Brandon

M. Terry
Harvard University

Critical Race Theory and the Tasks of Political Philosophy: On Rawls and The Racial
Contract
Work in Progress: Please do not circulate or cite without authors permission


I.

Professional Philosophy and The Racial Contract
No discussion of Charles Mills blisteringly provocative essay, The Racial Contract, should

proceed without noting from the outset that it begins, crucially, with a conceptual indictment of
philosophy and political theory from the standpoint of critical race theory. What makes philosophy
distinctive, Mills argues, comparing it to other disciplines in the humanities, is that the conception
of the discipline itself is inimical to the recognition of race.1 To the extent that philosophy concerns
itself exclusively or primarily with necessary, spiritual, eternal [and] ideal truths, scholars of race
are at a disadvantage given their subjects location in the contingent, the corporeal, the temporal,
[and] the material.2 Even in political philosophy, which one would expect to be more sensitive to
these latter categories, Mills argues that its prevailing strategies of abstraction and idealization
render questions of race and racial justice conceptually marginal, placing significant obstacles in
the path of perspicacious and practically useful theorizing about justice. Exemplary for Mills in this
ignoble regard, is the work of arguably the most celebrated philosopher of the twentieth century,
John Rawls.
Rawls, Mills argues, had next to nothing to say in his work about what has arguably
historically been the most blatant American variety of injustice, racial oppression, nor, he adds, is
the remediation of the legacy of white supremacy...of the slightest [apparent] interest or concern
for Rawls and most of his commentators and critics.3 Recalling an encounter with Rawls at the
University of Toronto in the late 1970s, Mills recalls a feeling of utter disconnectionbetween
Rawlss work and [his own] interests, a disconnection so great that it did not even manifest itself in
a feeling of disappointment.4 In The Racial Contract, however, Mills began to build the foundations
upon which he has since gone on to fully articulate the methodological and ethical commitments
undergirding his critical intuitions about Rawlsian and neo-Rawlsian political philosophy, focusing

1 Mills, Philosophy Raced 22
2 Mills, Philosophy Raced 22
3 Mills, Rawls on Race/Race in Rawls 161
4 Philosophy Raced

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on the inheritance of social contractarianism and Rawls influential distinction between ideal and
non-ideal theory.5
I draw attention to Mills intellectual trajectory (as well as his concerns with professional
philosophys demographics) in order to draw out an important dimension of his work that is under-
acknowledged. As Nikolas Kompridis has argued, contemporary theory is in an age characterized
chiefly by the practice of unmasking critique; indeed, the practice of critique has become more or
less identical with the activity of unmasking [emphasis added].6 What we seem to admire
mostand what we have generally come to regard as definitive of successful unmasking critique,
Kompridis writes, is the way in which [critical theorists] manage to redescribe x in terms of y, or
reveal x to be an effect of y, or show that the condition of possibility of x necessarily requires the
exclusion or repression of s, the mechanisms of which we can attribute back to ever-ready y.7 The
Racial Contract is undoubtedly an exercise in this vein, an instance of critical race theory, meant to
unmask the universalizing pretensions of philosophical methods, the white supremacist
herrenvolk ethics of social contract theory, and the racia-sexual domination constitutive of
modernity.8
However, it also serves as a prelude, or perhaps better yet, an invitation, to what Kompridis
calls transformative critique.9 Mills explicitly distances himself from the sort of deconstruction
of the social contract that he associates with postmodernism better characterized as ironist
critique and instead argues that the ideals of contractarianism are not themselves necessarily
problematic, the problem is that they have been betrayed by white contractarians [emphasis
added].10 The text, therefore, is no anti-Enlightenment polemic, but as Thomas McCarthy argues,
well-within the tradition of radical Enlightenment critique and, surprisingly accommodating to
the pragmatic need to engage with social contract theory simply because of its hegemony in

5 RC esp. 19-40 and 109-134; Ideal Theory as Ideology; Racial Liberalism; Rawls on Race/Race in Rawls;

Contract & Domination, chapters 3,4, 8; Critique of Tommie Shelby

6 Kompridis, Reorienting Critique p. 28; Kompridis argues, rightly, that we inherit this form of critical theory

from such thinkers as Marx, Nietzsche, Freud, Heidegger, Adorno, Wittgenstein, Lacan, Foucault and
Derrida. To illustrate Mills (and Patemans) insistent criticisms of the blindness of mainstream political
philosophy, here we have a list that does not include any of the greatest female and/or nonwhite unmasking
theorists, or any non-Europeans for that matter. Even restricting our inquiry to the so-called continental
tradition, such figures as W.E.B. DuBois, Frantz Fanon, Simone de Beauvoir, Angela Davis, and Judith Butler
have been extraordinarily influential at unmasking critiques of reason, social arrangements, and their
justifications. I do not consider the feminist tradition to only be a radicalization of the insights of the
philosophers Kompridis lists (presumably he would consider this the case for critical race theorists as well).
7 Kompridis, Reorienting Critique 28
8 Mills, Non-Cartesian Sums in Visible Blackness
9 Kompridis, Reorienting Critique 38
10 Mills, RC 129

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political theory and philosophy.11 Mills hope is that an unmasking of the constitutive racial
exclusions at the heart of the purported universalism of the social contract tradition and a
sustained reckoning with the sordid history of racial domination and its contemporary legacy from
within the social contract tradition will force contemporary political philosophy to challenge its
prevailing ontological presuppositions and methodological prescriptions. The horizon-enlarging
possibility that gives his critique its force is the prediction that engagements in the vein of The
Racial Contract could potentially spark a new iteration of contractarianism in professional
philosophy, which generates black radical prescriptions indeed heretical ones like reparations
from white liberal norms.12
Mills has, however, expressed disappointment that The Racial Contract, and his subsequent
work, has been received near-exclusively as what I have called, following Kompridis, unmasking
critique and not as an attempted rapprochement between liberal political philosophy and critical
race theory.13 I aim in what follows to pursue a critique of Mills approach to the tasks of critical
race theory in political philosophy that takes both projects seriously, even as it ultimately judges his
approach wanting. Primarily, I want to argue that Mills variant of critical race theory pursues
critique through a hermeneutics of suspicion too heavily reliant on reading silences about race as
evidence of ideological mystifications concerning white supremacy, and this leads him to criticisms
of Rawls that undermine his own aims and are not ultimately persuasive. I suggest an alternative
method in the orbit of critical race theory focused instead on the interplay of exemplarity, narrative,
and argument in those instances where Rawls, and other political theorists, refer to racial injustice
or African-American political struggle in order to unpack the complex and differentiated ways in
which mainstream theorists conscript historical narratives about race and African-American
history to their frameworks, and how revisionist historiographies can give us ways of pursuing
immanent criticism capable of reconstructing critical concepts in contemporary, non-ideal political
philosophy. The hope is that this theoretical alternative avoids some of the interpretive burdens
and untenable binaries of Mills approach, while retaining some of his most important critiques of
contemporary contractarian liberalism in Rawls and his inheritors.

11 McCarthy review 453
12 Mills, CD 247

13 Philosophy Raced 17; for many (non-philosophy) people of color and white progressives in the

academy, The Racial Contract has now become a standard text to assign as a self-contained crash
course on imperialism, critical race theory, and white supremacy that exposes the hypocrisies of
liberalism and the Western humanist tradition, and puts U.S. racism in a global and historical context.
But the contract framework itself is quite dispensable for them except insofar as it provides another
useful target to be trashed. It is not the case that most of these academicscertainly not those
outside philosophyare interested in the exercise of seeing how Rawlsian contract theory can be
revised and reconstructed to deal with these issues.

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II. Critical Race Theory and the Hermeneutics of Suspicion

While Mills emphasis on Rawls has increased since the publication of The Racial Contract,
the text which inaugurated his critical project focuses much more time and textual exegesis on
Rawls canonical forebears in the social contract tradition (esp. Locke and Kant) and the
constitutions, charters, and instances of political rhetoric that bear the unmistakable influence of
their ideas and rhetoric. Mills presses his case in favor of both the actual, historical existence of
something akin to a racial contract and the disclosive power of the racial contract as an
analytical construct, through juxtaposition.
On one hand, Mills contrasts the liberal, egalitarian pronouncements of social
contractarians with what Thomas McCarthy has described in endearingly honest fashion as the
startling remarks and obscure essays on race that we [philosophers] long tended to pass silently
over when discussing the classics of early modern political theory.14 On the other hand, Mills
contrasts the voluminous ruminations of these theorists on liberal ideals with their jarring silence
on and occasionally, active participation in the gross violations of liberty, autonomy, equality,
natural rights, dignity, and justice contemporaneously carried out against non-whites under the
banner of empire and in the practice of enslaving human beings.
It is difficult to understate the importance of silence in Mills corpus. Studies of the impact of
racial ideologies and racism on the canonical figures of political thought all share, at their core, a
key hermeneutic dilemma concerning how we should interpret the relationship between ostensibly
universal defenses of liberal principles and various forms of accommodation to, defense of, and
outright participation in transgressions of those principles. Mills move, which is familiar to
scholars of critical race theory and postcolonial theory, is to reconstruct the apparent paradox as
more consistent that it first appears.
Mills achieves this by arguing that these philosophers are committed, prior to their various
contractarian arguments about equal rights, reciprocal obligation, and mutual agreement, to
theories of ethnoracial (and gender) hierarchy that qualify the conceptual and normative
boundaries of their theories. There is, in other words, a philosophical anthropology involved which
links the possession of the requisite traits or characteristics (e.g., cognitive, affective, cultural,
aesthetic) for inclusion and standing in the liberal polity with racial categories, invariably
concluding their possession among white racial groups and denying or denigrating their presence

