Mixed Race Studies

Determining the (In)Determinable: Race in Brazil and the United States

Michigan Journal of Race & Law
Volume 14, Issue 2 (Spring 2009)
pages 143-195

D. Wendy Greene, Assistant Professor of Law
Cumberland School of Law, Samford University, Birmingham, Alabama

Recently, the Brazilian states of Rio de Janeiro, São Paulo, and Mato Grasso du Sol have implemented race-conscious affirmative action programs in higher education. These states have established admissions quotas in public universities for Afro-Brazilians or afrodescendentes. As a result, determining “who is Black” has become a complex yet important undertaking in Brazil. Contrary to many scholars’ advancements race in Brazil is skin color or physical appearance, whereas in the United States race is based on ancestry, this Article advances the notion that in both American countries one’s physical appearance is the primary determinant of Blackness. Furthermore, when U.S. courts have been charged with determining Blackness, racial constructs based on physical appearance—not the rule of hypodescent—have steered their legal pronouncement of race. This Article first offers a necessary survey of African slavery in Brazil and the United States. This Article demonstrates that despite the contrasts in demography, slave law, and ensuing racial ideology—“racial democracy” in Brazil and “racial purity” in the United States—the enslavement and subordination of Africans and their descendants spawned a common racial hierarchy and assembly of phenotypes designating Blackness and whiteness. Moreover, this Article surveys historical and contemporary racial determination cases which demonstrate the salience of physical appearance in determining race in the United States and debunks the notion that the hypodescent rule is applied to determine “Blackness”. These cases additionally illuminate the paradoxical nature of race—specifically Blackness and whiteness—in the Americas; race is contextual, subjective, and malleable yet simultaneously fixed, as physical constructs of Blackness and whiteness have transcended geography, time, ideology, and demography. Ultimately, this exploration of racial determination cases imparts insight and guidance to Brazilian arbiters currently determining who is Afro-Brazilian for affirmative action purposes.

Table of Contents

• INTRODUCTION
• I. Slavery, Race, and Racial Ideology in Brazil and the United States Settlement, Slavery, and Demography
  • A. Race, Racial Ideology, and Racial Hierarchy
  • B. Brazil: A “Racial Democracy”
  • C. The United States: A “Racially Pure” Nation
  • D. Brazil and the United States: A Transnational Concept of Race and Racial Hierarchy
• II. Constructing Race: The Role of U.S. Courts
  • A. Race as Physical Appearance and Beyond in the Nineteenth Century: Hudgins v. Wright and White v. Tax Collector
  • B. Racial Determination in the Early Twentieth Century: In Re Cruz
  • C. Moving Toward a New Millennium Yet Mired in the Past: The Malone and Perkins Cases
• III. The Application of U.S. Racial Determination Methods to the Brazilian Case
• CONCLUSION

On January 20, 2009 Barack Obama was inaugurated as the 44th President of the United States. Throughout President Obama’s candidacy and after his victory, one of the primary queries raised by the media revolved around his race: is America “ready” for a Black president? Even though it is publicly known that Obama’s mother is a white American from the Midwest and his father is a native of Kenya, the press as well as most Americans would describe Senator Obama as the first Black president of the United States, rather than the first mixed-race president. The general depiction and acceptance of Senator Obama as Black rather than multiracial generates important questions related to America’s common understanding of race. In the United States, is Obama deemed Black because he has self-identified as Black? Is Obama defined as Black due to his known African ancestry? Or is Obama generally regarded as Black in the United States, despite his known white parentage, because of his physical appearance—one which conforms to a socially constructed image of Blackness?

Since the era of Jim Crow, the rule of hypodescent—the presence of one ancestor of African descent makes an individual’s race Black—has been articulated as the guiding principle for determining one’s “Blackness” and “whiteness” in the United States. Accordingly, ancestry allegedly determines Blackness in the United States dissimilarly to Brazil, where one’s physical appearance is determinative. In Brazil it is widely acknowledged that most Brazilians are descendants of Africans in light of the pervasive miscegenation that occurred during and after the Portuguese and Brazilian enslavement of Africans. Therefore, one’s physical appearance—hair texture, skin color, nose size, eye shape, etc.—determines one’s race in Brazil. Contrary to scholarly opinion “[u]nlike in the United States, race in Brazil refers mostly to skin color or physical appearance rather than to ancestry” and public adherence to this idea, one’s physical appearance is the primary determinant of Blackness in both American countries. Indeed, an individual’s ancestry is necessarily implicated in determining race based on his or her physical appearance, as this method of classifying race is grounded in socially mediated presumptions concerning how an individual’s physical appearance denotes his or her genetic makeup…

