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Excerpted From: Justin Desautels-Stein, Race as a Legal Concept, 2 Columbia Journal of Race and Law 1 (2012) (321 Footnotes) (Full Document)

Justin Desautels SteinIn the eighteenth and nineteenth centuries, a biological construction of race was created as a way of justifying the oppression of non-Europeans. Not only was the notion of the “human races” a lie, it was an imperialist fiction intended to rationalize a system of domination and subordination. American courts have failed to account for the deeply transformed connections between biology and imperialism, despite the fact that these connections have been well-developed in the social sciences and critical race theory. Since its birth, our legal system has constructed race through the use of biology use informed by what David Hollinger calls the “ethno-racial pentagon.” According to this very old and completely fabricated view, there are five primordial human races, and a person's belonging to one of these races is natural and unavoidable. Race is ancestry, blood, and genes.

There are two ideas here, and they are linked.

The first idea is political: the very notion of a biological thing called “race” was initially developed as a way for some people to justify the subordination of other people.

The second idea is legal: this new invention was imported into the American legal system as a “background rule,” meaning that the very idea of race as a legal concept was constituted by a view of human biology. Taken together, we can understand the confluence of these two ideas as resulting in a legal concept that functioned to assist in the sustained oppression of the newly minted, disfavored races. This is a classic liberal style of framing race as a legal concept.

In traditional accounts of our racial jurisprudence, the blatant racism of the eighteenth and nineteenth centuries gradually gave way to a more enlightened view of race--a view of race that was to triumph after World War II, Brown v. Board of Education, and the civil rights movement in the United States. A pivotal shift involved an insight about biology, namely, that it was immoral to make judgments any longer about the worth of a person on the basis of his or her race. Where in classic liberalism it was desirable to arrange social relationships on the basis of biological categories (e.g. slavery, “separate but equal”), the new view was ““colorblind.” As Justice Harlan famously argued in his dissenting opinion in Plessy v. Ferguson, “Our constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.” The colorblind approach to racial justice was therefore initially situated as a progressive attack on the old racism, denouncing any efforts to deduce a person's value from their race. Colorblindness did not, as a consequence, eliminate the old background rules of race; racial identity continued to be seen as natural, objective, and rooted in human biology. Rather, it reduced the importance and altered the nature of the background rules. In other words, while at one time a legal dispute could be resolved merely by identifying a person with a particular racial identity (i.e. if you are negro, you can be enslaved; if you are white, you can attend a certain school), in this later period the background rules of race as a legal concept were retained but hollowed out (i.e. if you are negro, we cannot make any deductive judgments about your place in the social order simply on the basis of your race). This is a modern liberal style of framing race as a legal concept.

Race law in the United States bore witness to a third phase, during which we are apparently now living. Once again, civil rights law would retain the background rules of race, first articulated as a justification for systemic subordination. Like in the enlightened phase of modern liberalism, this third phase also adopted a colorblind approach to the background rules. Thus, the true nature of racial identity continued to be understood as a natural and objective matter of human biology, but now a biology free of any discernable political content.

What distinguished this phase from its predecessor was its approach to what can be termed the “foreground rules” of race. Foreground rules are those rules believed to be responsive to a pre-existing activity; they regulate, manage, and control. The suite of civil rights statutes that developed in the second half of the twentieth century is a good example of the kind of foregrounded regulation embraced in modern liberalism. In contrast, this current phase is notoriously hostile to the use of foreground rules, claiming that racial dynamics in the United States have progressed to the point where much of equal protection jurisprudence is actually fostering racial discrimination instead of remedying it. It is in this sense that this most recent phase is post-racial. This also indicates a shift in what it means to be in favor of colorblindness: while it used to be a tactic to be deployed in favor of a disadvantaged group, any use of racial classifications is now to be seen as a threat to the background rules of race. Because the legal conception of race continues to be constructed out of an idea about human biology, the post-racial view of colorblindness makes the claim that because race is a natural, pre-political sphere of human identity, it is wrong for the state to make regulations on the basis of racial identity. At the same time, courts have not wished to appear oblivious to debates over identity politics and group difference, and what emerged was an allowable recognition of “difference” when the word “culture” or “ethnicity” replaced “race.” Thus, where “racial balance” is understood today by the Supreme Court as a very dangerous concept, “cultural diversity” is one of the only meaningful interests the Court has stamped with its imprimatur in the context of affirmative action cases (along with remedying past intentional discrimination). This is a neoliberal style of framing race as a legal concept.

