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Brooks, Hannah 1/10/2014 For Educational Use Only

NAVIGATING THE TOPOLOGY OF RACE, 46 Stan. L. Rev. 747

46 Stan. L. Rev. 747 Stanford Law Review February, 1994 Review Essay NAVIGATING THE TOPOLOGY OF RACE Jayne Chong-Soon Lee a1 Copyright 1994 by the Board of Trustees of the Leland Stanford Junior; Jayne Chong-Soon Lee IN MY FATHER'S HOUSE: AFRICA IN THE PHILOSOPHY OF CULTURE. By Kwame Anthony Appiah. d1 New York, N.Y.: Oxford University Press. 1992. 219 pp. $29.95 In this Review Essay, Jayne Chong-Soon Lee summarizes and critiques Kwame Anthony Appiah's attack on the foundations of racial difference. Appiah uncovers the assumptions and tautologies underlying traditional definitions of race: biology, sociology, history, and essence. In doing so, Appiah hopes to demolish the theoretical legacy of racism. But this attack, Ms. Lee argues, goes too far. Appiah's critique presumes that race has an identifiable and fixed meaning outside of the social context of its use. Ms. Lee points out that discussions of race never merely describe what race is, but actively construct the meaning of race, and that this meaning continuously shifts. By abandoning the idea that biological and essential definitions of race have any sound basis, Appiah's approach denies antiracists the flexibility needed to address racism in a world in which the concept race has no fixed content. The result is often a world in which racism is perpetuated. For instance, in Shaw v. Reno, a majority of the Supreme Court reached a result that disempowered a historically disenfranchised group because it felt it could not recognize the legitimacy of using race as a basis for reapportionment. Ms. Lee argues that effective confrontation of racism requires the ability to choose from a multiplicity of definitions of race, as the particular situation demands, and that the use of racial categories is not inevitably racist. She concludes that we should veer away from unitary definitions of race, and begin to refer to plural definitions of race and racisms. The problem of the twentieth century is the problem of the color-line,--the relation of the darker to the lighter races of men in Asia and Africa, in America and the islands of the sea. 1

*748 I. INTRODUCTION A. Songlines, Dreaming-tracks, Footprints of the Ancestors, or the Way of the Law In The Songlines, Bruce Chatwin writes of invisible pathways that crisscross Australia, known to white settlers as Dreamingtracks or Songlines, and to Aborigines as Footprints of the Ancestors or The Way of the Law. 2 According to Aboriginal legends, totemic ancestors wandered over Australia during the Dreamtime of Creation and sang the world into existence. They sang into being the trees, plants, rocks, waterholes, animals and even themselves. They ate, danced, made love, killed, and hunted--leaving tracks of music wherever they went. 3 Etching a labyrinth of invisible Songlines that mapped the continent, they left footprints through which their descendants could reconstruct the Creation.

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NAVIGATING THE TOPOLOGY OF RACE, 46 Stan. L. Rev. 747

Through these Songlines, Chatwin explains, we can read all of Australia as a musical score by which each route, river, or other geographical site could be sung. 4 We can picture the Songlines as a spaghetti of Iliads and Odysseys, writhing this way and that, in which every episode is readable in terms of geology. 5 The melody of every song echoes the contours of the land that it describes. If we were dragging [our] heels across the salt-pans of Lake Eyre, we could expect a succession of long flats, like Chopin's Funeral March. On the other hand, if we were skipping up and down the MacDonnell escarpments, we would find a series of arpeggios and glissandos, like Liszt's Hungarian Rhapsodies. 6 The song is a map, a memory bank for finding one's way about the world. 7 According to Chatwin, Aborigines do not believe that the country exists until they can see and sing it. The land must first exist as a concept in the mind, and then must be sung. Only then can [the land] be said to exist .... 8 In this Creation, perception precedes existence; melody predates geology. And unlike the biblical Genesis, this Creation does not happen just once. Without the continuous reenactment of the Creation, the constant performance of the singers, the world could not continue. The land unsung would die. 9 An Aborigine sustains the life of the land by walking his Songline. By spending his *749 whole life walking and singing his Ancestor's Songline, a man eventually [becomes] the track, 10 the track becomes the song, and the song becomes the land. In this process, both song and land become constructed and constructing: The motif contours the landscape, and the terrain shapes the melody. Chatwin's themes of construction and mapping echo current controversies in academic discussions of race and difference. 11 These metaphors capture the crux of important questions in literature and ethnic studies, and in the study of multiculturalism and diversity. How should we define race? Is it based on biological or social differences? What is the relationship between the biological and the social? Do biological differences construct social identities, or do social differences dictate biological classifications? As Chatwin might ask the question: Does the landscape prefigure the melody, or does the tune contour the terrain? These metaphors also summarize legal disputes over the significance that we should accord racial differences. 12 Bypassing the debates over the origins of racial geography, legal scholars have instead explored how we can navigate this landscape. Should we ignore racial differences and draft raceneutral programs? Or should we explicitly acknowledge racial differences and formulate race-specific ones? More specifically, Chatwin's construction theme illustrates the complex relationship between discourse 13 and reality. Rather than assume discourse reflects some preexisting reality, we can instead explore how discourse constructs our perception of reality. 14 When I use the term constructs, I do not deny the existence of some fixed reality, nor do I suggest that only discourse exists. I do not mean that because we claim that a river does not exist, it ceases to exist. The river exists even if it is constructed discursively--you still get wet if you *750 fall in. 15 Instead, I argue that our reality is never directly experienced, but always perceived through a discursive framework. This framework itself is not transparent; it filters and authorizes only certain versions of reality. We never directly apprehend our river, but always encounter it through some discursive filter. We may believe that the river is the result of geological fissures or the footprint of an ancestor. Our encounter with the river and our explanation of its wetness are constructed through discursive frameworks. The very naturalness of reality is itself the effect of a particular set of discursive constructions. In this way, discourse does not simply reflect reality, but actually participates in its very construction. 16 Along similar lines, we may ask how the law constructs and legitimates racial differences. Current statutory and constitutional doctrine presupposes that the law merely reflects or recognizes race's independent reality. When we claim that racial difference precedes the law, however, we obscure the role of the law in constructing these differences. For example, in Shaw v. Reno, 17 white plaintiffs challenged a state electoral plan as an impermissible racial gerrymander. Writing for the majority, Justice

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NAVIGATING THE TOPOLOGY OF RACE, 46 Stan. L. Rev. 747

O'Connor used a biological definition of race: She equated race with skin color. But the dissents chose a social definition of race: They equated racial difference with experiences of past discrimination. Whether we believe that race is either biological or social in nature, one thing is clear: The Justices in Shaw all believed that they were merely recognizing an extant racial difference, not actively constructing it. The belief that the Court merely describes a preexisting reality is itself a discursive construction that has led to inequitable outcomes in affirmative action and voting rights cases. 18 If reality is constructed, how do we then contest prejudiced accounts of racial character? The argument that reality is just another discursive construction would seem to undermine challenges to inaccurate depictions of race as stereotypes. Chatwin's theme of mapping shows how we can turn from evaluating the accuracy of racist accounts to tracing the ways in which these accounts are constructed and legitimized. 19 If race does not exist outside discursive *751 frameworks, then our task is not to discover the reality of race--searching for the authentic features of racial difference-- but instead to survey the tracks of power, to examine the consequences of different versions of racial difference. Our task becomes not to ask whether the geographical features really exist, but instead to diagram their topography. Through this analysis, we can discover how racial difference has been constructed, and chart the political effects of various discursive frameworks. Race then becomes the effect of ideological practices rather than their cause. It becomes the terrain upon which power relationships are contested, not merely the physical differences between groups. Historically, the terrain of race has shifted between definitions of (1) race as biological characteristics, historical commonality, or essential identity, and (2) race as the erroneous categorization of people, or the false attribution of traits to people. Both definitions, however, locate race as an attribute within people rather than as a complex set of relations between people. Additionally, these definitions fail to account for changes in racial conceptions over time, for why race has itself become a site of political struggle, and, most seriously, for how race is defined not by its inherent meaning but by the social contexts through which it is constructed. 20 To the extent that we see race as practice instead of object, effect instead of cause, there are important consequences for antiracist movements. For once we acknowledge the many ways in which race can be constructed in social contexts, we cannot determine beforehand that the content of any particular practice is racist and thus oppressive. 21 We cannot determine that all biological definitions of race are regressive, nor can we presume that all social definitions are progressive. Similarly, we cannot regard all race-specific policies to be subordinating, nor can we assume that all race-neutral programs are oppressive. Instead, we must map out each specific case to determine what the effect of a certain racial practice will be. Only then can we intervene effectively to promote racial justice. The importance of examining the effects of racial definitions rather than their content becomes clearer when we examine the trajectory of racist discourse. The racist rhetoric of the 1990s is voiced in different terms than that of the 1960s. 22 To express racial bigotry, public discourse now employs racially *752 coded words--Willie Horton or welfare queen--rather than racial epithets. 23 Legal discourse uses the language of liberal colorblindness, rather than that of racial inferiority, to undermine racial reform. 24 Fixed definitions of race and racism do not perform well in light of the sheer flexibility of racist discourse. Perhaps the only constant about race discourse is its malleability, fluidity, and variability. Static strategies that reject all biological conceptions or all social constructions of race risk racist appropriation and do not permit antiracist reappropriation. 25 Either side of the biological/social binarism can be used for political and legal subordination. 26 If one embraces a strictly biological conception of race, racists can claim the biological inferiority of a particular racial group. If one chooses a strictly social-constructionist conception, critics can argue that race does not exist to dismantle affirmative action. Race itself becomes the ground upon which material, legal, and political contests are fought. How we navigate this discursive ground is the primary inquiry of this review essay.

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NAVIGATING THE TOPOLOGY OF RACE, 46 Stan. L. Rev. 747

B. Appiah's Motifs Kwame Anthony Appiah is a prominent participant in the debate over the definitions of race and the significance of racial difference. A Professor of African-American Studies and Philosophy at Harvard University, Appiah has written extensively on African and African-American literary criticism. In a recent collection of his essays, In My Father's House, Appiah addresses the construction and mapping of race 27 in his usual comprehensive and controversial *753 manner. For the first time, Appiah gathers several themes that have suffused his writings and presents them as a collection. Layered upon each other, the essays reveal an even greater intricacy than each demonstrates individually. Appiah's discussion of the ontology of race, when considered with his analysis of the universal/particular dichotomy, evolves into a rich argument about the politics of racial particularity. 28 Similarly, his discussion of the legacy of racism and racialism develops an added urgency when seen together with his critique of the premises of the African Nativist movement. 29 Often brilliant, sometimes contentious, but always absorbing, Appiah's book elevates the dialogue on race onto a new level. Appiah departs from the familiar landscape of statistical and empirical accounts of racial discrimination, and of historical 30 and economic accounts of racial ideology, to probe the very definitions of race itself. He bypasses the empirical question of whether racism exists to ask the theoretical question of what race and racism are. Similarly, he avoids the historical question of who did what, preferring to ask how the who and the what are constituted. By circumventing the typical questions we ask about race, Appiah opens up the impasses that currently constrain the dialogue. By analyzing how racial difference is constructed, he charts the ways in which certain groups are designated as racially distinct. And by asking how racial identity is constructed, Appiah investigates the relationship between racial category and racial subjectivity. Taken as a whole, Appiah's argument does not threaten the possibility of African-American identity, as some commentators have argued. 31 Rather, he questions the uncritical use of biological and essential conceptions of race as premises of antiracist struggles. 32 His point is that we cannot analyze racial difference from within frameworks that already assume biological difference. These efforts fail to question the naturalized frameworks and do not consider alternatives (for example, the potential of cultural identities). Further, these attempts fail to take seriously the legacy of racist domination. The term race may be so historically and socially overdetermined that it is beyond rehabilitation. Rather than presume biological and essential definitions of race to be solutions to racism, Appiah suggests that we approach these presumptions as *754 problems for antiracism. He thereby challenges the fundamental tenets of current antiracist practice. But Appiah wages the battle too fiercely. Having uncovered the falsity of biological and essential conceptions of race and racial unity, he suggests that we abandon the term race and substitute culture. In doing so, he overestimates the constraints of racist domination and underestimates the possibility for antiracist struggle. Because Appiah views race as unity, he cannot conceive the possibility of an antiracist argument that uses a biological or essential conception of race, and thereby invites reactionary appropriation of his arguments. Similarly, because he examines the content of racial definitions instead of their effects, he rejects all uses of these conceptions of race instead of selecting certain uses in certain social contexts. By abdicating all uses of these conceptions of race, he underestimates the multiplicity of race and racially based resistance to racism.

