded on an equitable distribution of wealth and power. See generally W. RAUSCHENBUSCH, supra note 135.

Rauschenbusch's Kingdom of God, which inspired King's Beloved Community, was composed of “humanity organized according to

the will of God,”' id. at 142, and “‘the organized fellowship of humanity acting under the impulse of love,”’ id. at 155. For a better

understanding of this concept and its influence on King, see K. SMITH & I. ZEPP, cited above in note 6, at 43–45, 139.

139 M. KING, Letter from Birmingham City Jail (1963), reprinted in A TESTAMENT OF HOPE, supra note 23, at 293.

140 M. KING, Pilgrimage to Nonviolence (1960), reprinted in A TESTAMENT OF HOPE, supra note 23, at 35.

141 Id. at 36; see also Hough, The Loss of Optimism As a Problem for Liberal Christian Faith, in LIBERAL PROTESTANTISM 145,

153–55 (R. Michaelson & W. Roof eds.1986) (discussing the fading of King's initial optimistic assessment that the power of Christian

love could persuade America to fulfill the ideals of democracy).

142 See, e.g., K. BARTH, THE EPISTLE TO THE ROMANS 167 (E. Hoskyns trans.1933). Barth argues that the reality of death is the

“supreme law”' of the temporal world, and that the inhabitants of this “world of death”' are necessarily “men of sin.”' See id. at 167.

Barth further argues that “[s]in is that by which man as we know him is defined, for we know nothing of sinless men. Sin is power—

sovereign power. By it men are controlled.”' Id. For a brief summary of how Barth fits into larger trends in modern religious thought,

see F. BAUMER, MODERN EUROPEAN THOUGHT: CONTINUITY AND CHANGE IN IDEAS 1600–1950, at 444–45 (1977).

143 As King wrote:

A large segment of Protestant liberalism defined man only in terms of his essential nature, his capacity for good. Neo-orthodoxy

tended to define man only in terms of his existential nature, his capacity for evil. An adequate understanding of man is found neither

in the thesis of liberalism nor in the antithesis of neo-orthodoxy, but in a synthesis which reconciles the truths of both.

M. KING, Pilgrimage to Nonviolence (1960), reprinted in A TESTAMENT OF HOPE, supra note 23, at 35, 36; see also DeWolf,

Martin Luther King, Jr., As Theologian, in MARTIN LUTHER KING, JR., supra note 76, at 257, 261 (discussing King's theology

concerning the ability of humans to choose between good and evil).

144 Cf. D. LEWIS, supra note 76, at 86 (“[King's] abiding faith (until late in his career, at least) in the fundamental decency of his fellow

man directed his philosophical speculations far more than cold realism could have.”'). Smith and Zepp state:

The analysis of King's interpretation of human nature shows that it agrees substantially with the Christian realism of Reinhold Neibuhr.

The one qualification which needs to be made is a difference in emphasis which led King to come down at a somewhat different

place regarding the possibilities of the historical actualization of an inclusive human community. King insisted that “there is within

human nature an amazing potential for goodness.”' He did not mean by this that man is basically good as liberalism had held. . . .

King meant, rather, “that man is neither innately good nor is he innately bad; he has potentialities for both.”DD'

. . . King placed his major emphasis upon man's potentiality for goodness, and this was the source of his optimism about the successful

outcome of the struggle for civil rights. . . . This aspect of King's doctrine of man, in spite of other evidence to the contrary, supported

his optimism regarding the possibility of actualizing the “Beloved Community.”DD'

K. SMITH & I. ZEPP, supra note 6, at 81–82 (citations omitted).

As a graduate student, King attempted “to synthesize insights in liberal theology about human nature with insights from neo-orthodoxy

while avoiding what he regarded as the extreme positions of both schools of thought.”' Id. at 87. King asserted that “man by nature

is neither good nor bad, but has potentialities for either, and is a finite child of nature, a rational being, a free and responsible being,

a sinner, and a being in need of continuous repentance.”' Id.