14 McCarthy Review 453 Ethics January 1999

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elsewhere. This is, in part, the insight that Mills is attempting to systematize with his construct of
the Racial Contract.15
For the classical theorists of the social contract, Mills hopes to seal the judgment of their
complicity with racial domination with the damning combination of (a) textual proof of their
endorsement of forms of racial hierarchy, (b) the persuasive interpretation of their putatively
universal core concepts (i.e., person, civilized, rational, etc.) which reveals anthropological or
evaluative content plausibly stratified or constrained by the sorts of claims they make about race
(often in other writings or practices), and (c) the lack of any countervailing evidence that suggests
they hold (even underdeveloped) commitments to racial equality which could be sympathetically
reconstructed to rebut (a) or (b).
For example, Kants forays into physical anthropology, with his attempts to develop a
(hierarchical) theory of race and attribute various capacities for rationality, judgment, and moral
education, are put forth by Mills as evidence that, given those capacities critical role in Kants
ethical understanding of personhood, Kantian ethics (at least in Kants own formulation) are
stratified by race.16 That Kant is silent and does not condemn, in print, African chattel slavery and
narrowly objects to only the most violent abuses of colonialism, is taken as prima facie evidence
that these injustices did not disturb him greatly, and conscripted back into the argument as further
evidence of a herrenvolk ethics.17
Mills naturalistic political theory contains, as many such accounts do, a hermeneutics of
suspicion.18 By this, I mean, his theoretic approach operates from the assumption that the world,
particularly the world humans have created, is rivenwith hypocrisy and concealment and needs
to be unmasked by a critique of the contents of consciousness, an assumption justified by a

15 The Racial Contract is that set of formal or informal agreements or meta-agreements (higher-level

contracts about contracts, which set the limtis of the contracts validity) between the members of one
subset of humans, henceforth designated by (shifting) racial (phenotypical/genealogical/cultural)
criteria C1, C2, C3as white, and coextensive (making due allowances for gender differentiation)
with the class of full persons, to categorize the remaining subset of humans as nonwhite and of a
different and inferior moral status, subpersons, so that they have a subordinate civil standing in the
white or white-ruled polities the whites either already inhabit or establish or in transactions as
aliens with these polities, and the moral and juridical rules normally regulating the behavior of
whites in their dealings with one another either do not apply at all in dealings with nonwhites or
apply only in a qualified form (depending in part on changing historical circumstances and what
particular variety of nonwhite is involved) (RC 11)
16 Also, see Kants untermenschen and Blackness Visible 4, 5
17 I am less concerned here with the persuasiveness of this as an interpretation of Kant, and more with Mills
mode of argument for other interpretations, see McCarthy, Race, Empire, and Human Development;
Bernasconi, Kant and Race; Eze
18 Lieter, Hermeneutics of Suspicion; Mills as naturalist, p. 5 RC

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naturalistic account of the social causes of conscious life.19 For Mills, these causes are, above all,
differentiated group-based experiences structured by positions in the social order organized along
familiar and intersecting macrosocial strata of race, class, gender, sexuality, nation, mediated
through other group identities based in categories like vocation (i.e., professional philosophy).20 His
account of epistemology suggests that our interpretive approaches should be guided with these
forms of group position in mind, and his readings of classical contractarians are as persuasive as
they are, in part because the textual evidence abundantly repays the approach: Kant is the
appropriately voluminous preeminent moral philosopher of the Enlightenment, and its most
systematic theorist of racial hierarchy; Lockes confused reflections on slavery were written
alongside his deep financial and political involvement with the owners of enslaved human beings in
the Carolina colony.21
Silence is asked here to play the scale-tipping role, if you will, of weighting our already well-
nourished suspicions in favor of the critical race theorists unmasking critique. Innocence suitably
dispatched, the absence of pronouncements on anti-slavery, racial injustice, and colonialism
alongside monographs on liberty, justice, and equality accrue the odious, if necessarily always
inconclusive, air of hypocrisy -- especially as the authors indulge themselves in the figurative
imagery of human bondage to press other political aims. In The Racial Contract, Mills expounds on
what he calls the evidence of silence:

Where is Grotiuss magisterial On Natural Law and the Wrongness of the Conquest of
the Indies, Lockes stirring Letter concerning the Treatment of the Indians, Kants
moving On the Personhood of Negroes, Mills famous condemnatory Implications of
Utilitarianism for English Colonialism, Karl Marx and Frederick Engelss outraged
Political Economy of Slavery? Intellectuals write about what interests them, what they
find important, and especially if the writer is prolific silence constitutes good
prima facie evidence that the subject was not of particular interest. By their failure to
denounce the great crimes inseparable from the European conquest, or by the
halfheartedness of their condemnation, or by their actual endorsement of it in some
cases, most of the leading European ethical theorists reveal their complicity in the
Racial Contract.22

This calculus, however, shifts dramatically once explicitly racist arguments are removed from the
equation. Take, for example, Mills invocation of David Brion Davis towering intellectual and

19 Lieter
20 Mills, Alternative Epistemologies

21 Brad Hinshelwood, The Carolinian Context of John Lockes Theory of Slavery, Political Theory (online May

15, 2013)
22 RC 94

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cultural history of slavery in Western thought.23 Mills argues that, in light of their promotion of
liberty in Europe, the silence of seventeenth-century philosophers on the problem of African
slavery can be judged to reflect a silence not of tacit inclusion but rather of exclusionthe black
experience is not subsumed under these philosophical abstractions, despite their putative
generality.24
Surprisingly, suspicion is not necessarily diminished with the disappearance of explicitly
racist or even racialist argument; it is instead transferred elsewhere. With the first pillar of the
hermeneutic architecture of his critical race theory removed, Mills unmasking of universal
concepts and methods suffers from what might be called the increasing significance of silence.

III. Rawls and Race

In stark contrast to their early modern predecessors, contemporary contractarians,
following John Rawls, have disavowed racialized, historical-anthropological fictions meant to give
impressionistically true accounts of the origin(s) of state and civil society. They have also explicitly
embraced principles of racial equality and anti-discrimination. Rawls states unequivocally in A
Theory of Justice that, there is no race or recognized group of human beings that lack his two
attributes of moral personhood: the capacities to have a conception of the good and a sense of
justice.25 In his very first published paper (1951), Rawls criticizes pejoratively as ideological any
attempt to claim a monopoly of the knowledge of truth and justice for some particular race, or
social class, or institutional group or to define competence in terms of racial and/or sociological
characteristics which have no known connection with coming to know, explicitly in the course of
designing a procedure capable of generating viable ethical principles and judgments.26
Moreover, Rawls entire theoretical apparatus emerges from a modification of this early
decision procedure into his reflective equilibrium method, where we attempt to align our moral
and political theorizing with what he calls our considered judgments or considered convictions
of justice (TOJ 17). To justify arguments about the design of decision procedures in ethics, the
principles elicited from those procedures, and comparisons of moral theories, Rawls suggests that
what we must do is see if the principles which would be chosen match our considered convictions
of justice or extend them in an acceptable way. These considered judgments, although capable of

23 David Brion Davis, The Problem of Slavery in Western Culture

24 Non-Cartesian Sums 3-4, footnote on Lincoln, equality, and Euclid

25 Rawls TOJ 207
26 Rawls, Outline of a Decision Procedure for Ethics in Collected Papers, p. 5

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revision, are core moral judgments which we now make intuitively and in which we have the
greatest confidencequestions which we feel sure must be answered in a certain way (TOJ 17). The
two judgments of this sort, which Rawls mentions so succinctly as to convey their self-evidence, are
judgments that religious intolerance and racial discrimination are wrong.
Such pronouncements, along with the promising architecture that Rawls has seemed to
provide for left-liberal political theorists concerned with the expansive redistribution of wealth, the
inviolability of civil rights, and the deflation of right-libertarian arguments against left-liberal
interpretations of those claims, have encouraged a handful of theorists to pursue theoretical work
on racial justice through Rawlsian frameworks.27 Mills, however, has become the most prominent
critic of such endeavors, inspired in part by the purported silences concerning racial justice in Rawls
and in the Rawlsian secondary literature. In his essay Rawls on Race/Race in Rawls, Mills
undertakes a review of the textual record of Rawls five major books and some of the landmark
volumes of the secondary literature, searching for references to race, racism, racial discrimination,
racial injustice, slavery, civil rights, settler colonialism, genocide, and corrective justice (i.e.,
reparations, affirmative action, etc.). Concluding his review in a section titled Rawlss Silences,
Mills argues that the paucity of these references show that [r]ace, racism, and racial oppression are
marginal to Rawlss thought, and [m]erely consulting the indexes of these five books would be
enough to establish this truth.28 More than forty years after the publication of A Theory of Justice,
Mills contends, the fact that there has not been more debate on the flagrant absence of racial
justice as a theme in this literature, and the questions this absence raises about its possible intrinsic
whiteness, raises severe questions about the adequacy of the Rawlsian apparatus for theorizing
racial justice.29
With this silence animating his hermeneutic suspicion, Mills goes on to argue that it is not
just a matter of what Rawls does not say the omissions but of how what he does say is
conceptualized the tendentious conceptual commissions which Mills decries as prescriptive

