Constructing Race

Like a hole that threatens to swallow a doughnut, the matter of constructing the concept of race renders much of racial jurisprudence problematical. Most people, like Justice Potter Stewart opining on obscenity, ⁽²⁾ are confident that they know a person's race when they see it, and consequently feel no need to pursue the question further. Many whites, it seems, do not routinely think of themselves in racial terms, and “are not familiar with or connected to their origins.” ⁽³⁾ But race, that most toxic of concepts, is not always simple.

As always in America, race is not merely a topic of abstract curiosity. As a benign category, it may be useful in medical, scientific, and social scientific research, and may even prove indispensable in policy making and implementation. The federal government gathers data on race for a variety of purposes, including monitoring and enforcing the Civil Rights Act, ⁽⁴⁾ Voting Rights Act, ⁽⁵⁾ Fair Housing Act, ⁽⁶⁾ Home Mortgage Disclosure Act, ⁽⁷⁾ Equal Employment Opportunity Act, ⁽⁸⁾ and Equal Credit Opportunity Act; ⁽⁹⁾ state and local governments use the data to create and evaluate health, education, and social service policies; ⁽¹⁰⁾ private businesses rely on the data for planning, marketing, and other aspects of their operations. In responding to the covid pandemic, federal, state, and business decision makers felt compelled to address the special situation of minorities, who were both more prone to contract the disease and for a while more hesitant to become vaccinated against it.

It is also true that denying one's racial identity by passing as a member of another race may be socially productive: Walter White of the NAACP, for instance, passed for white in the Jim Crow South to gather information on lynchings, ⁽¹¹⁾ and John Howard Griffin ⁽¹²⁾ and Grace Halsell ⁽¹³⁾ passed for Black to investigate racism for a white audience.

But, of course, in America race and its cousin, ethnicity, are not always benign categories. In this country as well as Europe, the concepts were long polluted by bogus science that purported to assign personality, intelligence, and other traits to various subcategories, ranking them in the process. So lacking in intellectual rigor was the enterprise that even the fundamental distinction between race and ethnicity was often ignored or conflated. ⁽¹⁴⁾

Given the long and poisonous history of white supremacy, race is also especially fraught with pain, suffering, and loss. In this regard, it is essential to stress the unique hardships experienced by Black people that far exceed those confronting whites or other nonwhite groups, who faced discrimination but not brazen denials of their humanity. ⁽¹⁵⁾ For centuries, Blackness has routinely carried with it huge social disadvantages, in the form of rigorously enforced segregation and discrimination in the South and not only the South. For the past half century or so, however, no longer are the advantages all with whiteness. Today, with affirmative action practiced in varying degrees in education, ⁽¹⁶⁾ employment, ⁽¹⁷⁾ government contracts, ⁽¹⁸⁾ and elsewhere, it is sometimes advantageous to be a person of color.

Beginning in the 1960s, racial and ethnic data became important in the creation, implementation, monitoring, and evaluation of a myriad of federal programs. In an effort to bring consistency and intelligibility to the process, the Office of Management and Budget in 1977 issued the Statistical Policy Directive No. 15 as government's de facto racial identification instrument. ⁽¹⁹⁾ Its purpose was “to provide a standard classification for record keeping, collection, and presentation of data on race and ethnicity,” and it bound “all federal agencies and programs.” ⁽²⁰⁾ In its two pages, the directive classified people into four racial groups: American Indian or Alaskan Native (persons having origins in any of the original peoples of North America, who also maintain cultural identification through tribal affiliation or community recognition), Asian or Pacific Islander (persons having origins in the original peoples of the Far East, Southeast Asia, the Indian subcontinent, or the Pacific Islands), Black (persons having origins of the Black racial groups of Africa), and white (persons having origins of the original peoples of Europe, North Africa, or the Middle East), and one ethnicity, Hispanic (persons having origins in Latin America or other Spanish culture or origin, regardless of race). Mixed race persons were to be categorized according to the race “which most closely reflects the individual's recognition in his community.” ⁽²¹⁾

In response to criticism that these categories failed to reflect the consequences of such major changes as increases in immigration and interracial marriages, OMB conducted a four year review, which culminated in a 1997 revision that divided Asian and Pacific Islander into separate categories, and changed Hispanic to Latino. Respondents were also given the option of choosing more than one racial classification. More recently, on June 15, 2022, the nation's chief statistician announced a further review of Directive No. 15, with the completion date no later than summer, 2024, perhaps including a separate category for the Middle East and North Africa that would omit Israelis as not originating from the original peoples of the area.

All this has taken place in a context of an increasingly high profile focus on diversity, equity, and inclusion, in which “person of color” has assumed a center stage position. The term appears on its face to be a catch-all for all nonwhite races. In fact, this is not exactly the case, for it also encompasses certain ethnic groupings. Latinos, a linguistic/geographical group ⁽²²⁾ and the nation's largest minority at over sixty million, ⁽²³⁾ are officially an ethnic group ⁽²⁴⁾ and mostly self identify as white, ⁽²⁵⁾ but courts blurring the line between race and ethnicity frequently speak of them as racial, ⁽²⁶⁾ as do two-thirds of Latinos themselves. ⁽²⁷⁾ “Asian” refers geographically to a vast array of groups, but not to Turks, Russians, Afghans, Iranians, or Israelis. Arabs, who are officially white, ⁽²⁸⁾ qualify; ⁽²⁹⁾ Jews do not, ⁽³⁰⁾ despite the claims of anti-Semites who deny that Jews are white. ⁽³¹⁾ On the other hand, Filipinos, though coming from a Pacific archipelago, are categorized as Asians, not Pacific Islanders. Sharing origins with the original peoples is required for all categories, except Blacks and Latinos; Native Americans and Latinos alone must show some cultural connection. In short, if Directive No. 15 aimed to eliminate inconsistencies in classification, it has not been a huge success. “Person of color” is not only about race, hinting at the murkiness that often penetrates racial rhetoric. Some of its peculiarities are difficult to comprehend. Others may turn on whether the group is considered to be subject to current or past oppression by the white majority, however whiteness is understood.

All this points to the fact that race is socially constructed, for race is a “product of human perception and classification. . . . We give them meaning, and in the process we create race.” ⁽³²⁾ In other words, what is important are not the genetically identifiable markers, but the inferences we draw from them. And because race is socially constructed, it may not always be fixed at birth, immutable and unchanging. ⁽³³⁾ Indeed, the chief constant may well be the evolution in the way race is understood. ⁽³⁴⁾ For years, Eastern and Southern Europeans were widely considered less white than Northern Europeans, though certainly more worthy than Blacks; ⁽³⁵⁾ Italian Americans thought of their color as white, but their race as Italian; ⁽³⁶⁾ and Jews felt not white in relation to the dominant culture, but white in relation to Blacks. ⁽³⁷⁾ All of this has changed, reflecting substantial assimilation. Yet a 2015 Pew Research Center survey found that sixty-one percent of multiracial adults refused the label. ⁽³⁸⁾ Indeed, as a distinguished Black scholar noted, “most native born United States Negroes, far from being non-white, are in fact part white. They are also by any meaningful definition of culture part Anglo-Saxon, and they are overwhelmingly Protestant.” ⁽³⁹⁾