145 See M. KING, Pilgrimage to Nonviolence (1960), reprinted in A TESTAMENT OF HOPE, supra note 23, at 36.

146 J. ANSBRO, supra note 6, at 189.




147 M. KING, Letter from Birmingham City Jail (1963), reprinted in A TESTAMENT OF HOPE, supra note 23, at 292–93.

148 One of the leading proponents of the movement to make the experiences of African–Americans the source of and context for theology

is James Cone, a black theologian at Union Theological Seminary. He contends that “[t]here is no truth for and about black people

that does not emerge out of the context of their experience. Truth in this sense is black truth, a truth disclosed in the history and

culture of black people.”' J. CONE, supra note 105, at 17.

149 John 15:13 (King James).

150 See M. KING, Letter From Birmingham City Jail (1963), reprinted in A TESTAMENT OF HOPE, supra note 23, at 290.

151 See supra note 125.

152 One white clergyman admonished King for his “untimely”' Birmingham demonstrations by pointing out that “[a]ll Christians know

that the colored people will receive equal rights eventually, but it is possible that you are in too great of a religious hurry. It has taken

Christianity almost two thousand years to accomplish what it has. The teachings of Christ take time to come to earth.”' M. KING,

Letter From Birmingham City Jail (1963), reprinted in A TESTAMENT OF HOPE, supra note 23, at 296.

153 Id. at 292 (emphasis added).

154 Id. at 299.

155 One scholar has noted that the experiences of African–American struggle inspired King's reconstructive vision of American society:

It was King's conviction that what black people have to offer this country and the world in terms of values and a worldview is

grounded in their experience of suffering—a fresh and genuine spirituality, humanitarian spirit, a prophetic vision of democracy, an

incurable optimism, and a way of viewing humanity as a whole.

Baldwin, supra note 85, at 15.

156 K. SMITH & I. ZEPP, supra note 6, at 127.

157 Id. (quoting King, Nobel Prize Acceptance Speech, reprinted in NEGRO HIST.BULL., May 1968, at 21). As his attitude became more

radical in late 1967, King came to believe that an alternative social order that respected the need for individual freedom, yet realized

the need for a state that protected and substantively promoted that freedom, was both desirable and obtainable. He also recognized

that achieving such a social order would require an intense social struggle at all levels of American society and the transformation of

major social institutions. See D. GARROW, supra note 76, at 580–83. He suggested the development of programs that would produce

a guaranteed annual income and an overhaul of the American economic system so as to ensure widespread economic security. See

M. KING, WHERE DO WE GO FROM HERE: CHAOS OR COMMUNITY? 162–63 (1967) [hereinafter M. KING, WHERE DO

WE GO FROM HERE].

On the political level, King acknowledged the potential power of African–Americans in the political arena. He took steps to increase

registration and voting. See F. PIVEN & R. CLOWARD, POOR PEOPLE'S MOVEMENTS: WHY THEY SUCCEED, HOW THEY

FAIL 249–58 (1979). He stressed an even greater need to develop strong African–American political leaders and alliances.

He also demanded change at the individual level. Blacks, he said, must massively assert their dignity and worth against a system that

still functions to maintain oppression. They must attain power not for the purpose of transforming those who have been oppressed

into those who oppress others, but to create a better world, based on truth, fellowship, and love. See M. KING, The Rising Tide of

Racial Consciousness (1960), reprinted in A TESTAMENT OF HOPE, supra note 23, at 145, 150–51. For a discussion of King's

meaning of love, see J. HANIGAN, MARTIN LUTHER KING, JR. AND THE FOUNDATIONS OF NONVIOLENCE 130 (1984);

and E. SMITH, THE ETHICS OF MARTIN LUTHER KING, JR. 81–90 (1981). For a critical analysis of King's continued emphasis

on what love is rather than what love requires in oppressive situations, and on what love does in the struggle for liberation, see

Oglesby, Martin Luther King, Jr., Liberation Ethics in a Christian Context, in MARTIN LUTHER KING, JR., cited above in note

76, at 723, 724–29.

158 See Tushnet, supra note 66, at 1382–94.




159 M. KING, The Time for Freedom Has Come (1961), reprinted in A TESTAMENT OF HOPE, supra note 23, at 160, 165.

160 M. KING, The Ethical Demands for Integration (1963), reprinted in A TESTAMENT OF HOPE, supra note 23, at 117, 124; see also

M. KING, The American Dream (1961), reprinted in A TESTAMENT OF HOPE, supra note 23, at 208, 213 (“It may be true that

the law can't make a man love me, but it can keep him from lynching me, and I think that's pretty important also.”').

