The dialectics of racial genetics.

• Author: Sundquist, Christian B.

INTRODUCTION

The devices of dialectic and narrative have long been used by scholars to analyze jurisprudence and disrupt traditional legal discourse. Henry M. Hart was one of the first legal scholars to utilize the dialectical method in his classic article, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic. (1) Since Hart's excursion into dialectical writing, a number of other scholars have used the device to analyze pressing legal issues. (2) The critical theory movement has also demonstrated the power of narrative writing in challenging and disrupting dominant legal norms as they relate to various forms of social inequality. (3) In particular, the late Derrick Bell influenced the writing of scores of critical scholars with his seminal book, Faces at the Bottom of the Well: The Permanence of Racism. (4) I call upon the instruments of dialectic and narrative in this article to analyze an extremely troubling scientific and judicial phenomenon: the re-emergence of biological theories of race in the twenty-first century. The following discussion takes place between a fictionalized representation of a childhood friend and me.

A DIALOGUE ON RACE AND GENETICS

My wife, daughter, and I recently decided to spend the holiday season with my mother and siblings at the family home on the South Side of Chicago. Upon arrival to "Nana's" house, I realized that I would always regard Chicago as "home"--despite having lived on the East Coast for the last sixteen years. And yet whenever I visit my childhood home, I often experience an odd muddle of feelings--from love and excitement at reuniting with family and old friends to anguish and despondency over the unrelenting poverty and crime that has come to define my community. A thoroughly African-American community due to past and current segregative practices, the Woodlawn-Roseland neighborhood that I grew up in has long been plagued with high rates of crime, poverty, and unemployment. (5) And while I spent long stretches of my childhood on "welfare" and fleeing gang violence, I had always remained ardently hopeful for the future of my community. Indeed, my commitment to social justice was strongly shaped by my experiences growing up in the "wild, wild, 100s," and fed my personal and scholarly interests in overcoming oppression through action and critical theory.

As we drove through my old neighborhood, any lingering feelings of Obama-esque hope for change were tempered by the too familiar signs of crushing poverty: burned out buildings, hopeless drug addicts, boarded-up homes, and gang-controlled corner blocks. Far from experiencing a revival, my Woodlawn-Roseland neighborhood has suffered a re-entrenchment of race-based poverty over the last two decades. (6) I steeled myself as we approached the family house, reminding myself that my mother's new next door neighbor was a high-ranking leader of the Gangster Disciples "Folks" gang. (7) I steeled myself at the memory of my youngest sister having to shield her infant son (my nephew) with her body during a fatal shooting at the nearby Ada Park a couple of years prior. (8) I steeled myself as I considered the safety of my wife and infant daughter, both snoozing quietly in the backseat of the rental car.

We arrived in front of the house, and my fitful thoughts were soon displaced by the expectant joy of seeing family. As I finished unhooking my infant daughter from her car seat, I heard a familiar voice behind me: "What's up, brother? Where you been?" I awkwardly whirled around--any street-sense instincts having long been forgotten--and came face-to-face with a childhood friend. "Farrow Powell! Is that you? I haven't seen you since we were kids!" I responded in shock. Although Farrow and I had been best friends for a while growing up, I had not seen him for over twenty years.

"Yeah, it's me, brother," replied Farrow. "I haven't seen you or your family in a minute. You remember I used to live just a few houses from you?" Holding my daughter in one arm, I awkwardly shook hands with Farrow with my free arm. "Of course I remember! We used to breakdance on broken down cardboard boxes right here on this sidewalk," I exclaimed. Farrow held out his hand towards my wife, saying, "hello, sister, my name is Farrow Powell. I assume you are Christian's wife and that this little one here is your beautiful daughter?" My wife shook hands with Farrow, and introductions were belatedly made. "I was so surprised to see you that I forgot to introduce you to my family," I admitted. I suggested that my wife and daughter head inside to the house while I caught up with Farrow.

"You put on some weight, brother," Farrow observed. "But that's a good thing--you always were skinnier than a mug!" We meandered over to the stoop to continue our conversation.