27 Tommie Shelby, for one, has argued for nearly a decade that Rawls insights may prove to be

indispensable for theorizing about racial justice and that they do not require radical revision in order to
develop a nonideal theory of racial justice as part of a fully comprehensive theory, and has embarked on a
research project perhaps best characterized as a Rawlsian study of ghetto poverty as a nexus of problems for
a theory of justice. Indispensable quote is from Race and Social Justice, Rawlsian Considerations and
indispensable quote is from Racial Realities and Corrective Justice: A Reply to Charles Mills. Published
portions of the ghetto poverty project include Justice, Deviance, and the Dark Ghetto, and Justice, Work,
and the Ghetto Poor
28 Rawls on Race 169
29 Mills, Retrieving Rawls for Racial Justice? 22

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albinismcomplemented by a similarly bleached-out faculty picture and corresponding
descriptive/explanatory conceptual framework.30 Mills case turns principally on three claims:
Firstly, he argues that Rawls commitment to ideal theory leads him to marginalize race and
racism because its conception of a well-ordered society as a cooperative venture for mutual
advantage among free and equal citizens abstracts away from the existence of racial identities,
racial inequality, and racial domination. This abstraction is historically inaccurate, sociologically
nave, and ontologically deficient, given that society is constituted by various forms of group
domination, and theorizing from this idealized assumption short circuits theories of corrective
justice that cannot take egalitarian standing or freedom as a given and may need to order principles
in a radically different fashion to achieve justice.31
Secondly, he claims that ideal theory is not sufficiently action-guiding. Its impoverished
resources for dealing with actually-existing injustices, which it does not appropriately theorize may
even have the bitter irony of leading us away from the sorts of remedies they demand or even an
appropriate sense of their urgency as matters of justice, especially insofar as addressing them
requires us to bring back in forms of group identity and group domination that were excluded from
our thought experiments.
Thirdly and finally, Mills goes on to claim that the postwar struggle for racial justice in
practice and in theory a category that is, at least on the practice side, dominated by the civil
rights movement and the Rawlsian corpus on justice are almost completely separate and non-
intersecting universes.32 The concern here, it seems, is a bit stronger than the suspicion
engendered by silence as such, entailing something like the familiar argument of critical theorists
that social movements can be critical reference points for theories of justice, insofar as their claims,
actions, and interpretations have genuinely emancipatory potential.33 A failure to engage with this
struggle makes political theory untenably reliant on interpretations of need (or other critical
concepts) drawn from discourses and traditions unaffected by critical exchanges and public
contests with this insurgency.34
This third objection shall be my point of departure, and guide the discussion of Mills other
critiques. My argument, in short, is that Mills is mistaken on this point above all others, but in a way

30 Mills, Rawls on Race 170

31 Charles W. Mills, Ideal Theory as Ideology, Hypatia, Vol. 20, No. 2 (August 2005), pp. 165-183; Mills,

Rawls on Race, p. 163

32 Mills, Rawls on Race p. 161
33 Nancy Fraser, Whats Critical about Critical Theory in Feminism Insurgent 42

34 Mills does not elaborate as fully on this point as one might expect, but it seems evident that his persistent

focus on reparations, for instance, is exemplary of the sort of shift in need-interpretation that might emerge
from such an engagement between post-war African-American political historiography and political theory.

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that provides for a compelling rethinking of the relationship between critical race theory, civil
rights historiography, and liberal political philosophy. My argument is that Rawls is deeply
influenced by the civil rights movement, and his historical understanding of its trajectory operates
as the formative background not only for his reflections on civil disobedience and public reason, but
also for significant pieces of his theoretical overture as a whole. These areas of Rawls corpus are
particularly important for engaging with Mills critique insofar as they are the bases of Rawls
endeavors into non-ideal theory.

IV. Ideal Theory and Non-Ideal Theory, Again

Before pursuing these arguments, however, it is imperative to clarify the distinction
between ideal and non-ideal theory. Ideal theory in political and moral philosophy refers to a family
of approaches to ethical and political questions that concentrate primarily on working out
principles that should govern intentional human action and the arrangement of basic social and
political institutions given the fundamental and critical assumption of full compliance.35 All
persons and institutions in ideal theoretic thought experiments have the capacity to, and do indeed
comply with, the principles generated by its thought experiments. This insistence, however, at least
in Rawlsian political theory, is not strictly utopian, but realistically utopian.
To this end, Rawls introduces a further commitment, which other ideal theorists including
GA Cohen have rejected to varying degrees, that ideal theories of justice must also be fact-
sensitive in certain critical respects. This, principally, means that ideal theory, deal as it must in
abstraction, should nonetheless take into account realistic notions of moral psychology, certain
facts about the functioning of basic institutions (i.e., imperfect administration), structuring
assumptions like the existence of something akin to Humes conditions of justice, and problems
like stability.36 This is a point often neglected in arguments that attempt to downplay the
significance of full compliance in ideal theory, out of concern that they remove questions of
institutional design, socialization, preference formation, and moral education from political
theory.37 These questions are precisely what Rawls account of stability wrestles with most deeply.
The assumption of full compliance does not necessarily dissolve the theorists responsibility to
persuasively account for reasons that might motivate such compliance.

35 Michael Phillips, Reflections on the Transition from Ideal to Non-Ideal Theory, Nous, Vol. 19, No. 4 (Dec

1985) pp. 551-570; Rawls, TOJ 7-8, 215-216; Andrew March, Taking People As They Are: Islam as a Realistic
Utopia in the Political Theory of Sayyid Qutb APSR Vol. 104, No. 1 (February 2010), p. 192
36 Rawls, Theory of Justice
37 Hamlin and Stemplowska, Theory, Ideal Theory, and the Theory of Ideals p. 51

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Ideal theory, despite its abstractions, is nonetheless supposed to be both critical and
constructive and play some role in guiding the course of social reform.38 Rawls, for example, sees
his critical task as one of developing a conception of a perfectly just basic structure and the
corresponding duties and obligations of persons in order to judge existing institutions in light of
this conception and evaluate them as unjust to the extent that they depart from it without
sufficient reason.39 The constructive hope, at least for Rawlsian ideal theory, is that its exercises
can be significantly action-guiding insofar as they can serve as the most persuasive source of
goals to work toward, as normative standards for judging the overall justice of particular social
arrangements, and, crucially, as sources of justification for these goals, standards, and principles.40
Moreover, Rawls is at pains to show, through ideal theory, that a society well-ordered by his
principles of justice is stable for the right reasons. In other words, such a society not only generally
maintains itself in a just general equilibrium and is capable of righting itself when that equilibrium
is disturbed, but does so through fully autonomous activity of its members elicited and
encouraged by the institutionalization of and common adherence to said principles.41 This deep
concern with the problem of stability reveals, as Paul Weithman has persuasively and insightfully
argued, two practical tasks of Rawlsian political philosophy.
The first is the formulation a conception of justice that can serve as an enduring
foundation charter for a well-ordered liberal democracy.42 The second is a project that Weithman
aptly describes as naturalistic theodicy.43 This task is a response to the ethical-existential anxiety,
perhaps best articulated by Kant, that human beings in their utter frailty, will be unable to meet the
daunting demands of a commitment to morality and justice, indeed to our own freedom, if we do
not see that our aims can be achieved and that our particular efforts to achieve them are a
significant part of their realization.44 The question of practical faith, therefore, involves engendering
justifiable confidence that the order of nature and social necessities human sociability are not
unfriendly to [a realm of ends], namely a well-ordered, stably just, liberal constitutional
democracy.45

38 Rawls, Theory of Justice 215-216

39 Rawls 216
40 Tommie Shelby, Racial Realities and Corrective Justice: A Reply to Charles Mills, Critical Philosophy of

Race, Vol. 1, No. 2 (2013), pp. 150-151

41 Weithman, Why Political Liberalism? Pp. 44-46, 361-62
42 Weithman, Why Political Liberalism? P. 363
43 Weithman, Why Political Liberalism? P. 8
44 Weithman, 363
45 Rawls, Lectures on the History of Moral Philosophy 319

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The hope is that, with the appropriate balance of fact-sensitivity and abstraction rooted in
certain ethical ideals, political philosophy can demonstrate through reasoned argument, what a just
society looks like, why we should regard it as possible, and why its pursuit is worthwhile. It is this
notion that animates Shelbys insistence that the fundamental normative question for the
members of historically oppressed groups still living in the midst of societal injustice should be
What kind of society would merit our allegiance and is therefore worth fighting for?46
Non-ideal theory, in contrast, takes its theoretical departure or primary considerations
from scenarios of significant non-compliance or serious violations of normative principles of
justice. Both sets of theorists necessarily deal in ideals, normative ones, and ones that represent
social or natural phenomena. However, Mills argues, non-ideal theorists do not rely on idealization
to the exclusion, or at least marginalization, of the actual. Instead, they on Mills account pursue
more accurate descriptive models of actually-existing phenomena or historical developments to
figure in their theoretical work.47 This, however, does not seem quite right as a full definition of
non-ideal theory. It is not clear why modeling non-compliance or serious injustices need to
necessarily model actually existing social ills or enduring injustices. Non-ideal theory seems also to
entail attempts to generate principles of action, institutional design, or other ethico-political
judgments drawn from purely speculative models of social injustice and adversity.48
Mills insistence on political theorys descriptive modeling of existing and enduring injustices
is not constitutive of non-ideal theory as such, but it is central to his particular version, motivated
as it is by the interplay between his naturalistic standpoint epistemology and related worry about
ideological mystification. The Racial Contract hypothesis, he writes, is explicitly predicated on the
truth of a particular metanarrative, the historical account of the European conquest of the world.
Therefore, Mills continues, the Racial Contract lays claims to truth, objectivity, realism, the
description of the world as it actually is, the prescription for a transformation of that world to
achieve justice and invites criticism on those same terms.49
His concern is that ideal theorists stray too far from historical facts and end up intuiting
indefensible ontological claims about society, misguided notions about social institutions, or
familiar, yet conceptually inadequate philosophical ideals, placing a deep perspectival bias (rooted
in forms of group domination) at the center of whatever principles emerge. One intellectual project
that illustrates precisely this worry are the devastating feminist critiques of Rawls A Theory of