The legal conception of race that emerged in the context of American slavery, the legal conception of race that developed in the early twentieth century as a reaction against the classic racism of Jim Crow, and the legal conception of race that has taken shape in the debates over post-racialism and cultural diversity at the turn of the twenty-first century, all share a commitment to a view of race as an aspect of human biology. Consequently, all three legal conceptions--the classic, modern, and neoliberal--have a constitutive background rule in common. All three legal conceptions are buoyed by an attachment to a biological concept of race--a concept that may be seen as one of modern science's very first weapons of mass destruction.

The aim of the Article is to offer some practical suggestions for how to move civil rights law away from the biological foundations upon which the Court's post-racialism and cultural pluralism depend, and it uses Parents Involved in Community Schools v. Seattle School District No. 1 as an illustration--a case that the late Derrick Bell has described as “the latest, and perhaps most devastating, obstacle in the two-century struggle of African Americans to obtain effective public schooling for their children.” Of course, there is good reason to be pessimistic about the likelihood of such a shift away from the background rules of biological identity upon which the legal conception of race has for so long been defined. How can it be imagined that the Court is ready to make such an ideological about-face? Perhaps even worse, is it even practical to imagine race as a legal concept that isn't biologically founded? How could standing for racial discrimination claims work, for example, if a court was prohibited from making assumptions about the viability of “Blackness”? If race were no longer conceived in terms of ancestry, how would the court know when a claimant had been discriminated against on the basis of his or her race, which wasn't actually a matter of their genes after all? As Donna Young has put it: “[T]he U.S. model [of anti-discrimination law] has been built upon a foundation that on the one hand requires racial categories in order to determine citizenship rights ... but on the other, cannot define these categories without resorting to methods that reinforce racial hierarchy.”

To be sure, these are tough questions, and instead of trying to answer them, the strategy here is to reject them. After all, each of these questions is premised on a very common but very wrong assumption about the pre-legal nature of racial identity. As this Article argues, race is, at best, “relatively autonomous” from law, and in no way should race be seen as existing independently of law. This view of the constitutive relation between race and law is alien to liberalism, including the neoliberal style of race jurisprudence. From the neoliberal point of view, human races, like economic markets, are pre-legal and have the best chance of flourishing when free of regulation altogether. As Chief Justice Roberts stated in Parents Involved, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” It is in this light that foreground rules--the rules that wrought the shift from classic liberalism to modern liberalism-- actually become discriminatory.

The strategy of this Article is to reject this perspective on the relationship between law and race--a perspective that holds that law is merely a means for regulating a pre-legal entity--and assert that race is itself a legal concept. On this view, law does not only regulate race; it constitutes race.

Looking to race as a legal concept highlights how the traditional view cloaks notions of race in a naturalized and objectified set of assumptions about the limits of legal reform. After all, if race were a natural thing, then one would naturally assume that certain decisions about the legal treatment of race would be more or less consistent with the natural parameters of racial identity. However, if we let go of the notion that there is anything “natural” about racial identity at all, jurists are empowered with a great deal of discretion to use the tools of legal discourse--the plurality of legal reasoning--in whatever way they like. Once we are forced to confront the legality of those spaces previously thought natural and neutral, we also receive, as Duncan Kennedy has explained, the “taking back of alienated powers that can be used [in service of] ... equality, community, and wild risky play. But they are powers whose ethical exercise starts from accepting the existential dilemmas of undecidability that legal discourse has ... staunchly denied.” As all lawyers know, we are often handed a conclusion and assigned the task of marshaling the best argument on behalf of that conclusion. Indeed, the conclusions hardly matter: it is a matter of course to find ourselves on opposite sides of a question, and a clear indication of a successful lawyer is that she can, at will, provide dazzling arguments both in favor of and against a given legal conclusion (that is not clearly subject to precedent or rule). Consequently, once attention is drawn to race as a legal concept (a set of legal arguments), and away from a racial concept that is naturalized and objectified (a set of conclusions), it becomes rather natural to analyze that concept in a fashion that is at once subversive and also consistent with the richest of traditions in American legal thought.