Further evidence of the social construction of race is the variation from society to society; the United States tends to conceive race literally as a matter of black and white, while Brazil recognizes 136 racial categories ⁽⁴⁰⁾ and in the Dominican Republic skin color predicts only fifty percent of racial identifications. ⁽⁴¹⁾ Races also “are constructed relationally, against one another, rather than in isolation.” ⁽⁴²⁾ As the concept of light has meaning only because there is darkness, so the concept of race has meaning only because we accept that there are multiple races. No wonder one observer concluded that “among the words that can be all things to all men, the word race has a fair claim to being the most common, the most ambiguous, and the most explosive.” ⁽⁴³⁾

The Yale Law Journal, writing during a crescendo of anti-Black violence and subjugation, thought that the “question [of racial identification] is purely academic.” ⁽⁴⁴⁾ But such stunningly blind complacency utterly ignores the role of law in prescribing and enforcing racial distinctions. By putting the full force of governmental power behind racial definitions and the discriminatory practices they entailed, it has not only made them effective; their effectiveness has also helped in establishing their legitimacy, at least with the white population, educating them in the virtues and necessity of racism. Nor, obviously, has the end of Jim Crow meant the end of racial significance. In determining racial discrimination in employment, for example, courts inquire into whether existing practices give rise to a disparate negative impact on minorities. ⁽⁴⁵⁾ In order to compile the necessary statistics, presumably the compilers must know how to categorize people racially. Given the obvious legal importance of race, the question becomes: how does the law construct race?

But of course, the law not only affects society; society affects the law. It was white attitudes toward Black people that shaped the laws constructing race. In the most fundamental sense, these attitudes were clear in affirming a consensus that Blacks were an inferior Other. In another sense, however, as analysis will demonstrate, there was disagreement, uncertainty, even confusion as to particulars. None of this imperiled the underlying assumption, but it did generate problems in implementing the racist vision.

Over the years, courts have been asked to police racial boundaries, often being denied the legislative guidance that would have facilitated their efforts. Partly, this may be due to unexamined and crude notions of race as biologically fixed, with the central presumption being the contaminant of black blood, as a means of quantifying ancestry. The term appears rooted in the English common law, which used it in making distinctions for purposes of inheritance, ⁽⁴⁶⁾ but more generally it resonates powerfully as a primal metaphor for life itself. ⁽⁴⁷⁾

White lawmakers and judges seem to have taken the blood contaminant presumption for granted, but its application was often confused and inconsistent. In general, there have been two tests courts have utilized: biological (for example, is the person's appearance Black or can his or her genealogy be reliably traced, especially to the mother?) and behavioral (for example, does he or she have Black friends?). These tests will be grouped under the “objective” heading because that is how they have typically been understood. In reality, of course, the objective facts have been perceived through an unexamined racist lens that distorted the objectivity. Occasionally, pseudoscience has been employed to support or apply these standards, buttressing the illusion of objectivity, but mostly courts have relied on what they took to be good faith judgments by witnesses and trial judges. The witnesses and judges for many years were usually white and usually male.

Who defines an individual's race? Common sense tells us that race is a set of genetically determined traits that we can easily identify. Thus, for example, Congress has decreed that “the term ‘racial group’ means a set of individuals whose identity as such is distinctive in terms of physical characteristics or biological descent.” ⁽⁴⁸⁾ Who doubts that Louis Armstrong was black and Grace Kelly was white? If the assumption was that such bright line distinctions between racial groups are always possible and that identifying races is a neutral act, it was naïve enough to be refuted by daily observation.

Given the race based slavery of the antebellum South, the question of defining race took on great practical importance, in affecting daily life and setting down precedents for the future. ⁽⁴⁹⁾ Of course, the law was created by slaveowners for their benefit; slaves as the ultimate outsiders were powerless to effectively denounce it, in terms of natural rights, democracy or accountability. Yet America's War for Independence had popularized a rhetoric of liberty and rights that could not entirely be ignored. Adding to the tension was an unresolvable conundrum: how could slaves be both people and property? From this intellectual tangle, stumbles and bumbles could not be avoided.

The most prominent legal racial issue was whether Black slaves were persons, ⁽⁵⁰⁾ and it was widely assumed that this could be objectively determined. In general, courts applied blanket rules: Blacks were slaves; whites and Native Americans were free. As early as the mid-seventeenth century, the general principle was partus sequitur ventrem, literally, that which is brought forth follows the belly, which meant that the status of the mother determined the status of the child. ⁽⁵¹⁾ In the vast majority of mixed race persons, the mother was an enslaved Black and the father, the master or overseer, was white. The ventrem principle reversed the normal English common law presumption, but had a pair of significant practical advantages for slaveowners: it increased the number of slaves and it absolved the fathers of any responsibility for their offspring.

Often, however, the status of the mother was contested. For example, Jenkins v. Tom (1792) ⁽⁵²⁾ involved a Virginia slave, who produced evidence to show that he was descended from Indians, not Blacks. The slaveowner countered that a 1753 law made all non-Christians brought to this country slaves, including Indians, but the Virginia Court of Appeals held that as the law had been repealed, he had misstated the law. Since Indians could not be slaves, the court reasoned, he could not be a slave, and so he was freed. In Thomas v. Pile (1794), ⁽⁵³⁾ a biracial slave in Maryland won his freedom when a white woman testified that he was descended from a free white woman. The slaveowner had tried to impeach the witness with testimony that she “kept company with negroes,” ⁽⁵⁴⁾ but the trial judge refused to admit it, and the Maryland General Court agreed, freeing the slave.

In Higgins v. Allen (1796), ⁽⁵⁵⁾ the Maryland General Court of Appeals traced the matrilineal line of Nathaniel Allen back to his great grandmother, who was white. She married a slave, as did her mixed race daughter and mixed race granddaughter. Relying on statutes, the Court declared, “If there is no positive law for making all the descendants of white women by negroes slaves, they are, consequently, free.” ⁽⁵⁶⁾ Thus, because Allen was descended from a free white woman, he was freed, even though from a “fourth descent from a white woman.” ⁽⁵⁷⁾

Gobu v. Gobu (1802) ⁽⁵⁸⁾ involved a twelve year old North Carolina girl, who claimed to have found an abandoned newborn, whom she made her slave. The boy (with straight hair and “olive color” skin) sued for his freedom, maintaining that there was no evidence of his slave status. The girl said that he was Black, and that was sufficient evidence. The North Carolina Superior Court agreed to the “presumption of every black person being a slave. It is so, because the negroes originally brought to this country were slaves, and their descendants must continue as slaves unless manumitted by proper authorities. If therefore a person of that description claims his freedom, he must establish his right to it by such evidence as will destroy the force of presumption arising from his color.” ⁽⁵⁹⁾ On the other hand, the court maintained that mixed blood persons should not be presumed slaves, as the parents might have been free and it was usually possible to prove slave status. For this reason, the boy was freed. This case established the principle, not always followed, that appearance of Black or white creates a rebuttable presumption, but that appearance of mixed race does not; the boy's mixed race appearance, with no slavery connection, meant that he could be freed.