46 Shelby, Corrective Justice 160
47 Mills 168

48 See, for example, Derrick Bells famous story about alien slave traders and A. John Simmons, Ideal and

Nonideal Theory Philosophy and Public Affairs Vol. 38, Issue 1, pp. 5-36 (Winter 2010)
49 RC 129

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Justice, which exposed his early failure to acknowledge gender injustice as a problem at the level of
the basic structure of society, his paternalistic naivet about the ability of the (male) head of
household to represent the interest of his household in the discussion concerning the principles
of justice, and his under-theorized account of autonomy, which failed to consider the care work and
socialization that go into its realization.50
Mills is not especially clear on whether he thinks that perfect justice is possible (or how we
might know it without ideal theory), but it seems to me a sympathetic interpretation of his position
entails that political theory should begin, in his naturalistic, non-ideal vein, with more or less thick
descriptions of an extant injustice, and proceed from there to discern suitable principles, design
comparatively better institutions, or in some other way reduce the harms of the given situation
often without a perfect ideal in mind, but rather a comparative evaluation of alternatives and with
qualified recourse to contractarian thought experiments.51 I am skeptical, however, that the
superiority of non-ideal theory over ideal theory can be persuasively argued at the level of
abstraction at which it has proceeded thus far, in large part because central moves like the appeal
to fact-sensitivity in the realm of historical fact obscures more complicated theoretical problems
about the relationship of historiography and historical imagination to political theory, ideal or
otherwise.
In reading the literature on ideal and non-ideal theory, it is remarkable that while the entire
debate revolves around Rawls distinction, it hardly engages in any robust fashion with the
exercises in non-ideal theory that Rawls actually does pursue. This is doubly problematic for Mills
given that Rawls most sustained interventions in non-ideal theory are the account of civil
disobedience in A Theory of Justice and the account of claims-making through public reason in
Political Liberalism, both of which explicitly invoke Martin Luther King and the classical phase of the
civil rights movement as exemplary touchstones and sources of insight for reflective equilibrium. I
want to argue that these moves call into question Mills claims that the postwar struggle for racial
justice in practice and in theory and the Rawlsian corpus on justice are almost completely separate
and non-intersecting universes and that Rawls is manifestly unconcerned with racial justice.52

50 Susan Moller Okin, Justice, Gender, and the Family (New York: Basic Books, 1991)
51 Amaryta Sen, The Idea of Justice. See, for example, Appiah on human slavery; Pablo De Greiff (ed.), The

Oxford Handbook of Reparations (New York: OUP, 2006); Roy L. Brooks, Atonement and Forgiveness: A New
Model for Black Reparations (University of California Press, 2006); J. Angelo Corlett, Race, racism, and
Reparations (Cornell University Press, 2003). For Mills, its not clear how feasible these alternatives must be
(a realism constraint?) or how we should think of feasibility. Reparations would seem to be the best test case.
52 Mills, Rawls on Race p. 161

 14
I argue that critical race theorys hermeneutics, contra Mills, should not be animated
primarily by an expansive, suspicious association between silence, absence, and ideology.53 A
narrow focus on what is or is not stated explicitly, straightforwardly, or prominently in a text runs
afoul of one of the great insights of late twentieth century African-American literary criticism,
which is the injunction to closely interrogate those fleeting and seemingly peripheral black
presences at the margins of texts and works of art in order to reconstruct the significance of this
presence for the meaning of the text. This approach begins with Toni Morrisons claim that
encoded or explicit, indirect or overt, the linguistic responses to an African American presence
complicate texts [in American intellectual history] and give them a deeper, richer, more complex
life than the sanitized one commonly presented to us.54 This method, therefore, encourages
practices of reading that seize on some apparently peripheral fragment in the work a footnote, a
recurrent minor term or image, a casual allusion in Rawls, the appearance of African-American
political struggle and work it tenaciously through to the point where it threatens to dismantle the
oppositions which govern the [original] text as a whole, as well as prevailing interpretations of the
text.55
Sustained reflection on the invocation of the civil rights movement and racial discrimination
as critical examples in Rawls work (and throughout political theory!) leads, in this interpretive
stance, to a consideration of what work exemplarity does for Rawls (and perhaps political
philosophy more broadly). A benefit of this approach is that it treats the charges of idealization and
abstraction, not as determinant judgments of any ideal theoretic approach, but as open questions
for reflective judgment on the ways in which particular historical narratives are conscripted for
particular theoretical projects. Treating ideal theory as, by definition, ahistorical or mythic
precludes us from recognizing the myriad ways that historical imagination operates in the
background of iterations of exemplarity meant to secure or anchor the arguments of political
philosophy, even in its ideal vein.
Coursing like capillaries through the interplay of argument and example, implicit and
explicit historical narratives are conscripted to play multiple roles often telling stories about
race whose import is to bolster the force of the argument in its reception by intended audiences.

53 See, for example, the seminal essays in Henry Louis Gates, Jr. and K. Anthony Appiah, Race, Writing, and

Difference (Chicago: University of Chicago Press Journals, 1992); One of the most persuasive rendering of this
point is shown by Susan Miller Okin in her Justice, Gender, and the Family, which showed Rawls silences on
the structure of the family had serious consequences on his theory of justice.
54 Toni Morrison, Playing in the Dark: Whiteness and the Literary Imagination (Cambridge, MA: Harvard
University Press, 1992) p. 66
55 Eagleton, Literary Theory 133

 15
But this essentially rhetorical function does not exhaust the economy of exemplarity. It also entails
an essentially contestable attempt to deploy the aesthetic and ethical force that the example, now in
its singular guise of Exemplar, is expected to exert on the imagination and reflective judgment of
any addressees summoned to evaluate the example. This force of the example, paradoxically, serves
not only as a crucial dimension of the persuasive and justificatory work of the rhetoric of
exemplarity, but also as an often concealed or marginalized foundation, or origin point for the very
principles, rules, or determinant judgments we hope to defend. As Irene Harvey writes: How do
the examples betray what they are supposed to exemplify or reproduce? Are they in fact productive
and creative rather than reproductive? Are they pre-text that only appears in the guise of a
postscript, seeming to come after the fact as accidental appendages to the theory, but are in fact its
progenitors, its unacknowledged city fathers?56
In the following sections, I will show that Mills emphasis on evasion is not fine-grained
enough to capture, for instance, the subtle ways in which contemporary liberal ideal theory engages
with the civil rights movement as a source of its self-conception and as a possible resolution to its
persistent crises of practical faith. Nor, critically, does it explain the aesthetics reception at work in
political liberalisms apprehension and conscription of historiography and public memory to its
theoretical aims.57

V. Reading Race/Reading Rawls

One promising approach to understanding the exemplarity of the civil rights movement in
Rawls work takes its point of departure from Rawls idea of reflective equilibrium. Recall that in
the process of reflective equilibrium, we begin from our most considered judgments, namely those
confidently held convictions given under conditions in which our capacity for judgment is most
likely to have been fully exercised and not affected by distorting influences.58 From these
convictions, reflective equilibrium seeks to forge a more expansive and complete theory of justice
through reconciling our various considered judgments into the most complete, coherent, and
consistent scheme. It pursues this by subsuming these judgments under moral principles, testing
them through thought experiments and decision procedures against other judgments or competing

56 Irene Harvey, Exemplarity and the Origins of Legislation, in Unruly Examples: On the Rhetoric of

Exemplarity, ed. Alexander Gelley, p. 225

57 Moreover, the binary constructions of ideal and non-ideal theory as vice and virtue perhaps trains us to

devote too little suspicion to the stylized, narrativized, and constructed character of non-ideal theorys
historical claims, taking their purported realism or naturalism at face-value.
58 Rawls, Justice as Fairness 29

 16
theories, discarding or revising implausible judgments, and securing the best fit for its considered
commitments within a broader constellation of judgments, some of which overflow the borders of
moral philosophy strictly defined.
The important thing to note is that these considered judgments are not just the most
abstract moral principles, but that they occur at all levels of generality, from those about particular
situations and institutions up through broad standards and first principles to formal and abstract
conditions on moral conceptions.59 In acknowledging the importance of judgments concerning
particular situations and institutions, however, Rawls gestures beyond determinant rules and
principles toward other scenes of judgment. If reflective equilibrium, in Samuel Freemans words,
privileges neither the general nor the particular, then Rawls method of reflective equilibrium
necessarily involves not just what Kant called determinant judgments, or those instances of
subsuming particulars under a general rule; it also must include reflective judgments, or those
instances (as in aesthetics) where, in the absence or abdication of available and adequate general
rules, only the particular is given and the universal must be found.60
The faculty of reflective judgment, therefore, is an approach to particularity which ventures
predicative claims like beauty and sublimity (among others), and attempts to give structure and
meaning to their particular instantiation while retaining a crucial conceptual indeterminacy with
regard to the object of judgment itself. This indeterminacy which Kant described as much
thought, yet without the possibility of any definite thought (COJ 49: 314) allows for the free
play, invigoration, and enlargement of our faculties of imagination and understanding which Kant
insists are capable of generating the very feelings of pleasure and awe that motivate our judgments
of beauty and sublimity respectively. In particular, Kant is enamored with those moments of
aesthetic judgment where there appears to be a spontaneous accord or symmetry between the
imagination and the understanding and those moments where imagination emulates understanding
and, in doing so, exceeds it and enlarges it. Through the former we can recognize something like
purposiveness without purpose that sense that, for instance, a particular object of judgment
appears elegantly or improbably fitted in form to a particular purpose which it cannot be proven to
be designed for (i.e., natural beauty as a symbol for morality or unsocial sociability as an engine
of cosmopolitan progress). Through the latter, we can recognize something like Kants aesthetic
ideas, or those evocative and perspicacious renderings of rational concepts (i.e., infinity, death,

