Kagan’s Handwritten Notes to Bell on Critical Race Theory

Joel B. Pollak, Breitbart, April 25, 2012

Breitbart News has discovered previously unknown handwritten notes from Elena Kagan to radical professor Derrick Bell, sent to Bell as Kagan worked on his seminal 1985 article on Critical Race Theory in the Harvard Law Review (99 Harv. L. Rev. 4).

The notes, which were not among materials presented to the Senate during Justice Kagan’s confirmation hearings, are preserved among Bell’s papers at the New York University archives.

Kagan’s work on Bell’s article was revealed in 2010 by Harvard Law School professor Charles Ogletree, after President Barack Obama nominated her to the Supreme Court. Ogletree cited her “phenomenal edits” on Bell’s “classic” article.

Bell’s article, “The Civil Rights Chronicles,” combined exposition and fiction to argue that the Constitution was—and remains—tainted by white supremacy, and that the United States awaited “a common crisis that will overcome racism” through radical constitutional reform.


Most of Kagan’s notes to Bell concern minor editorial comments on the “Chronicles,” as she and the other editors prepared his article for publication. One interesting passage concerns a legal question that Kagan and Steiker posed about Bell’s attempt to argue for a new constitutional right—a “substantive due process right” to “racial healing”:

As Carol and I told you on the phone, we’re a little bit concerned at the focus on this part of the piece. The doctrinal section centers on the idea of creating a substantive due process right to racial healing. But the reader is left wondering: why wouldn’t the Court strike these laws down on first amendment grounds? It strikes me that the Court would indeed strike these laws down on the ground of free speech or free association.

The section of the article to which Kagan was referring was entitled “The Chronicle of the Slave Scrolls.” In it, the main character, Geneva Crenshaw (who would recur in many of Bell’s writings) tells a fable about finding parchment scrolls on the west coast of Africa inside a model of a slave ship.

The scrolls “simply taught the readily available but seldom read history of slavery in America” as related by those who had lived through it. Crenshaw relates that the discovery of the scrolls inspired black Americans to meet in “healing groups” that inspired them to compete more fiercely for achievement and respect—until a “television minister” warned that the scrolls were inciting racial hatred by teaching about old evils. States then passed “Racial Toleration Laws” that prohibited any teaching about the history of racial conflict, and blacks eventually acquiesced.

The lesson, Crenshaw says, is that “[t]he Constitution protects the efforts of black people only when those efforts leave vested interests undistured [sic].”

Bell, through the narrator, provides the solution in the form of “a substantive due process right that barred government interference with the racial healing sessions,” based on the same right to privacy recognized in Roe v. Wade as part of a “penumbra” of constitutional protections. Bell’s narrator says a right to “racial healing” would give special protection to the idea that “the racism of whites rather than the deficiencies of blacks causes our lowly position in this society.”

Crenshaw—perhaps echoing Kagan’s note—is skeptical that the Court would grant such a right. Bell’s answer is “skillful lawyering” and “a more liberal Court”; Crenshaw later replies that only a “common crisis” will bring the needed change.



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  • Berkeley Redneck

    Bell’s narrator says a right to “racial healing” would give special protection to the idea that “the racism of whites rather than the deficiencies of blacks causes our lowly position in this society.” 

    I think of this as cargo cult legal thinking. Want housing for everyone? Amend the Constitution to make housing a right! Want to blame whites for the problems of blacks? Pass a law assigning blame to whites! 

    • Rocky Bass

       To read their rewritten narrative, you would think that in spite of whites, Africans and Mexicans were able to build the greatest nation on earth!

      • Oil Can Harry

        Since Bell and Kagan believed the Constitution was “tainted by white supremacy” they should have moved to Haiti or Sub-Saharan Africa so they could be free of this awful, racist Constitution.

        •  Ruth Buzzi Ginsburg was caught with her hands in the treason jar recently — She told “Egyptians” looking to frame a new constitution after the Shari’ah Spring that they should model theirs more after South Africa’s than the one she is sworn to defend and charged to interpret.

          Though I doubt the “New” Egypt will have a written constitution, just the Koran and the collective whims of a small group of fundamentalist Imams.