C. Relevance to American Issues of Race and Law Appiah primarily discusses African identity and Pan-Africanism in his book. But his arguments about race apply to American race issues. As Appiah himself has pointed out, definitions of racial identity have been forged by both Africans and AfricanAmericans in a mutual conversation. The main characters in Appiah's book, the two founders of Pan-Africanism, are Alexander Crummell and W.E.B. DuBois--both African-American by birth. In this dialogue on race, African and African-American

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NAVIGATING THE TOPOLOGY OF RACE, 46 Stan. L. Rev. 747

identities are too interwoven to be easily separated. As Henry Louis Gates, Jr., cautions us: We must chart both the moments of continuity and discontinuity between African cultures and African-American cultures. Only a fool would try to deny continuities between the Old World and the New World African cultures. 33 Of course, the substance of those continuities must be mapped out carefully. Further, current issues of race and racism transcend national boundaries. 34 To pretend otherwise is to ignore the international nature of scholarship, communication, immigration, and travel. Indeed, we have much to learn from the methods that *755 Appiah uses to analyze race and racism. In his book, Appiah examines the heritage that African-Americans have bequeathed to Pan-Africanists. 35 I reverse his trajectory by examining the inheritance that African-Americans have received from Pan-Africanists. The legacy has come full circle. Appiah's arguments also bear on discussions of race in the American legal system. His methods of analyzing race and racism help us navigate the impasses over racial difference in the law. Currently, one heated legal debate concerns the use of raceconscious measures intended to benefit historically oppressed groups. Advocates of race-neutral measures argue that legislation intended to benefit minorities should be tested by the same standards as that intended to harm them. On the other hand, advocates of race-conscious measures respond that laws requiring or permitting activity designed to benefit minorities should be tested by less stringent standards than those designed to harm them. 36 Appiah suggests that, before we can resolve this dispute, we must uncover the implicit definitions of race used by each side. Before applying Appiah's arguments to legal debates, it is important to examine the context in which these ideas were formed: the academic debate over the significance of racial difference in literary scholarship. Because Appiah's reasoning, though precise, is complex and often misunderstood by critics, I will review Appiah's specific arguments at some length. This analysis of the context and method of Appiah's arguments will provide a foundation for the analysis of legal scholarship that follows.

II. THE LANDSCAPE OF RACIAL THEORY A. Surveying the Terrain In a momentous 1986 exchange that summarized the day's current controversies on race, three scholars shared their ideas on biological and social conceptions of race. Anthony Appiah argued that race did not exist; Houston Baker, Jr., replied that race had material effects; and Henry Louis Gates, Jr., countered that race was a trope with serious consequences. In The Uncompleted Argument: DuBois and the Illusion of Race, Appiah argued that biological race does not exist. He pointed out that [a]part from the visible morphological characteristics of skin, hair and bone, by which we are inclined to assign people to the broadest racial categories-- black, white, yellow--there are few genetic characteristics to be found in the population of England that are not found in similar proportions in Zaire or in China .... 37 In other words, biological traits do not distinguish members of one putative race from another. Appiah concluded that there are no races: there is nothing in the world that can do all we ask race to do for us. The evil that is done is *756 done by the concept and by easy--yet impossible--assumptions as to its application. 38 Appiah's argument provoked heated responses. Some commentators denounced what they saw as the deconstruction of Black identity 39 and the dismissal of the history of racist subordination. Others applauded Appiah's argument as the necessary dismantling of biological, naturalized, and essentialist concepts of race. 40

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NAVIGATING THE TOPOLOGY OF RACE, 46 Stan. L. Rev. 747

Houston Baker, Jr., an African-American literary critic, objected that what Appiah--in harmony with his privileged evolutionary biologists--discounts as mere gross' features of hair, bone, and skin is not, in fact, discountable. 41 Relating his own encounters with racism, Baker pointed out that Appiah's eloquent shift to the common ground of subtle academic discourse is instructive but, ultimately, unhelpful in a world where New York cab drivers scarcely ever think of mitochondria before refusing to pick me up. 42 Baker suggested that Appiah's dismissal of the significance of race fails to account for the historical and social experiences of racism and can be politically dangerous at a time when hegemonic whitemale discourse attempts to undermine advances made by women and people of color. 43 Baker feared that when science apologizes and says there is no such thing, all talk of race must cease. Hence race, as a recently emergent, unifying, and forceful sign of difference in the service of the Other, is held up to scientific ridicule as, ironically, unscientific. 44 To demolish biological race, Baker implied, is to threaten the emergence of racial subjectivity. He suggested that Appiah jeopardized the political agenda of African-Americans by denying any legitimate basis for asserting a group identity based upon a common racial history and common social experiences. 45 Such an exercise, taken to its extreme, negates the possibility of the assertion of racial identity. By contrast, Henry Louis Gates, Jr., another African-American literary critic, agreed with much in Appiah's leveling of biological race. Gates questioned the value of morphology as a classifier, asking, [w]ho has seen a black or red person, a white, yellow, or brown? These terms are arbitrary constructs, not reports of reality. 46 Like Appiah, Gates proclaimed that races, put simply, do not exist, and that to claim that they do, for whatever misguided reason, is to stand on dangerous ground. 47 For him, racial designations (the white *757 race or the black race) are descriptive metaphors, not biological facts. Gates viewed race as a trope of ultimate, irreducible difference, not as objective truth. 48 Race is a fiction, albeit a powerful one. Gates later explained how race affects the daily lives of African-Americans. Narrating his own version of Houston Baker, Jr.'s taxi fallacy, Gates asks us to picture the following: Houston, Anthony, and I emerge from the splendid isolation of the Schomburg Library and stand together on the corner of 135th Street and Malcolm X Boulevard attempting to hail a taxi to return to the Yale Club. With the taxis shooting by us as if we did not exist, Anthony and I cry out in perplexity, But sir, it's only a trope. 49 Gates ends his hypothetical ironically: If only that's all it was. 50 Race, according to Gates, is a construction that carries serious consequences.

The intensity of these debates over the definition and significance of race can be explained by each participant's recognition of the political consequences of adopting a particular definition. In proposing definitions of race and racism, scholars navigated among biological, historical, social, cultural, essential, and political conceptions. Surprisingly, the underlying theme was that we must choose between these definitions. The discursive framework that dominated these debates mapped possible definitions of race as binarisms. 51 Race was defined as either biologically or socially constructed. Recognition of race proceeded in an all-or-nothing fashion: Either race exists, or it does not; either culture exists, or it does not. 52 This all-or-nothing choice is not very helpful. As I have explained, race and racism are malleable concepts that change constantly. Embracing one view to the exclusion of the other leaves open the possibility of racist appropriation *758 and limits the potential for antiracist struggle. The fluidity of racist discourse requires us to accept that race can be defined in many different ways simultaneously. Once we relinquish exclusive definitions of race, we are free to explore the consequences of certain conceptions of race in a variety of situations. We can begin to chart the complexity of the terrain we call race when we refuse to accept restrictive binary categories.

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NAVIGATING THE TOPOLOGY OF RACE, 46 Stan. L. Rev. 747

After all, the meaning of race is never given solely by its content. Its meaning is always constructed by the social contexts in which it is embedded. Since these social contexts change constantly, the term race possesses no fixed content. Race always has many meanings. Because we cannot determine the racism of a practice from its content alone, we can never predict whether a practice will be racist or antiracist. Instead, we must examine the practice's social situation and effects. This indeterminacy does not mean we need abandon all prediction. It is almost certain that references to race at a Ku Klux Klan rally will be racist, and equally clear that those in Toni Morrison's work will be antiracist. What this indeterminacy does mean is that we often cannot ascertain whether a practice is racist apart from its social context and its effects. With context and effect so important, we cannot afford to abandon any of the possible conceptions of race. In the constantly changing topology of race and racism, biological, social, cultural, essential, and political conceptions all have a place in antiracist struggle. The best that we can do is to navigate this terrain.

B. Biological Race Appiah suggests that racism appears permanent because we continue to use vocabulary tainted by unquestioned suppositions about race. 53 Unless we dismantle and analyze the ways we employ ideas of race, we unwittingly reproduce the very discrimination and stereotypes that we have condemned. Treating the legacy of scientific racism seriously, Appiah argues that race has no meaningful genetic or morphological basis. 54 Dissatisfied with merely debunking biological race, he ventures even further by dissecting the common assumption that a group of people with a common history comprise a race. Appiah argues that defining race as a common history biologizes racial differences. *759 To know what the relevant common history is requires a prior assumption about who is to be included in this history. 55 Finally, he questions the assertion of racial particularity and the call for racially-based resistance, arguing that these tactics only reinforce the false and dangerous notion of racial essence. Although his methods are controversial, Appiah's relentless deconstruction of race addresses clearly important theoretical and political concerns. First, he recognizes the need to dissect the legacy of nineteenth century scientific racism: the institutionalized equation of biological difference with racial inferiority and the use of this biological inferiority to justify racial discrimination and exclusion. Second, Appiah seeks to dismantle the naturalization of racial difference--the belief that race is an inherent, fixed characteristic located within people rather than in social relations between people. Third, Appiah attempts to historicize the concept of race by demonstrating that race arose from a confluence of specific historical and social factors. Fourth, he seeks to expose the processes through which subjects become racialized beings, allowing us to examine how racial differences emerge from, rather than create, an atmosphere of racial domination. Fifth, Appiah emphasizes the dangers of invoking a reified racial essence, even in the name of resistance to dominant norms (as in the African Nativist and Negritude movements). Finally, Appiah challenges entrenched understandings of racial difference and racial hierarchy in our society. In short, Appiah's analysis is propelled by the need to undermine the naturalness of racial differences and the existence of racism in our world today. In the chapter Illusions of Race, 56 Appiah maps the ways that race has been defined. Arguing that both current academic and common sense definitions of race have inherited the conceptual framework of nineteenth century scientific racism, Appiah sets out to debunk these definitions by deconstructing biological notions of race. 57 By biological race, Appiah refers to a commonsense notion that racial classifications, such as black and white refer to distinct groups identified by their hereditary physical characteristics--such as skin color, hair texture, and facial features. 58 Often these physical characteristics allegedly correlate with moral traits. And these moral traits, associated with racial classifications, are then used to rank races hierarchically. Not surprisingly, those races associated with negative moral traits rank lowest in this hierarchy. Appiah seeks to dismantle this biological definition of race by emphasizing the discontinuities between racial classifications and genetic traits, between racial classifications and physical characteristics, and between racial classifications and moral traits.