59 Rawls, The Independence of Moral Theory in Collected Papers, p. 289

60 Kant, Critique Of Judgment, Introduction 4:179

 17
love, etc.), which, because they are not in the realm of experience or elude the completeness
characteristic of determinant judgments, rely largely on imagination for their presentation.
Given this characterization of reflective judgment and reflective equilibrium, my contention
is twofold. Firstly, given their irreducible particularity and the ineliminable aesthetic elements of
representation (esp. narrative), which are constitutive of their articulation, historical judgments fall
largely within the orbit of reflective judgment. Indeed, historical judgments often entail just these
kinds of claims about the fittedness of certain actions or events for certain ends (i.e., the
flourishing of a national identity) or an events exemplary instantiation of an ethico-aesthetic idea
(i.e., courage or human freedom). Secondly, I contend that these reflective historical judgments are
at work in the wide version of reflective equilibrium insofar as they, often through the ostensibly
aesthetic elements of their presentation, entail strongly held evaluative claims concerning the
significance and valence of historical phenomena or personalities. These judgments, therefore,
enter into the process of reflective equilibrium alongside determinant moral principles, in some
cases even serving as roughly fixed points, or touchstones, for the very articulation and
understanding of other moral judgments. Here, judgments concerning the exemplarity of certain
events are not dissolved into mere examples generative of and then subsumed under determinant
principles; they instead retain a dimension of their force as Exemplars, singularities which
authorize the territories of our normative reflections. This other dimension of exemplaritys force
arguably best reveals itself in those moments where our determinant judgments are borne back,
perhaps ceaselessly, toward conflict with our reflective judgments of exemplary events, and instead
of discarding our evaluative claims of the greatness or horror of these moments, we shift our
principles so as to better accommodate these ethical-aesthetic judgments.
Consequently, it is intriguing to note that in the course of Rawls various invocations of
Martin Luther King and the civil rights movement, the movements positive exemplarity seems to
entail a unique relationship to considered judgments about racial discrimination, civil disobedience,
public reason, and protest (as does the abolition of chattel slavery). Rawls, for instance, attempts to
fit his notion of civil disobedience to his reading of the account in Kings Letter to a Birmingham
Jail. Even more importantly, his major revisions to the scope of his theory of public reason came on
the heels of criticism from Michael Sandel and others that his normative restrictions on public
reason would disallow the religious rhetoric of King and the cohort of civil rights activists affiliated
with him.61 As he widened his conception of the use of comprehensive doctrines (i.e., prophetic

61 Sandel

 18
Christianity) in public reason, each time the justification of his argument turns in large part on its
ability to allow for (his reading of) the civil rights movement.
The stunning implication of this practice of argument is that Rawls seems to think of the
civil rights movement and principles like non-discrimination as manifesting an exemplary
congruence.62 This congruence makes it difficult to entangle the normative judgment from the
historical judgment of the action which, at least in the account of exemplarity, instantiates it. This
holds not just for Rawls, but also for Sandel, Lyons, and other theorists who treat the memory of the
civil rights movement as an orienting and prestructuring reference, a shared terrain for
communicable disagreement.63 Any theory of public reason that cannot allow for the emergence of
something like the civil rights movement in the face of injustice is, on these assumptions,
presumptively deficient. The irony, then, is one I have noted above: the area where Mills presses
most demandingly his substantive philosophical critique the presumed inability of Rawls ideal
theory to deal effectively with the non-ideal normative challenges presented by racial injustice
also happens to be the place where Rawls invokes the histories of the abolitionist and civil rights
movements to mediate between ideal and non-ideal theory and provide justificatory grounds to his
arguments.

VI. Rawls on Civil Disobedience, Public Reason, and Overlapping Consensus

So what, then, are we to make of then exemplarity of the civil rights movement and Martin
Luther King in Rawls intersecting arguments about civil disobedience, public reason, and
overlapping consensus?64 Perhaps it is best to begin by noting that Rawls discussion of civil

62 Ibid p. 3

63 Albena Azmanova, The Scandal of Reason; Arendt, Lectures on Kants PP

64 In articulating his theory of civil disobedience, Rawls cites Kings Letter from a Birmingham Jail, and

proclaims his project to be to set this sort of conception into a wider framework. He again cites the
Birmingham letter, as well as the I Have a Dream speech and a speech on voting rights to invoke King as an
exemplar of public reason and describe a real-world instance of an appeal to a possible overlapping
consensus to recognize claims of justice. In his notes for his original paper on civil disobedience, however, it
is clear that Rawls is influenced much more broadly by civil rights and anti-war activists, particularly in his
list of paradigm cases of civil disobedience. CD [Civil Disobedience] + The Complications of Our Federal
System p. 4; Rawls Archives, Harvard University Box 7, Folder 6

Paradigm Cases of CD acts (whether juridical or not)
1. Refusal (in an announcement) to pay income tax (proportion thereof to abjure [?] re war, eg. In
Vietnam)
2. Burning of draft card in a public place (as contrary to law) + to protest the war
3. Sit-ins, wall-ins, etc. (where trespasser or else contrary to local ordinances) in public protest against
racial segregation or other statutes regard as unequal.

 19
disobedience emerges from the question of under what circumstances and to what extent we are
bound to comply with unjust arrangements (TOJ 308).65 His concern, which becomes increasingly
manifest throughout the chapter, is that too expansive justification for civil disobedience will
actually destroy the very conditions which, on his account, make civil disobedience possible: the
stability of an existing, reasonably just constitution and basic structure.
This argument presupposes Rawls more fundamental claim that we have specific civic
obligations to other citizens. When the existing institutional arrangement is reasonably just, these
civic obligations also arise to the extent that we voluntarily accept the benefits of participating in
the cooperative scheme of society or take advantage of its opportunities to pursue our interests.66
When combined with the claim that the basic structure should be just, then we have Rawls
principle of fairness. The problem of civil disobedience arises, therefore, when these civic
obligations collide with social arrangements that fall short of or deviate from the standard of
justice.
Attention to his arguments here shows that Rawls thinks that injustices arise, essentially, in
two ways. Firstly, it can emerge when current social arrangements depart in varying degrees from
publicly accepted standards that are more or less just (TOJ 309). One is reminded here of Myrdals
notion of the American Creed.67 The claim, for Myrdal at least, is that the Creed is near-universally
held, and publicly affirmed; yet, there exist departures (to use a variation on Rawls term) that are
not commensurate with this standard. Secondly, a set of arrangements can actually conform to a
societys conception of justice, or to the view of the dominant class, but the society or class in
question may hold an unreasonable and unjust conception of justice (Rawls 309). Here, the
exemplar is something like Nazi Germany.

4.
5.

An action made as The (Mississippi) Freedom Party sitting in the seats of the state delegation at the
Democratic Convention (in August 1964 at Atlantic City). (This event witnessed in national television
was a public act). Cf. AI Warkow From Race Riot to Sit-In (NY 1966) pp. 267-275
James Farmer illegally lying down at the entrance of the Worlds Fair + getting himself arrested. He
wanted to emphasize the contrast between the glittering gold fantasy of the Fair and the real world
of bigotry + poverty (cf. Bickel p. 86)

65 He is at pains to quickly rule out one defense of civil disobedience that seems prima facie

plausible to ardent defenders of the freedom of conscience who want to preserve individuals right
to not be a party to injustice or submit to unjust law. This is the claim that we are never required to
comply in these cases [emphasis added], which he dismisses as a mistake (TOJ 308)

66 The main idea, Rawls explains, is that when a number of persons engage in a mutually advantageous

cooperative venture according to rules, and thus restrict their liberty in ways necessary to yield advantages
for all, those who have submitted to these restrictions have a right to a similar acquiescence on the part of
those who have benefited from their submission (TOJ 96).
67 Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy, Vol. 1 (New York:
Harper & Bros., 1944)