          •  Israel should model their Constitution after South Africa’s, and Ginsburg should clean up her own back yard.  That would give YKW something to do until the end of time, and keep them out of everyone else’s business.

        •  I think Israel is tainted by Jewish supremacy.  Kagan should clean up her own back yard.  Good advice for YKW in general.

    • diversity_is_a_hate_crime

      When the racial healing for Eve Carson, Channon Christian, Ann Pressley, Emily Haddock, Lauren Burke, Carissa Horton, Julie Love, Beverly Melton, Sandra Rogers, Ashley King, and Brittny Watts?

      Were they unburdened of their racist White privilege by Diversity enrichment to promote racial healing?

      How many have been unburdened since the end of Jim Crow?

      “As bad as lynching was, Diversity is worse.”

      -Rev. Jed DeValleyism, “Remembering when everything was better, much better,” 1999

  • Creating vast and far-reaching Constitutional precedent based on some nonsensical work of fiction?

    These libs are even more insane than I thought.

    This makes Arlen Specter’s “Scottish common law” mentality look rational by comparison.

  • frmore

    What unmitigated nonsense. It’s so simpleminded, it’s embarrassing. “The racism of whites rather than the deficiencies of blacks causes our lowly position in this society”? What about negro societies where whites are absent? Blacks are in even worse shape without the benefit of glomming onto the white largesse. It’s tiresome putting up with this endless idiocy. 

    • Major

      “b>“What about black societies where whites are absent?”

      OOps…can’t talk about places like Haiti, SA, Rhodesia, Somalia, Liberia, Zimbabwe, Nigeria, Kenya….or any other wonderful examples of black successes in building those great empires…that if it wasn’t for mud or wild game…..they’d all be gone by now….OH…and ebola, AIDS and swine flu….some of the more well known contributions of Africans to our world.

      I’ve read where some black “leaders” are begging for the old…”racis” colonialists to please take them back. Please govern them…as they realize that they are…and always will be ungovernable by themselves.

  • Oil Can Harry

    Correct. The buffoon Bell wrote a fictional story about white pols passing laws banning blacks from meeting for history discussions. In reality, these “laws” would be overturned by practically every judge in the US on First Amendment grounds.

    Bell then argues that we need a Constitutional amendment granting special rights to blacks to protect them from the fictional laws he dreamed up!

    Then again, look at the bright side: Bell’s disciples- I think their names were Kagan and Obama- seem to have faded into obscurity. Thank heaven they’re not around anymore and don’t hold any positions of power right now…

    •  white pols passing laws banning blacks from meeting for history discussions

      History discussions?  Is that what those are?  Funny, I never knew you needed dice and large denomination currency to have a history discussion.

      • Oil Can Harry

        You may not have noticed, but when the sistas finished their pole dances and then gave  lap dances to the brothas who were seated, they were having a heated debate about whether the Treaty of Frankfurt ending the Franco-Prussian War was overly harsh.  

        •  My racism caused me not to notice.

          It’s not as if I would ever go to the kinds of places where “sistahs” give lap dances to “brothas.”  For one, I like living, and for another, I would no more go there than to the lesbian bondage bar where Michael Steele let black subordinates used RNC credit cards, because I know that if I see it, I could never unsee it.

    • JewOnAmren

       Replying again here… I just realized, Bell’s ranting reminds me of the fact that I often see homeless blacks scribbling “thoughts” in notebooks.  It goes on and on, probably the same incoherent fantasies viewed as realities.  I bet if you took one of these homeless blacks’ notebooks and gave it to some competent liberal white editors and let them go at it for a month you could turn it into a Harvard Law paper.

  • SarahConnor

    I just wish that Al “I’m a race baiter” Sharpton would stand up and suggest that all AA’s go back to Africa and that he would be the one to lead them!!!! If the Black race has had it so bad since leaving the homeland, call them home–like the Jews– send them back to their “homeland.” 

    I can’t understand how ANY White person could read this “theory” and not have their blood boil!