"So why are you back in the neighborhood? I thought you had moved out years ago when we were kids?" I asked Farrow. He grew somber for a moment, as though painfully recalling some past life. "Yeah, I left a long time ago. Right about the same time you up and left to go to that fancy high school on the North Side once you got that scholarship. Anyways, my foster family didn't want me anymore so I went back into the system."

I suddenly remembered the last weeks we had spent together as children. We had both worn blue and black colored laces in our sneakers to school, symbols of the local Gangster Disciples and Black Disciples gangs. (9) We didn't know what we were doing, and certainly didn't think we had joined any gang. We just thought we were being "cool." Neither of us was suspended from school, although the Principal spoke with our families after the incident. Shortly afterwards, Farrow was kicked out of his foster home and left the neighborhood. It was the last I had seen of him before today. "I'm sorry, I guess I hoped you had caught on to a new family or something. Are you back in Woodlawn for good now?" I asked, perhaps trying to deflect my own sense of guilt.

"Yeah. I think I might be back here for good, but you never know. I caught a couple of cases over the years, and so it's hard for a brother to find work. At least I know folk around here--yourself included." Farrow noticed me straighten up, and he tried to explain. "Naw, it's not like that. I'm not asking for any help from you. But you made it out! You're a big success now. I'm proud of you, brother! I want to know more about what you up to."

"Well, you have probably heard that I am a law professor living in New York. My scholarship focuses on racial construction and race theory. (10) But I don't think you would be all that interested in hearing what I write and lecture about, though," I said, trying to sound as non-condescending as possible.

"Listen," Farrow said. "I may not have led the path you have led, I may not have had the same education you have had, and I may not use the same legal terms you use. But I live 'race' every day, brother. Just like you in some ways, but in a lot of different ways too: I'm not as rich and light skinned as you, brother. I ain't never been able to pass for white, even by accident! But seriously, tell me about your work."

DIALOGUE ONE: THE CONSTRUCTION OF RACE

I relented. "Alright. My current work focuses on the construction of race. Both social and natural science have conclusively established that race has no biological meaning--that it is a sociopolitical construction. Prominent researchers, such as Professor Michael Omi (11) and others, have convincingly established that the concept of 'race' developed historically as an attempt to control groups of people deemed 'non-white' and to justify their unequal political and social treatment." (12)

"I see," Farrow replied. "I'm familiar with this research. As Jay-Z has said, 'I ain't passed the bar but I know a little bit!' (13) The sum of it is that race is not a biological category--but rather a social construction." (14)

"That's right!" I exclaimed. "And from the beginning, the notion of 'race' was given false biological dimensions in order to justify the unequal treatment of persons. (15) The horrible artifice being that it was morally and legally appropriate to treat supposedly genetically inferior persons different from supposedly genetically superior persons." (16)

"In other words," Farrow responded, "the idea of biological racial differences was used to justify chattel slavery in the United States, Jim Crow, and anti-miscegenation laws, and even played into Nazi racial theories." (17)

"Absolutely," I replied. I was energized--professors love to talk about their own work.

"That's great. But, no offense, brother, what else does your work contribute to the struggle? Hasn't it been established for years and years that race is a social construction? Haven't we moved on from that idea?" Farrow was not as impressed with my work as I had hoped.

"Listen. I'm just setting the stage," I pleaded. "Give me a moment to develop the argument and fully describe the problem."

"Aspects of our law, our science, and even our public-consciousness have once again embraced long-discarded notions of biological race. With the development of new genetic technologies, some scientists, politicians and judges are once again wrongly assuming that race has some discernible biological essence. It has become increasingly commonplace, for instance, for courts to admit race-based estimates of DNA profiles against criminal defendants. (18) Race-based pharmaceuticals have been developed and marketed to specific racial groups. (19) Private companies, including the company owned and promoted by Skip Gates, make millions of dollars offering DNA ancestry testing to the public. (20) We are, simply put, witnessing a modern day re-inscription of race as a biological category," I exhorted. (21)

Farrow thought for a moment. "You know, it doesn't surprise me. Underneath the polite veneer of colorblindness, I have always suspected that some people...