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NAVIGATING THE TOPOLOGY OF RACE, 46 Stan. L. Rev. 747

First, Appiah summarizes current scientific work on genetic variations among members of different racial classifications. As he explains, to the extent *760 that physical morphology is genetically determined ... by sequences of DNA in the chromosome, we might expect racial differences to be observable at the chromosomal level. 59 Citing the work of biologists Masatoshi Nei and Arun Roychoudhury, Appiah points out that the genetic variation between two individuals of the same race can be greater than that between two individuals of different races because most of each individual's genetic makeup is unrelated to race. 60 Two white people will share the same genetic characteristic at a certain locus on a chromosome 85.7 percent of the time, while any two people selected at random will share the characteristic 85.2 percent of the time. 61 Genetics largely fails to distinguish members of one race from members of another. If we know only a person's genetic characteristics, we cannot determine her racial classification. Conversely, if we know only a person's morphological features, we cannot predict much at all about her other genetic characteristics. Therefore, what we commonly identify as race has no nontautological genetic, hence biological, basis. Second, Appiah explores the lack of correspondence between racial categories and physical characteristics. He argues that classifying people into racial categories based solely on physical characteristics is either fruitless or tautological. As he points out, trying to classify people into a few races is like trying to classify books in a library: you may use a single property-- size, say--but you will get a useless classification, or you may use a more complex system of interconnected criteria, and then you will get a good deal of arbitrariness. 62 This task is complicated by the fact that many people do not easily fit into identifiable racial categories, leaving us with the dilemma of adding infinitely many racial categories or placing people into racial categories capriciously. Further, in some racial systems, racial classifications have little to do with physical characteristics. In the United States, racial classifications have been defined not just by visible physical characteristics, but also by known descent from a Black ancestor. In one infamous case, a forty-eight-year-old woman discovered that she had been classified as Black only after applying for a copy of her birth certificate to secure her passport. 63 Similarly, census classifications have a White (not of Hispanic origin) category, acknowledging that those who identify as Hispanic may look white. I believe that Appiah has another reason for probing the divergences of racial categories from physical traits. Too often, the fact of physical differences leads inexorably to the conclusion that distinct races exist. Rather than examining how these specific physical differences came to be regarded as racial *761 ones, 64 differences in skin, hair, and bone are viewed as permanent features of our racial landscape. However, to assume that certain physical traits automatically dictate certain racial categories is to overlook the process of interpretation through which these traits are construed. As Appiah astutely points out, [w]e could just as well classify people according to whether or not they were redheaded, or redheaded and freckled, or redheaded, freckled, and broad-nosed too, but nobody claims that this sort of classification is central to human biology. 65 In other words, while the classification of races on the basis of physical traits may reflect the color, hair, and bone of those it classifies, it cannot tell us how these particular features came to be thought of as racial, and thus of social significance. 66 In fact, this physical notion of race is circular: It classifies people who possess certain physical features as members of a particular race, but predicates membership in that race wholly upon possession of those physical features. The normative conclusion that always enters into racial designation hides itself in the guise of an empirical description. Morphology becomes ontology. Because it reifies a classification based on physical characteristics, this biological notion of race naturalizes racial difference, making race appear self-evident rather than constructed. Third, Appiah investigates the correlation of racial classifications with moral traits. Historically, people have been categorized into different races, not just to emphasize heritable physical differences, but to refer to an array of moral and cultural traits with which these physical differences were associated. 67 Different races became associated with different heritable moral and cultural traits. Appiah observes that [t]o say that biological races existed because it was possible to classify people into a small

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NAVIGATING THE TOPOLOGY OF RACE, 46 Stan. L. Rev. 747

number of classes according *762 to their gross morphology [of skin, hair, and bone] would be to save racialism in the letter but lose it in the substance. 68 By racialism, he refers to the essential heritable characteristics of the Races of Man [that] account for more than the visible morphological characteristics--skin color, hair type, facial features--on the basis of which we make our informal classifications. 69 According to Appiah, racial classifications do their most important work not as objective arrangements of physical differences, but as loci for a series of beliefs, and judgments about the nature of the people within those categories. The notion of heritable physical traits becomes an abbreviation for heritable moral and cultural qualities. In everyday life in the United States, these associations between racial designations, physical characteristics, and moral and cultural traits create a discursive framework in which members of races are assumed to look and act in certain predictable ways. As sociologists Michael Omi and Howard Winant explain, [w]e utilize race to provide clues about who a person is .... Without a racial identity, one is in the danger of having no identity. 70 We expect people with a specified racial identity to exhibit a particular appearance. When we meet someone whose physical characteristics do not easily fit our expectations for that racial category, we experience a crisis of racial meaning. 71 Omi and Winant point out that [c]omments such as, Funny, you don't look black, betray an underlying image of what black should be. 72 Not only do we associate racial categories with physical characteristics, we associate physical characteristics with moral and cultural traits. Within the discursive framework of race, [d]ifferences in skin color and other obvious physical characteristics supposedly provide visible clues to differences lurking underneath. Temperament, sexuality, intelligence, athletic ability, aesthetic preferences and so on are presumed to be fixed and discernible from the palpable mark of race. 73 As Omi and Winant reveal, we also experience a crisis of racial meaning when people do not act black, Latino, or indeed white. The content of such stereotypes reveals a series of unsubstantiated beliefs about who these groups are and what they are like. 74 In our everyday experiences, we do not simply employ racial categories to signify physical differences, but invoke an entire array of beliefs and judgments about the nature of those so designated. Appiah's dismantling of biological race must be seen in the context of how these ideas historically have justified racial oppression. 75 As we have seen, racial designations as mere proxies for sheer physical differences are at best tautological. For example, if the racial labels of white, African-American, Latino, Native-American, or Asian-American were merely shorthand for certain *763 physical characteristics, then they would be useless. Instead, it is the association of the racial categories and physical characteristics with moral and cultural traits that performs most of the work of race. In the conventional grammar of racial discourse, physical differences are invoked to refer to moral qualities that are coupled to them. It is through its selfevident visibility that biological race accomplishes its most damaging work. Because race seems to function as a description, we fail to question its work as a normative judgment. Appiah's point is that biological race is not just a false construction: It is a dangerous construction that has been used to oppress racial minorities since the nineteenth century.

C. Historical Race Appiah's levelling of the biological bases for race is not, taken alone, particularly controversial. After all, in the past century it has been customary to attack the biological justifications that rationalized unequal treatment. The new controversy appears when Appiah goes beyond the critique of biological race to deconstruct the notion of sociohistorical race. 76 Appiah argues that attempts to revive the notion of race by attributing to it sociohistorical content fail as certainly as do biology-based theories. Examining W.E.B. DuBois' autobiography, The Dusk of Dawn, Appiah analyzes DuBois' invocation of common history. In his book, DuBois moves away from biological or physical marks of race and posits common history, traditions, and geography as potential bases for racial identification. Answering the question What is Africa to me?, Du-Bois refers to a common history shared by all people of African descent. 77 But what is this common history? DuBois emphasizes that

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the physical bond is least and the badge of color relatively unimportant save as a badge; the real essence of this kinship is its social heritage of slavery; the discrimination and insult; and this heritage binds together not simply the children of Africa, but extends through yellow Asia and into the South Seas. 78

Even in this historical account of race, however, Appiah believes a biological framework dominates DuBois' analysis. 79 After all, those linked by Du Bois' common history share not insult but the badge of insult, and the badge, without the insult, is just the very skin and hair and bone that it is impossible to connect with a scientific definition of race. 80 Once again, Appiah's point is that biology cannot explain race, that instead society's need for race explains the construction of biological difference. For, although DuBois' historical conception of race tracks the effects of the tragic legacy of racism, it still fails to question why race has been constructed as it has in the first place. Describing *764 the experiences of the wearers of the badge of insult tells us neither how the badge led to the insult, nor how the insult led to the badge. Fundamentally, Appiah rejects as tautological DuBois' use of common history to define race. Examining DuBois' essay, The Conservation of Race, Appiah analyzes DuBois' definition of race as a vast family of human beings, generally of common blood and language, always of common history, traditions and impulses, who are both voluntarily and involuntarily striving together for the accomplishment of certain more or less vividly conceived ideals of life. 81 Although traces of biological race remain, by focusing primarily on the common history and traditions that identify race, DuBois moves toward a sociohistorical basis for race. In this conception of race, common histories unite members of a race, and different histories distinguish members of different races. Appiah lists DuBois' typology of eight races: Slavs, Teutons, English (in both Great Britain and America), Negroes (of Africa and, likewise, America), the Romance race, Semites, Hindus, and Mongolians. 82 According to DuBois, these races can be differentiated from each other because the members of the same race share a common history with each other that they do not also share with those of members of different races. The problem, however, with DuBois' historical conception of race is that unless the notion of shared race precedes that of shared history, we cannot derive the notion of race from a group's history. As Appiah notes, when we recognize two events as belonging to the history of one race, we have to have a criterion of membership of the race at those two times, independently of the participation of the members in the two events. 83 In other words, to make a common history out of African and AfricanAmerican pasts, there must be some common criterion of identity connecting Africans and African-Americans, but this criterion itself cannot be racial. As Appiah points out, sharing a common group history cannot be a criterion for being members of the same group, for we would have to be able to identify the group in order to identify its history. 84 But what is the group identifier in DuBois' conception if not race? DuBois' historical conception of race necessarily relies on fundamentally ahistorical assumptions about race. 85 Instead of explaining how racial categorizations *765 are made in the first place, DuBois merely conducts a circular inquiry: Races are different because they have different racial histories. The assumption that a family of common history inexorably leads to a common race obscures the complexities of racial identity and racial alliances. After all, like the relationship between race and biology, the relationship between race and history has always been one we have constructed. Drafting a hypothetical family tree for the Queen of England, Appiah explains that if we base her claim to the throne on a single line from an ancestor who lived nine hundred years ago, we find billions of such lines. 86 No single line can establish descent. Instead, we must choose the determinative line. Appiah argues that even DuBois' own racial identity was not dictated by a family of common history. Since DuBois is the descendant of Dutch ancestors, Appiah asks, why does not the history of Holland in the fourteenth century (which he shares with all people of Dutch descent) make him a member of the Teutonic Race? 87 According to Appiah, [t]he answer is straightforward: the Dutch were not Negroes, DuBois is. 88 Ultimately, it was not a common history that determined DuBois' race; DuBois had many common

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histories that might have led to any number of racial affiliations. Rather, it was DuBois' choice to identify with a certain race that determined which common history out of the many possible ones would be defining. Appiah's insight is that our racial identity is not dictated by our history but is always constructed. As he observes, History may have made us what we are, but the choice of a slice of the past in a period before your birth as your own history is always exactly that: a choice. 89 Of course this does not mean that we can choose to identify with one racial branch of history one day, and another the next. What it does mean is that racial identity is never a pre-existing given. It is something that we always construct, something that we always achieve at great effort, and something with which we struggle daily. In the theories of racial subjectivity, there must always be room for agency, a place for choice, 90 a margin for intention, and many possibilities for change. For Appiah, our fate lies in our intentions and actions, not in our race.