In the early decades of the twentieth century, a great number of private law concepts transitioned away from objective, formal, natural foundations and towards an emerging realism and sociological jurisprudence. Whatever we ultimately think of the outcome of this period in our jurisprudence, a ““functionalist” perspective on legal concepts became commonplace. It is in this light that this Article argues for a similar rethinking of race as a legal concept--a concept that might substantially benefit from a deliverance from its biological beginnings and an encounter with early twentieth-century realist jurisprudence.

In order to focus on race as a legal concept in the way that I am suggesting, and distance our jurisprudence from a notion of race as a natural and immutable quality of human identity, there are several analogues in the private law with which to work. In the present discussion, I have chosen the field of Conflict of Laws. Conflicts is a good candidate because it experienced precisely the type of transition that I am suggesting here for race. At the hands of legal realists like Walter Wheeler Cook, Conflict of Laws went through the intellectual grinder, ripped out of its formalistic foundations and pushed through a newly minted functionalist jurisprudence--a jurisprudence which taught judges to ask what social needs and governmental interests would be served when deciding to allocate jurisdictional authority to one location or another.

In the effort to make practical suggestions for affecting a de-naturalized race jurisprudence, this Article pushes on Conflict of Laws in two ways: (1) by analogizing race to Conflict of Laws, and (2) by analyzing race as literally a problem of Conflict of Laws. On the one hand, this Article will reimagine the Supreme Court's decision in Parents Involved in light of early twentieth-century functionalism. Race will be analyzed as a legal concept that has been the object of a long-standing social purpose, the legitimation of the subordination of certain groups of human beings at the expense of other groups. Instead of serving that purpose, a progressive functionalism might interpret race as a legal concept that might undermine rather than entrench that subordination. In making this argument, the discussion establishes Conflict of Laws as a useful analogy for understanding how a term like “jurisdiction” transitioned out of a naturalized jurisprudence and into a functionalist one. On the other hand, this Article will also give Parents Involved a very preliminary treatment as a Conflict of Laws problem, in a literal as opposed to an analogical sense. This will involve thinking about the dispute in the case as a dispute between cultural communities, and a conflict of various legal regimes--local government law, property law, tort law, and more. The purpose of the analysis is not, however, to argue that Parents Involved is best understood as a private law dispute rather than one sounding in public law. It is instead to highlight the creative possibilities for an effective anti-subordination jurisprudence in a context where the Court is not shackled by a presumption about which kinds of social needs, like diversity, are the trumps.

So there's the argument. Here's the roadmap.

Part II introduces Charles Mills' theory of the Racial Contract. The Racial Contract is a useful intellectual construct for anchoring the important fact that human civilization since the beginnings of classic liberal political philosophy has been racially structured.

Part III provides an abridged intellectual history of race science. The reason for having this history in mind is this: if the Racial Contract exposes a structure of racial domination, an acquaintance with race science instructs us to understand the scientific creation of race as an attempt to satisfy a dire social need, namely, the need to understand (in the context of an emerging Enlightenment) why it was acceptable for certain groups of people to oppress other groups of people. The invention of the idea of race helped answer this question, since it was increasingly (and wrongly) apparent that some peoples were objectively and scientifically superior to other peoples. This could be determined by methodological examination of the new “human races.”

Part IV shifts from race as a biological concept to race as a legal concept, and brings focus to how courts adopted the scientific development of ““race” as a background rule for race as a legal concept. The discussion shows how in classic liberalism, modern liberalism, and neoliberalism, courts have always retained a biologically anchored background rule for structuring race as a legal concept.

