The Legal Construction of Race

• Pages: 157-194
• Author: Khiara M. Bridges

157

Chapter 7

THE LEGAL CONSTRUCTION

OF RACE

One of the cardinal tenets of Critical Race Theory is that race is

a social construction and, further, the law plays a vital role in

constructing race. But, what exactly does that mean? This chapter

unpacks this CRT truism.

I. Race as a Biological Entity

To say that race is socially constructed is to deny that the races

that we speak about (i.e., black, white, Asian, etc.) are “natural,”

genetically determined things that preexist human interaction. The

latter is the idea of biological race, a concept with origins in the

sixteenth century, when Europeans first arrived on the African

continent.

1

By the mid-eighteenth century, various thinkers in

Europe had formulated their own schematizations of race. While

these theorists often disagreed about the names and number of the

races, they agreed with one another insofar as they all assumed that

biology distinguished the races that they identified.

The concept of biological race has been the logic behind many

social tragedies. The eugenics movement in the U.S. is a case in point.

This movement was informed by the idea that characteristics such as

“intelligence, ‘feeble-mindedness,’ criminality, alcoholism, [and]

pauperism” were genetically determined.

2

Eugenicists sought to

prevent the dissemination of the genes that purportedly determined

these traits and behaviors through efforts such as immigration

restrictions, anti-miscegenation laws, and forced sterilizations.

Moreover, nonwhite racial groups were on the receiving end of many

eugenic policies, as the racial “scientists” of the day were confident

that the genes that led to antisocial characteristics were

disproportionately found in nonwhite races.

The idea that race is a socially constructed entity, and not a

biological one, began to gain wide acceptance in the 1940s, when the

Holocaust demonstrated one of the most ghastly, but logical,

consequences of the concept of biological race.

3

By 1951, the United

Nations Educational, Scientific and Cultural Organization

1

See, e.g., Winthrop D. Jordan, White Over Black: American Attitudes Toward

the Negro 1550–1812 (1968).

2

Garland E. Allen, Eugenics and Modern Biology: Critiques of Eugenics, 1910–

1945, 75 ANN. HUM. GENET. 314, 314 (2011).

3

See AAA Statement on Race, 100 AM. ANTHROPOLOGIST 712, 712–13 (1998).

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THE LEGAL CONSTRUCTION OF RACE

Ch. 7

(UNESCO) was so certain that biological race is a fiction that it

issued a “Statement on Race” declaring that race “is not so much a

biological phenomenon as it is a social myth.”

4

The American

Anthropological Association (AAA) issued yet another “Statement on

Race” in 1998, reaffirming what, by then, was close to becoming an

indisputable truism: Race is a social construction.

5

The AAA spoke

unambiguously for the discipline, which, in its earlier iterations, had

played a major role in producing scholarship that “proved” the truth

of biological race:

In the United States both scholars and the general public

have been conditioned to viewing human races as natural

and separate divisions within the human species based on

visible physical differences. With the vast expansion of

scientific knowledge in this century, however, it has become

clear that human populations are not unambiguous, clearly

demarcated, biologically distinct groups.

6

That biological race is a fiction appeared to receive its ultimate,

and most unanswerable, verification with the Human Genome

Project’s revelation in 2003 that all persons, irrespective of racial

ascription or identification, share 99.9 percent of the same genes.

7

Indeed, one of the Human Genome Project’s definitive conclusions

was that humans could not be divided into coherent, discrete

biological races. The death of biological race was announced in

optimistic statements, including then-president Bill Clinton’s

affirmation that “one of the great truths to emerge from this

triumphant expedition inside the human genome is that in genetic

terms, all human beings, regardless of race, are more than 99.9

percent the same.”

8

But, like a zombie, biological race rose from the dead as

observers turned their attention to the 0.1 percent of genes that all

humans do not share. Specifically, biological race devotees began

asserting that the 0.1 percent of genetic difference was meaningful in

explaining health outcomes among differently raced individuals.

Paradigmatic of this phenomenon is psychiatrist Sally Satel’s New

York Times article, salaciously titled “I Am a Racially Profiling

Doctor.”

9

In it, she wrote, “In practicing medicine, I am not colorblind.

4

ASHLEY MONTAGU, STATEMENT ON RACE: AN EXTENDED DISCUSSION IN PLAIN

LANGUAGE OF THE UNESCO STATEMENT BY EXPERTS ON RACE PROBLEMS 15 (1951).

5

See Statement on ‘Race’, supra note 3.

6

Id.

7

DOROTHY ROBERTS, FATAL INVENTION: HOW SCIENCE, POLITICS, AND BUSINESS

RE-CREATE RACE IN THE TWENTY-FIRST CENTURY 49 (2012).

8

Id.

9

Sally Satel, I Am a Racially Profiling Doctor, N.Y. TIMES (May 5, 2002), https://

www.nytimes.com/2002/05/05/magazine/i-am-a-racially-profiling-doctor.html.

Sec. I

RACE AS A BIOLOGICAL ENTITY

159

I always take note of my patient’s race. So do many of my colleagues.

We do it because certain diseases and treatment responses cluster by

ethnicity. . . . It may seem counterintuitive, but the 0.1 percent of

human genetic variation is a medically meaningful fact.”

10

Those who insist that race is a social construction—a group that

includes social scientists and social theorists as well as those working

in the “hard” sciences, like population geneticists, medical doctors,

and health sciences researchers—respond to arguments like Satel’s

by disputing that the 0.1 percent of genetic difference proves the

existence of biological race. They look to science that demonstrates

that it is simply not true that two unrelated people of the same race

share more of the same genes than two unrelated people of different

races. They explain that the 0.1 percent of genetic difference among

humans does not function to divide the inhabitants of the globe into

four or five discrete races. Instead, they assert, the 0.1 percent

difference is spread across the globe in a spectrum—making the

demarcation of the human population into four or five (or more, or

fewer) races an exercise in arbitrariness.

11

The modern form of the argument that race is a biological entity

usually does not appear as an assertion that there are “black genes,”

“white genes,” “Asian genes,” etc. that demarcate the races.

12

Instead,

it usually appears as a declaration that race is a useful indicator of a

person’s genetic composition. This assertion is grounded in the fact

(which few challenge) that some genes are traceable to specific

geographic locations. That is, there may be genes that are “from” a

particular location on the Arab Peninsula; other genes might be

“from” another site in present-day Turkey. The traceability of genes

to particular geographic locations results when many members of an

ancestral group that lived in a location possessed a gene. A gene

would become frequent among group members when they tended to

reproduce with other group members, a practice known as endogamy.

The geographic locations in which these endogamous ancestral

groups, called populations, lived are the sites where certain genes are

“from.” If an individual’s ancestors hailed from those places, then

there is an increased chance that the individual will possess the

genes frequently found in the population that presently resides there.

This is the concept of geographic ancestry. The declaration that race

10

Id.

11

See Deborah A. Bolnick, Individual Ancestry Inference and the Reification of

Race as a Biological Phenomenon, in REVISITING RACE IN A GENOMIC AGE 70, 72

(Barbara A. Koenig et al. eds., 2008) (“Allele frequencies change gradually across

geographic space, with few sharp discontinuities.”).

12

That said, assertions that racial genes exist persist nonetheless. See, e.g., KIM

TALLBEAR, NATIVE AMERICAN DNA: TRIBAL BELONGING AND THE FALSE PROMIS E OF

GENETIC SCIENCE (2013) (problematizing the concept of “Native American DNA”).