 20
It seems that Rawls is more interested in, and thinks civil disobedience will be either more
effective in, or only effective in, the first of these unjust situations. When laws and policies deviate
from publicly recognized standards, he argues, an appeal to the societys sense of justice is
presumably possible to some extentthis condition is presupposed in undertaking civil
disobedience [emphasis added] (TOJ 310).68 A departure from reasonably just standards can elicit
an ostensibly straightforward claim by proponents of civil disobedience that shared principles of
justice or their constitutional manifestations are being unduly violated and that the citizens
engaged in direct action will not comply with such wrongs. Injustices of this kind, says Rawls, are
always possible in an actual constitutional democracy because the political process, necessarily
hampered by self-interested behavior and the upper limits of human knowledge and judgment, will
eternally be an imperfect, mistake-prone tool for realizing the ends of justice (TOJ 311).
This is a risk of constitutional democratic government, but for Rawls it is a manifestly
worthwhile one given the benefits of stability and near justice that such arrangements can
provide as compared to other regimes. The virtues of constitutional democratic government loom
so largely for Rawls, that he repeatedly warns us to not mistake the trees for the forest, so to speak.
Not only must we cautiously weigh the character of any particular injustice against the relative
justice of the constitution in any given society before engaging in civil disobedience, but we have a
presumptive duty toward compliance, even with unjust laws solely in virtue of our duty to support
a just constitution (TOJ 311). Specifically, Rawls worries that civil disobedience could erode the
trust and confidence necessary to sustain the sort of political culture with faith in the rule and
legitimacy of law that maintains constitutional democracies over time (TOJ 312). If this is so,
however, what then could possibly justify the politics of civil disobedience?
Before answering this question, we should consider Rawls precise definition of civil
disobedience. He defines it as a public, nonviolent, conscientious yet political act contrary to law
(not necessarily a law one is protesting) usually done with the aim of bringing about a change in the
law or policies of the government [emphasis added] (TOJ 320). For him, it is a type of public
speech, which he describes in roughly the same terms he uses to characterize public reason
broadly in later works. In other words, civil disobedience, and public reason broadly are public,

68 If the course of action to be followed depends largely on how reasonable the accepted doctrine is and what

means are available to change it, it is not straightforward how civil disobedience on behalf of an aggrieved
party would work in a scenario where the (unreasonable) doctrine of justice in a given society was largely
congruent with the (unjust) institutions it fosters. These sorts of societies, like feudal societies or
inegalitarian theocracies would require a deeper uprooting of the entire order moral and political than
civil disobedience aims toward in Rawls conception.

 21
deliberative democratic speech-act forms that concern the justice of the basic structure of society
and speak to the widely shared sense of justice in a given political community. Civil disobedience
is a special version of this sort of claim making, addressed to the majoritys sense of justice, which
declares that in ones considered opinion the principles of social cooperation among free and equal
men are not being respected (TOJ 320).

In a claim that has been the source of much of the debate on Rawls conception of public

reason and his invocation of Kings example, Rawls in A Theory of Justice argues that civil
disobedience must be justified by recourse to political principles, and not by arguments from
personal morality or religious doctrines (TOJ 321). These may coincide with and support our
political claims, but in the last instance we must appeal neither to these private moral doctrines
or worse, particular self-interests only the public conception of justice by reference to which
citizens regulate their political affairs and interpret the constitution (TOJ 321). Readers of Rawls
work should readily see how much of the argument in his Political Liberalism was already sketched
in his writing on civil disobedience. There, he extends the normative principles he developed in this
instance to a broader category of political speech, action, and decisionmaking: public reason.
The subject of public reason, what it is about, is the good of the public. In other words,
public reason is a mode of formulating plans, generating and prioritizing ends, and making
decisions that occurs publicly between citizens and concerns the arrangement and purposes of the
basic structure of society and its institutions particularly its constitutional essentials.69 There
are three major reasons that Rawls wants public reason to focus on the basic structure. Firstly, it
exercises an enormous influence on our life chances from birth, and any life plan we desire to
pursue will be severely affected by how these institutions function. Secondly, it is the medium
through which, in a democratic society, we exercise coercive power over each other and such
power must be legitimate, in light of principles and ideals acceptable to [all citizens] as reasonable
and rational (IPR 96). Lastly and crucially for our purposes there is an interest in the existence
and stability of a reasonably just basic structure, especially its foundation in constitutional
government, insofar as such a government will best secure our other rights and basic interests.
The hope for public reason is that by placing certain normative constraints on public speech
and action, we can best pursue a just, democratic, and enduring basic structure in a society marked
by reasonable pluralism about comprehensive moral views. The central normative constraint is,

69 John Rawls, The Idea of Public Reason in Bohmann and Rehg, eds., Deliberative Democracy: Essays on

Reason and Politics, p. 93 (Hereafter cited in text as IPR); The basic structure of society includes the
constitution, the legal system, principal economic and social arrangements, the monogamous family and
other major social institutions that, together, constitute the way a society will distribute fundamental rights
and duties and determine the division of advantages from social cooperation (TOJ 6).

 22
as before, restricting the appeal of public reason to political conceptions of justice. This sort of
conception is focused solely on the basic structure of society, is interpretively autonomous of wider
comprehensive religious or philosophical doctrine, and is elaborated in terms of fundamental
political ideas viewed as implicit in the public political culture of a democratic society (IPR 102).70
Such ideas, Rawls later goes on to claim, include those mentioned in the preamble to the United
States Constitution: a more perfect union, justice, domestic tranquility, the common defense, the
general welfare, and the blessings of liberty for ourselves and our posterity.71 What is fascinating
about Rawls invocation of the preamble is that, alongside the values of liberty and justice he
previously endorsed as foundations of his comprehensive liberalism in A Theory of Justice, he
invokes values whose virtue is essentially political stability: a more perfect union, domestic
tranquility, and the concern with posterity.
Underlying the assumption that constraining discourse in this fashion will provide stability
are further assumptions that these restrictions on discourse will help citizens achieve consensus on
the conception of justice they will share and the arrangement of the basic institutions of society and
that this sort of consensus will go a long way toward ensuring justice and a stable, constitutional
order. Thus, the insistence on certain guidelines of inquiry; principles of reasoning; and rules of
evidence as well as restrictions on the content of public reason all are to ensure that we appeal to
and further develop an overlapping consensus on these issues. This consensus supposes
agreement deep enough [across comprehensive moral doctrines] to reach such ideas as those of
society as a fair system of cooperation and of citizens as reasonable and rational, and free and
equal[and] covers the principles and values of a political conception (in this case those of justice
as fairness) and it applies to the basic structure as a whole, especially the constitutional
essentials.72 It is a guiding framework of deliberation and reflection which helps us reach political
agreement on at least the constitutional essentials and the basic questions of justice (PL 156).

VII. Rawls and the Romance of Civil Rights

70 John Rawls, The Idea of Public Reason Revisited, University of Chicago Law Review, Vol. 64, No. 3 (Summer

1997) p. 777; Political values, properly speaking, exist in all sorts of political arrangements including
aristocracy and corporate oligarchy but Rawls is concerned with those political conceptions that are
reasonable for a constitutional democratic regime.
71 Rawls, Idea of Public Reason Revisited p. 776
72 Rawls, Political Liberalism, exp. ed. (New York: Columbia University Press, 2005) p. 149; hereafter cited in
text as PL

 23
Rawls asks us to understand civil disobedience as a politically principled appeal on behalf of
a minority group to this overlapping consensus asking to redress a particular injustice. But, again,
injustice and civil disobedience occasion a dilemma for Rawls between our moral obligation to
protest injustice and our duty to support mostly just institutions by contributing to the order,
confidence and trust needed to reproduce them. Rawls is manifestly concerned that, while necessary
to protect against injustice, civil disobedience is a destabilizing force in society that can erode
mutual trust. Thus, he tries to resolve this dilemma by arguing for practical and normative
constraints on civil disobedience in addition to the ones related to public reason.
Firstly, we should recall that civil disobedience for Rawls is most appropriate to societies
with some deviation from largely just constitutional principles. Secondly, we should presume that if,
over the long term, the burden of injustice is not more or less evenly distributed over different
groups in society or if their basic liberties are routinely violated, then the duty to comply with
the law becomes problematic for permanent minorities that have suffered from injustice for many
years. Lastly, we are in no way required to acquiesce in the denial of our own and others basic
liberties, since this requirement could not have been within the meaning of the duty of justice in the
original position, nor consistent with the understanding of the rights of the majority in the
constitutional convention (TOJ 312).73 Much turns, therefore, on how we are to understand these
various criteria.74
The only decisive reason that Rawls suggests can legitimate civil disobedience is the
violation of basic political liberties. The problem of civil disobedience, what he calls a conflict of
duties, only arises for Rawls within a more or less just democratic state for those citizens who

73 These basic liberties are, specifically, those of political liberty freedom of speech and assembly,
freedom to take part in public affairs and to influence by constitutional means the course of
legislationand the guarantee of their fair value (TOJ 313).
74 We will need an interpretive account of the relationship of specific forms of injustice to the
broader standards of justice in society, specifically constitutional principle. As the existence of
hundreds of years of constitutional jurisprudence demonstrates, however, it is perhaps more
difficult to prove that acts of injustice are dissonant with constitutional principle than Rawls
maintains. Indeed, many questions of justice turn precisely on the situational clash of constitutional
principles that defend conflicting rights-claims or interpretations. We will also need comprehensive
accounts of the group boundaries, and civic and economic standing of, minority groups in the social
order over time, to judge whether or not the various burdens of injustice they bear violate the two
conditions Rawls gestures toward. These conditions are (1) the fair distribution of the burdens of
injustice and (2) the temporal criterion of permanence or many years. Even with a persuasive
account of minorities bearing long-standing and disproportionate injustice, however, Rawls
remains hesitant to dissolve civic obligation altogether, suggesting only the placeholder that such
obligations will become more problematic. Tommie Shelby thinks the permanent minorities
criterion entails more radical prescriptions than I do.