161 If King ever saw the struggle to secure formal rights as the final solution, it was not for long. The realities of de facto segregation and

the countless permutations of systematic disempowerment made it clear that the subordination of African–Americans was inextricably

connected to the American class structure. Thus, true liberation was inseparable from a fundamental redistribution of wealth and

power—inseparable, that is, from a sustained social struggle to transform the very foundations of the American capitalist system.

162 See supra p. 1022.

163 See supra pp. 994–96.

164 M. KING, The Trumpet of Conscience (1967), reprinted in A TESTAMENT OF HOPE, supra note 23, at 634, 649.

165 King based his conception of the state on the belief that our essential human nature was an expression of God's personality and

thus was imbued with an indisputable individuality. Yet he contended that his personal expression of God's divinity could only fully

develop within a community committed to substantive freedom and equality. “ 'We are tied together,' ” he would tirelessly remind

his followers, “ 'in the single garment of destiny, caught in an inescapable network of mutuality.' ” K. SMITH & I. ZEPP, supra note

6, at 121 (quoting King, Nobel Prize Acceptance Speech, reprinted in NEGRO HIST. BULL., May 1968, at 22). Although we may

fail to acknowledge it, “ 'each of us lives eternally 'in the red,' ” indebted to our fellow creatures for fulfillment, indeed, our sense of

self made possible by our relationships with others. See M. KING, WHERE DO WE GO FROM HERE, supra note 157, at 181.

166 The splintering of the liberal consensus in the mid-sixties resulted from several factors, including the disaffection of white liberals

from the movement as the campaign shifted its focus to class-based oppression in the North; the radicalization of the Student

Nonviolent Coordinating Committee (SNCC) and its adoption of a more militant stance calling for “black power”'; the shift in the

federal government's attention from the domestic problems of race relations and the war on poverty to cold war concerns; the mounting

white backlash against what appeared to be rapid black gains; and finally, the belief by many of King's own associates that with the

attainment of the franchise in 1965, use of the democratic processes of the political system would secure the balance of the movement's

agenda. See R. KLUGER, SIMPLE JUSTICE 761–62 (1977); F. PIVEN & R. CLOWARD, supra note 157, at 252–55; Stoper, The

Student Nonviolent Coordinating Committee: Rise and Fall of a Redemptive Organization, 8 J. BLACK STUD. 13, 25–26 (1977).

The split within the African–American ranks of the movement over the viability of nonviolence as a strategy was of major importance.

See L. LOMAX, THE NEGRO REVOLT 246–47 (1962) (warning of impending violence unless whites responded to African–

American demands for reform); F. PIVEN & R. CLOWARD, supra note 157, at 248 (describing black masses joining the protest

by rioting in the ghettos of several major cities). For a discussion of King's philosophy of nonviolence, see Cone, Black Theology

in American Religion, 3 J.AM.ACAD. RELIGION 755, 762–63 (1984); Roberts, Martin Luther King and Non–Violent Resistance,

in MARTIN LUTHER KING, JR., cited above in note 76, at 759; Turner, Nonviolence and the Politics of Liberation, in MARTIN

LUTHER KING, JR., cited above in note 76, at 997; and I Like the Word Black, NEWSWEEK, May 6, 1963, at 27. For a discussion

of how this rift between the increasingly strident black nationalism of Malcolm X and the nonviolent and integrationist preachings of

King crippled the movement, see R. KLUGER, cited above, at 758; and H. SITKOFF, THE STRUGGLE FOR BLACK EQUALITY

1954–1980, at 209–15 (1981). See also Baldwin, Malcolm X and Martin Luther King, Jr.: What They Thought About Each Other, in

MARTIN LUTHER KING, JR., supra note 76, at 17 (discussing the relationship between Malcolm X and Dr. King); Sveino, Martin

Luther King: A Creative Extremist, in MARTIN LUTHER KING, JR., supra note 76, at 947, 956–59 (discussing the problems King

had in unifying the civil rights movement behind a theory of nonviolence).

