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The Pocahontas Exception: The Exemption of American Indian Ancestry from Racial Purity Law
"The Pocahontas Exception" confronts the legal existence and cultural fascination with the eponymous "Indian Grandmother." Laws existed in many states that prohibited marriage between Whites and non- Whites to prevent the "quagmire of mongrelization." Yet, this racial protectionism, as ingrained in law, blatantly exempted Indian blood from the threat to White racial purity. In Virginia, the Racial Integrity Act of 1924 made exceptions for Whites of mixed descent who proudly claimed Native American ancestry from Pocahontas. This Paper questions the juridical exceptions made for Native American ancestry in antimiscegenation statutes, and analyzes the concomitant exemptions in contemporary social practice. With increasing numbers of Americans freely and lately claiming Native ancestry, this openness escapes the triumvirate of resistance, shame, and secrecy that regularly accompanies findings of partial African ancestry. The author contends that antimiscegenation laws such as the Racial Integrity Act relegate Indians to existence only in a distant past, creating a temporal disjuncture to free Indians from a contemporary discourse of racial politics. He argues that such exemptions assess Indians as abstractions rather than practicalities, which facilitates the miscegenistic exceptionalism as demonstrated in Virginia's antimiscegenation statute.We Need Inquire Further: Normative Sterotypes, Hasidic Jews, and the Civil Rights Act of 1866
According to modern Supreme Court opinions, The Civil Rights Act of 1866 prohibits only "discrimination [against members of protected groups] solely because of their ancestry or ethnic characteristics." The Court refers to this type of discrimination as 'racial animus.' In the 1987 case Shaare Tefila Congregation v. CobbJews were recognized as a protected ethnic group under these statutes, but the Supreme Court also reaffirmed that The Civil Rights Act only prohibits 'ethnic' or 'ancestral' discrimination. The Act does not encompass religious discrimination. Yet, despite the Supreme Court's rulings, the district courts held that both Rabbi LeBlanc-Sternberg's and Mr. Singers' allegations of discrimination based on specific Jewish religious practice were actionable under The Act. This Note will document and explain this paradox.Same-Sex Loving:Subverting White Supremacy Through Same-Sex Marriage
This Article marks the 40th anniversary of Loving v. Virginia- the landmark decision that responded to the question of the constitutionality of anti-miscegenation laws by firmly stating that the fundamental right to marry could not be restricted by race-by taking up the issue of the case's applicability in the context of same-sex marriage. The invocation of Loving has generally been in a manner that invites comparisons between interracial and same-sex marriage. Pro same-sex marriage arguments that utilize this comparison-which has come to be known as the "Loving Analogy"-- include the decision's freedom of choice and antidiscrimination elements, but rarely incorporate the Supreme Court's antisubordination message, as articulated through its anti-white supremacy stance. This Article seeks to rectify that. It argues that same-sex marriage subverts White supremacy by undermining heterosupremacy, countering notions of White superiority, and, because of the very existence of interracial same-sex couples, striking society "color-blind," thus rendering race temporarily invisible. This Article reaches the conclusion that same-sex marriage is a civil rights issue that works against heterosupremacy and White supremacy and that Loving v. Virginia is indeed a case that can and should be extended to sanction same-sex marriage and support Lesbian and Gay couples.Without Color of Law: The Losing Race Against Colorblindness in Michigan
This Essay examines affirmative action, while discussing its fall in California, Washington State, and ultimately Michigan.Choice and Fraud in Racial Identification: The Dilemma of Policing Race in Affirmative Action, the Census, and a Color-Blind Society
This Article focuses on the implications of self-conscious efforts by individuals to alter their racial identity and the challenge that they pose to social conventions and the law. It also considers some implications of such a framework to the promotion of a color-blind society, in particular with respect to health care services and bureaucratic records.The Color of Perspective: Affirmative Action and the Constitutional Rhetoric of White Innocence