  • divideandrule

    Kagan.  Now, that’s a non-gentile name, is it not.  Prof Kevin McDonald’s Culture of Critique springs to mind.

  •  I also don’t understand why these geniuses keep talking about substantive due process in relation to all of this.  Virtually all application of substantive due process the Federal judiciary uses to strike down laws is because the laws are vague and capricious.

    Also they keep bringing up aborticide and substantive due process.  Aborticide was “legalized” as a curious interpretation of the 4th Amendment, substantive due process grew out of the 5th Amendment.

  • Hunter Morrow

    “Racial healing” is more rigged laws for blacks. More gibs muh dat for blacks. More reparations.


    The only thing blacks should get is a whipping for their collective crimes, a bill for their multi-trillion dollar thievery from “Great” Society programs and a boat trip to the motherland.

    Racial healing? A beating, a bill and a boat ride are the only things blacks are entitled to.

  • What would it take to urge Blacks to leave America since they were forced here against their will and they keep telling us how they hate it here.  What would it take?  If they were brought here against their will, can they be returned against their will?

  • The worse times get, the better and more quickly whites will wake up en masse.  If an economic collapse/mass inflation cuts off the government teat to the entitlement culture, there will be chaos.

  • robinbishop34

    I’ve noticed this also.  When these black “intellectuals” have to speak
    without a script, they ramble just like all other blacks do, using long
    words based on how they sound without understanding the meaning.

    This reminds me of “professor” Cornell West. He just repeats the words oligarchy and plutocrat while the idiots he surrounds himself with furrow their brows and nod in agreement.

    • Beloved Comrade

      Obama too.  You don’t think he’s reading his own “brilliant” words fed into his teleprompter do you?  Off the cuff he is a bumbling, stumbling fool who trips over his own words and embarrasses himself before one of the real people in charge gets out the hook.

    • Major

      “This reminds me of “professor” Cornell West…”

      You beat me too it…but that motor mouth speed talking , jive hustler “professor” from that bastion of Commie-dom, Columbia… Mark….( what’s his name )  that O’Reilly has on Fox from time to time….really takes the cake.

  • haroldcrews

    Let us not forget Alex Haley’s plagiarism from Harold Courlander.

  • Beloved Comrade

    The First Amendment provides absolute protection for any discussion which isn’t advocating violent overthrow of the government.
    For the moment.  

    This is why Bell advocates  “a more liberal Court” to get around the parameters of the First Amendment, meaning passage of strict Hate Speech Laws as Canada and Britain have done.  Anyone questioning Bell’s notion that “the racism of whites rather than the deficiencies of blacks causes our lowly position in this society”  will be subjected to harsh judicial action such as long jail terms and punitive fines if these people get their way, which they will with another 4 years of Zerobama.

    People like Bell and Kagan are deadly serious and the above piece should not be taken as comedy but as a manifest of their goal which is to scrap the Constitution and impose a strong arm government.

    One more SCOTUS appointee is all it will take.

  • Beloved Comrade

    I agree that Bell is a raving hysterical black.  But he has the president’s ear and from the looks of it one if not more on SCOTUS admires him.  We are one Supreme Court judge away from 5-4 decisions favoring more Affirmative Action, more rights for illegal aliens, passage of Hate Speech Laws and/or other anti-white, globalist-agenda mandates.  

    They’ll be able to impose any  made up “laws” they wish including overturning or changing the 22nd Amendment or allowing a black or Hispanic vote to count double to that of a white.

    Again, these people are deadly serious in their goal to shred the Constitution and impose a Communist-style state, and they are making inroads with such things as federally-sanctioned Hate Crimes enhancements which legally favors some groups over others, i.e anyone but straight whites, tossing out any notion of equality under the law.

    These ranting may appear to be the ranting of a lunatic but I would not take them lightly.  These jerks have a lot of political power and won’t hesitate to use it.

    The British never thought it could happen to them, but they now live under a police state which has disarmed them and curtailed their right to free speech without a knock on the door in the middle of the night, or knock on the head. Hell, they can’t even fly their own flag any longer or express pride in being British because it may “offend” one of the new muslim colonists that are replacing them.