A few years later, Hudgins v. Wrights (1806) ⁽⁶⁰⁾ concerned a similar appeal of slaves for their freedom, this time provoked by an intention by the slaveowner to sell them and break up the family. The Wrights, slaves, alleged that their mother and grandmother were Indians, and as Indians were free, they should be free. They lacked documentary proof, but pointed to their physical appearance and testimony from witnesses; the slaveowner, Hudgins, countered that the Wrights were actually descended from Black people. The trial court found that the Wrights appeared to be Indians, held that the Virginia Declaration of Rights meant slaveowners always carried the burden of proof, and concluded that the slaveowner had not carried it. Hudgins appealed to the Virginia Supreme Court of Appeals, which ruled that appearance created a rebuttable presumption. Thus, the Wrights’ resemblance to Indians placed the burden of proof on Hudgins, which he failed to carry, such as through genealogical testimony. It also stated that the Declaration of Rights applied only to whites, rejecting the assumption that in questions of freedom, the burden of proof always rests on the slaveowner. The higher court's ruling became the “most influential Southern precedent in setting the presumptions for slave/free status on the basis of race.” ⁽⁶¹⁾

As to the reliability of physical appearance, however, the court was split. Judge Tucker believed that “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.” ⁽⁶²⁾ On the other hand, Judge Roane thought that “When. . . these races become intermingled, it is difficult, if not impossible, to say from inspection only, which race predominates in the offspring, and certainly impossible to determine whether the descent from a given race has been through the paternal or maternal line.” ⁽⁶³⁾ In short, though “slave or free status was . . . read on the bodies of the litigants,” ⁽⁶⁴⁾ different judges might read it differently.

Hudgins posed a problem for the rule of lenity, ⁽⁶⁵⁾ a common law principle borrowed from England, ⁽⁶⁶⁾ to the effect that courts should resolve ambiguities in favor of liberty. Southern courts generally accepted the rule, but in a slave society, such a principle clearly raised serious problems: it would tend to undermine the legitimacy of slavery, generate legal disputes, and increase the number of free persons of color. As a Kentucky court put it, “Color. . . affords a presumption of slavery.” ⁽⁶⁷⁾ By mid-century when a growing sectional crisis left the white South increasingly threatened, its courts had renounced lenity.

In Hook v. Pagee (1811), ⁽⁶⁸⁾ barely five years after Hudgins, the Virginia Supreme Court of Appeals spoke only of physical observation. Nanny Pagee and her children were held in slavery, but maintained that they were white, and therefore, free. The court observed that the jury “have the highest evidence, the evidence of their own senses, and upon that they find a verdict.” ⁽⁶⁹⁾ Observation told the jurors she was white, and so the jury decided, and the court agreed.

Physical observation, however, was not always unambiguous. “The constant tendency of this class to assimilate to the white, and the desire of elevation,” wrote a South Carolina court, “present frequent cases of embarrassment and difficulty.” ⁽⁷⁰⁾ Yet the same court a few years earlier considered that “It would be dangerous and cruel to subject to this disqualification persons bearing all the features of a white on account of some remote admixture of blood.” ⁽⁷¹⁾

Butt v. Rachel (1814) ⁽⁷²⁾ involved fourteen slaves, who challenged Butt's right to hold them, on the ground that they were descended from an Indian woman brought to Virginia from Jamaica. Butts responded that she had been a slave in Jamaica and so could be treated as a slave in Virginia, rendering her children slaves. But the Virginia Supreme Court of Appeals concluded that as she was an Indian, her children were Indians, and therefore free. Her status in Jamaica was irrelevant.

State v. Cantey (1835) ⁽⁷³⁾ concerned a white criminal defendant, who complained that the prosecution had called Black witnesses against him, in violation of law. The witnesses were one-sixteenth Black. The jury, however, considered them white and convicted him. Judge Harper speaking for the South Carolina Court of Appeals was openly dubious about the blood standard. “We cannot say what admixture of blood will make a colored person [for the] status of the individual [must also take into account his] reputation, . . . his reception into society, and his having commonly exercised the privileges of a white man. . . [i]t may be well and proper that a man of worth, honesty, industry, and respectability, should have the rank of a white man, while a vagabond of the same degree of blood should be confined to the inferior caste.” ⁽⁷⁴⁾

When in the end Harper announced that “a slave cannot be a white man,” ⁽⁷⁵⁾ was he saying that an upright person of mixed blood could not be a slave because regarding “a person of color on account of any mixture of blood, however slight or remote” would be “very cruel and mischievous”? ⁽⁷⁶⁾ Or was he merely giving voice to conventional wisdom? Harper disregarded the fractional blood arguments, agreed that the witnesses could testify, and upheld the conviction. The reason he gave was that it would be very unlikely to mistake “a person of unmixed European blood [for] a colored person,” ⁽⁷⁷⁾ and thus it made perfect sense to announce that “a slave cannot be a white man.” The court is plainly straining toward its view of meritocracy, but the result is a muddle that appears to equate whiteness with virtue in ways juries and judges would find challenging to apply consistently.

Thurman v. Alabama (1850) ⁽⁷⁸⁾ involved a free mixed race man, who was convicted of raping a white woman. As the penalty for a Black man, death, was worse than for a white man, he claimed that as one-quarter Black, he qualified as a white man. In deciding for him, the Alabama Supreme Court said, “If the statute against mulattoes is by construction to include quadroons, where are we to stop? . . . [A]re we not bound to pursue the line of descendants, so long as there is a drop of blood remaining?” ⁽⁷⁹⁾ The one-drop rule seemed to the Court a reductio ad absurdum.

State v. Chavers (1857) ⁽⁸⁰⁾ involved a North Carolina prosecution of William Chavers, allegedly a free Black man, for carrying a gun. He denied he was Black, but as he purchased a ticket at the Black discount price and was one-sixteenth Black, the court considered him Black.

Meanwhile, certain Northern states, while outlawing slavery, shared the white Southern attitude toward Black people. In Van Camp v. Board of Education of Logan, Ohio (1859), for instance, the Ohio Supreme Court denied the admission of mixed race children to public schools. Judge Peck relied on a dictionary definition: “Our standard philologist, Webster, defines ‘colored people’ to be ‘black people – African or their descendants, mixed or unmixed. . . . A person who has any perceptible admixture of African blood is generally called a colored person. . . . we do not ordinarily stop to estimate the precise shade, whether light or dark.” ⁽⁸¹⁾ These cases that centered on ancestry, however, often confronted insurmountable record keeping problems that made it practically impossible to establish the necessary lineage.