*766 D. Essential Race Appiah not only dismantles biological and historical definitions of race; he also dissects DuBois' appeal to racial essence. 91 He suggests that Pan-African appropriations of racial essence, as a form of resistance, are false and may be just as dangerous as their racist counterparts. 92 In his essay The Invention of Africa, Appiah maps the unique content of nineteenth century racism. The definition of race during the early decades of the nineteenth century shifted dramatically. 93 From the sixteenth to the nineteenth centuries, the predominant notion of race had referred to lineage, groups united through common descent. 94 This paradigm of race as lineage did not require that descendants share common physical characteristics. Rather than a biological basis, race as lineage seemed to have a religious one: The primary intellectual dispute arose over monogenesis, whether all humans had descended from Adam and Eve and had then diversified. 95 In the early nineteenth century, the definition of race shifted from lineage to type. This definition of race assumed polygenesis: that races arose from different racial stocks, corresponding to different physical types possessing heritable biological characteristics and moral and cultural traits. 96 These racial types were ranked hierarchically. Appiah describes three separate doctrines that fell under the rubric of nineteenth century racisms: racialism, extrinsic racism, and intrinsic racism. Appiah defines racialism as the belief that members of our species possess heritable characteristics that make it possible to separate us into different races. 97 These characteristics--distinctive traits and tendencies in addition to visible physical features--are exclusive to each group and constitute a racial essence. 98 The crucial aspect of racialism, as discussed previously, is that it equates biological characteristics with moral and cultural qualities. As Appiah explains, it is part of the content of racialism that the essential heritable characteristics of the Races of Man account for more than the visible morphological characteristics--skin color, hair type, facial features--on the basis of which we make our informal classifications. 99 Appiah believes that, although the doctrine of racialism is false, it is not in itself harmful. The problem arises because racialism is a necessary premise of racism. Racism, unlike racialism, is an inherently dangerous doctrine. Appiah *767 identifies two forms of racism: extrinsic and intrinsic. Extrinsic racists discriminate between members of different races because they believe that differences in racial essence cause differences in morally relevant traits, and that a group's possession of these different traits warrants different treatment. 100 These associated character traits (intelligence or industriousness, for example) are commonly accepted as legitimate bases for treating people differently. Because extrinsic racism stems from a false belief that races differ, rather than from sheer racial prejudice, Appiah argues that empirical evidence showing that no differences in morally relevant

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traits exist among the races should persuade extrinsic racists to reject their beliefs. 101 He qualifies this statement by pointing out that because extrinsic racists may have important stakes in the belief that races possess different traits, this evidence might not cause them to recant. At this level, extrinsic racists suffer from cognitive incapacity. 102 Intrinsic racists make moral distinctions based solely on racial difference, whether or not race proves to affect moral traits. 103 Race itself is the morally relevant trait. Intrinsic racists display not cognitive incapacity, but moral error. 104 While Appiah distinguishes between intrinsic and extrinsic racism, he admits that it may be difficult to distinguish between practical applications of intrinsic and extrinsic racism. An individual may be both an extrinsic and intrinsic racist, and the same action might be motivated by both mechanisms. 105 Appiah suggests that the primary difference, if any, between extrinsic and intrinsic racism is found in the divergent uses to which the two forms have been put. Extrinsic racism has been invoked to justify racial oppression; intrinsic racism has been employed to ground racial solidarity. 106 Afrikaners and Nazis have invoked the rhetoric of extrinsic racism, while Pan-Africanists and Zionists have appealed to that of intrinsic racism. Appiah argues that W.E.B. DuBois was both an extrinsic and intrinsic racist: extrinsic because he sought to revalue and reassign the moral properties attributed to the Black race; intrinsic because his desire to find a homeland in Africa led him to exalt the entire Black race without considering which attributes Blacks shared. 107 According to Appiah, DuBois merely flips the terms of debate in a classic dialectic argument, responding to the negative difference with positive difference. 108 DuBois' reasoning is that of the extrinsic racist. Maintaining that DuBois fails to transcend the biological conception of racial difference, Appiah asserts that DuBois merely reinscribes the legacy of scientific *768 racism. 109 Race still refers to inherent Black qualities, but in DuBois' version, positive traits replace negative ones. 110 Appiah further argues that DuBois' naked preference for his own race, lacking convincing justification, shows that DuBois was an intrinsic racist. 111 Here it is helpful to refer to Appiah's critique of another African-American founder of Pan-Africanism discourse. Analyzing the rhetoric of Alexander Crummell, Appiah argues that Pan-Africanism is premised upon the distinctive racialist idea that a people ... has the basis for a shared political life in their being of a single race. 112 Appiah points out that Crummell, an African-American, derived his authority to speak for the future of Africa by positing a common race. Crummell's Africa is the motherland of the Negro race, and his right to act in it, to speak for it, to plot its future, derived--in his conception-from the fact that he too was a Negro. 113 Similarly, the positing of this common race allowed Crummell to refer to Africa as a unified entity, ignoring the differences between tribes, ethnicities, and nations to emphasize the similarities of a race. Crummell held that there was a common destiny for the people of Africa-- by which we are always to understand the black people--not because they shared a common ecology, nor because they had a common historical experience or faced a common threat from imperial Europe, but because they belonged to this one race. 114 From its very inception, the discourse of Pan-Africanism was anchored by an essential race that united all of Africa, and African-Americans with Africans. Because Crummell based Pan-Africanism on a common race, instead of common racial characteristics, Appiah argues that Crummell was an intrinsic racist.

So what? What is wrong with intrinsic racism if it anchors liberating movements like Pan-Africanism? Appiah has two answers. First, intrinsic racism is morally wrong. Second, it is politically dangerous. As he explains, intrinsic racism means using race itself, rather than any other morally relevant characteristic, to treat people differently. It would therefore be a failure to apply the Kantian injunction to universalize our moral judgments if we treated people differently when they shared all other moral

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characteristics in common save *769 race. 115 It would also be morally wrong to treat people similarly even if they shared no moral characteristics, but only race. This insight leads to Appiah's second criticism of intrinsic racism. Assumptions of a racial essence tempt us away from charting the landscape of our actual similarities and differences. If we refuse to presume an instinctive racial unity, we might find other alliances and coalitions possible. For example, on issues concerning women of color, civil rights groups might ally with feminist groups. 116 Additionally, Appiah points out that [r]ace disables us because it proposes as a basis for common action the illusion that black (and white and yellow) people are fundamentally allied by nature .... 117 Appiah's insight is striking. Attributing prior unity to members of a race may in fact hinder antiracist efforts. Efforts to unite become symptoms of a racial essence, instead of acts of struggle, endurance, courage, and love. If we reject biological or essentialist grounds for racial solidarity, we must instead articulate political affinities. Race itself would not ground group identity; our stances on race, justice, and equality--our politics--would become the basis for definitions. This distinction between essential and political bases for racial identity becomes crucial when we face dilemmas like neoconservatives of color. As Toni Morrison explains, the Supreme Court nomination of Justice Clarence Thomas created a double bind for African-Americans. Many blacks were struck mute by the embarrassing position of agreeing with Klansmen and their sympathizers; others leaped to the defense of the candidate on the grounds that he was no worse than X, or that any candidate would be a throwback, or that who knows what he might do or become in those hallowed halls? 118 Supporting the Thomas nomination meant opposing much of the historical struggle against racism; opposing his nomination meant supporting racist stereotypes about the intellectual ability of African-Americans. According to Cornell West, this dilemma meant that no black leader could utter publicly that a black appointee for the Supreme Court was unqualified .... 119 Justice Thomas compounded this dilemma by appealing to his racial identity during the confirmation hearings. To the extent that racial identity is defined biologically and essentially, Justice Thomas is obviously black. However, when racial identity is defined politically, as a firm commitment to antiracist struggles, Justice Thomas's claim to racial authenticity founders. Cornell West argues that we must replace racial reasoning with moral reasoning, to understand the black-freedom struggle not as an affair of skin pigmentation and *770 racial phenotype but rather as a matter of ethical principles and wise politics .... 120 In this way, we can start to move from a racial identity that is premised on our biology and racial essence to one that is based on our political stances.

III. THE (IM)POSSIBILITY OF RACIAL RESISTANCE A. Race Versus Culture Not only does Appiah conclude that biological and essential conceptions of race are falsehoods, but he also determines that they are useless at best and dangerous at worst: The truth is that there are no races: there is nothing in the world that can do all we ask race to do for us. As we have seen, even the biologist's notion has only limited uses, and the notion that DuBois required, and that underlies the more hateful racisms of the modern era, refers to nothing in the world at all. The evil that is done is done by the concept, and by easy--yet impossible-- assumptions as to its application. 121 Appiah asserts that [t]alk of race is particularly distressing for those of us who take culture seriously. For where race works--in places where gross differences' of morphology are correlated with subtle differences' of temperament, belief, and intention, it

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succeeds only as an attempt at metonym for culture, and it does so only at the price of biologizing what is culture, ideology. 122 In other words, any conception of race that is significant is really just culture in disguise.

Just what is this culture that Appiah urges us to substitute for race? It is [w]hat exists out there in the world--communities of meaning, shading variously into each other in the rich structure of the social world .... 123 One of Appiah's earlier essays suggests that these communities of meaning are groups of people anchored by ethnic identities. Appiah maintains that in a truly nonracist world, ethnic identities based on racial differences would entirely wither away. 124 On the other hand, ethnic identities described as something an African-American identity could become, seem to Appiah likely to persist. 125 In an ideal world, what we now call a racial identity would become an ethnic identity. Appiah suggests that this notion of ethnic or cultural identity already underlies a progressive view of ostensibly racial identity. He points out, for example, that for those who identify themselves as African-American, what matters ... is almost always not the unqualified fact of that descent, but rather something that they suppose to go with it: the experience of a life as a member of a group of people who experience themselves as--and are held by *771 others to be-a community in virtue of their mutual recognition--and their recognition by others--as people of a common descent. 126 Since any meaningful notion of racial community is really one of cultural community, Appiah believes that culture can and should substitute for race.

The benefits of substituting the notions of an ethnic or cultural identity for a racial one are many. First, we can move away from the notion that race is a biological attribute possessed only by people of color. Second, we can undermine the racialist premise that, like physical traits, moral and intellectual characteristics too are inherited. Third, we can counter the belief that nature, not effort, binds together members of a race. Fourth, we can rebut the idea that the ways in which we act, think, and play are inherited, rather than learned. As Henry Louis Gates, Jr., has instructed us, [o]ne must learn to be black in this society, precisely because blackness' is a socially produced category. 127 The problem, however, with this ethnic or cultural identity is precisely what Appiah cites as its advantage--its independence from race. As Michael Omi and Howard Winant have noted, theories that reduce racial identities to ethnic ones fail to account for the centrality of race in the histories of oppressed groups. Such theories also underestimate the degree to which traditional notions of race have shaped, and continue to shape, the societies in which we live. In doing so, these reconceptualizations of race as ethnicity may actually hinder our ability to resist entrenched forms of racism. 128 Although this criticism of ethnicity may apply more to the particularities of American society, it is also pertinent to African societies. After all, the history of colonialism in Africa cannot be mapped simply through cultural identities. We need race to fully understand what happened. Racial domination, not simply cultural oppression, explains imperialism. Returning to the American context, when race becomes just another ethnic identity, and African-Americans, Latinos, AsianAmericans, and Native Americans become ethnic groups, there is a real danger that the oppression faced historically by these groups will not be fully understood or appreciated. The racial experience is not just quantitatively different from the ethnic one, as Ronald Takaki explains; the racial experience is qualitatively different. 129 For example, the immigration experience was dramatically distinct for white ethnics and African-Americans: The majority of the latter group were brought to this country in chains and enslaved for 200 years. Analogously, during World War II, German-Americans and Italian-Americans were not interned as were Japanese-Americans. To the extent that ethnicity models take the white ethnic experience as the norm, these

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theories blame the victim when they fail to measure up to this norm. 130 For example, conservative observers wonder why African-Americans have not progressed socially and economically in the *772 United States as have similarly situated white ethnic groups, such as Italians and Irish. 131 Most seriously, ethnicity theories fail to account for the ways in which race has already been formalized in our institutions, particularly the law.

