Defining Race through Law: Enforcing the Social Norms of Power and Privilege

Article excerpt

The problem of racial subordination and inequality is one that has saturated the national identity of the United States. (2) It is a problem that has resulted in a body of American jurisprudence that has not only fostered a racist status quo but has also acted as an influential anti-discrimination model around the world. This result is not surprising. The United States is one of the most racially diverse countries in the world, and the historical significance that racial classifications have played in U.S. social hierarchy has given American lawmakers centuries of experience regulating the interaction between races and ethnicities in ways influencing all areas of law and society. Other countries have much to learn from the centuries-long struggles played out in United States Constitutional interpretation and legislative initiatives. The Constitution of the United States often acts as the starting point for constitutional drafting in other countries. Yet some of the most successful anti-discrimination principles found in constitutional models outside the United States owe their effectiveness not to the ways in which they have emulated U.S. constitutionalism, but in the ways that they have departed from it. (3) There are many reasons for the departure, but one of the most important may be that the U.S. model has been built upon a foundation that on the one hand requires racial categories in order to determine citizenship rights, the right to vote and to participate in juries, for example, but on the other, cannot define these categories without resorting to methods that reinforce racial hierarchy. Consequently it has failed to provide a progressive and workable vision of race. If one focuses on the area of employment discrimination law, for example, one sees that race discrimination cases often require judges to judicially notice, and sometimes to determine the race of the complainant (and often the defendant) in order to decide whether a claim validly asserts racial discrimination. (4) Nonetheless, it is virtually impossible to use the law to define membership in a racial group in a way that has much meaning. This is not merely because the legal arena is not particularly well suited to this task, but also because the concept of race, so central to American identity, is paradoxically not amenable to definition. Yet the law itself requires such definition, which has resulted in a legal system designed to grant access to anti-discrimination protections and constitutional rights but has too often denied such access based on judicially defined racial group membership. As a consequence, we are left with a patchwork of often incoherent, inconsistent, degrading, and superficial classifications that have been developed in order to ascertain racial group membership so as to assign advantages and disadvantages that go along with such membership. (5) Race then becomes the tool to organize the distribution of power and resources and to define legal status.

While pondering the treatment of racial classifications through law, it is important to think about why it was thought to be necessary to define race through law in the first place. The answer provides us with a partial explanation as to why the American approach to race and race discrimination is fraught. Though there have been persistent attempts to scientifically classify people into races, the motivation for doing so is suspect. (6) Nonetheless, American courts and law makers have looked to science to inform legal definitions of race. However, because race is virtually impossible to define with any scientific certainty or social consensus, the way in which the courts have relied on racial classifications is inherently problematic. (7) Whatever the explanation, it is clear that in the United States, racial classifications were in some measure of great importance to the founding of the nation and to the identity of the American people. Insinuating themselves (8) between the lines and in the margins of the American Constitutions were conceptions of race and social, economic and political worth. …