The Civil War and the Thirteenth, Fourteenth, and Fifteenth Amendments that followed in its wake radically changed the law. Slavery was no more, and many invidious racial distinctions were also banned. By the late 1880s, however, whatever progress had been achieved under Reconstruction began to be seriously eroded, and in an environment of racial terrorism and the celebration of white supremacy, Southern Blacks were systematically deprived of political rights, as legally mandated racial segregation spread across the region. Ironically, “racism, although the child of slavery, not only outlived its parent but grew stronger and more independent after slavery's demise.” ⁽⁸²⁾ As a Black Mississippian observed, “They had to have a license to kill anything but a negro. We was always in season.” ⁽⁸³⁾

Sometimes, Asians would be caught in the web. For instance, a 1923 case concerned a “high caste Hindu,” who wished to be counted as white, so that he could become a naturalized citizen, only whites at that time being eligible for citizenship. In United States v. Bhagat Sing Thind, ⁽⁸⁴⁾ Justice Sutherland acknowledged that “’Caucasian is a conventional word of much flexibility,” ⁽⁸⁵⁾ but decided on the popular rather than the scientific usage. “Race,” he announced, “must be applied to a group of living persons now possessing in common requisite characteristics, not to groups of persons who are supposed to be or really are descended from some remote common ancestor.” ⁽⁸⁶⁾ Thus, Thind might have white features, but he was obviously too dark for most people to take him as white, and so his plea was denied. Of course, Sutherland, concluded, “It is very far from our thought to suggest the slightest question of racial superiority or inferiority.” ⁽⁸⁷⁾

Highlighting the role of minor bureaucrats in racial designation, most of the judicial controversies over racial identification that subsequently arose concerned marriage or birth certificates, and, again, an objective approach was the rule. At one point, thirty-eight states banned interracial marriage. ⁽⁸⁸⁾ After marital dissolution, it was not uncommon for one of the spouses to claim that the other spouse had hidden his or her Black racial identity, which would have voided the marriage and deprived the offending spouse of any benefits. In many of these cases, the traditional reliance on the race of the mother as determinative was simply abandoned, perhaps because it could not be settled. Hopkins v. Bowers (1892), ⁽⁸⁹⁾ for example, concerned a family dispute over the ownership of a tract of land that pivoted on the validity of a marriage. The mother was alleged to be of mixed blood, voiding the marriage, and the North Carolina Supreme Court accepted testimony that she was reputed to be Black, “usually associated with colored people,” ⁽⁹⁰⁾ and in appearance looked Black. On this basis, it concluded that she was, indeed, Black, and following the matrilineal rule, voided the marriage.

In Ferrell v. Ferrell (1910), a North Carolina husband seeking to avoid alimony and child support sued to have his marriage annulled, claiming that his wife's great grandfather was Black, making her Black. She replied that he was probably of Indian or Portuguese blood. In order to meet the matrilineal state standard of at least one-eighth Black, the husband had to show that her great grandfather was a “real negro,” that is, entirely Black. He could not do this, and so lost the case. ⁽⁹¹⁾

Sunseri v. Cassagne (1938) ⁽⁹²⁾ involved a couple who married and soon separated; the wife sought alimony, and the husband asked that the marriage be annulled on the ground that she was Black. Her birth certificate stated that she was Black and the trial judge found her one thirty-second Black. But the community had long accepted her as white: she attended white schools, rode in white sections on busses and trains, was treated as white in theatres, hotels, and restaurants, and all her friends were white. Weighing the certificate and her ancestry against community acceptance, the Louisiana Supreme Court found the evidence inconclusive, and remanded it for further consideration.

Two years later, the court revisited the case, again finding inconsistent evidence. ⁽⁹³⁾ On the basis that it could justify changing the racial designation only if “the evidence adduced leaves no room for doubt,” ⁽⁹⁴⁾ the court “with regret” ⁽⁹⁵⁾ ruled in favor of the wife, upholding the designation on the marriage certificate.

More recently, racial designation issues arose in the context of disputed birth certificates. The certificates, whose original rationale was chiefly as public health measures, ⁽⁹⁶⁾ became a way to establish and fix individual identity, and thus assumed considerable importance. Many of these cases arose in New Orleans, ironically, a city well known for recognizing varied racial distinctions. ⁽⁹⁷⁾

State ex rel. Treadway v. Louisiana State Board of Health (1951) ⁽⁹⁸⁾ concerned a family's effort to change their late mother's birth certificate from colored to white. After reviewing the conflicting evidence, the court decided that the requisite legal certainty was not established, and refused to change the designation. Judge Moise wrote, “The registration of a birth certificate must be given as much sanctity in the law as the registration of a property right.” ⁽⁹⁹⁾

Green v. New Orleans (1956) ⁽¹⁰⁰⁾ involved a Black man, Robert Green, who wanted to adopt a four year old girl, Jacqueline Anne Henley. The problem was that according to her birth certificate, she was white, legally barring the adoption, ⁽¹⁰¹⁾ and the Louisiana Bureau of Vital Statistics refused to change her racial designation. Her mother, deceased, was white, but her father was unknown. Green believed that Jacqueline was actually Black, and the trial judge relaxed the rules of evidence to give him every opportunity to prove his case, admitting hearsay, inferences, and presumptions of fact. The mother's sister, who cared for the girl, complained that “she didn’t fit in my family, she was too dark [and] was getting darker day by day.” ⁽¹⁰²⁾ An anthropology professor examined her, and on the basis of three physical characteristics concluded that it was “extremely probable” that she was Black. ⁽¹⁰³⁾ And the official who filled out her birth certificate admitted that she had not asked the mother the race of the father; “if she is a white mother we do not ask if her husband is white, we take it for granted that he is white.” ⁽¹⁰⁴⁾ The trial judge, bound by a precedent that if persons were widely accepted as white, this could not be legally reversed unless he could “prove his case with legal certainty,” ⁽¹⁰⁵⁾ found that Green failed to meet this standard. Instead, he offered to revisit the issue in a few years, when, as the anthropologist suggested, matters might be clearer. In the end, as the dissent pointed out, the refusal rested on “a presumption and not because of a stated fact,” ⁽¹⁰⁶⁾ a presumption that in a city known for its sizable mixed race population was hardly plausible.

Had the traditional reliance on the race of the mother been followed, the case would have had a different result. Ordinary citizens, as exemplified by Jacqueline's aunt in Green, believed she was Black, but this was not sufficient. Was the court, then, defending whiteness by establishing a high bar of proof? Or was it undermining it by reinforcing a principle that would reject worthy white candidates? How, in any event, could race in these pre-DNA days have been established with certainty? And why the certainty test? Ordinarily, lawsuits are resolved in favor of the preponderance of evidence; here, courts were insisting on a higher standard of proof than even criminal cases, which mandate proof beyond a reasonable doubt. All this indicates how seriously white Louisianians took perceived threats to racial purity.

State ex rel. Rodi v. New Orleans (1957) ⁽¹⁰⁷⁾ also drew attention to the power of petty bureaucrats. Steve Rodi died, and the undertaker and cemetery that buried him dealt only with whites, and his death certificate designated him as white. However, the 1949–1965 head of the New Orleans office of the Louisiana Bureau of Vital Statistics, Naomi Drake, kept a list of names she believed had been improperly classified as white, and visited Rodi's place of birth, “spending several days making a thorough investigation.” ⁽¹⁰⁸⁾ She concluded that he was Black, and without informing the family changed his death certificate accordingly. His daughter, Estelle, sued to have the original designation reapplied. This was not simply a matter of racial pride. If her father were declared Black, his marriage to her mother would have been invalidated, as well as her own because the state banned interracial marriage. As her husband had recently died, this would exclude her from inheriting his estate.