…This Article examines the alleged complexity of determining who is Black or Afro-Brazilian for affirmative action purposes in higher education while surveying United States racial determination jurisprudence. This Article is not intended to serve as a dissertation on the legality of race-conscious affirmative action or the efficacy of these programs in the United States and Brazil. Since the United States is considered a global forerunner in the implementation of race-conscious affirmative action in higher education and employment, numerous scholars have debated the validity, constitutionality, and utility of race-conscious affirmative action in Brazil through a U.S./Brazil comparative lens. However, there is a paucity of literature exploring fundamental issues in facilitating race-conscious programs: specifically, who is the proper beneficiary; how should this determination be made; and can Brazilian arbiters adopt U.S. judicial modes of determining race to effectuate their raceconscious affirmative action programs? The objective of this Article is to mitigate this void in comparative scholarship by demonstrating the universality of race and the law’s role in constructing race, racial ideology, and racial hierarchy.

First, this Article discusses African slavery in Brazil and the United States, which is crucial to the understanding of race, racial ideology, and racial hierarchy in the two nations. Part I explores the differences and similarities between the conception of race in Brazil and the United States, specifically focusing on the construction of Black, white, and multi-racial classifications. Part I also considers the influence of slavery and settlement patterns on the contrasting racial ideologies in both American nations—“racial democracy” in Brazil and “racial purity” in the United States. Additionally, this section illustrates that a mutual racial hierarchy constructed around physical appearance developed and endures despite the divergent racial ideologies, settlement patterns and slavery law in Brazil and the United States.

Next, Part II examines a series of racial determination cases decided by American courts historically and contemporarily and the various methods these courts appropriated to determine an individual’s race. This survey of racial determination cases illuminates the salience of physical appearance in determining race as well as the paradoxical nature of race—specifically Blackness and whiteness—in the Americas; race is contextual, subjective, and malleable yet simultaneously fixed, as physical constructs of Blackness and whiteness have transcended geography, time, ideology, and demography. Part III concludes with a consideration of Brazilian arbiters adopting American judicial modes of determining race and the potential consequences of doing so…

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Blood Will Tell: Scientific Racism and the Legal Prohibition Against Miscegenation

Michigan Journal of Race & Law
University of Michigan Law School
Volume 5, Issue 2 (Spring 2000)
pages 560-609

Keith Edward Sealing, Dean of Students
Widener Law School, Widener University

Laws banning miscegenation endured in the colonies and the United States for more than 300 years. When the Supreme Court declared all such laws unconstitutional in Loving v. Virginia in 1967, sixteen such statutes and constitutional provisions were still in effect. Scientific racism determined a hierarchy within the White race that placed the Teutonic at the top, the Anglo-Saxon as the heir to the Teuton, and the American as the current leading branch of that line. Prior to the Darwinian revolution, two competing scientific theories, monogenism and polygenism, were applied to justify miscegenation statutes. The “monogenists” believed that all men descended from a single ancestor and were of the same species. This theory comported with the Bible and the story of Ham, as interpreted literally by the fundamentalists. The “polygenists” saw Blacks as a separate and inferior species descended from a different “Adam,” and, thus, saw slavery as qualitatively no different from the ownership of a horse, and miscegenation as approaching bestiality. These beliefs and attitudes endured well into the Twentieth Century, supported after 1900 by the eugenics movement. This article focuses on anti-miscegenation statutes as applied to former slaves and others of African descent, particularly in the South. This article first examines the miscegenation paradigm in terms of a seven-point conceptual framework that not merely allowed but practically demanded anti-miscegenation laws, then looks at the legal arguments state courts used to justify the constitutionality of such laws through 1967. Next, it analyzes the Biblical argument, which in its own right justified miscegenation, but also had a major influence on the development of the three major strands of scientific racism: monogenism, polygenism and Darwinian theory. It then probes the concept upon which the entire edifice is constructed—race—and discusses the continuing vitality of this construct. Next, this article turns to the major strands of scientific racism and briefly develops more modern theories that continued the racist tradition well into the Twentieth Century. The article then looks at the effects of scientific racism on the thoughts and actions of the founding fathers and the Reconstruction-era Congress before turning to the long line of state cases upholding miscegenation statutes, in part by relying on scientific racism. Finally, it discusses the cases that questioned the constitutionality of anti-miscegenation statutes, Perez v. Lippold and Loving v. Virginia.

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