 24
recognize and accept the legitimacy of the constitution (TOJ 319). A question that we will return to
is whether the civil rights movement, and the nation it occurred in, could plausibly have been said
to fit that criterion for Rawls. The liberty principle contends that each person is to have an equal
right to an extensive, universal system of equal basic liberties. The equal opportunity principle
insists that social and economic inequalities are to be arranged such that they are attached to
offices and positions open to all under conditions of fair equality of opportunity. Rawls other
principle, the difference principle that all socioeconomic inequalities be arranged such that they are
to the benefit of the least well off, is deliberately excluded from justified acts of civil disobedience
and discouraged in public reason more broadly (TOJ 326-7). Why, if these principles are
constitutive of justice, would Rawls argue for this restrictive criterion?
He gives four arguments for these constraints on civil disobedience and public reason (TOJ
323-330). Firstly, he insists that violations of basic liberty are easier to recognize because they are
enshrined in legal statute. Secondly, he argues that their protection is also easier to agree upon
from an overlapping consensus concerning the political values of a given national community.
Thirdly, he claims that if basic liberties are protected, social and economic inequalities will not get
out of hand. Finally, he endorses an expansive lexical priority for liberty over equality.
But, to the extent that Rawls treats Martin Luther Kings writings and speeches, and the
political actions of civil rights activists as exemplary of this conception of public reason and civil
disobedience, using their exemplarity to give the force of reflective equilibrium to his arguments, it
seems he can only do so by situating him in what I describe in my larger project as a romantic
narrative of civil rights history. There, I argue that historiography and political theorys invocations
of historical example have an irreducibly narrativist dimension, which is inevitably shaped by
conventions of narrative form and genre that shape how we apprehend, follow, understand, and
judge the significance of the stories that make up our historical imagination.

One of the most prominent narrative forms is romance which is disposed to the symbolic

and metaphorical representation of unities in the process of becoming relationships, groups,

nations, ideals. The criterion of significance for what is included and emphasized in romantic
narratives is primarily a subject or events fitness for bearing the symbolism of higher unities or
demonstrated contribution toward the realization of a telos of union. Romance is also distinguished
by an ideal of the heroic which demands transcendence of the world-as-it-is to realize the guiding
unity. Romance tends toward dramatizations of the struggle between essential good against the
ultimately transitory obstacles of vice, unfairness, and circumstance.

 25
The King imagined by this romantic narrative is a civil rights leader in the narrow sense.
Under Rawls conceptual restrictions, his conception of American society would have to be that it is
already, at least since Brown v. Board, basically just in its constitutional essentials and basic
structure, but that the state needs to extend the same basic liberties afforded to other Americans to
African Americans. The direct action demonstrations he leads must be meant to dramatize the gap
between American ideals and these anomalous, exclusionary practices while appealing to
Americans already-extant sense of justice. Moreover, he must express a resolute faith that civil
rights and rights of political participation will, in time, ensure fuller justice for African Americans
better than any other political program. The passage of the Civil Rights Act of 1964 and the Voting
Rights Act of 1965, from this perspective, will appear to be instances of overlapping consensus,
fostered in large part by Kings arguments. A great transformation toward a higher-order
reconciliation is enacted, all well within the boundaries of Rawls normative constraints on civil
disobedience and public reason.
The appeal of this narrative is related to Weithmans argument about practical faith. The
demonstration of the ability of a constitutional order marked by pluralism, not only to achieve
justice, but also to correct itself and endure when it falls short of that charge is thus a critically
important task for Rawlsian political theory. From such a vantage point, a romantic narrative of the
civil rights movement presents itself as an exemplary rejoinder to this problem. In its portrayal as a
refocusing moment in American democratic constitutionalism, it is thought to display a beautiful
symmetry of ends and means that performs a reunification of the American polity. Its narrative
resonance with Rawls other commitments reveals an important orientational phronesis to
Rawlsian political liberalism, that prestructures judgment and significance, and which we can
decenter through historiographical comparison.75
There may be some skepticism of this reading, given that Rawls does not explicitly discuss
the United States in the text.76 However, in his draft notes [ca. 1966] for his original paper on civil
disobedience, Rawls explicitly describes the US constitutional order as basically just and relies
heavily on an account of federalism to establish his view of civil rights activism in the sit-in
movement:

1. The Sit-In movement began in Feb 1960 in Greenboro NC. What was done was illegal under
local laws + ordinances valid at the time. Hence strictly the action of the sit-ins was illegal.

75 Azmanova on orientational phronesis

76 It is a frequent criticism, especially outside of the US, that Rawls is manifestly arguing for an ideal society

suspiciously based on the US. Rawls in Britain

 26
2. Nevertheless they were appealling [sic] not nec to to a higher law a moral principle
beyond the legal order as a whole but to the higher lawmaking authorities. Their act was
not nec a revolutionary act but in our federal system to the higher legal bodies which the
system provides. Their aim was to have the higher agencies correct the local ordinances
thought to be at variance with the Const. or other higher laws at any rate as these would
be interpreted by the Supreme Court. They were not upheld by the Court, but they did
eventually gain their end in Congress by Title II of the Civil Rights Act of 1964 which does
provide for equal service in places of public accommodation.
3. Thus, because our Constitution is just, much CD can be interpreted, not as appeal to the S of
J of the majority as an extra-legal conception, but as an appeal to the Constitution itself or
to the ideals which it expresses + which it is believed would dictate repeal n reform of
existing lower (or local) statutes. CD can be viewed as appealling [sic] to law against itself.77

I hope to demonstrate the error of this conception by injecting a note of discord into Rawls
conception of the civil rights movement, and problematizing his implicitly romantic narrative.
Critique cannot simply meet Rawls idealizations with real history, it must disentangle the role
that historical narrative plays in his work, dislodge that historiographical vision, and rework the
claims of justice from a different interpretation of exemplarity.

VIII.

Civil Rights Exemplarity

Given the constraints of space, I will focus on one Rawlsian claim and sketch its potential
implications, namely the argument that civil disobedience should not be addressed to economic
injustice, a shadow consequence of his broader arguments concerning the lexical priority of his
principles. Rawls insists, drawing implicitly on civil rights history, that we can more easily
recognize violations of the basic liberty principle, and thus more readily come to consensus to
defend them. Rawls argues that when certain minorities are denied the right to vote or to hold
office, or to own property and to move from place to place, or when certain religious groups are
repressed and others denied various opportunities, these injustices may be obvious to all, as they
are likely written in statutory or constitutional law (TOJ 326). He contrasts the ease of recognizing
these violations favorably with violations of his difference (equality) principle. For the latter, Rawls
argues that it is difficult to avoid prejudice and convince others of our impartiality, since there are
rationally conflicting opinions concerning the principles violation, involving complex institutional
and policy arrangements, theoretical and speculative beliefs, statistical and other information,
shrewd judgment, and plain hunch. Further, Rawls argues for a presumption that honoring the
basic liberties while possibly persistent and significant, will not get out of hand. (TOJ 327) A

77 CD [Civil Disobedience] + The Complications of Our Federal System, pg. 1; John Rawls Papers, Harvard

University Archives, Box 7, Folder 6

 27
similar argument underwrites his insistence that public reason focus on constitutional essentials,
rather than socioeconomic injustice.78
Rawls argument here, however, deserves far more severe scrutiny than it has heretofore
received because the level of epistemic complexity that Rawls ascribes to controversies of economic
injustice is such that it tips his considerations in favor of political order versus leaving the widest
range of political tactics at our disposal to secure an essential principle of justice. Moreover, he
invokes the exemplarity of civil rights history as justification. Thus, a promising point of entry for
critical engagement are competing narratives in civil rights historiography. These place pressure on
both Rawls comparison and the normative judgment he culls from it.
On the one hand, the ease of recognizing violations of basic liberties is much more difficult
than Rawls suggests. Let us take the example of political rights. The Long Civil Rights Movement
frame draws our attention to the long, arduous struggle for voting rights and the right to hold
office.79 At the level of constitutional law, African-Americans have been explicitly guaranteed the
right to vote since the 1870 passage of the Fifteenth Amendment to the Constitution. The problem,
however, was that violations of political rights occurred through measures that did not rely on
constitutional law. Instead, they pursued black voter disenfranchisement through non-state
avenues like the primary elections held by political parties and economic sanction by employers, or
putatively race-blind measures like grandfather clauses, poll taxes, literacy tests, felon
disenfranchisement, criminal statutes, and gerrymandering districts. There was no straightforward
process of demonstrating the extensive labyrinth of practices that congealed into a daunting
structure of black disenfranchisement, and the relentless contestation by blacks and their allies
over the course of the long civil rights struggle involved the same sorts of statistical analyses,
theoretical interpretations, and shrewd judgment to demonstrate this injustice for the wider
polity and dismantle the edifice of voter suppression piece by piece, from the white primary in
1944 to fights over gerrymandering in the late 1960s.

This focus on constitutional essentials, leads Rawls in his ideal theory, as GA Cohen has

argued, to an unduly restricted conception of the site of justice dominated by the state and the legal
system. Cohen argues that properly understood, the Rawlsian difference principle, which
condemns inequalities that contradict the interests of the worst off, applies not only to the actions
of the state but also to the choices of individuals that are beyond the reach of the state.80 Hence,
while Rawls suggests his definition of civil disobedience as aimed at changing government policies

78 Idea of Public Reason 107

79 Long Civil Rights Movement

80 GA Cohen, Rescuing Justice and Equality (Cambridge, MA: Harvard University Press, 2008), p. 8

 28
and law is consonant with Kings vision of civil disobedience as articulated in A Letter from a
Birmingham Jail, it ignores that in Birmingham and other campaigns, King targeted business elites,
civil society organizations (including churches), and citizens as such to live up to the principles of
justice not just the statebecause he conceived of justice as a virtue of persons and civil society,
as well as the state or the basic structure of society. Indeed, one of the key insights of the civil
rights movement were that the two were inextricable, especially insofar as (1) attempts to
challenge the ritual humiliation and degradation of blacks in the private sphere were consistently
met with state opposition in the form of police intervention on the grounds of public order and the
stability of law and (2) the achievement of justice in a bureaucratic state depends, in part, on the
personal virtues of bureaucratic functionaries.81
The attempt to delimit the content of public reason or the arena of civil disobedience
restricts a priori what can emerge as a consideration of basic justice in ways that King would
certainly object to, as should we. That Rawls conception of public reason unduly restricts the
unpredictability of democratic justice and its constitutive capacity for need-interpretation, the
articulation of new rights-claims, and contested terrain of politics is a contention that has been
pursued profitably by a number of critical democratic theorists, and I will not repeat their
arguments here.82 I will simply add that such strict prioritization of constitutional essentials,
particularly when defended by reference to a claim that their enactment will help restrict the
escalation of social and economic inequality, serves only to legitimate the romantic idea that the
African-American civil rights movement considered legal protections as the chief end of the
movement, that the achievement of constitutional rights has (or should have) set us on an
irreversible path toward broader forms of social and economic equality, and that the violation of
basic liberties exhausts the legitimacy of direct action protest.

