On account of race or color: race as corporation and the original understanding of race.

• Author: Oh, Reginald
• Position: Symposium: Defining Race

This Essay is a critique of constitutional and political discourse on "race." I argue that current equal protection doctrine operates under a conception of race that undermines rather than moves forward the goal of achieving racial equality. That understanding defines race solely or primarily as a physical trait or characteristic, and unjustifiably rejects other, more robust notions of race. I argue the notion of race as physical trait is inconsistent with the historical understanding of race that served as the basis for the Reconstruction Amendments. A careful examination of nineteenth and early twentieth century court decisions, decisions which include Plessy v. Ferguson (1) and Strauder v. West Virginia, (2) suggests that the framers of the Reconstruction Amendments and the Supreme Court Justices of that era thought of race, not as a physical trait, but as an entity with a corporate existence. In other words, they thought of race as corporation.

Part I will critique current equal protection doctrine and argue that it has adopted a narrow and constitutionally problematic definition of race as physical trait. Part II will then examine the original understanding of race and discuss the concept of race as corporation. Part III will then examine the implications of the race as corporation concept for rethinking current equal protection doctrine.

I

Political and legal discourse about race is often confusing and bewildering because we often fail to fully understand that, as an "essentially contested concept[]," (3) "race" has no fixed, essential meaning and is thus subject to multiple definitions. (4) In the post-Brown, (5) late twentieth and early twenty-first century era, the unstated, default assumption in legal discourse was that race refers to a physical trait such as skin color, or an identity based on skin color. (6) But of course, race as skin color or as racial identity is not the only way to think about and conceive of race. Consequently, when we engage in racial discourse, confusion and misunderstanding are inevitable if we forget about the multidimensional nature of the concept of race. Too often, discursive actors assume that they hold the same assumptions about the meaning of race when in actuality, they hold related but different understandings. What's more, an actor will often use multiple definitions of race without being consciously aware that he or she is doing so.

Current equal protection doctrine on race is conceptually and practically incoherent, in large part because there is an illusory consensus regarding the constitutional meaning of race. Thus, in Richmond v. Croson, Justices Sandra Day O'Connor and Thurgood Marshall seemed to agree that the Fourteenth Amendment was centrally concerned with the problem of race. (7) In her plurality opinion, O'Connor asserted that, "[t]he Civil War Amendments themselves worked a dramatic change in the balance between congressional and state power over matters of race." (8) While dissenting from O'Connor's opinion, Marshall nevertheless expressed his agreement with O'Connor's understanding of the Fourteenth Amendment, stating, "[t]he three Reconstruction Amendments undeniably 'worked a dramatic change in the balance between congressional and state power.'" (9)

Yet, despite their agreement regarding the fundamental relationship between the Fourteenth Amendment and "race," Justice O'Connor voted to strike down a local government race-conscious affirmative action program as a form of invidious racial discrimination in violation of the Fourteenth Amendment's Equal Protection Clause, (10) while Justice Marshall voted to uphold the race-conscious set-aside as entirely consistent with the Fourteenth Amendment Equal Protection Clause. (11)

O'Connor and Marshall's disagreeable agreement over the relationship between "race" and the Fourteenth Amendment beautifully captures the essentially confused state of current equal protection doctrine on race. To understand how the two justices could come to different conclusions despite seemingly agreeing on the centrality of race to equal protection doctrine, it is crucial to understand that they are thinking about and using the term race in very different ways. While O'Connor and the Rehnquist Court refer to race solely as a physical trait, Marshall and critics of the Rehnquist Court equal protection doctrine refer to race as a trait and as a social group. The different approaches to race and equal protection have had enormous doctrinal and political consequences.

The central doctrinal premise of current equal protection doctrine is the notion that all governmental uses of race are inherently arbitrary and irrational, and therefore laws relying on race must be presumed to be unconstitutional and subject to the most rigorous level of judicial scrutiny. (12) And under strict scrutiny analysis, the government has the heavy burden to demonstrate that its use of race is necessary to serve a compelling government interest. (13) Accordingly, if all uses of race are inherently suspect, then, the argument is that even "benign" uses of race in the context of affirmative action equal opportunity and racial integration plans should be subject to strict scrutiny.

Even well intentioned race-conscious affirmative action programs run afoul of equal protection because they engage in the very practice that the Fourteenth Amendment was designed to eliminate--discrimination on the basis of race (skin color). Government decisions based on race as skin color, even if those decisions are made for legitimate or compelling purposes, would be akin to making irrational decisions to award jobs and contracts based on other morally and legally irrelevant traits like eye color or hair color. (14)

Reading Rehnquist Court decisions on race and equal protection, one would get the clear sense that it is self-evident and inherently correct that all uses of race are constitutionally suspect. As Justice O'Connor explained, all "[c]lassifications based on race carry a danger of stigmatic harm" and "they may in fact promote notions of racial inferiority and lead to a politics of racial hostility," even if a classification is aimed at promoting racial equality. (15) Echoing Justice O'Connor, Chief Justice Roberts emphasized in a 2007 equal protection race case, "[g]overnment action dividing us by race is inherently suspect because such classifications promote notions of racial inferiority [leading] to a politics of racial hostility, [and] reinforce the belief[] held by too many for too much of our history, that individuals should be judged by the color of their skin." (16)

However, the principle that all racial classifications are inherently suspect is a recent doctrinal development. (17) During the height of the civil rights era, the Court employed strict scrutiny analysis to strike down racially discriminatory Jim Crow laws that maintained and reinforced racial segregation. The Court, however, subjected race-conscious affirmative action programs, to a lower level of judicial scrutiny, as they were considered "benign" racial classifications deserving of greater legislative deference. But, at least formally, that deference disappeared under the Rehnquist Court, as the Court in Croson and Adarand held that all racial classifications, whether...