B. Races The most important weakness of Appiah's dismissal of race is that in declaring biological and essential conceptions of race useless and dangerous, he fails to recognize that race is defined not by its inherent content, but by the social relations that construct it. If race is always dangerous, regardless of its meaning within a specific historical and social context, the result is an abstract and unitary conception of race. Basically, Appiah's conception of race fails to acknowledge that meanings change dramatically with social context. For Appiah, once a conception of race is constructed, the possibility of contesting, redefining, and reappropriating it is limited. Because the meaning of race is so constrained, resistance on racial terms becomes difficult. Our best hope is to abandon race for culture. Whether extrinsic or intrinsic, to Appiah these attitudes are both labelled racism. In designating all uses of race variants of racism, rather than recognizing their potential to be altogether different phenomena, Appiah may presuppose his conclusion-that all uses of race are hazardous. Paradoxically, by casting both uses of race as racisms, Appiah's conception of race fails to reflect the changing social contexts that produce race, and through which race can be redeployed as a tool of antiracist struggle. While whites have historically used conceptions of race to subordinate people of color, some communities of color have successfully reappropriated the categorizations and united around them. They have redeployed race as an affirmative category around which people have organized to assert the power of their group and its identity. To deny the term race any content, as Appiah would have it, is to deny a powerful metaphor to racial groups and to preclude valuable modes of resistance. Focusing on the different ways in which race is defined is more fruitful than concentrating on the common ways in which race is used. Since the meaning of race depends on the specific social contexts in which it is embedded, we will find as many definitions of race as there are social contexts. 132 With this in mind, we can navigate among different definitions of race simultaneously: biological, social, cultural, essential, and political. 133 Rather than determining *773 whether a definition is oppressive based solely on its content, we can instead examine its effects. In perhaps the most penetrating account of the history of race, Michael Omi and Howard Winant explore the construction of racial identities, and trace how race has changed over time. They investigate the ways in which the sign of race has been appropriated and reappropriated, and how contests over definitions of race have shaped, and been shaped by, American social life and history. Omi and Winant argue that we should stop thinking of race as an essence, as something fixed, concrete and objective. 134 They suggest that we instead think of race as an unstable and decentered complex of social meanings constantly being transformed by political struggle. 135 They high-light the contingent and changing nature of race and racism while recognizing its pervasive and systematic effect on our history. They trace the historical development of the category of race, labeling this process racialization to signify the extension of racial meaning to a previously racially unclassified relationship, social practice or group. 136 Similarly, they discuss racial formation, or the process by which social, economic and political forces determine the content and importance of racial categories, and by which they are in turn shaped by racial meanings. 137 This theory of racial formation captures the concept of race both as a means of analyzing and ordering the world and as a process of historical and social transformation. In this way, Omi and Winant acknowledge that many definitions of race are possible, and acknowledge heterogeneous terrains of the racial landscape.

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But current discursive frameworks for analyzing race constrain us to either/or binary structures. We are forced to select biological or social conceptions of race; between supporting all versions of race or no versions of race; between implementing race-neutral or race-specific policies. If we argue that race is socially constructed, like Appiah, we often lose any chance to account for biology in defining race. While the argument that physical differences alone do not define race is vitally important, it should not preclude us from investigating how race has morphological features. We can explore how racial categories are created and organized around physical characteristics; how biology and the social contexts interrelate to give meaning to these physical traits. 138 In short, race can explain why, in the real world, differences of color, hair, and bone still matter.

*774 IV. THE LEGAL CONTEXT A. Judicial Constructions of Race Racial characterization in the law demonstrates the dangers of continuing to examine solely the content of race, and to endorse unitary definitions of race. In legal discourse, singular notions of race and an either/or binary framework seriously limit the potential of antiracist struggles, exposing them to racist appropriation. The need to stress how race is constructed in social contexts, and how race has a multiplicity of meanings, is urgent for two reasons. First, courts construct definitions of race and racial difference every day, even as they claim to merely reflect preexisting scientific and social facts. Second, legal discourse tends to formalize definitions within the framework of the law, magnifying their effect. Criteria that we use loosely in daily life can become rigid tests in the courtroom. A recent controversial Supreme Court decision that interpreted racial definitions demonstrates these tendencies. In Shaw v. Reno, 139 the Court applied strict scrutiny in evaluating the constitutionality of an electoral reapportionment plan. Shaw marked the first time that the Court chose to apply identical legal tests to government action designed to benefit historically disadvantaged racial groups and to measures designed to burden these groups in the voting rights arena. The decision, along with an earlier case striking down an affirmative action program, 140 has stirred considerable criticism. 141 Appiah's critique of the use of unquestioned racial assumptions aptly applies to the Supreme Court's decisions involving racial issues. 142 Despite the frequency of Supreme Court cases dealing with race, the Court has not precisely identified the role of race in its decisions. The Court purports to merely recognize, not construct, definitions of race. 143 It has shifted between biological and social definitions of race. In Shaw, the Court described race in physical terms like skin color; in other cases, it has characterized race as a social construct, the product of past and present racial discrimination. 144 A survey of the Court's varying definitions of race, however, reveals that focus on content, unitary definitions, and either/or frameworks prevail in judicial attempts to determine the significance of racial difference. This singular framework of these definitions has facilitated the Court's invalidation of remedial programs vital to antiracist efforts.

*775 B. Shaw v. Reno: Manipulating the Biological and the Racial In Shaw, five white voters in North Carolina brought a constitutional challenge to a state-enacted reapportionment plan, alleging that the plan was an unconstitutional racial gerrymander. 145 The Court held that the plaintiffs could make a cognizable claim under the Equal Protection Clause of the Fourteenth Amendment by alleging that the legislation, although race-neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race. 146 The level of review on remand was to be strict scrutiny; the lower court was instructed to determine whether the North Carolina plan is narrowly tailored to further a compelling governmental interest. 147

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Writing for the majority, Justice O'Connor constructs a biological conception of race. She points out that the main purpose of the Equal Protection Clause is to prevent states from purposefully discriminating between individuals on the basis of race 148 and that the individual is important, not his race, his creed, or his color. 149 While these references to race do not embody a specific definition, when Justice O'Connor says race, she clearly means skin color: Racial classifications of any sort pose the risk of lasting harm to our society. They reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin; 150 a reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid. 151 In defining race, however, Justice O'Connor exploits the rhetorical power of unitary definitions of race and the either/or binary framework of biological and social definitions of race. She depends on a biological notion of race to argue that the law should not recognize race. Tautologically, she defines race as skin color to prove that we should not recognize race since it means nothing more than skin color. For Justice O'Connor, to acknowledge the significance *776 of skin color is to attribute an array of character traits on the basis of physical features that bear no relevance to those traits. In the Shaw majority's conception, recognizing the relevance of mere skin color is as irrational and insidious as assuming that all members of a racial group share certain moral and cultural traits. For the majority, skin color represents racial essence and negative stereotypes, the racist's assertion that the races possess different natures and moral characteristics and therefore should be valued differently. In its critique of biological race, the majority legitimately objects to the notion that our skin color predicts who we are and what we can be. The problem, however, is that the Court does not simply reject this narrowly biological notion of race as a basis for disparate treatment; rather, the Court assumes that the invalidity of race so characterized leaves no alternative but to reject the political significance of race altogether: Classifications of citizens solely on the basis of race are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. They threaten to stigmatize individuals by reason of their member ship in a racial group and to incite racial hostility. ([E]ven in the pursuit of remedial objectives, an explicit policy of assignment by race may serve to stimulate our society's latent race-consciousness, suggesting the utility and propriety of basing decisions on a factor that ideally bears no relationship to an individual's worth or needs.). 152

The Court limits race to a biological definition, and evokes the opposition between the biological and the social to undermine the validity of race-consciousness, and thus of race-conscious remedies. The Court accomplishes this by first recognizing that biological definitions of race lead to racism. Acknowledging only a unitary definition of race, it then concludes that recognizing race leads to racism. While I agree with the assertion that recognizing skin color has in some contexts caused stigmatic harm, I cannot agree with the conclusion that recognizing race must also cause injury. The majority's argument that all racial classifications cause harm depends on the conflation of biology and race and the use of only one definition of race, and invites us to view every acknowledgment of race as racism. One way to undercut this presumption is to assert, as Appiah has done, that race is not simply biology. The two concepts are analytically unconnected and unconnect-able. We might also argue that the attribution of race to skin color is always an act of interpretation. Skin color does not equal race unless society recognizes that it does. For example, in Drylongso: A Self-Portrait of Black America, John Langston Gwaltney's collection of African-American narratives, Jackson Jordan, Jr., a ninety-year-old African-American man, discusses how people are identified as Black: Now, you must understand that this is just a name we have. I am not black and you are not black either, if you go by the evidence of your eyes .... Anyway, black people are all colors. White people don't all look

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the same way, but *777 there are many more different kinds of us than there are of them. Then too, there is a certain stage at which you cannot tell who is white and who is black. Many of the people I see who are thought of as black could just as well be white in their appearance. Many of the white people I see are black as far as I can tell by the way they look. 153 Race cannot be self-evident on the basis of skin color, for skin color alone has no inherent meaning.

Shaw epitomizes the gap between the Court's professed color-blindness and its undeniable role in the construction of race. The opinion seems to rebuke the district court for taking judicial notice of the appellants' white race, a fact omitted from [their] complaint, 154 and emphasizes that the appellants did not even claim to be white in their pleading. 155 Even in disclaiming the significance of race, however, the majority writes its biologistic conception of race into the law. Because it does not recognize the nonbiological dimensions of race, the majority must reject the possibility of a nonstigmatic use of race. Ironically, by doing this, the Court adopts a stigmatic biologistic definition of race, and does not see its own power to recast the meaning of race into an affirmative use. The Court fails to recognize that it does, and how it could, shape the terrain of racial difference. Another way to challenge the premise that race is skin color is to maintain, as do Omi and Winant, that race is not just morphology, but that the meaning of race derives from its social context and is thereby constantly shifting. 156 Simply, there are many different definitions of race. For example, Justice White evaluates North Carolina's reapportionment plan in light of the legacy of pervasive racial discrimination in the South: [T]he notion that North Carolina's plan, under which whites remain a voting majority in a disproportionate number of congressional districts, and pursuant to which the State has sent its first black representatives since Reconstruction to the United States Congress, might have violated appellants' constitutional rights is both a fiction and a departure from settled equal protection principles. 157 By including the social context in which the state legislature acted, Justice White's dissent distinguishes between proper and improper uses of racial difference, rather than assuming that the legitimacy of using racial difference is the same in all hands. The dissent recognizes different definitions of race: uses that discriminate against racially identified persons and uses that try to equalize treatment, and to provide minority voters with an effective voice in the political process. 158 For Justice White, the Court has the power to consider history and social context in determining whether a use of race is constitutional. *778 For example, he cites the Court's holding in White v. Regester 159 that [t]he historic and present condition of the Mexican-American community, a status of cultural and economic marginality, as well as the legislature's unresponsiveness to the group's interests, justified the conclusion that Mexican-Americans were effectively removed from the political processes, and invidiously excluded ... from effective participation in political life. 160 Race, this passage implies, can be used not only for racist purposes, but for antiracist purposes too.

