The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice

The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice

Harvard Civil Rights – Civil Liberties Law Review
Volume 29 (1993)
62 pages

Ian F. Haney Lopez, John H. Boalt Professor of Law and Executive Committee Member for The Center for Social Justice
Berkeley Law School
University of California, Berkeley

Under the jurisprudence of slavery as it stood in 1806, one’s status followed the maternal line. A person born to a slave woman was a slave, and a person born to a free woman was free. In that year, three generations of enslaved women sued for freedom in Virginia on the ground that they descended from a free maternal ancestor. Yet, on the all-important issue of their descent, their faces and bodies provided the only evidence they or the owner who resisted their claims could bring before the court.

The appellees… asserted this right [to be free] as having been descended, in the maternal line, from a free Indian woman; but their genealogy was very imperfectly stated …. [T]he youngest… [had] the characteristic features, the complexion, the hair and eyes … the same with those of whites …. Hannah, [the mother] had long black hair, was of the right Indian copper colour, and was generally called an Indian by the neighbours…

Because grandmother, mother, and daughter could not prove they had a free maternal ancestor, nor could Hudgins show their descent from a female slave, the side charged with the burden of proof would lose.

Allocating that burden required the court to assign the plaintiffs a race. Under Virginia law, Blacks were presumably slaves and thus bore the burden of proving a free ancestor; Whites and Indians were presumably free and thus the burden of proving their descent fell on those alleging slave status. In order to determine whether the Wrights were Black and presumptively slaves or Indian and presumptively free, the court, in the person of Judge Tucker, devised a racial test:

Nature has stampt upon the African and his descendants two characteristic marks, besides the difference of complexion, which often remain visible long after the characteristic distinction of colour either disappears or becomes doubtful; a flat nose and woolly head of hair. The latter of these disappears the last of all; and so strong an ingredient in the African constitution is this latter character, that it predominates uniformly where the party is in equal degree descended from parents of different complexions, whether white or Indians…. So pointed is this distinction between the natives of Africa and the aborigines of America, that a man might as easily mistake the glossy, jetty clothing of an American bear for the wool of a black sheep, as the hair of an American Indian for that of an African, or the descendant of an African. Upon these distinctions as connected with our laws, the burden of proof depends.

The fate of the women rode upon the complexion of their face, the texture of their hair, and the width of their nose. Each of these characteristics served to mark their race, and their race in the end determined whether they were free or enslaved. The court decided for freedom:

[T]he witnesses concur in assigning to the hair of Hannah… the long, straight, black hair of the native aborigines of this country….

[Verdict] pronouncing the appellees absolutely free…

After unknown lives lost in slavery, Judge Tucker freed three generations of women because Hannah’s hair was long and straight.

I. Introduction: The Confounding Problem of Race

I begin this Article with Hudgins v. Wright in part to emphasize the power of race in our society.  Human fate still rides upon ancestry and appearance. The characteristics of our hair, complexion, and facial features still influence whether we are figuratively free or enslaved. Race dominates our personal lives. It manifests itself in our speech, dance, neighbors, and friends-“our very ways of talkdng, walking, eating and dreaming are ineluctably shaped by notions of race.” Race determines our economic prospects. The race-conscious market screens and selects us for manual jobs and professional careers, red-lines financing for real estate, green-lines our access to insurance, and even raises the price of that car we need to buy. Race permeates our politics. It alters electoral boundaries, shapes the disbursement of local, state, and federal funds, fuels the creation and collapse of political alliances, and twists the conduct of law enforcement. In short, race mediates every aspect of our lives.

I also begin with Hudgins v. Wright in order to emphasize the role of law in reifying racial identities. By embalming in the form of legal presumptions and evidentiary burdens the prejudices society attached to vestiges of African ancestry, Hudgins demonstrates that the law serves not only to reflect but to solidify social prejudice, making law a prime instrument in the construction and reinforcement of racial subordination. Judges and legislators, in their role as arbiters and violent creators of the social order, continue to concentrate and magnify the power of race in the field of law. Race suffuses all bodies of law, not only obvious ones like civil rights, immigration law, and federal Indian law, but also property law, contracts law, criminal law, federal courts, family law, and even “the purest of corporate law questions within the most unquestionably Anglo scholarly paradigm.” I assert that no body of law exists untainted by the powerful astringent of race in our society.

In largest part, however, I begin with Hudgins v. Wright because the case provides an empirical definition of race. Hudgins tells us one is Black if one has a single African antecedent, or if one has a “flat nose” or a “woolly head of hair.” I begin here because in the last two centuries our conception of race has not progressed much beyond the primitive view advanced by Judge Tucker.