At trial, Estelle alleged that the state law delegating racial designations to the Bureau of Vital Statistics violated the Fourteenth Amendment's due process clause because it failed to provide officials adequate guidelines and because Drake had changed the racial designation without informing interested parties. The Louisiana Supreme Court reviewed the evidence, noting that each side could point to documents and witnesses, but it was impressed that there was “no reasonable doubt in the minds of officials.” ⁽¹⁰⁹⁾ This shifted the burden to Estelle, requiring her to “leave practically no doubt at all” ⁽¹¹⁰⁾ about her contention, which she could not do. As to the constitutional argument, the court found that “when a statute merely authorizes a registrar or board to reach a conclusion of facts,” ⁽¹¹¹⁾ this does not constitute an unlawful delegation. Nor was the court troubled by Drake's failure to notify Estelle, for officials often make factual decisions without notice, she retained the right to appeal, and there would be “complete impracticality” in requiring notice in such cases. ⁽¹¹²⁾

State ex rel. Dupas v. New Orleans (1960) ⁽¹¹³⁾ concerned a prize fighter, a fan favorite in New Orleans, who found his career in jeopardy. He believed himself white and had fought as white, but Drake's Bureau of Vital Statistics believed he was Black and changed his birth certificate to Black. As Louisiana barred interracial boxing, this designation would seriously damage his career. The state permitted him to fight in a bout that had already been scheduled, but declared that he must prove that he was white for future fights. The Louisiana Supreme Court, however, after a lengthy review of the evidence determined that Dupas was, indeed, Black.

A few years later, another Louisiana case, Anderson v. Martin (1964), ⁽¹¹⁴⁾ raised the issue of racial identification. A Louisiana law required the race of candidates to appear on ballots. The Supreme Court unanimously struck down the law as discriminatory, and thus never addressed the issue of how race was to be determined.

Four other birth certificate cases arose after the civil rights movement, which presumably had changed racial attitudes or at least the willingness openly to express them. State ex rel. Pritchard v. Louisiana Board of Health (1967) ⁽¹¹⁵⁾ saw a woman's effort to have her birth certificate changed from Black to white fail, on the ground that as she sought the change, she carried the burden of proof and was unable to sustain the burden. State ex rel. Schlumbrecht v. Louisiana State Board of Health (1970) ⁽¹¹⁶⁾ concerned a father who wanted his daughter's birth certificate to remain white in the face of the registrar's doubts that this was accurate. The registrar pointed to the census of the maternal line, which contained references to white, person of color, mulatto, and colored, and urged a judicial proceeding to resolve the matter. But the court treated the history as so confused as to be useless; some children of the same parents were designated with different races. The original designation had to be shown clearly wrong, the court held, and as the state could not demonstrate this, the original designation was upheld.

Thomas v. Louisiana State Board of Health (1973) ⁽¹¹⁷⁾ concerned a man and the birth certificates of his wife and two sons. Originally, the three were listed as white; later, they changed the designation to Black; he wanted to return the designation to white. After reviewing the very extensive record, the Louisiana Court of Appeals ruled that a change could be ordered only if there were “no room for doubt.” ⁽¹¹⁸⁾ But with unreliable records and no way to determine the proportion of Black blood, it could not order the change.

State ex rel. Plaia v. Louisiana State Board of Health (1973) ⁽¹¹⁹⁾ involved a parent who designated her daughter as white, but found that a registrar had designated her as Black on her birth certificate. The registrar had relied on a 1970 statute that defined Black as one thirty-second or more Black, but did not instruct as to how this would be calculated. The registrar, assuming that every mixed race ancestor was half Black, produced a number greater than one thirty-second. “[I]t would follow,” the Louisiana Supreme Court concluded, “that anyone who was less than half Negro would have been placed on the census record as white, a conclusion which hardly seems realistic.” ⁽¹²⁰⁾ The court, finding the registrar's assumption implausible and disputing the calculation, concluded that there was sufficient cause to overrule the designation.

Doe v State (1985) ⁽¹²¹⁾ concerned several members of a Louisiana family, who maintained that their parents’ birth certificates had erroneously designated them as Black. The Louisiana Supreme Court ruled that one party cannot sue to change the racial designation of another party. But though its ruling could have ended at this point, it then turned to the merits and held that the family had failed to establish that the preponderance of the evidence supported their position. It conceded that “racial designations are purely social and cultural perceptions,” ⁽¹²²⁾ but thought that the “evidence conclusively proves those subjective perceptions were correctly recorded” on the certificates; it added that there was “no evidence that during their lifetimes they objected to the racial classifications.” ⁽¹²³⁾ In following a preponderance of evidence rule, ⁽¹²⁴⁾ the court departed from the traditional no room for doubt rule, but offered no explanation for the departure.

What was never addressed in the racial designation cases was a clear equal protection issue. Laws that define Blackness according to some fraction openly treat Blacks and whites differently. If you are one-eighth Black, you are Black, but if you are one-eighth white, you are not white. It would not be necessary even to allege that the purpose is obviously racist to show that without justification, the races are treated radically differently under the law.

How, then, to define race? Two points are immediately obvious. First, a community is constituted by what it excludes as much as by what it includes. The community of white people thus was partially constituted by excluding Black people. Second, in the words of Merleau-Ponty, “To see is to see from somewhere.” ⁽¹²⁵⁾ That is, the racial distinctions proceed from the white perspective, with the consequence that the exclusion necessarily was accompanied by pejoratives, with laws of nature sometimes invoked to legitimate the judgment. The courts, therefore, adhered to a single objective model, in which Black blood contaminated pure white blood.

What is contamination? William James famously defined dirt as “matter out of place;” ⁽¹²⁶⁾ it is fine in the backyard, but not on the crème brulee. Blacks would be fine in the field as subordinates, but out of place as social equals. But as Douglas observed in a somewhat different context, ideas of purity and pollution may seem timeless and unchanging and safeguarded by rules of avoidance and punishment, but they do change, resulting in inconsistencies of application. ⁽¹²⁷⁾ Thus, on the precise level of assumed Black toxicity, the unanimity broke down, some favoring a fourth, others an eighth, a sixteenth or a thirty-second, with marginal cases to be decided on the basis of appearance or performativity.

Complicating matters further, all races have not been treated the same. For example, the federal government, which did not utilize blood quantums for Native Americans until early in the twentieth century, ⁽¹²⁸⁾ has generated nearly three dozen definitions of “Indian,” ⁽¹²⁹⁾ and the 574 federally recognized tribes ⁽¹³⁰⁾ have created even more. ⁽¹³¹⁾ There are also many tribes that are not recognized and many Native Americans who do not expressly belong to tribes. The Bureau of Indian Affairs generally follows the one-quarter rule, perhaps because this results in fewer persons entitled to race based government entitlements than the one-drop rule. In any case, Native Americans are intermarrying at such a high rate that applying the rule will mean that “eventually Indians will be defined out of existence. When this happens the federal government will be freed of its persistent ‘Indian problem.’” ⁽¹³²⁾

An enduring problem has been that all the criteria are seriously defective. Ancestry faces the problem of conflicting, incomplete or absent records. It is obviously easier to tie a child's race to the mother than the father, but it is not always clear what the mother's race is. A 2015 Pew Research Center survey found that 6.9% of adults identified as multiracial, about twenty million people. ⁽¹³³⁾ In a time of increasing rates of multiracial people, do we resurrect the quadroon and octoroon terminology from the old Jim Crow days?

