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2012 COLUMBIA JOURNAL OF RACE AND LAW 1 RACE AS A LEGAL CONCEPT JUSTIN DESAUTELS-STEIN* Race is a legal concept, and like all legal concepts, it is a matrix of rules. Although the legal conception of race has shifted over time, up from slavery and to the present, one element in the matrix has remained the same: the background rules of race have always taken a view of racial identity as a natural aspect of human biology. To be sure, characterizations of the rule have oftentimes kept pace with developments in race science, and the original invention of race as a rationale for the subordination of certain human populations is now a rationale with little currency. The departure from this “classic liberal” conception of race, and its attendant and disturbing view of the function of race, did not, however, depart from the idea that race is a natural and organic part of being a human being. As this Article argues, this seminal background rule—that race is natural, neutral, and necessary—is deeply problematic and a substantial obstacle in the fight against the Supreme Court’s ascending anticlassification jurisprudence. Not to mention, it is also false. In an effort to make some headway against the idea that race is a natural idea, as opposed to a legal concept, the Article attacks the background rules of race via the unlikely field of Conflict of Laws. Taking the Supreme Court’s decision in Parents Involved in Community Schools v. Seattle School District No. 1 as a benchmark, the discussion first suggests an early functionalist view of voluntary school integration by way of an analogy to the early twentieth-century transformations occurring in Conflicts of Laws. Second, and in the alternative, the discussion then situates the facts of Parents Involved as literally a problem of Conflict of Laws. In both instances, the hope is to focus legal discourse on the background rules of race so as to empower a new and emancipatory anti-subordination jurisprudence. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! * ! Associate Professor, University of Colorado Law School. I received helpful comments from Kristen Carpenter, Ming Chen, Neil Gotanda, Matthew Hughey, Sarah Krakoff, Ralf Michaels, Helen Norton, and participants at “ClassCrits IV: Criminalizing Inequality” held at Washington College of Law at American University. Jena Akin and Shannon Avery Rollert provided excellent research assistance. Special thanks to Adrienne Davis, Dwight Mullen, and Ed Katz.! 2 Race as a Legal Concept Vol. 2:1 I. INTRODUCTION................................................................................................................3 II. FROM CLASSIC LIBERALISM TO RACIAL LIBERALISM.............................................12 A. The Racial Contract.........................................................................................................12 B. The Invention of Race as a Justification for Subordination............................................16 III. THE FUNCTION OF THE HUMAN RACES: AN ABRIDGED INTELLECTUAL HISTORY IN THE SCIENCE OF RACE............................................................................17 A. Monogenism, 1680–1850...................................................................................................17 B. Polygenism, 1815–1860......................................................................................................21 C. Evolution and Eugenics, 1860–1945.................................................................................23 D. Ethnicity vs. Race, 1935–1980...........................................................................................27 E. The Biological Foundation of Race is Fiction.................................................................29 IV. NEOLIBERALISM AND POST-RACIAL COLORBLINDNESS......................................30 A. The Classic Liberal Style: From Slave Law to Jim Crow.................................................34 B. The Modern Liberal Style: From Brown to Affirmative Action.......................................38 C. The Neoliberal Style: The Road to Parents Involved.......................................................41 D. Neoliberalism and Neoracism..........................................................................................50 V. TOWARDS A CRITIQUE OF RACE AS A LEGAL CONCEPT: TWO IDEAS FROM CONFLICT OF LAWS............................................................................................................55 A. A Functionalist Rendering of Parents Involved................................................................57 1. The Realist Critique of Formalism and the Rise of Functionalism............................57 2. What is the Function of Race as a Legal Concept?.....................................................60 (i) Step One: Choose an Interpretive Method............................................................61 (ii) Step Two: Foreground Neoracism and the Racial Contract.................................62 (iii) Step Three: Identify the Function of Race............................................................62 (iv) Step Four: Decide..................................................................................................62 B. Conflict of Laws as “Cultural Conflict”.............................................................................62 1. Why Conflict of Laws?..................................................................................................63 2. Thinking Sideways about Race and Culture................................................................64 (i) Step One: Identify the Jurisdictional (Cultural) Conflict.......................................65 2012 COLUMBIA JOURNAL OF RACE AND LAW 3 (ii) Step Two: Characterization of the Claim...............................................................68 (iii) Step Three: Identify the Rules..............................................................................69 (iv) Step Four: Identify the Interests............................................................................71 (v) Step Five: Decide....................................................................................................71 VI. CONCLUSION........................................................................................................................73 All in all, race is the modern West’s worst idea. – Richard King1 I. INTRODUCTION In the eighteenth and nineteenth centuries, a biological construction of race was created as a way of justifying the oppression of non-Europeans.2 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.3 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.4 Since its birth, our legal system has constructed race through the use of biology5—a use !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 RICHARD KING, RACE, CULTURE, AND THE INTELLECTUALS, 1940–1970 1 (2004). 2 “Though it would be foolish to suggest that evil, brutality, and terror commence with the arrival of scientific racism toward the end of the eighteenth century, it would also be wrong to overlook the significance of that moment as a break point in the development of modern thinking about humanity and its nature.” PAUL GILROY, BETWEEN CAMPS 31 (2004). See also ANTONIA DARDER & RODOLFO D. TORRES, AFTER RACE (2004). 3 HOWARD WINANT, THE WORLD IS A GHETTO: RACE AND DEMOCRACY SINCE WORLD WAR II 22–23 (2001); GILROY, supra note 2. For discussion of the so-called “racial realists” who do not see it this way, and the view that racial domination is a relic, see MICHAEL K. BROWN ET AL., WHITEWASHING RACE: THE MYTH OF A COLOR-BLIND SOCIETY 1–33 (2004). 4 For a sample of the literature on critical race theory, see DERRICK BELL, RACES AT THE BOTTOM OF THE WELL: THE PERMANENCE OF RACISM (1993); CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVEMENT (Kimberlé W. Crenshaw et al. eds., 1995); Angela Onwuachi-Willig, Celebrating Critical Race Theory at 20, 94 IOWA L. REV. 1497 (2009); Ian F. Haney López, “A Nation of Minorities”: Race, Ethnicity, and Reactionary Colorblindness, 59 STAN. L. REV. 985 (2007); Athena D. Mutua, The Rise, Development, and Future Directions of Critical Race Theory and Related Scholarship, 84 DENV. U. L. REV. 329 (2006). 5 See, e.g., Akins v. State of Tex., 325 U.S. 398, 404 (1945) (“Defendants under our criminal statutes are not entitled to demand representatives of their racial inheritance upon juries before whom they are tried.”) (emphasis added); Malhotra v. Cotter & Co., 885 F.2d 1305, 1308 (7th Cir. 1989) (“Title VII groups discrimination on grounds of race with discrimination on grounds of color; although Indians are Caucasians, they are generally of darker skin color than ‘white’ Americans.”); Ripp v. Dobbs Houses, Inc., 366 F. Supp. 205, 209 (N.D. Ala. 1973) (concluding that a white citizen has no standing to represent a class of black citizens in challenging employment practices discriminatory only towards black citizens); United States v. Driver, 755 F. Supp. 885, 888 (D.S.D. 1991) (holding that the evidence was insufficient to show that the individual was an Indian because he only had 7/32 Indian blood and did not receive assistance based on Indian blood in his childhood); Saad v. Burns Int’l Sec. Serv., Inc., 456 F. Supp. 33, 37
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