This Article discusses the Supreme Court's use of the rhetoric of White innocence in deciding racially-inflected claims of constitutional shelter. It argues that the Court's use of this rhetoric reveals its adoption of a distinctly White-centered perspective, representing a one-sided view of racial reality that distorts the Court's ability to accurately appreciate the true nature of racial reality in contemporary America. This Article examines the Court's habit of using a White-centered perspective in constitutional race cases. Specifically, it looks at the Court's use of the rhetoric of White innocence in the context of the Court's concern with protecting "innocent" Whites in affirmative action cases. This Article concludes that the Court's insistence on choosing and imposing only one racialized perspective--the White-centered perspective--in racially-inflected constitutional claims is more than simply bad policy: that choice embodies an unconstitutional violation of the Due Process Clause of the Fourteenth Amendment. This Article calls for an appreciation of the dominant use and problematic character of the judicial imposition of an arbitrarily chosen racial perspective in deciding all constitutional race cases. It suggests a modification in judicial decisionmaking in which judges become conscious of the White-centeredness and arbitrariness and racial contingency of the White-centered vantage point. This Article urges a judicial appreciation of multiple levels of racial interpretation in an effort to loosen the hegemonic grip of the White-centered perspective and dilute its power on the mind and imagination of the judiciary. If this goal can be achieved, the White-centered perspective will become just one option among a multitude of equally-respected racial perspectives that can then fairly compete for both judicial recognition and legitimization.Negative Action Versus Affirmative Action: Asian Pacific Americans are Still Caught in the Crossfire
The author concludes that Espenshade and Chung's inattention to the distinction between negative action and affirmative action effectively marginalizes APAs and contributes to a skewed and divisive public discourse about affirmative action, one in which APAs are falsely portrayed as conspicuous adversaries of diversity in higher education. The author will also argue that there is ample reason to be concerned about the harmful effects of divisive and empirically unsupported claims about APAs influencing the public debate over affirmative action, particularly in Michigan, where an anti-affirmative action initiative nearly identical to California's Proposition 209 will appear on the November 2006 ballot. For example, in commenting to the press about Espenshade and Chung's study, Roger Clegg of the Center for Equal Opportunity-a leading advocacy group working to dismantle affirmative Action- cast the issue in starkly (and falsely) divisive terms: "If eliminating race-based admissions results in more Asian students or fewer African American students being admitted to top schools, so be it"The Diversity Rationale: Unprovable, Uncompelling
Student body diversity-and the purported educational benefits diversity bestows- is the final Supreme Court-endorsed justification for affirmative action by public universities. Are the benefits of diversity indeed "substantial," as the Grutter majority claimed? The author analyzes the social scientific research upon which the Court relied in articulating the diversity interest. By critiquing its theory and methodology, the author shows how the research fails to prove educational benefits; and by considering the logic underlying social science generally, he shows how the causal relationship is, technically, not provable. The author questions, then, how the diversity interest can possibly be compelling.On Justitia, Race, Gender, and Blindness
This Essay focuses on Justitia's more problematic attributes. Like Justitia's blindfold, which has been described as "the most enigmatic" of her traits. Is the blindfold merely emblematic of Justitia's purported impartiality, her claim to algorithmic justice? As law professor Costas Douzinas and art historian Lynda Nead have asked, does the blindfold enable Justitia "to avoid the temptation to see the face that comes to the law and put the unique characteristics of the concrete person before the abstract logic of the institution"? Or does the blindfold signify something more, a second sight of sorts? Maybe that Justitia, unable to see, becomes, like Sophocles' Teiresias, a seer? That Justitia, lacking sight, obtains insight? The French scholar M. Petitjean gives us yet a third possibility: that the blindfold functions as a limiting principle, reminding Justitia that she should tread cautiously, slowly, always cognizant of the step that came before.Accumulation
Anthony Farley brings a focus on class back to Critical Race Theory by exploring the intersection of race and class as a singular concept that finds its creation in the marking of difference through the primal scene of accumulation. Professor Farley's Essay contends that the rule of law is the endless unfolding of that primal scene of accumulation. By choosing to pray for legal relief rather than dismantling the system, the slave chooses enslavement over freedom. Professor Farley discusses the concept of ownership as violence and explains that property rights are the means of protecting the master class until everything and everyone comes to be owned. The commodification of race and its twin concept of class through the market based system show how the rule of law is only the disguise for the rule of one group over another, white-over-black.