Similarly, Justice Souter's dissenting opinion in Shaw distinguishes the race-conscious reapportionment plan in Shaw from other constitutionally impermissible uses of race by reference to social context. Quoting Brown v. Board of Education, 161 Justice Souter finds it utterly implausible to ... presume ... that North Carolina's creation of this strangely-shaped majorityminority district generates' within the white plaintiffs here anything comparable to a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. 162 Justice Souter hints that race means different things in different legal contexts:

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Until today, the Court has analyzed equal protection claims involving race in electoral districting differently from equal protection claims involving other forms of governmental conduct .... [S]uch districting differs from the characteristic circumstances in which a State might otherwise consciously consider race .... [E]lectoral districting calls for decisions that nearly always require some consideration of race for legitimate reasons ... [because] members of racial groups have the commonality of interest implicit in our ability to talk about concepts like minority voting strength, and dilution of minority votes. 163 Souter notes the irony in the implication of the majority opinion's suggestion that African-Americans may now be the only group to which it is unconstitutional to offer specific benefits from redistricting. Not very long ago, of course, it was argued that minority groups defined by race were the only groups the Equal Protection Clause protected in this context. 164 By referring to the remedial intent of race-conscious measures, Justice Souter implicitly acknowledges that there are affirmative definitions and uses of race.

Shaw makes clear the inadequacy of unitary and either/or binary models of racial difference, and suggests their potential to cause affirmative harm. Race and racism are fluid. In contrast to the 1960s, the concept of liberal colorblindness now undermines antiracist efforts. Therefore, rejecting all conceptions of biological race and embracing those of social race leaves open the possibility of racist appropriation, and precludes the potential for antiracist struggle. Similarly, rejecting all notions of essential race may dismantle the grounds for affirmative racial solidarity. Because the meaning of race is constructed *779 by the social contexts in which it is located, there can be no consistent content to race. Race can always be defined in many different ways, often simultaneously. Because we cannot predict a racist practice from its definition of race, we can never determine beforehand whether a practice will be racist or antiracist solely from its content. We can only examine the way race is being used and what it is being used to say. Only after examining the context and the effect can we determine whether the practice is racist or antiracist. Sometimes, as in the cases of Justices White and Souter, we may be surprised. If the practice reinforces the subordination of a historically oppressed group, we can label that practice racist. In Shaw, the notion of color-blindness was used to undermine an electoral plan designed to benefit a racial group that had historically been deprived of their right to vote. On the other hand, if the practice alleviates subordination, we can label that practice antiracist. The constantly shifting topology of race requires us to acknowledge that race can be defined in many different ways, and that all of these ways, even biological and essential conceptions of race, have their place in antiracist struggles. The best that we can do is to navigate this terrain.

V. CONCLUSION Returning to the themes that have motivated this review, I pose the following questions again: How can we recognize racial difference without reinscribing racial stereotypes and subordination? How can we trace the historical construction of race without denying groups the power to define themselves racially? How can we critique dominant norms for excluding racial experiences, without ghettoizing people of color by the very particularity that we have invoked? I argue that we can start by recognizing that race is always defined by its social context, and never solely by its content. Additionally, we can recognize that race is always multiplicitous because social contexts are multiplicitous. The use of race to stereotype and discriminate against people differs from the use of race as a basis for racial solidarity. Finally, we can refuse to adhere to the unitary and either/or framework that has constrained race discourse. We can have both biological and social definitions of race, we can have both essential and historical notions of race, we can have both race-neutral and race-conscious remedies, we can have both race and culture. Abandoning one set of definitions entirely may deprive us of useful tools in the struggle against racism. In one of her essays, Barbara Fields suggests a way to start this transformation. She advises us to think of race as an ideology born at a specific moment in history because of certain rationally understandable historical reasons, which can gain or lose

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motivating force when society changes. 165 She defines ideology as the interpretation in thought of the social relations through which [people] constantly create and re-create their collective being. 166 Although ideologies are as real as the social relations they reflect, they have no independent *780 existence. An ideology is not a material entity, a thing of any sort, that you can hand down like an old garment, pass on like a germ, spread like a rumor, or impose like a code of dress or etiquette. 167 Nor is an ideology merely the sum of people's attitudes. Instead, it is best understood as the descriptive vocabulary of day-to-day existence, through which people make rough sense of the social reality that they live and create from day to day. 168 This notion of ideology helps explain how race is created and recreated. Fields suggests that the ritual repetition of ... appropriate social behavior sustains ideologies. 169 She explains that [h]uman beings live in human societies by negotiating a certain social terrain, whose map they keep alive in their minds by the collective, ritual repetition of the activities they must carry out in order to negotiate the terrain. 170 Extending the metaphor, she asks us to imagine a physical landscape with various distinguishable features: trees, mountains, valleys, and quicksand. An observer on a satellite can see the people below, but not the features of the terrain. When she sees people climbing over hills, moving around obstacles, or diving into tunnels, the observer might assume that certain people's attitudes prompt certain kinds of actions, while others might have attitudes that encourage other types of movements. 171 However, if the observer were to move closer, she would be able to see that understanding the people's actions entails analyzing the terrain. 172 And the observer would realize that changing people's behavior would entail contouring the terrain differently. By analogy, race continues to exist as it does because we create and recreate it to fit our own social terrain, even as it becomes a part of that terrain. I end with this image to suggest that the notion of race is not so overdetermined by past and current racial domination that we cannot revive it. Instead of abandoning a terrain twisted by oppression and discrimination, we can try to reshape it with other tools. Instead of referring to the definition of race, we can refer to definitions of race. Instead of talking about racism, we can talk about racisms. Instead of abandoning certain definitions of race, we can employ each of them when necessary. Biological and essential definitions of race may have their place in this topography. Perhaps Appiah's greatest insight is that we must always self-consciously analyze the tools that we use. Whether these tools harm or heal depends on what we do with them. The choice is always ours.

Footnotes a1 B.A., Yale University, 1986; J.D., University of California at Los Angeles School of Law, 1991; J.S.M., Stanford Law School, 1993.
I have benefited from many conversations on race, racism, and difference over past years. I am grateful to Paul Brest, who urged me to ask the hard questions, and to Janet Halley, who taught me how theory can inform politics. Most of all, I am indebted to Kimberl Crenshaw, who showed me that race is always political and that politics is always racial.

d1 1 2

Professor of Afro-American Studies, Harvard University. W.E.B. DUBOIS, THE SOULS OF BLACK FOLK 13 (1903). BRUCE CHATWIN, THE SONGLINES 2 (1987). Although Chatwin's narrative reflects some of the problematic assumptions and techniques common in travel writing, I will not analyze the variety of ways in which indigenous peoples have been portrayed or excluded in these writings. A discussion of travel literature as the literature of empire and imperialism would occupy another essay altogether. See generally EDWARD W. SAID, ORIENTALISM (1978) (arguing that Orientalism was a discourse that constructed and defined the Orient as other to the Occident); Mary Louise Pratt, Fieldwork in Common Places, in WRITING CULTURE: THE POETICS AND POLITICS OF ETHNOGRAPHY 27 (James Clifford & George Marcus eds., 1986) (discussing the tensions between personal experience and professionalism in ethnographic writing).

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CHATWIN, supra note 2, at 2. Id. at 13. Id. Id. at 108. Id. Id. at 14. Id. at 52. Id. at 179. See ANATOMY OF RACISM (David Theo Goldberg ed., 1990); HOUSTON A. BAKER, JR., AFRO-AMERICAN POETICS: REVISIONS OF HARLEM AND THE BLACK AESTHETIC (1988); HOUSTON A. BAKER, JR., BLUES, IDEOLOGY, AND AFRO-AMERICAN LITERATURE: A VERNACULAR THEORY (1984); THE BOUNDS OF RACE: PERSPECTIVES ONNN HEGEMONY AND RESISTANCE (Dominick LaCapra ed., 1991); HENRY LOUIS GATES, JR., FIGURES IN BLACK: WORDS, SIGNS AND THE RACIAL SELF (1987); HENRY LOUIS GATES, JR., LOOSE CANONS: NOTES ON THE CULTURE WARS (1992) [hereinafter GATES, LOOSE CANONS]; HENRY LOUIS GATES, JR., THE SIGNIFYING MONKEY: A THEORY OF AFRO-AMERICAN LITERARY CRITICISM (1988); THE NATURE AND CONTEXT OF MINORITY LITERATURE (Abdul R. JanMohamed & David Lloyd eds., 1990); MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960S TO THE 1980S (1986); RACE, WRITING, AND DIFFERENCE (Henry Louis Gates, Jr. ed., 1986); 18 CRITICAL INQUIRY (Kwame Anthony Appiah & Henry Louis Gates, Jr., guest eds., Summer 1992); Barbara Jeanne Fields, Slavery, Race and Ideology in the United States of America, 181 NEW LEFT REV. 95 (1990); Joyce A. Joyce, The Black Canon: Reconstructing Black American Literary Criticism, 18 NEW LITERARY HIST. 335 (1987); Joyce A. Joyce, Who the Cap Fit: Unconsciousness and Unconscionableness in the Criticism of Houston A. Baker, Jr., and Henry Louis Gates, Jr., 18 NEW LITERARY HIST. 371 (1987) [hereinafter Joyce, Who the Cap Fit]; Cornel West, Minority Discourse and the Pitfalls of Canon Formation, 1 YALE J. CRITICISM 193 (1987). See text accompanying notes 139-157 infra. By discourse, I mean the language that we use to talk about race. I do not restrict language solely to semantic terms. The term also encompasses the codes, ways, and structures that contribute to the myriad of ways in which we understand the world. In other words, reality is not transparently self-evident; it is always mediated through systems of representation that constitute it. See generally JACQUES DERRIDA, WRITING AND DIFFERENCE (Alan Bass trans., 1978) (explaining how discourse determines reality). However constructed our racial identities are, it does not mean that we can change them at will, putting them on and taking them off whenever we wish. As Henry Louis Gates, Jr., points out, the problem arises that when we use the term constructed, we tend to slip to essentially unreal. But: [I]t's utopian to think we can now disavow our social identities; there's not another one to take its place. You can't opt out of a Form of Life. We can't become one of those bodiless vapor trails of sentience portrayed on that Star Trek episode, though often it seems as if the universalists want us to be just that. You can't opt out of history. History may be a nightmare, as Joyce suggested, but it's time to stop pinching ourselves. GATES, LOOSE CANONS, supra note 11, at 37. This analysis of what we call reality allows us to explore features of our geography that seem to be given, and examine how they are created and shaped by our language. Within the context of racial discourse, this means exploring how social factors produce natural differences, instead of presuming that racial categories reflect these natural or biological differences.