For an explanation of the meaning of Black Power and SNCC's involvement with the Black Power Movement, see Hamilton, Black

Power: An Alternative, in SEVEN ON BLACK: REFLECTIONS ON THE NEGRO EXPERIENCE IN AMERICA 134 (W. Shade

& R. Harrenkohl eds.1969). A great deal of attention was given to the leadership of black college students who shifted the emphasis

of the movement from civil rights to individual dignity. See L. LOMAX, supra, at 42–43 (referring to the psychological “dues”' all

blacks pay for being black). For a detailed discussion of the history of the civil rights movement and the role of SNCC and black

college students, see S. CAGIN & P. DRAY, WE ARE NOT AFRAID (1988).




167 M. KING, WHERE DO WE GO FROM HERE, supra note 157, at 187.

168 M. KING, Pilgrimage to Nonviolence (1960), reprinted in A TESTAMENT OF HOPE, supra note 23, at 35, 37.

169 Speaking on the limitations of his former liberal commitments, he said in an interview shortly after the Chicago summer of 1966

that for years he had “‘labored with the idea of reforming the existing institutions of the society, a little change here, a little change

there.”’ He explained that he now felt quite differently about things, seeing the need to “reconstruct the entire society,”' to foment “a

revolution of values.”' D. LEWIS, supra note 76, at 354; see also H. ZINN, SNCC: THE NEW ABOLITIONISTS 190 (1965). King

believed democracy could only be attained through restructuring society by the radical redistribution of both political and economic

power. The present democracy is “anemic democracy,”' meaningful only if you are white, male and a property owner. Redistribution

of political and economic power would have to occur to obtain “authentic democracy.”' See Franklin, An Ethic of Hope: The Moral

Thought of Martin Luther King, Jr., 40 UNION SEMINARY Q.REV. NO. 4, at 41, 46–47 (1986). Earlier, King told the Southern

Christian Leadership Conference (SCLC) National Advisory Committee that “[s]omething is wrong with capitalism as it now stands

in the United States. We are not interested in being integrated into this value structure. Power must be relocated, a radical redistribution

of power must take place.”' Minutes of SCLC Advisory Committee (Nov. 24, 1967), quoted in D. GARROW, supra note 76, at 581.

Institutional or class-based racism, he contended, “could only be eliminated through a radical redistribution of economic power;

'privileged groups will have to give up some of their billions.' America too, he argued, 'must move toward a Democratic Socialism.'

” Fairclough, Was Martin Luther King a Marxist?, in MARTIN LUTHER KING, JR., supra note 76, at 301, 304 (quoting M. King,

Speech at Frogmore, S.C. (Nov. 14, 1966)). For an extensive treatment of King's economic analysis, see Willhelm, Martin Luther

King, Jr. and the Black Experience in America, 10 J. BLACK STUD. 3 (1979).

170 M. KING, Where Do We Go from Here? (1967), reprinted in A TESTAMENT OF HOPE, supra note 23, at 245, 250.

171 See id., reprinted in A TESTAMENT OF HOPE, supra note 23, at 247; see also Face to Face News Interview (NBC television

broadcast, July 28, 1967), reprinted in A TESTAMENT OF HOPE, supra note 23, at 394, 409.

172 King stressed the inequities inherent in capitalism, and advocated a more equitable distribution of wealth and a general movement

in America toward democratic socialism. See D. GARROW, supra note 76, at 537–39; M. King, Remarks at a Press Conference at

Ebenezer Baptist Church, Atlanta, Georgia (Jan. 16, 1968) (transcript on file at the Harvard Law School Library); Martin Luther

King Film Project 2 (Oct. 23, 1967) (transcript on file at the Harvard Law School Library).

173 See D. LEWIS, supra note 76, at 100. As King stated:

If Negroes and poor whites do not participate in the free flow of wealth within our economy, they will forever be poor, giving their

energies, their talents and their limited funds to the consumer market, but reaping few benefits and services in return. The way to end

poverty is to end the exploitation of the poor: insure them a fair share of the government's services and the nation's resources.

M. King, The Three Evils of Society 7, Speech at the New Politics Convention, Chicago, Ill. (Aug. 31, 1967).

174 Much of my future work in this area will attempt to translate King's theological perspectives into a cogent political theory and

jurisprudence in light of his commitments to a prophetic Christian existentialism and democratic socialism. Given the centrality

of love in his theological, social, and political theories, I hope to expound the basis for what I shall refer to as a reconstructive

jurisprudence of love.

103 HVLR 985

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Beyond Critical Legal Studies the Reconstructive Theology of Dr Martin Luther King, Jr., Anthony E. Cook