The appearance criterion faces the problem of subjectivity – different people might evaluate a person's appearance differently – plus the problem of invisible Blackness – a person might pass the appearance test but fail the ancestry test. When Latinos were given stereotypical Black haircuts and Blacks stereotypical Latino haircuts, their racial identifications changed accordingly. ⁽¹³⁴⁾ Finally, the performativity criterion faces the problem of socialization – persons living in a given culture may absorb the mores and behaviors of that culture, even if objectively they do not seem to belong there.

There is also, famously, the one drop rule, according to which literally a single drop of Black blood renders an individual Black. ⁽¹³⁵⁾ In the early colonial period, most mixed race persons resulted from unions between enslaved Black women and male white indentured servants, ⁽¹³⁶⁾ with the result that “certain people of blended ancestry often enjoyed space in between slavery and freedom.” ⁽¹³⁷⁾ With the development of plantation agriculture, however, this pattern was replaced by enslaved Black women having children by white masters or overseers, mostly coercively. As the nineteenth century progressed, according to Williamson's pioneering study, the one-drop rule first took root in the upper South, where mixed race people were more numerous, and then later in the lower South, where mixed race people were less common. Here, the perceived need to enforce the color line was weaker, and mixed race people tended to be recognized as a separate intermediate category accorded greater respect and security. By the 1850s, though, as a defensive reaction against abolitionists at a time of growing sectional crisis, the one-drop rule had become universal ⁽¹³⁸⁾ and communities of free Black people were regarded as hotbeds of abolitionism and incubators of rebellion. ⁽¹³⁹⁾

By 1904, a prominent statistician could brag that “there is no country in which statistical investigation of race questions is so highly developed . . . as the United States.” ⁽¹⁴⁰⁾ In a few years, the one drop rule was enshrined in law in Tennessee (1910), Arkansas and Texas (1911), Mississippi (1917), North Carolina (1923), Alabama and Georgia (1927), Virginia (1930), and Oklahoma (1931). Typical was a 1911 Arkansas statute, which defined “Negro” as anyone “who has . . . any Negro blood whatever.” ⁽¹⁴¹⁾ In addition, a rule of one-sixteenth or one thirty-second Black blood, which was practically indistinguishable from the one drop rule, was adopted in Florida, Indiana, Kentucky, Maryland, Nebraska, North Dakota, and Utah. The 1920 Census formally accepted the one-drop rule. ⁽¹⁴²⁾

Intellectually, the one-drop rule provided a work-around for the troublesome Sorites Paradox. Imagine that you wish to build a pile of rice. You select one grain; it is not a pile. You add a second grain; it is also not a pile. Each additional grain is too small to make a difference. Thus, adding a thousandth grain would not make a pile – and yet collectively a thousand grains are a pile. So it is with race. If one accepts the racist contaminant premise, how to determine where to draw the line? One sixty-fourth may seem too tiny to notice. One thirty-second is also very small. So is one sixteenth. And one-eighth. The one-drop rule renders all these calculations irrelevant. Instead of seeking vainly for the precise point at which individual grains constitute a pile, it offers a very different metaphor. In the words of the notorious Klan apologist, Thomas Dixon, “A pint of ink can make black gallons of water.” ⁽¹⁴³⁾

Though there is “very little evidence for sharp racially defined heterogeneities,” ⁽¹⁴⁴⁾ some believe in the utility of DNA testing. ⁽¹⁴⁵⁾ However, genetic testing recalls the infamous anti-Semitic Nazi Nuremberg laws to “protect German blood and honor” and the apartheid system of South Africa. Adding uncertainty, future advances in gene editing may eventually enable us to choose or alter our race, undermining the fixity assumption. More broadly, some scholars caution against genetic racial determination on the ground that it omits considerations of social, cultural, relational, and experiential norms that are essential in shaping racial identity. ⁽¹⁴⁶⁾

The alternative to having someone else determine one's race, is to do it oneself. This bow to individual agency carries great emotional appeal in America, where so many of us, engaged in the pursuit of happiness that is always just out of reach, gorge ourselves on self help books that instruct us to take control of our lives. ⁽¹⁴⁷⁾ Can I decide, then, on an aggressive make-over? Not merely Botox to plump up my lips or a hair transplant to give me a pompadour, but something truly radical? May I, a white person, choose to be Black? Worded this way, the proposal sounds silly. Yet choosing one's race is very far from a frivolous decision, and inasmuch as a white person can never really know what it is to be Black, he or she may base a momentous choice on second hand information of dubious validity. (It may be easier for a Black person successfully to choose to be white, as whites probably feel less need to hide their thoughts.)

In any case, racial self-identification is hardly uncommon. The Pew Research Center analyzed 168 million 2010 census returns and found that more than ten million changed their race from 2000. ⁽¹⁴⁸⁾ More notoriously, Rachel Dolezal (aka Nkechi Amare Diallo), ⁽¹⁴⁹⁾ Margaret Seltzer (aka Margaret B. Jones), ⁽¹⁵⁰⁾ Jennifer Benton (aka Satchuel Cole), ⁽¹⁵¹⁾ and Jessica A. Krug (aka Jess La Bombera) ⁽¹⁵²⁾ identified as Black; Jackie Marks (aka Jamake Highwater) ⁽¹⁵³⁾ and Andrea Smith identified as Cherokee; ⁽¹⁵⁴⁾ and Michael Derrick (aka Yi-Fen Chou) ⁽¹⁵⁵⁾ identified as Chinese. All were white and can be classed as identity entrepreneurs, in that they “leverage[d] . . . identity as a means of deriving social or economic value.” ⁽¹⁵⁶⁾ Self-identification, in short, frequently will present a conflict of interest: I may choose to identify with a race because it is to my advantage to do so. ⁽¹⁵⁷⁾ You may choose to accept my self-identification for the same reason. ⁽¹⁵⁸⁾ Or you may reject it as somehow inauthentic. ⁽¹⁵⁹⁾ The utility of self-identification is a staple of fiction depicting non-white characters passing as white. ⁽¹⁶⁰⁾ As Booker T. Washington observed, “how difficult it sometimes is to know where the black begins and the white ends.” ⁽¹⁶¹⁾

Can I, then, with the aid of cosmetic science take control of my life and remake myself in this fashion? Indeed, do I have a dignity or liberty interest in self-identification? ⁽¹⁶²⁾ Or does it constitute racial fraud? ⁽¹⁶³⁾ Even if it is fraud, is this an acceptable price to pay for the agency self-identification confers? ⁽¹⁶⁴⁾ One might imagine that Black people would feel that only those who have suffered on account of race should claim its benefits. ⁽¹⁶⁵⁾ However, the verdict is mixed, and the results are somewhat unexpected. On Dolezal, sixty-eight percent of whites thought she was deceitful and only twenty percent believed she should retain her position as president of the Washington chapter of the NAACP; on the other hand, only forty-six percent of Black people considered her deceitful and fifty-two percent thought she should keep her NAACP position. ⁽¹⁶⁶⁾ An easy prediction that Black people would be more critical of her falsely assuming their status for her benefit turns out to be false. Which may suggest that it is unwise to take how people feel about constructing race for granted.

