Understanding race: the evolution of the meaning of race in American Law and the impact of DNA technology on its meaning in the future.

• Author: Lowe, William Q.
• Position: COMMENTS

1. INTRODUCTION

   Race has played a decisive role in nearly all aspects of American society, yet its meaning in various contexts remains unclear. Throughout history, individuals have struggled to define "race" as it pertains to science, society, and the law in particular. (1) Although race became a part of the English language in the mid-sixteenth century, it did not take on its modern definition until the early-nineteenth century. (2) Scientific, social, and political interpretations of race have gone through an evolutionary process as well. (3) After over two-hundred years of trying to understand its meaning, "[t]he word 'race' defies precise definition in American law." (4) Countless competing theories exist as to the definition and meaning of race, and the inability for one to earn universal support poses a significant problem to the American legal system. (5) Despite the fact that numerous statutes have been enacted to prohibit racial discrimination throughout all aspects of American society, "the law has provided no consistent definition of race and no logical way to distinguish members of different races from one another." (6)

   It has been argued that "race" was first used as a tool to classify individuals during the age of colonial exploration; (7) however, this use was maintained for centuries. Today, classifications based on race are still present in America, and have been found to be permissible in some instances, such as when used to remedy instances of past discrimination. (8) With the predominant role race continues to play in American society, to ensure that all are treated fairly under the law, it is imperative that a single definition of race is applied universally to all Americans. It is foreseeable that advances in science, particularly in DNA testing, will allow for a uniform method of determining one's race. (9)

   This note will discuss the current lack of a settled definition of race in American Law, and the potential role DNA technology can play in remedying the problems associated with it. Part II of this Note will explore the concept of race by examining various definitions of race and how they have evolved into the modern definition. This section will additionally look at the historical understanding of the meaning of race, and the recent divergence from traditional thought. Part III of this Note will analyze the role of race throughout American legal history. This portion of the Note will address historical notions of race in America, the origin of the need to define race, and the treatment of race by the legislature and the courts. Part IV of this Note will discuss current DNA technology and the potential impact it may have of on modern concepts of race, particularly with regard to the law. It is foreseeable that advances in DNA technology will allow scientists to identify and classify individuals through an analysis of their genetic information.

2. THE CONCEPT OF RACE

   Over the course of the past three-hundred years, common definitions and theories on race have gone through an evolutionary process. This evolution of "race" can be seen in a variety of ways, one of which is a simple analysis of dictionary entries for the word "race" over the course of time. (10) Historians, anthropologists, and social scientists alike all have re-examined their understanding of the meaning of race, as both biological and social theories on race have developed over time. (11) Ultimately, a variety of opinions on race have grown to reject theories of race based in biology, and have reconceptualized race as a cultural category or social construct. (12)

   1. Race Defined

      Part of the difficulty in understanding the meaning of race can be attributed to the various definitions given to the word. The definition of race, as found in dictionaries, has evolved prior to reaching its current general definition. (13) As was argued by the respondent in St. Francis College v. Al-Khazraji, "It]he word 'race' is a term whose meaning has indeed changed substantially over the course of the last 150 years." (14) The respondent's contention was:

      that the term race has had three quite distinct meanings over that [150 year] period of time--in 1800 'race' meant 'family,' between roughly 1850 and 1950 'race' was generally understood to denote an individual's ancestry or ethnic background, and only in the last several decades has 'race' been widely understood among laymen to refer to one of the 4 or 5 basic divisions of mankind. (15) The point made by the respondent's attorney is demonstrated by examining the definition of race, as found in the 1828, 1913, and 2006 versions of Webster's Dictionary, which defines race as: (1) "The lineage of a family, or continued series of descendants from a parent who is called the stock" in 1828 (16); (2) "[t]he descendants of a common ancestor; a family, tribe, people, or nation, believed or presumed to belong to the same stock; a lineage; a breed" in 1913 (17); and finally, the 2006 version, (3) "a class or kind of people unified by community of interests, habits, or characteristics." (18)