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113 S. Ct. 2816 (1993). See text accompanying notes 139-157 infra. See MICHEL FOUCAULT, POWER/KNOWLEDGE: SELECTED INTERVIEWS AND OTHER WRITINGS 1972-1977 (Colin Gordon ed., 1980); HUBERT L. DREYFUS AND PAUL RABINOW, MICHEL FOUCAULT: BEYOND STRUCTURALISM AND HERMENEUTICS (2d ed. 1983). Although the creation of a new paradigm of race is beyond the scope of this review, I explore how we might create a new paradigm at the conclusion of this review. See text accompanying notes 165-172 infra. See Stuart Hall, Race, Articulation and Societies Structured in Dominance, in UNESCO, SOCIOLOGICAL THEORIES: RACE AND COLONIALISM (1980). Discussing the current condemnation of essentialism, Diana Fuss suggests that we contextualize each invocation of essence because the political investments of the sign essence are predicated on the subject's complex positioning in a particular social field, and ... the appraisal of this investment depends not on any interior values intrinsic to the sign itself but rather on the shifting and determinative discursive relations which produced it. DIANA FUSS, ESSENTIALLY SPEAKING: FEMINISM, NATURE & DIFFERENCE 20 (1989). In this way, our inquiry becomes not is this text essentialist (and therefore bad)' but rather, if this text is essentialist, what motivates its deployment? Id. at xi. Our inquiry then centers not on the inherent content of the text, but instead on who is utilizing it, how it is deployed, and where its effects are concentrated? Id. at 20. See Kimberl Williams Crenshaw, Foreword: Toward a Race-Conscious Pedagogy in Legal Education, 11 NAT'L BLACK L.J. 1 (1989) (explaining how an antiperspective liberal discourse can actually reinforce inequality); Kimberl Williams Crenshaw, Race, Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331 (1988) (discussing how antidiscrimination laws have permitted continued racism). This is not to say that racial epithets do not exist, but rather that in the 1990s public consensus condemns their use in a way that it did not during the 1960s. Neil Gotanda, A Critique of Our Constitution Is Color-Blind, 44 STAN. L. REV. 1 (1991); Patricia Williams, The Obliging Shell: An Informal Essay on Formal Equal Opportunity, 87 MICH. L. REV. 2128 (1989). I have been influenced by the works of Diana Fuss and Joan Scott. See, e.g., FUSS, supra note 21 (assaulting both sides of the essentialism/construction binary by arguing that essentialism really has no essence and that constructivism depends on essence); Joan Scott, Deconstructing Equality-Versus-Difference: Or, the Uses of Post-Structuralist Theory for Feminism, 14 FEMINIST STUD. 33, 43-48 (1988) (rejecting the opposition of equality to difference in feminist theory). When meanings of race and racism are constructed, they do not then exist in isolation, their meaning unchanged forever. Instead, they are constructed within discursive frameworks that can change and be redefined. In this regard, I have been influenced by the work of Lisa Lowe. See LISA LOWE, CRITICAL TERRAINS: FRENCH AND BRITISH ORIENTALISMS 25 (1991). Lowe argues that the positing of Orientalism as a monolithic and univocal discourse ignores the complexity of nativist resistance to Western domination. For example, she argues that: An interpretation of Indian history guided by the concept of a dominant colonialist discourse would represent India as having been thoroughly ruled and administered for a century and a half by British discourses ... however, [this] ignores the ongoing and quite different Indian resistances that occurred throughout the British occupation, and places the power of colonialist discourse in the hands of the colonizer. In this regard it has been the aim of contemporary radical historians ... to reconstitute the histories of peasant and worker resistances. Id. KWAME ANTHONY APPIAH, IN MY FATHER'S HOUSE: AFRICA IN THE PHILOSOPHY OF CULTURE (1992). Although Appiah's book addresses an array of questions and issues, I will focus on these two specific topics of construction and mapping. I primarily concentrate on two chapters: The Invention of Africa, and Illusions of Race. Pp. 28-72.

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Pp. 3-27, 47-72. See, e.g., GEORGE M. FREDRICKSON, THE BLACK IMAGE IN THE WHITE MIND: THE DEBATE ON AFRO-AMERICAN CHARACTER AND DESTINY, 1817-1914 (1971); EUGENE D. GENOVESE, ROLL, JORDAN, ROLL: THE WORLD THE SLAVES MADE (1974); THOMAS F. GOSSETT, RACE: THE HISTORY OF AN IDEA IN AMERICA (1963); REGINALD HORSMAN, RACE AND MANIFEST DESTINY: THE ORIGINS OF AMERICAN RACIAL ANGLO-SAXONISM (1981); WINTHROP D. JORDON, WHITE OVER BLACK: AMERICAN ATTITUDES TOWARD THE NEGRO, 1550-1812 (1968); ALEXANDER SAXTON, THE RISE AND FALL OF THE WHITE REPUBLIC: CLASS POLITICS AND MASS CULTURE IN NINETEENTH-CENTURY AMERICA (1990); AUDREY SMEDLEY, RACE IN NORTH AMERICA: ORIGIN AND EVOLUTION OF A WORLDVIEW (1993). See, e.g., Houston A. Baker, Jr., Caliban's Triple Play, in RACE, WRITING, AND DIFFERENCE, supra note 11, at 381, 385 (arguing that Appiah believes that once science shows that race is not biologically determined, all talk of race must cease); Joyce, Who the Cap Fit, supra note 11, at 378-81 (stating that Appiah's argument attacks the very possibility of African-American identity). I suggest that Appiah's work is greatly misunderstood because analytically he separates theory from politics. But racial theory and racial politics have become so entwined that when he questions the former he inevitably appears to question the latter. GATES, LOOSE CANONS, supra note 11, at 125. In his previous writings, Appiah himself implies that Africans and African-Americans hold a similar stake in defining the meaning of race. For example, in the introduction to an earlier version of Out of Africa: Topologies of Nativism, Appiah explained why he began his essay about Africa with an article from an American newspaper: I want to insist at the start on the extent to which the issues of language and nation that are so central to the situation I want to discuss--that of sub-Saharan African writers and critics--are also the problems of American criticism. This is not a voyage into the exotic, a flirtation with a distant Other. Voltaire or one of his philosopher comrades in a European culture before the heyday of the world empires once said that when we travel, what we discover is always ourselves. It seems to me that this thought has, so to speak, become true. In the world after those world empires, a world where center and periphery are mutually constitutive, political life may be conceived of (however misleadingly) in national terms, but what Voltaire might have called the life of the mind cannot. If I seek to situate my discussion of the African situation with a few elements of context, then, it is in part so that you can recognize how much of that situation is familiar territory. Kwame Anthony Appiah, Out of Africa: Topologies of Nativism, in THE BOUNDS OF RACE, supra note 11, at 134, 136-37. Pp. 3-46. See text accompanying notes 139-172 infra. Anthony Appiah, The Uncompleted Argument: DuBois and the Illusion of Race, in RACE, WRITING AND DIFFERENCE, supra note 11, at 21-22. Appiah incorporates this argument into one of the essays in In My Father's House. P. 35. Appiah, supra note 37, at 35-36. See, e.g., Baker, supra note 31, at 384-85; Joyce, Who the Cap Fit, supra note 11, at 376-77 (describing Appiah's analysis as quasiscientific and alienating and arguing that Appiah states what most Black people have always known). See, e.g., Henry Louis Gates, Jr., Introduction: Writing, Race and the Difference It Makes, in RACE, WRITING, AND DIFFERENCE, supra note 11, at 1, 15 (praising Appiah for show[ing] how race functions in Western culture as a metonym for muddled thinking about the relation among genetics, intention, meaning, and culture). Baker, supra note 31, at 384. Id. at 385. Id. at 384-85.

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Id. at 385. Id. at 384. Gates, supra note 40, at 6. Henry Louis Gates, Jr., Talkin' That Talk, in RACE, WRITING, AND DIFFERENCE, supra note 11, at 403. Gates, supra note 40, at 4-5. GATES, LOOSE CANONS, supra note 11, at 147. Id. A binarism is a pair of mutually exclusive concepts. This binary structure arose from the following question that has plagued discourse on race: How can we recognize racial differences without reinscribing the racial stereotypes and subordination associated with these differences? In other words, how can we use the notion of racial difference to liberate, when it is precisely through emphasizing difference that racism is perpetuated? In the context of African-American literature, Henry Louis Gates, Jr., has explained: We are justified, however, in wondering aloud if the sort of subjectivity which these writers seek through the act of writing can be realized through a process which is so very ironic from the outset: how can the black subject posit a full and sufficient self in a language in which blackness is a sign of absence? Can writing, with the very difference it makes and marks, mask the blackness of the black face that addresses the text of Western letters, in a voice that speaks English through an idiom which contains the irreducible element of cultural difference that will always separate the white voice from the black? Gates, supra note 40, at 12. Within the legal context, Martha Minow has called this the dilemma of difference: The stigma of difference may be recreated both by ignoring and by focusing on it. Decisions about education, employment, benefits, and other opportunities in society should not turn on an individual's ethnicity, disability, race, gender, religion, or membership in any other group about which some have deprecating or hostile attitudes. Yet refusing to acknowledge these differences may make them continue to matter in a world constructed with some groups, but not others, in mind. The problems of inequality can be exacerbated both by treating members of minority groups the same as members of the majority and by treating the two groups differently. MARTHA MINOW, MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION, AND AMERICAN LAW 20 (1990). I suggest that this dilemma occurs because we only recognize one definition of race. One way out of the dilemma is by distinguishing the different uses of race and racism, and recognizing that race and racism have a multiplicity of forms and meanings. We can label the use of race to oppress a group of people through negative stereotypes differently from the use of race to promote racial solidarity. In this section, I outline at some length Appiah's arguments concerning the prevalent suppositions on the nature of race. I have summarized them in detail because, while literary scholars may find these debates familiar, those of us in legal scholarship may not. Appiah is unique in devoting a major part of his analysis to unearthing and dissecting the effects of scientific racism in current racial discourse. By scientific racism, I mean the theory prevalent in the eighteenth and nineteenth centuries that relied on ostensibly neutral biological differences to rationalize slavery and racial discrimination. See generally STEPHEN JAY GOULD, THE MISMEASURE OF MAN (1981) (demonstrating the scientific weakness and political motivations that underlie scientific racism). See text accompanying notes 76-84 infra. Pp. 28-46. By biological race, I mean the idea that there is a genetic and physical basis for categorizing people into different races based on their possession of certain physical traits. See generally MICHAEL BANTON, RACIAL THEORIES (1987) (tracing the historical development of racial conceptions); ROBERT MILES, RACISM (1989) (discussing differences underlying racism).