This criticism leads to a related worry concerning Rawls insistence that we must pay a

certain price to convince others that our actions havea sufficient moral basis in the political
conviction of the community, by constraining protest and public reason in certain ways. If this
injunction to pay a certain price to convince others is interpreted to mean that minorities must
sufficiently demonstrate their commitment to the stability and order of the polity before pressing
claims to injustice, this may lock the victims of injustice into chasing a perpetually receding horizon
of justice. If citizens like Rawls doesconsider the raising of economic justice issues through civil
disobedience or public reason as inherently disruptive or destabilizing and presumptively

81 Seanna Shiffrin

82 See, in particular, the essays in Seyla Benhabib, ed. Democracy and Difference: Contesting the Boundaries of

the Political (Princeton, NJ: Princeton University Press, 1996)

 29
illegitimate, then perhaps we need to revisit Rawls insistence that a consensus on basic liberties is
easier to achieve than a consensus on redistributive issues. A more apt characterization might
instead be that the consensus on basic liberties is achievable precisely because there is an
understanding that it will it is politically distinct from, and not ultimately guaranteed to lead to,
socioeconomic redistribution.
The Long Civil Rights historians emphasis on the Cold Wars contemporaneous chilling
effect on the left and the political aims of African American civil rights gives credibility to this
critique. Throughout the course of the Long Civil Rights Movement, one of the most devastating
charges leveled against African-American activists was affiliation with Communism, and a public
emphasis on economic justice or labor rights served to mark the speaker as insufficiently
committed to the political convictions and stability of the polity. As King complained to a labor
union in 1959, It is a dark day indeed when men cannot work to implement brotherhood without
being labeled communist.83
From the vantage point of economic justice, the concern of Michael Sandel and others to
defend Kings use of the comprehensive doctrine of prophetic Christianity in his exercise of public
reason appears to miss the irony in their project. In insisting against Rawls (at least in his earliest
essay on public reason) on the necessity of Kings religious rhetoric to make a sufficiently
consensus-building case for racial justice, they do not entertain the possibility that one of the
purposes his religious rhetoric might plausibly have served is to demonstrate for other citizens a
sufficient commitment to the stability (and wide public reasons) of the polity, by signaling non-
Communism and an otherwise suitably tempered commitment to economic justice. When Rawls
mentions off hand how his ideals might discipline public discourse, he perhaps inadvertently
gestures toward these sorts of deep constraints on that are obscured in his theory in part by his
invocation of a romantic narrative of Martin Luther King, Jr. and the civil rights movement.
If my reading is at all persuasive, then it should show that founding critical race theory on a
hermeneutics of suspicion that reads marginalia as silence and does not excavate the relationship
between exemplarity and abstraction obscures a great deal of what might be illuminated by reading
race and the difference it makes. The stratagem of reading Rawls as if he is manifestly unmoved
by racial justice faces too many interpretive, explanatory, and biographical hurdles. If part of Mills
emphasis on social contract theory is pragmatic to engage political philosophers in a debate about
race within the hegemonic frameworks of the discipline, this sort of interpretive approach, unduly
reliant on expansive claims for silence, is likely to engender more quiet resentment than vigorous

83 King, All Labor Has Dignity p. 22

 30
conversation. The intensive unpacking of the black presence in the margins of Rawls allows us to
reformulate the hermeneutics of suspicion to ask not why Rawls is silent as such, with the guilt of
omission arrayed against him, but more sympathetically something like the following: Why, if John
Rawls was involved in activism on behalf of blacks treated unfairly by the structure of exemptions
in the draft in Vietnam,84 referred extensively to civil rights direct action in his lectures and
seminars, challenged his colleagues defense of the Moynihan Report in correspondence85, used the
term Black when most whites still used Negro, and read relatively widely in black protest
literature (including not just Martin Luther King and Bayard Rustin, but also Frantz Fanon and
Eldridge Cleaver), does he treat racial justice the way he does?

84 Rawls was quite active in anti-war and anti-draft protest efforts during the Vietnam War, specifically

targeting the injustice of the 2-S Resolution, which allowed draft exemptions for college students making
sufficient marks, a population that was overwhelmingly white and high-income. He drafted a resolution for
the Harvard faculty to publicly condemn this provision of the draft, but lost the motion after being first
procedurally thwarted by the historian Oscar Handlin. Included in Rawls original resolution, laying out the
case for the injustice of the draft, was Section 5, titled, Concerning Sociological Inequities. Here, Rawls
argues the following: It happens that if we take all black people, that the chance of a black man entering the
army is the same as that of a white man. (Or lets suppose.) Does it follow that the draft does not fall
disproportionately on the poor and less well educated? No since the relevant class is that of those who pass
the tests of capacity for military service. The chances should be equal over this class (cet. par.). To see this, we
could imagine a society in which every black man is drafted while only one of ten white men is. But since for
reasons of poverty, etc., only one in ten blacks pass the test, while for reasons of affluence every white man
passes, the risks over the whole society would be equal. Yet we would not suppose this scheme just. Two
injustices one in the draft and another in background sociological conditions combine to give a superficial
equality. It is clear that this equality is the upshot of a double injustice: the one keeping black people below
the line of passing the tests, the other taking a larger proportion of those who manage to struggle above it
(than of whites). Questions Re the 2-S Resolution (suggestions only) [1966] P. 2 Rawls Archives, Box 24
Folder 2
85 To Edward Banfield, who cited with approval the Moynihan Reports suggestion that lowering the
educational and testing standards for military service in Vietnam in order to increase the number of blacks
and, therefore, resolve the problem of racial inequality in unemployment, Rawls replied to this line of
argument in a draft version of his A Proposal for a Military Recruitment Policy [1966], arguing: We
appreciate the desire on the part of many to use conscription as an agency of social justice. Given the glaring
inequities of our society and the sluggishness of the movement for change, it is tempting to use the military
for social ends. It may offer to some a mode of life without racial discrimination; to otheers [sic.] it may offer
an opportunity to acquire valuable skills. It is possible that there are many desirable side-effects. But we do
not attempt to weight these against the many undesirable consequences. We feel that these considerations
are irrelevant in view of the kind of justification required for compulsory service. Moreover, to maintain that
these injustices are so great and the other institutions of our polity are in such a state of disarray that we
must call upon the military to remedy our condition is tantamount to a confession of a social disorder so
profound that were we to accept this confession as true, we should have to raise the question whether such a
society has the right to conscript its citizens at all. (8-9) In another anti-war document, prepared for a
question and answer session, Rawls writes: it is simply ludicrous to suppose that it is in the national
interest, in any material sense, that students in philosophy (as well as other subjects) should be deferred
while the poor and the black are compelled to suffer the burden of the war. And while conceivably economic
and technocratic values might justify some deferments for highly qualified scientists + engineers, we believe
that the wealthiest country in the world might well be urged to put first its professed devotion to the
principles democracy + equality. (Re: 2-S + Rank List: Draft) p. 3, front side

 31
This is certainly speculative, but I imagine Rawls reluctance to explicitly discuss race or
refer to contemporary instances of discord over the question of racial justice was that his text is
written so as to produce a semblance of the experiential dimension of his visual metaphor of
blindness in the original position. For Rawls in particular, the refusal to invoke race or racial
incidents may be more profitably understood as his attempt, perhaps in the end misguided, to
remove his audience in the early 1970s from the cacophony of battle and all the contingencies of
history that often dominate immediate perceptions. It could be argued that Rawls ultimately
wanted to place his reader in an imaginative original position where questions of racial inequality
became less about the idiosyncracies of particular protests or protest leaders, and more about the
question: would you agree to this social arrangement if you were in their place? Now, there are
legitimate questions that may be raised about such an approach, but I think it is misleading to treat
it as ignoring problems of racial injustice and struggles to ameliorate it as such.
Critical race theory is ultimately on more promising ground if it eschews such binary
formulations as idealization/reality and interrogates critically what sorts of notions of reality and
history authorize and render persuasive (to specific audiences) particular models and modes of
abstraction. My contention is that this reading practice reveals that the problem of African-
American presence in contemporary political theory is not well captured by concepts like absence
or silence and instead opens up a far more challenging question: how does the historical
imagination of something like the civil rights movement, with all of the questions of narrative and
judgment that accepting the place of imagination in historical judgment entails, exert ethical,
political, and aesthetic force both on the (partially prestructured) attention of political theorists
and in (although perhaps overflowing) their arguments.86

86 Menke, The Force of Aesthetics