      These three different definitions of race demonstrate the evolution and broadening of its meaning. As the attorney representing the respondent in St. Francis College v. Al-Khazraji articulated, the 1830 dictionary gives race a narrow definition, describing it in terms of "family" and "lineage," (19) whereas the 2007 version defines race in a much broader and inclusive sense. (20) Interestingly enough, the modern definition of race, describing race in terms of classes, as will be discussed later, alludes to an understanding of race that lost acceptance during the twentieth century. (21)

   2. Biological Race

      During the period of time in which the definition of race was changing, biologists and anthropologists advanced a common theory of race that gained widespread support. From the nineteenth century until the latter part of the twentieth century, distinct racial categories developed under the biological race theory. (22) Under this theory, racial categories were based primarily upon "externally visible traits, primarily skin color, features of the face, and the shape and size of the head and body, and the underlying skeleton." (23) This is only logical as "human groups do vary strikingly in a few highly visible characteristics ... [and these characteristics] often allow us to determine a person's origin at a single glance." (24) Classification based on physical traits was impeded by the "coexistence of races ... through conquests, invasions, migrations, and mass deportations," (25) as this caused it to be increasingly difficult to identify the race of individuals by visible traits only.

      Although the intermingling of humans from different geographic locations made identifying physical traits that could be used for classification difficult, scientists generally agreed on three distinct groups of mankind: Caucasoid, Negroid, and Mongoloid. (26) Johann Friedrich Blumenbach was the first to specifically separate humans into distinct classifications. Based originally upon skull size, he grouped individuals into distinct races "on the basis of their features and not their ancestry." (27) The three major human races under the biological theory of race classified individuals by the color of their skin, stature, head form, hair color and texture, eye color, and nose shape. (28)

      The Caucasoid ... is characterized as pale reddish white to olive brown in skin color ... medium to tall stature ... a long or broad head form.... [H]air is light blond to dark brown in color, of a fine texture, and straight or wavy. The color of the eyes is light blue to dark brown and the nose bridge is usually high. The Mongoloid race ... has ... saffron to yellow or reddish brown in color ... medium stature ... a broad head form. The hair is dark, straight, and coarse; body hair is sparse. The eyes are black to dark brown. The epicanthic fold, imparting an almond shape to the eye, is common, and the nose bridge is usually low or medium. The Negroid race ... [has] brown to brown-black skin ... a long head form, varying stature, and thick, everted lips. The hair is dark and coarse, usually kinky. The eyes are dark, the nose bridge low, and the nostrils broad. (29) Despite the widespread acceptance these three major human-race categories enjoyed in the past, '"[m]any modern biologists and anthropologists ... criticize racial classifications as arbitrary and of little use in understanding the variability of human beings."' (30) Analyzing and classifying race in a biological or scientific context under the Caucasoid, Negroid, and Mongoloid classifications has been rejected by social scientists and anthropologists alike. (31) Many assume the external differences among people are reflected internally as well as in "our genetic makeup." (32) This assumption, however, may not be consistent with modern findings. (33) Scientific advancements, particularly in genetics, have revealed that the features once used to identify race--such as "stature, skin color, hair texture, and facial structure"--"do not correlate strongly with genetic variation. (34) One commentator cited criticisms by the Supreme Court of biological race: '"[G]enetically homogenous populations do not exist and traits are not discontinuous between populations; therefore, a population can only be described in terms of relative frequencies of various traits. Clear-cut categories do not exist."' (35)

      Many now argue that genetic studies have produced findings in direct conflict with the biological race theory. (36) One study, in particular, showed "most physical variation, about 94%, lies within so-called racial groups.... This means that there is greater variation within 'racial' groups than between them." (37) This is not to say that "individuals are genetically indistinguishable from each other, or even that small population groups cannot be genetically differentiated," (38) only...