The revelations about persons of one race assuming another race suggest that observation may not always be a reliable guide for racial identification. Thus, we may see someone and perhaps not be certain which race he or she is, and then look or listen at other things – maybe his or her hairstyle or slang – and make up our mind accordingly, adding behavior to the mix. Which is not necessarily to say that culture is determinative. ⁽¹⁶⁷⁾ Is the rapper Eminem Black or the opera singer Leontyne Price white? “If ‘white’ can be ‘black,’ what is white?” ⁽¹⁶⁸⁾ And what is Black?

Of course, relying on behaviors leaves us open to charges of stereotyping, which was exactly how Dolezal and the rest successfully passed. However, stereotyping is normal behavior, for “the human mind must think with the aid of categories. . . We cannot possibly avoid this process. Orderly living depends on it.” ⁽¹⁶⁹⁾ It is essential in cutting our information processing costs, even though it may yield very imperfect results. Racial stereotyping, in particular, is notoriously insidious, as it may be activated involuntarily and unintentionally as a result of cultural conditioning at a very young age. ⁽¹⁷⁰⁾

If common sense tells us that race is easily determined objectively, it is also common sense that tells us the earth is flat. Common sense does not always make sense. Consider the plight of Homer Plessy in the well known case that bears his name. ⁽¹⁷¹⁾ In the Louisiana of the 1890s, “There existed no consistent, thorough, and effective system of social control, legal or extralegal, governing relations between the races. The place of the Negro and his relationship to the white man had yet to be carefully defined.” Accordingly, the “treatment accorded Negroes on the railroads varied greatly.” ⁽¹⁷²⁾ Yet though Louisiana was late in embracing legally required racial segregation, it was also perhaps the most aggressive Southern state in this regard. ⁽¹⁷³⁾

One-eighth Black, Plessy could pass for white (“his blood was not discernible” ⁽¹⁷⁴⁾). Yet a train conductor, in the words of his lawyer, Albion Tourgee, “in the absence of statutory definition and without evidence” ⁽¹⁷⁵⁾ directed him to cars reserved only for Blacks, as required by Louisiana law. Plessy refused to categorize himself racially and noted that in his hometown, New Orleans, there were several racial gradations that were widely recognized, with lighter skins being privileged. As Tourgee, argued, “In any mixed community, the reputation of belonging to the dominant race. . . is property, in the same sense that a right of action or an inheritance is property. . . . Indeed, is not whiteness the most valuable sort of property, being the master-key that unlocks the golden door of opportunity? . . . Probably most white persons if given a choice, would prefer death to life in the United States as colored persons. Under these conditions, is it possible to conclude that the reputation of being white is not property?” ⁽¹⁷⁶⁾

Louisiana empowered the conductor “at his own discretion to require a man to ride in a ‘Jim Crow’ car,” ⁽¹⁷⁷⁾ thereby depriving Plessy of his property (that is, his reputation) without due process in violation of the Fourteenth Amendment. ⁽¹⁷⁸⁾ Compounding the problem, because the law denied the conductor and the railroad any liability for damages, it removed a key incentive to challenge the conductor's authority through a suit for damages. Thus, as Tourgee put it, the “gist of our case is the unconstitutionality of the assortment, not the question of equal accommodation.” ⁽¹⁷⁹⁾

The United States Supreme Court in deciding against Plessy, however, paid little attention to his argument. At one point, Justice Brown asserted that racial differences exist as “a distinction which is found in the color of the two races, and which must always exist so long as white men are distinguished from the other races by color,” ⁽¹⁸⁰⁾ in other words, that the distinctions will always be permanent and easy to see. A few pages later, however, he observed that some states had ruled that “any visible admixture of black blood stamps the person as belonging to the colored race; others that it depends upon the preponderance of blood; and still others that the preponderance of which blood must only be in the proportion of three fourths,” ⁽¹⁸¹⁾ in other words, that reasonable people may disagree on the subject. The confusion is indicative of the Justices’ lack of interest in the question. Apparently, they thought the answer obviously lay with “natural affinities,” ⁽¹⁸²⁾ “racial instincts,” ⁽¹⁸³⁾ or physical observation – though in Plessy's case it was emphatically not obvious at all.

Brown conceded arguendo that Plessy's reputation was a kind of property, but disposed of his claim with the observation that as Plessy was not white, “he is not entitled to the reputation of being a white man.” ⁽¹⁸⁴⁾ For Brown, Plessy's reputational claim was simply based on a claimed right to deceive. Plessy had argued that his reputation had created a presumption of whiteness; Brown replied that, conversely, whiteness was the basis of his reputation. Even Justice Harlan's famous color blind dissent ignored Plessy's claim. His reference to blackness as a “badge of slavery” was directed at identity, ⁽¹⁸⁵⁾ but his opinion was silent as to how the identity was to be determined. What Plessy sought was the power to determine his own racial designation.

It is not difficult to grasp Brown's point. Given the countless advantages of whiteness, some Black people will misidentify themselves to enjoy these advantages. Self-identification, then, has an ineradicable problem of conflict of interest. That there might be something wrong with whiteness’ advantages seems never to have crossed his mind.

It is also not difficult to grasp Plessy's point. The Louisiana law, which ended the established practice of men of both races occupying second class cars, never bothered to define the races. The so-called objective test, racist to the core, told Plessy that seven-eighths white and one-eighth Black meant he was Black. Even the arithmetic made no sense. And as racial classification touched virtually every aspect of existence, his life was profoundly affected by premises thoroughly hostile to his interests. Brown was surely correct that under the current system, Plessy was simply a Black man not entitled to be taken for white; but Plessy, addressing a more fundamental issue, insisted that the system was incoherent and should be disregarded, a plea that Brown ignored. Yet as a practical matter, in claiming that he should be treated as white, Plessy was not so much attacking a system of white supremacy as asking that the benefits of whiteness be a little more broadly shared.

To him, it was plain that as objective definitions are unstable, so are subjective definitions, which may vary over time, ⁽¹⁸⁶⁾ across contexts, ⁽¹⁸⁷⁾ and according to the norms and expectations of others. ⁽¹⁸⁸⁾ In the best of circumstances, moreover, many individuals will find their discretion limited by their physical appearance and the perceptions of those around them. Brown's pretense at objectivity was refuted daily in the real world.

Plessy by implication raises the issue of racial defamation. In the South, it was universally acknowledged among the white legal establishment that calling a white person Black was libelous per se; ⁽¹⁸⁹⁾ that is, the mere showing of publishing the words would be sufficient to establish guilt, with no need to prove actual damages. In Upton v. Times Democrat (1901), ⁽¹⁹⁰⁾ a reporter sent a telegram to his newspaper, referring to Thomas Upton as a “cultured” gentleman; in transmission, the word was altered to “colored”; because the newspaper used “Negro,” it was changed again in print. The newspaper printed a retraction and apologized to Upton, but his libel judgment was upheld. Flood v. News & Courier (1905) ⁽¹⁹¹⁾ concerned a man struck by a streetcar; the local newspaper reporting the incident called him colored. The Georgia Supreme Court observed that calling “a white man a negro or a mulatto. . . would not only be galling to his pride, but would tend to interfere seriously with the social relation of the white man with other white men.” ⁽¹⁹²⁾ As late as the 1950s, similar libel judgments were upheld. ⁽¹⁹³⁾

Major Concrete Construction Co. v. Erie (1987) ⁽¹⁹⁴⁾ saw a business executive try to have his company certified as a minority business enterprise for affirmative action purposes on the ground that he was one-quarter Mexican. He conceded that he had no tie to the Hispanic community, had no Hispanic friends, and did not identify as Hispanic, but maintained that his ancestry was sufficient to win the certification. Neither the administrative judge nor the New York Supreme Court, Appellate Division, found this persuasive. Ancestry had to be supplemented by some cultural tie. ⁽¹⁹⁵⁾ His self-identification was not enough.

