Administering Identity: The Determination of Race in Race-Conscious Law

Posted in Articles, Law, Media Archive, United States on 2012-07-21 17:49Z by Steven

Administering Identity: The Determination of Race in Race-Conscious Law

California Law Review
Volume 82, Issue 5 (1994)
pages 1231-1285

Christopher A. Ford

Modern American anti-discrimination law seeks to remedy the effects of racial and ethnic prejudice by ensuring equality in areas such as political access and employment opportunity. In this effort, the concept of race is central both to identifying and to rectifying the effects of prejudice. Various economic and social benefits, for example, are awarded based upon injuries and solutions defined with reference to racial categories. Race and ethnicity, however, are today recognized as being largely social constructs with little empirical or scientific basis. This dichotomy between the importance of race classification to anti-discrimination law and its fundamental indeterminacy creates what the author calls a core dilemma of modem race-conscious law: the difficulties of how we “administer race.” He explores two related questions bearing on this dilemma. How should the law-indeed, can the law-intelligibly define the nature and boundaries of the groups to whom remedial preferences are addressed? Furthermore, can the law “accurately” sort individuals into these groups once they have been defined? The author explores the approaches several different group conscious programs and legal regimes have taken in attempting to deal with these questions, from methods employed in sex and Native American classification to the systems of classification used in the Jim Crow South, in modem India and in South Africa during the apartheid era.

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The Black/White Binary Paradigm of Race: The Normal Science of American Racial Thought

Posted in Articles, Law, Media Archive, Social Science, United States on 2012-07-21 17:28Z by Steven

The Black/White Binary Paradigm of Race: The Normal Science of American Racial Thought

California Law Review
Volume 85, Issue 5 (1997)
pages 1213-1258

Juan F. Perea, Cone, Wagner, Nugent, Johnson, Hazouri & Roth Professor of Law
University of Florida

This Article is about how we are taught to think about race. In particular, I intend to analyze the role of books and texts on race in structuring our racial discourse. I believe that much writing on racism is structured by a paradigm that is widely held but rarely recognized for what it is and what it does. This paradigm shapes our understanding of what race and racism mean and the nature of our discussions about race. It is crucial, therefore, to identify and describe this paradigm and to demonstrate how it binds and organizes racial discourse, limiting both the scope and the range of legitimate viewpoints in that discourse.

In this Article, I identify and criticize one of the most salient features of past and current discourse about race in the United States, the Black/White binary paradigm of race. A small but growing number of writers have recognized the paradigm and its limiting effect on racial discourse. I believe that its dominant and pervasive character has not been well established nor discussed in legal literature.

I intend to demonstrate the existence of a Black/White paradigm and to show its breadth and seemingly pervasive ordering of racial discourse and legitimacy. Further, I intend to show how the Black/White binary paradigm operates to exclude Latinos/as from full membership and participation in racial discourse, and how that exclusion serves to perpetuate not only the paradigm itself but also negative stereotypes of Latinos/as. Full membership in society for Latinos/as will require a paradigm shift away from the binary paradigm and towards a new and evolving understanding of race and race relations.

This Article illustrates the kind of contribution to critical theory that the emergent Latino Critical Race Studies (LatCrit) movement may make. This movement is a continuing scholarly effort, undertaken by Latino/a scholars and other sympathetic scholars, to examine critically existing structures of racial thought and to identify how these structures perpetuate the subordinated position of Latinos/as in particular. LatCrit studies are, then, an extension and development of critical race theory (and critical theory generally) that focus on the previously neglected areas of Latino/a identity and history and the role of racism as it affects Latinos/as.

I identify strongly, and self-consciously, as a Latino writer and thinker. It is precisely my position as a Latino outsider, neither Black nor White, that makes possible the observation and critique presented in this Article. My critique of the Black/White binary paradigm of race shows this commonly held binary understanding of race to be one of the major impediments to learning about and understanding Latinos/as and their history. As I shall show, the paradigm also creates significant distortions in the way people learn to view Latinos/as.

I begin with a review of the principal scientific theory that describes the nature of paradigms and the power they exert over the formation of  knowledge. I then analyze important, nationally recognized books on race to reveal the binary paradigm of race and the way it structures race thinking. After reviewing these popular and scholarly books on race, I analyze a leading casebook on constitutional law. Like other books, textbooks on constitutional law are shaped by the paradigm and reproduce it. Then, by describing some of the legal struggles Latinos/as have waged, I will demonstrate that paradigmatic presentations of race and struggles for equality have caused significant omissions with undesirable repercussions. Thus, I demonstrate the important role that legal history can play in both correcting and amplifying the Black/White binary paradigm of race…

…In his chapter on “Malcolm X and Black Rage” [Cornel] West describes Malcolm X’s fear of cultural hybridity, the blurring of racial boundaries that occurs because of racial mixture. Malcolm X saw such hybridity, exemplified by mulattoes, as “symbols of  weakness and confusion.” West’s commentary on Malcolm X’s views gives us another statement of the binary paradigm: “The very idea of not ‘fitting in’ the U.S. discourse of positively valued whiteness and negatively debased blackness meant one was subject to exclusion and marginalization by whites and blacks.” Although the context of this quotation is about Black/White mulattoes, West’s observation is crucial to an understanding of why Latinos/as, neither claiming to be, nor being, White or Black, are perpetually excluded and marginalized. The reified binary structure of discourse on race leaves no room for people of color who do not fit the rigid Black and White boxes supplied by the paradigm. Furthermore, most Latinos/as are mixed race mestizos or mulattoes, who therefore embody the kind of racial mixture that Malcolm X, and, I would argue, society generally tends to reject. West’s observation about mixed-race people who do not fit within traditional U.S. discourse about race applies in full measure to Latinos/as…

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The Policing of Race Mixing: The Place of Biopower within the History of Racisms

Posted in Articles, Europe, History, Media Archive, Philosophy, United States on 2012-07-21 09:23Z by Steven

The Policing of Race Mixing: The Place of Biopower within the History of Racisms

Journal of Bioethical Inquiry
Volume 7, Number 2 (2010)
pages 205-216
DOI: 10.1007/s11673-010-9224-8

Robert Bernasconi, Edwin Erle Sparks Professor of Philosophy and African American Studies
Pennsylvania State University

In this paper I investigate a largely untold chapter in the history of race thinking in Northern Europe and North America: the transition from the form of racism that was used to justify a race-based system of slavery to the medicalising racism which called for segregation, apartheid, eugenics, and, eventually, sterilization and the holocaust. In constructing this history I will employ the notion of biopower introduced by Michel Foucault. Foucault’s account of biopower has received a great deal of attention recently, but because what he actually has to say about race tends to be vague and radically incomplete, many race theorists have been critical of his contribution. However, even if the account of the holocaust in terms of biopower is incomplete, there is still a great deal to be learned from Foucault’s identification of this biologizing, or medicalising racism.

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