Despite the pervasive influence of race in our lives and in U.S. law, a review of opinions and articles by judges and legal academics reveals a startling fact: few seem to know what race is and is not. Today most judges and scholars accept the common wisdom concerning race, without pausing to examine the fallacies and fictions on which ideas of race depend. In U.S. society, “a kind of ‘racial etiquette’ exists, a set of interpretive codes and racial meanings which operate in the interactions of daily life…. Race becomes ‘common sense’—a way of comprehending, explainiug and acting in the world.” This social etiquette of common ignorance is readily apparent in the legal discourse of race.

Rehnquist-Court Justices take this approach, speaking disingenuously of the peril posed by racial remediation to “a society where race is irrelevant: while nevertheless failing to offer an account of race that would bear the weight of their cynical assertions. Arguably, critical race theorists, those legal scholars whose work seems most closely bound together by their emphasis on the centrality of race, follow the same approach when they powerfully decry the permanence of racism and persuasively argue for race consciousness, yet do so without explicitly suggesting what race might be. Race may be America’s single most confounding problem, but the confounding problem of race is that few people seem to know what race is.

Adopting an interdisciplinary/dedisciplinizing approach, the first half of this essay critiques existing theories of race from venues into which legal scholars rarely venture, namely biology, sociology, and literature. The last half of this essay advances a new theory of race as a social complex of meanings we continually replicate in our daily lives. Part II of this Article considers and rejects the most widely accepted understanding of race, which I term “biological race.” By “biological race,” I mean the view of race espoused by Judge Tucker, and still popular today, that there exist natural, physical divisions among humans that are hereditary, reflected in morphology, and roughly but correctly captured by terms like Black, White, and Asian (or Negroid, Caucasoid, and Mongoloid). Under this view, one’s ancestors and epidermis ineluctably determine membership in a genetically defined racial group. The connection between human physiognomy and racial status is concrete; in Judge Tucker’s words, every individual’s race has been “stampt” by nature. Part II explains that despite the prevalent belief in biological races, overwhelming evidence proves that race is not biological. Biological races like Negroid and Caucasoid simply do not exist. Finally, Part II introduces the argument, newly popular among several scholars, that races are wholly illusory, whether as a biological or social concept. Under this thinking, if there is no natural link between faces and races, then no connection exists.

Under the rubric of “social race,” Part III criticizes the ethnicity, nationalist, and colonialist theories of race. All three theories repudiate the idea that race is a fixed essence and instead locate races within the cartography of other social constructions. These theories fall short of providing a comprehensive or sophisticated understanding of race because they each treat race as a facet of some larger social phenomenon whether that be ethnic identity, cultural struggle, or the dynamics of colonialist conquest and resistance. This section critiques these theories in order to elaborate on a theory of racial formation or, as I call it, racial fabrication. “Racial formation” refers to the process by which the social systems of meaning we know as race accrue to features and ancestry.

In this Article, I define a “race” as a vast group of people loosely bound together by historically contingent, socially significant elements of their morphology andlor ancestry. I argue that race must be understood as a sui generis social phenomenon in which contested systems of meaning serve as the connections between physical features, races, and personal characteristics. In other words, social meanings connect our faces to our souls. Race is neither an essence nor an illusion, but rather an ongoing, contradictory, self-reinforcing process subject to the macro forces of social and political struggle and the micro effects of daily decisions. As used in this Article, the referents of terms like Black, White, Asian, and Latino are social groups, not genetically distinct branches of humankind.

In Part IV, I expand upon the proffered definition of race by examining the deployment of race in our daily lives. Despite the role of history—that is, despite the actions and reactions of the preceding generations—race remains common sense today only to the extent we continue to invest our morphology with racial meaning. The divisions we commonly discuss as Black, White, and so forth are relatively recent inventions, dating back in their current incarnations no more than a couple of hundred years. These divisions remain subject to constant contestation and revision, with their continued existence dependent on our acquiescence and participation today and tomorrow. This section deconstructs the micromechanics of race, the way race shapes and is in turn shaped by individual lives. It does so in terms of chance, context, and choice, or roughly, appearance and ancestry, social setting, and personal action. I argue that to a limited but largely unrecognized extent we as individuals and communities choose our races.

Part V brings this Article full circle by examining the connection between race and personal identity. Racial groupings in our society have been built upon and in turn have built up the edifices of cultural groups, establishing a close, even inseverable, relationship between races and communities. As collections of individuals who share a common culture and a similar world-view, these communities provide the crucial bridge between race and identity. In contact across the medium of communities, race and identity overlap and influence each other; each is both product and producer of the other. This last section completes the racial fabrication thesis by arguing for a connection not only between our face and our race, but for a link, however tenuous and at times obliterated, between our race and our soul…

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