A Massachusetts case raised the matter of racial self-identification in the context of an affirmative action policy that benefitted minority public employees. Malone v. Civil Service Commission ⁽¹⁹⁶⁾ involved two Malone brothers, who, identifying as white, took a civil service examination to become firefighters and failed; two years later, they took the exam, identifying as Black under an affirmative action decree order, and were hired, though their grades were below those of the cut-off for successful white applicants. A decade later, they sought promotions; the fire commissioner noticed that they were classified as Black but appeared white; they asserted without proof that their great grandmother was Black. A personnel administrator appointed a hearings officer, who then applied three criteria to determine the accuracy of the Malones’ self-identification: visual appearance, Black ancestry, evidence that they identified as Black and were so regarded by the Black community. As they failed to meet any of the criteria, the officer concluded that the Malones had “willfully and falsely identified themselves as black in order to receive appointments in the department.” ⁽¹⁹⁷⁾ They sued for reinstatement, arguing that the hearing officer was biased, based on her membership in the NAACP and a remark reported by an unidentified person. The Supreme Judicial Court of Massachusetts rejected the bias contention as baseless, and seems to have accepted the hearings officer's criteria as workable. A Boston newspaper reported that eleven other firefighters were under investigation for similar deceptions. ⁽¹⁹⁸⁾

More recently, a Seattle small business owner, Ralph Taylor, sought to have his insurance company certified by the state as a minority business enterprise, so it could qualify for a federal affirmative action program targeting disadvantaged business enterprises. Taylor had lived his life as a white man and had experienced no discrimination, but an ancestry DNA test revealed that he was ninety percent white, six percent Native American, and four percent Black, and he applied to be certified. He was certified by the state, but denied certification by federal authorities, who asked him questions they had never asked other applicants. He appealed to a federal district court, arguing that the law defined Black as “having origins in any of the black racial groups in Africa,” that he met this criterion, and that its absence of formal procedures for determining racial identity resulted in a process void for vagueness. The court upheld the denial, noting that Taylor failed to show discrimination, that the agency had a “well founded reason” (namely, his appearance as a white man) to question his self-identification, and dismissed his appeal. ⁽¹⁹⁹⁾ The ninth circuit affirmed the judgment. ⁽²⁰⁰⁾ A Seattle newspaper, however, reported that a Yakima man who claimed to be six percent Black and appeared white had qualified for similar state and federal programs and been awarded millions of dollars in contracts. ⁽²⁰¹⁾

In Major Concrete Construction, Malone, and Orion, subjective racial identification collided with objective identification and collapsed under the weight of obvious conflicts of interest. Nonetheless, self-identification is far from dead. Indeed, perhaps as a result of the growing number of mixed race persons, the Census in 1970 switched from enumerators determining the race of respondents to respondents making the determination themselves. ⁽²⁰²⁾ This may improve the overall accuracy of the count, but the instances of passing may indicate that self identification may not be trustworthy in every specific case. For example, a study of self identification and affirmative action policies found that Black mixed race individuals were thirty percent more likely to identify as Black when there were affirmative action policies than when there were not. ⁽²⁰³⁾ Still, the practice of self-identification is gaining acceptance, so much so that it is entirely predictable to read of a “right to racial self-identification.” ⁽²⁰⁴⁾ Or as a pair of scholars put it, “Racial identity refers mainly to the subjective understanding of oneself as a racialized person.” ⁽²⁰⁵⁾ Indeed, elective race “is poised to become one of the dominant frameworks for understanding race in the United States.” ⁽²⁰⁶⁾ Is Dolezal, then, Black?

The slaveowners took immense pride in the civilization they had created, so superior to the money-grubbing, wage-slavery that mocked the pretensions of the North and so exquisitely epitomized by the South's grand plantation mansions, all with columns echoing the villas of Palladio, who in turn had echoed the temples of ancient Greece and Rome. This civilization, a thin and precarious crust maintained by elites vigorously enforcing racial rules and conventions, depended on some human beings owning other human beings, posing the question as to how civilized the civilization actually was. When eventually it was vanquished in combat, the rules and conventions continued on, like runners who do not instantly stop upon crossing the finish line. Among those rules and conventions, the most powerful and durable, indeed, like runners who deny the race had ended at all, have proven to be those that stigmatize Black people. Hence, the perennial matter of constructing race has sadly retained its social centrality.

Constructing race, however, would seem to present inherent problems that may well doom the enterprise, at least intellectually. For generations, it was based on the assumptions that race is a neutral biological category and that racial identification is a straight forward matter of good faith common sense. Mixed race people, however, have become so numerous that focusing on appearance is frequently problematical, as the utility of the racial binary dwindles before our eyes. Increasingly, good faith common sense is seen to be inadequate. More basically, racial concepts themselves have become hard to defend. ⁽²⁰⁷⁾ Why should a person a fraction Black be termed Black? How can we even talk in terms of blood? What is the point of classifying people on the basis of skin color, hair, or the shape of their eyes?

At the same time, whatever the invalidity of race, the notion has acquired tremendous inertia over the centuries. Nearly all of us think in terms of race, perceive other people in terms of race, and consciously or unconsciously make use of race nearly every day of our lives. As to its history, one thinks of Faulkner's famous aphorism, “The past is never dead. It's not even past.” ⁽²⁰⁸⁾ Thus, a careful study of the 2008 Obama election found that though old notions of Blacks’ biological inferiority “had faded to the margins of white society,” a racism of white resentment had taken its place. ⁽²⁰⁹⁾ There is even the grim possibility that humanity may be “universally inclined to dehumanize people who differ from them in physiognomy, phenotype, language, religion, social status, and even gender, [leaving] racism simply a variant on intergroup prejudice.” ⁽²¹⁰⁾ Thus, it is fatuous to urge that we jettison the concept, on account of its intellectual incoherence and its painful and corrupting record. These are good and sensible reasons, but it is simply and obviously not possible.

Is recognizing and not glossing over the existence of mixed race people the answer? ⁽²¹¹⁾ This may mollify some who feel ignored or slighted by the traditional approach, and with this in mind, the Census now permits respondents to check off more than one racial category or to select Other. But in the end, this merely tweaks the problem; creating new racial classifications will do little for members of these groups and nothing at all for those designated as Black. ⁽²¹²⁾ Nor will it end the task of assigning or self-identifying individuals to specific racial pigeon holes. More basically, the centrality of the flawed concept of race remains, an unwanted guest having changed clothes but otherwise remained recognizably the same.