  • Kagan is a SOCIALIST RACIST bent on destroying Whites
    She WILL succeed

    Because HER racism

  • Beloved Comrade

    Sorry. I was thinking of “Skip” Gates, not dead as a nail (dumb)Bell. Both are racists. Both look alike and think alike. Both are unintelligent and prone to rambling on and on about white racists. And Zerobama worships both, so in my mind they and every other “professor” who thinks like them are one and the same.

  • Church_of_Jed

    “You’ve heard about anti-racism, anti-colonialism, anti-imperialism, and Critical Race Theory. They are all the same thing, which is simply the codification of, ‘If it’s good for the blacks, it’s good; if it’s good for the blacks and hurts Whites, it’s better’.  We need a new theory, one that critiques and deconstructs the entire vileness and invidious evil of Integration, Civil Rights, and Affirmative Action. We need a Critical Negro Theory, or a Critical Diversity Theory.  All we need to do is describe the objective facts surrounding us, say they are an expression of durable race characteristics, and attack our detractors before they can speak. Frame the argument in terms that makes the apologists complicit in the failure of the beloved community of color to be self sufficient. Frame it such that they must explain why ‘the day after White people’ would free the blacks to reach their true potential. We can win the rhetorical battle, because nature and history are on our side.  Our enemies are intolerant of reality, and a regime of lies never lasts.”

    -Rev. Jed DeValleyism, “How Michelle Obama’s lavish vacations divest you of your burdensome White privilege,  2012

  • 2573366

    I’ve been banned from posting at Breitbart for speaking truthfuly about race. I spoke in a forthright manner without the use of foul or derogatory language. Apparantly, unlike Jefferson, at Breitbart there ARE truths to be feared.

    • Major

      Some places value their sponsors and ad income…more than they do the truth.

  • Well- they would be “Brazilified”.

  • Major

    Man o Man….I do like that plan…

    “and we could easily get some to accept blacks who come with infusions of $100k.”

    And as soon as they set foot in their new “paradise”…get whooped with a 90% entry / customs tax by “Colonel Idi” on booty size….they’d never be able to afford a return unless they could raise the Titanic!

    • Pandemonium

      A “return” would not be an option. 

      But what to do with the remaining 10million?

  • Major

    “because the infighting among the non-white hordes will begin even before the last of us are gone, if things come to that. Personally, I do not think that will happen…”

    Get real friend…”won’t happen”? Look at Chicago any weekend…these animals kill their own over a baseball cap, an empty 40 or a hubcap. Take away the welfare and gimmees….the Post office will have to have the National Guard deliver the damn mail.

  • Major

    “which isn’t advocating violent overthrow of the government…”

    If you’re white that is. But..if you’re a Farrakhan or an NBPP pimp….well…..that’s OK in Holder’s world. Or…a queer named Manning.

  • Major

    “I knew Bell was whacked but I didn’t realize how much so..”

    Watch out JOA….he could make a case in the 9th District that his mental illness was caused by White racism of 300 years. And he’d get a damn book contract on top of it…as well as Oprah selling it…and a TV show too.

    After that he could run for the Senate and join the ranks of the total black morons that stain the halls of Congress….that idiocy each time they open their retarded lips…spew idiotic manure, spittle and worship the next “Saint Skittle” or Rodney ( who peed away the $4 mill ) as their new cause celebre.

  • Major

    Remember this…

    “Obama’s designated driver on ‘road to socialism…’
    The chairman of the Communist Party USA has made his endorsement for president in 2012, and the operatives at the Obama re-election headquarters must be feeling in the pink.

  • Anyone else find it ironic that a black Harvard University professor argues that racial discrimination prevents blacks from significant achievment?

  • Pandemonium

    “Racial healing to Kaganovitch means the enslavement, then extermination of whites. ”
    I see you have made the connection; I’ve wondered who else had.

  • saxonsun

     Love to see that cartoon repeated.

  • YKW as the black’s brain.  Not a new phenomenon…

  • Hey, we need someone here to complement JOA: a Black guy, who will only criticize the Kagans.

    It’ll be symmetrical, and stuff.