Part V begins the crucial work of trying to think of race as a legal concept that is not constituted by a biological background rule. It does so by introducing Conflict of Laws as a vehicle for re-thinking Parents Involved in a way that takes seriously the Racial Contract and its pseudo-scientific rationales. The decision is approached from two angles, and in the first Conflicts is used analogically through a recollection of the legal realist critique of Joseph Beale in the early twentieth century. In this first rethink, Parents Involved is pushed through the sort of progressive functionalism that at the time dominated conflicts and so many other fields of private law. In the second rethink, instead of using Conflicts as an analogy, the dispute in Parents Involved is situated literally as a problem of Conflict of Laws.

[. . .]

Thinking about race in the style of Conflict of Laws is a helpful way of reiterating the dual-purpose of this Article, which is to (1) emphasize the legal character of racial identity, and (2) launch an emancipatory manipulation of civil rights law that only becomes available after we have confronted the full meaning of race as a legal concept. To sum up, I will restate both the nature of this sort of emancipation, as well as its connection to the legal conception of race.

The first thing, when contemplating the prerequisites of an effective anti-racist strategy situated in a neoliberal/neoracist situation, is a recognition that race is itself a dirty word. It was invented as a way of rationalizing a Racial Contract that set the terms of domination and exploitation between various populations. In particular, it was invented in the language of objectivity and naturalness--an arena of science in which the creation of human races could justify the exploitation of human beings. In order for racism to happen, humans had to be raced.

Second, jurists in the United States then created race as a legal concept in light of race as a biological concept. This understanding of race was pivotal not only in the elaboration of slave law and segregation, but in the post-Brown era of civil rights law as well. Though the biological foundations of race are now understood to be illusory, it nevertheless continues as a background rule for contemporary anti-discrimination law, including recent cases like Parents Involved.

Third, Parents Involved indicates a neoliberal trajectory in civil rights law that is both bizarre and disturbing. A neoliberal conception of race is weird because it at once borrows the whitewashed biology of modern liberalism (it accepts as a background rule that race is biological, but forbids any assumptions about human value to be drawn out of biology), but also rejects the modern affiliation with foreground rules (i.e. anti-discrimination law). The neoliberal conception is disturbing because it fails to inhabit the neoracist world--our actual world--and instead aspires to a colorblind world, a fantasyland in which human beings are naturally raced and in which the role of law should be to leave races, like markets, free to regulate themselves.

If an anti-racist jurist is to effectively grapple with a post-racial, neoliberal concept of race, she will have to be crafty. She will have to fight racism without a biological concept of race, which means thinking about how to characterize claims that are cognizable even when the plaintiff's identity is understood as socially constructed and not naturally immutable. She will have to fight racism without collapsing race into culture in such a way that her efforts avoid being sucked into a whirlpool of competing cultural pluralisms that are totally blind to the Racial Contract. She will have to fight racism without making the mistake of thinking that while the social reality of race and culture is real enough, that these realities will give her a handle on being able to prove before a judge what a given culture actually is and what it actually desires. In sum, she has to cancel the terms of the Racial Contract through the use of a concept of race that isn't actually there (i.e., biology), or through a concept of race that really is there (sociology), but is admittedly so fragmented and shifting (cultural anthropology) that the only way to talk about it is in constructive (legal) terms.

So just what is emancipatory about any of this? The basic claim of the Article, and the claim of so much critical legal theory over the past several decades, is that law is constitutive of society, even while society simultaneously constitutes law. What that means here is that racial identity is composed of legal rules, and that those rules have deeply political stakes. The upshot is that the legal structure that generates the idea of race is not a matter of biology--it is a matter of law--and that the legal structure is not neutral or natural--it is a matter of contingency and history. Thus, when we confront the full meaning of race as a legal concept, we encounter a critical relation between the legal and the political.

The encounter can and should be deeply empowering. Race is not a naturally occurring force in the world over which we have no control, but is instead a constellation of legal rules over which we have total control. Further, these rules are the crystallization of particular political desires that wax and wane over time. Consequently, when we think about race as a legal concept--a legal concept that retains and rejects certain elements as various political agents emerge and recede--race emerges as a de-reified legal argument. If race can be de-reified and seen as a kind of argument, instead of seen as a thing, one has attained a tremendous amount of power over the concept of race. This seems like a good thing, so long as it is either we that have received the power, or those with which we agree.

Associate Professor, University of Colorado Law School.

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