Identity Notes Part One: Playing in the Light

Identity Notes Part One: Playing in the Light

American University Law Review
Volume 45, Number 3 (February 1996)
pages 695-720

Adrienne D. Davis, Vice Provost; William M. Van Cleve Professor of Law
Washington University in St. Louis

What parts do the invention and development of whiteness play in the construction of what is loosely described as “American”?’


There is now a well-developed and compelling body of scholarship challenging the notion that race is either a natural or a scientific category. Scholarly treatments regarding the social construction of race are still finding their way into law and legal scholarship. Most of these treatments argue that race is socially constructed. This Essay makes a different point. Using two cases from the early and midnineteenth century, I discuss how race is socially constructed, why it matters, and how the process can appear in issues as dry as an allocation of the burden of proof. In particular, I focus on the construction of whiteness, which, I argue, drives the process of legally classifying groups of color.

A focus on the politics of local contests invites an archaeological exploration of historic sites where a black/white paradigm of race was in crisis and vulnerable to correction. In each of these crises, however, the force of the paradigm itself prevailed, reinscribing itself with yet more force in law and the lives of all three groups implicated: African Americans, other groups of color, and whites. An historical assessment of the relationship of other groups of color to a black/white paradigm reveals the paradigm as not only undescriptive and inaccurate, but debilitating for legal analysis, as well as civil rights oriented organizing.

The two cases reveal distinct dynamics of the binary model, which I suggest is hegemonic for the following reasons. A primary mechanism of this model is its disciplining function on other groups of color seeking legal rights and recognition. It is an organizing principle for knowledge (here, law), it has an internal hierarchy of power, it masks this hierarchy through a seemingly neutral shell of “race,” and it operates as self-reinforcing through its disciplining mechanism. In addition, in classicly hegemonic fashion, the paradigm includes rules that prove to be internally inconsistent. The cases reveal the internal contradiction of the rules employed by courts to establish racial identity at law. In one opinion, jurists use mutually exclusive determinations of racial identity in resolving a single legal matter. The underlying facts and interests involved suggest that the court’s reasoning was driven not by the interests of the immediate parties, but rather by a larger, perhaps unconscious, desire to define white identity and secure white liberty interests.

Finally, I hope that the contrast of the two cases demonstrates that the black/white paradigm exercises influence on legal reasoning across time and geographic space, and also that the paradigm itself appears to be a natural ordering, obscuring the assumption of a white subject position. Though involving seemingly unrelated legal conflicts, the cases are linked together through the discursive structure formed by binarism. It orders the legal logic and rhetoric of the judges, as well as the arguments of the litigants. Both cases prove to be inescapably embedded with racial determinations and, inevitably, legal constructions.

What follows stems from a series of discussions, and remains an inquiry directed toward certain suggestive episodes within a much broader history that I leave to others to continue to explore and excavate…

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