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P. 35. Pp. 35-36. P. 35. During this discussion, Appiah stressed how malleable these statistics are. Looked at one way, variations between groups are greater than variations among groups. Looked at another way, variations among groups are greater than variations between groups. P. 38. Black Blood Law Upheld, S.F. CHRON., May 19, 1983, at 24; see also Doe v. State Dep't of Health & Human Resources, 479 So. 2d 369 (La. Ct. App. 1985). Over the past two centuries, racial categorization, legitimated by morphological differences and authorized through scientific discourse, justified the oppression of certain groups within American society. This discrimination was predicated on the existence of biological differences alone: People who looked different must have been different (and thus have deserved different treatment). See GOULD, supra note 54, at 25. Therefore, it becomes important to remind ourselves that historically, it was not the members of other races who were subordinated, but rather the subordinated people who became members of other races. For example, historian Edmund S. Morgan explores the development of racial ideology in seventeenth century Virginia. Morgan points out that there is no evidence that, when slave owners began to replace English servants with African slaves, and the two groups began working together in the fields, either group held racial prejudices as we think of them today. EDMUND S. MORGAN, AMERICAN SLAVERY, AMERICAN FREEDOM: THE ORDEAL OF COLONIAL VIRGINIA 327 (1975). Instead, race prejudice arose later, once white landowners needed to defuse the threat of class-based rebellion by placing a screen of racial contempt between lower-class whites and Black slaves. Id. at 328. See generally OMI & WINANT, supra note 11 (proposing that racial differences are the effect rather than the cause of racial domination). P. 37. Nor can this morphological notion of race explain why various societies classify people with the same morphological features differently. See generally F. JAMES DAVIS, WHO IS BLACK? ONE NATION'S DEFINITION (1991) (comparing the ways in which different societies define a person as Black); MAGNUS MRNER, RACE MIXTURE IN THE HISTORY OF LATIN AMERICA (1967) (addressing the issue of racial definition in the context of racially and ethnically mixed Latin American societies). From numerous cross-cultural studies, it is clear that the social determination of which differences matter and the attribution of meaning to these differences, not the existence of physical differences, influence a society's racial categories. See generally BANTON, supra note 58; MILES, supra note 58. P. 37. P. 13. OMI & WINANT, supra note 11, at 62 (emphasis added). Id. Id. Id. at 63. Id. at 62. The crucial legacy of nineteenth century theories of race and racism has been the biologizing of social traits: explaining social phenomena through inherited biological characteristics. See, e.g., Baker, supra note 31, at 384-85.

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P. 41 (citing W.E.B. DUBOIS, DUSK OF DAWN: AN ESSAY TOWARD AN AUTOBIOGRAPHY OF A RACE CONCEPT 116-17 (1975)). P. 41. Appiah argues that DuBois [buries] the biological conception below the surface, [rather than] transcend[ing] it. P. 41. P. 42. P. 29 (emphasis added) (quoting W.E.B. DuBois, The Conservation of Races, in W.E.B. DUBOIS SPEAKS: SPEECHES AND ADDRESSES 1890-1919, at 73, 75-76 (Philip S. Foner ed., 1970)). P. 29. P. 32. P. 32. Barbara Jeanne Fields explains that even historians find it difficult to analyze race historically. She points out that there exists a conviction among otherwise sensible scholars that race explains historical phenomena; specifically, that it explains why people of African descent have been set apart for treatment different from that accorded to others. But race is just the name assigned to the phenomenon, which it no more explains than judicial review explains why the United States Supreme Court can declare acts of Congress unconstitutional, or than Civil War explains why Americans fought each other between 1861 and 1865. Only if race is defined as innate and natural prejudice of colour does its invocation as a historical explanation do more than repeat the question by way of answer. Fields, supra note 11, at 100-01 (footnotes omitted). P. 31. P. 32. P. 32. P. 32. Appiah argues that [i]f an African identity is to empower us, ... what is required is not so much that we throw out falsehood but that we acknowledge first of all that race and history and metaphysics do not enforce an identity: that we can choose, within broad limits set by ecological, political, and economic realities what it will mean to be African in the coming years. P. 176 (emphasis added). Ian Hanley-Lopez argues that race is a social process in which choice plays a large roll. Ian Hanley-Lopez, The Social Construction of Race: Observations on Illusion, Fabrication & Choice, 29 HARV. C.R.-C.L. L. REV. (forthcoming 1994). As Angela Harris points out in a related context, [a] unified identity, if such can ever exist, is a product of will, not a common destiny or natural birthright. Thus, consciousness is never fixed, never attained once and for all; it is not a final outcome or a biological given, but a process, a constant contradictory state of becoming, in which both social institutions and individual wills are deeply implicated. Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581, 584 (1990) (citations omitted). Pp. 28-46. I use Diana Fuss' essence in the sense of: a belief in the real, true essence of things, the invariable and fixed properties which define the whatness' of a given entity. Fuss, supra note 21, at xi; cf. Harris, supra note 90, at 588 (defining racial essentialism as the belief that there is a monolithic Black Experience, or Chicano Experience). Pp. 175-76. Henry Louis Gates, Jr., also cautions us against a romantic essentialism, arguing that [w]hen we attempt to appropriate, by inversion, race as a term for an essence--as did the ngritude movement, for example ... --we yield too much: the basis of a shared humanity. Gates, supra note 40, at 13. This romantic essentialism lies at the heart of some current Afrocentric movements. BANTON, supra note 58, at xi.

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Id. Id. at 15-16. Id. at 37-64. Pp. 13-14. P. 13. P. 13 (emphasis added). P. 13. P. 14. P. 14. P. 14. P. 19. P. 16. P. 17. P. 45. I follow DuBois' and Appiah's examples in using the term Black instead of African-American here. P. 30. P. 30. Examples of the attribution of positive qualities to a racial essence still abound in our society. For example, Jimmy the Greek Snyder, a sports commentator, provoked an outcry (and lost his job) when he suggested that African-Americans were such good athletes because they had been intentionally bred for physical qualities during slavery. Mark A. Uhlig, Racial Remarks Cause Furor, N.Y. TIMES, Jan. 16, 1988, at A47. Henry Louis Gates, Jr., gives examples of statements reflecting the belief that: [A]ll members of a physically defined group ... share certain metaphysical characteristics: ... Sing me one of those old Negro spirituals that you people love so dear, or You people sure can dance, or even Black people play basketball so remarkably well because of their peculiar muscular system coupled with a well-defined sense of rhythm. Gates, supra note 47, at 403-04. I believe that Appiah concludes that DuBois is an intrinsic racist because he finds DuBois' invocation of a racial history to explain racial affiliation unconvincing. See p. 45. P. 17. P. 5. P. 5. P. 18. See generally Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics, 1989 U. CHI. LEGAL F. 139; Harris, supra note 90; Judy Scales-Trent, Black Women and the Constitution: Finding Our Place, Asserting Our Rights, 24 HARV. C.R.-C.L. L. REV. 9 (1989).

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P. 176. Toni Morrison, Introduction: Friday on the Potomac, in RACE-ING JUSTICE, EN-GENDERING POWER XX (Toni Morrison ed., 1992). Cornell West, Black Leadership and the Pitfalls of Racial Reasoning, in RACE-ING JUSTICE, EN-GENDERING POWER, supra note 118, at 391 (emphasis in original). Id. at 393. P. 45. P. 45. P. 45. Anthony Appiah, But Would That Still Be Me?: Notes On Gender, Race, Ethnicity, as Sources of Identity, 87 J. PHIL. 493, 499 (1990). Id. (emphasis added). Id. at 497. GATES, LOOSE CANONS, supra note 11, at 101. OMI & WINANT, supra note 11, at 10, 21-24. Ronald Takaki, Reflections on Racial Patterns in America, in FROM DIFFERENT SHORES: PERSPECTIVES ON RACE AND ETHNICITY IN AMERICA 29 (Ronald Takaki ed., 1987). OMI & WINANT, supra note 11, at 21. Id. at 21-24. David Theo Goldberg points out that [u]nderlying the views both of those who might openly or privately have found racist views compelling and those who clearly considered them troubling was the assumption that racism is singular and monolithic, simply the same attitude manifested in varying circumstances. David Theo Goldberg, Introduction, in ANATOMY OF RACISM, supra note 11, at xi. Unlike Appiah, who separates race and culture, Neil Gotanda joins race and culture in what he calls culture-race--all aspects of culture, community, and consciousness. Gotanda, supra note 24, at 56. On African-Americans, Gotanda writes, [c]ulture refers to broadly shared beliefs and social practices; community refers to both the physical and spiritual senses of the term; and AfricanAmerican consciousness refers to Black Nationalist and other traditions of self-awareness and to action based on that self-awareness. Id. at 4. Gotanda's article is an excellent example of a more complex and politically empowering theory of race. Recognizing that race takes on many distinct meanings depending on social context, he identifies four ways that the Supreme Court has constructed race: status-race, formal-race, historical-race, and culture-race. Id. OMI & WINANT, supra note 11, at 68. Id. Id. at 64. Id. at 61. Paul Gilroy argues that morphology is important to our understanding of race:

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NAVIGATING THE TOPOLOGY OF RACE, 46 Stan. L. Rev. 747 [B]iology cannot be wholly dismissed as a factor in the formation and reproduction of race. It is better to confine phenotypes to a relatively autonomous realm of biological determinations which can ascribe a variety of social effects. Accepting that skin colour, however meaningless we know it to be, has a strictly limited material basis in biology, opens up the possibility of engaging with theories of signification which can highlight the elasticity and the emptiness of racial signifiers as well as the ideological work which has to be done in order to turn them into signifiers in the first place. PAUL GILROY, THERE AIN'T NO BLACK IN THE UNION JACK: THE CULTURAL POLITICS OF RACE AND NATION 38-39 (1987).

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113 S. Ct. 2816 (1993). City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989). See, e.g., Lynne Duke, Advocates Say Justices Muddy Voting Rights; Decision in North Carolina Congressional Redistricting Case Criticized as Utopianism, WASH. POST, June 30, 1993, at A8; see also Kathleen M. Sullivan, City of Richmond v. J.A. Croson Co.: The Backlash Against Affirmative Action, 64 TUL. L. REV. 1609 (1990). I include cases in which race has been addressed directly or in dicta. See text accompanying notes 13-18 supra. See, e.g., Brown v. Board of Educ., 347 U.S. 483 (1954). 113 S. Ct. at 2819-20. Id. at 2828. Id. at 2832. According to the Court, a districting plan triggers strict scrutiny when a district is so extremely irregular on its face that it unequivocally reflects an effort to separate citizens on the basis of race. Id. at 2824. In Shaw, the triggering factors were: (1) that one district was somewhat hook shaped, tapering to a narrow band, with finger-like extensions, resembling a bug splattered on a windshield, and (2) that the second district wound in snake-like fashion through tobacco country, financial centers, and manufacturing areas until it gobbles in enough enclaves of black neighborhoods, becoming so narrow in parts that [i]f you drove down the interstate with both car doors open, you'd kill most of the people in the district. Id. at 2820-21 (quoting state representative Mickey Michaux, in John Biskupic, N.C. Case to Pose Test of Racial Redistricting, WASH. POST, Apr. 20, 1993, at A4). Id. at 2824 (emphasis added). Id. at 2827 (emphasis added) (quoting Wright v. Rockefeller, 376 U.S. 52, 66 (1964) (Douglas, J., dissenting)). Id. at 2832 (emphasis added). Id. at 2827 (emphasis added). Id. at 2824 (quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943); United Jewish Orgs. of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 173 (1977)) (citations omitted). JOHN LANGSTON GWALTNEY, DRYLONGSO: A SELF-PORTRAIT OF BLACK AMERICA 96 (1980). 113 S. Ct. at 2822. Id. at 2824. See OMI & WINANT, supra note 11, at 57-69 (advancing a theory of racial formation in which social, economic, and political forces shape and are shaped by racial categories). 113 S. Ct. at 2834 (White, J., dissenting).

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Id. at 2843. 412 U.S. 755 (1973). 113 S. Ct. at 2835 (quoting White v. Regester, 412 U.S. 755, 767-69 (1973)) (citations omitted). 347 U.S. 483 (1954). 113 S. Ct. at 2849 n.9 (Souter, J., dissenting) (quoting Brown, 347 U.S. at 494). Id. at 2845. Id. at 2845 n.4. Fields, supra note 11, at 101. Id. at 110. Id. Id. Id. at 113. Id. While Fields' use of the terrain metaphor may rest on her Marxist structural approach, it is helpful in my post-structuralist approach as well. Id. at 113-14. Id. at 114.

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