Unfortunately Loving, a Supreme Court opinion, has not been proclaimed
from the rooftops so that everyone might know from that day forward the
One-Drop racial definition rule is dead. We know, even constitutional
amendments can lie dormant for decades. The powerful Fourteenth Amendment
lay a dead letter from at least Plessy v. Ferguson (1896) (separate
but equal) until Brown v. Board of Education (1954) (segregation
inherently unequal).
Fortunately, as I read Loving, the Supreme Court overturned
race-definition laws and freed people to define themselves. It freed Tiger
Woods (for one) to denounce One-Drop, and proclaim himself something beside
"Black." ("Cablinasian" is Tiger's term, coined to reflect his combined
Asian, black, Caucasian & Indian heritages.) Under Loving, I believe anyone
is free to do as Tiger did. The bleak history of the Fourteenth Amendment
between its adoption in 1868 and the Brown decision warns us, I
think: Loving -- parts of it -- might die if it is not fought for by
enough individuals, not only Tiger Woods.
David Bositis, the Washington Black Studies expert Charles Byrd mentioned, correctly
observed, "Race in the law is almost entirely about discrimination." But he
ventures into minority identity politics (MIP), in my opinion, with his
comment, "If the discrimination comes with one drop, the protection of the
law ought to come with one drop."
The census is "totally and completely" mandated in the Constitution. It is
the law, as Bositis indicated. But the Article I, Section 2 Census counts
voters, not races. Article I's now largely obsolete language counted "free
persons" and indentured servants as Congressional Representative
constituents. Non-taxed Indians were entirely excluded, and "all other
persons" (i.e., slaves) counted as 3/5 of a person. The Constitution would
have required Antebellum congresses to craft censuses counting the types of
person mentioned in Section 2 -- in order to correctly apportion them -- no
untaxed (tribal) Indians and 3/5 of each slave, added to the count of free
and indentured. But the Constitution does not define any races. It did not
even use the word prior to the adoption of the Fifteenth Amendment, after
the Civil War: "The right of citizens of the United States to vote shall
not be denied or abridged by the United States or by any State on account of
race, color, or previous condition of servitude." (My italics.) The
obsolete 3/5 person reference in Article I, Section 2, is the census's only
recognition of slavery, which historically was not limited to African
ancestry. (See A.D. Powell, Racial Mixture, "White" Identity, and The
"Forgotten" (or censored) Cause of the Civil War.)
I do not read the Constitution, or any of its amendments, requiring the
census to count anyone's "race." Moreover, I think very likely legislation
requiring "race"-reporting may be subject to challenge for unconstitutional
denial of Fourteenth Amendment privacy under Loving v. Virginia!
(Caveat! Anyone taking up my interpretation of Loving must be
prepared to face prosecution.)
Bositis was quoted saying: "If the discrimination comes with one drop, the
protection of the law ought to come with one drop." I see this as his
advocating preserving the classical five Blumenbach (18th Century) races,
either without multiple-race checking on the census, or with census
tabulation converting multirace peoples to minority monorace ones, as
summarized in Tilove's article.
Bositis's way of framing the issue begs a quaint question: Is racial
discrimination appearance-based (i.e., minorities' phenotypes?) or is it
classification-based (i.e., minorities' "races'" names)? If
appearance-based, then presumably discrimination will be suffered less by
those with less minority blood. Merely "one drop" would hardly need
protection. In practice, I think this is somewhat how the world works.
If discrimination or some of it is classification-based, then nontraditional
(non-Blumenbach) classifications, especially new ones (e.g., "Cablinasian,"
etc.), might encounter no discrimination. However, phenotype might interact
with new classifications, rendering discrimination various and unpredictable
for individuals with non-Blumenbach classifications. Bositis or others
persuaded by MIP might argue the essence of discrimination is white racism.
Hence any non-white classification will be as discriminated-against as
another. The Loving decision overturned the "white purity" racial
definition which this argument depends on, seeks to restore. "White purity"
is primal racism, more so even than One-Drop, its spawn. This
argument's patent falsity has long been shown with scientific findings, and
it also can be impeached with abundant exceptions to the MIP myth insisting
white blood is "pure." Their own MIP objection that a "colored" between-race
would be favored by whites contradicts this claim, too.
Except for showing the need to stand firmly for the Loving holding, I
view this part mostly an idle discussion. I believe cultural, ethnic
(learned) identities have more to do with racial discrimination in America
than inherited phenotypes do, and racial classifications are tied to the
former more than to the latter. Moreover, the present Blumenbach races,
which Bositis apparently favors preserving with One-Drop tabulations, afford
multiracials no protection from minority discrimination -- his monorace law
is unable to perceive the difference.
I see a poignant issue within the census "race" count vs. the Loving
freedom from One-Drop racial identity debate here. Present civil rights
legislation, in my opinion, is excessively committed to the notion of
"race." (The same applies, I think, for the N.A.A.C.P., and other minority
civil rights organizations.) It inevitably confronts a conflict from its
own success. As equality manifests in racial blending (it does), the
minority civil rights mission grows vague and the underlying race-lines
blur. The MIP impulse is to restore the race-lines. To me that is evil.
I hope a graceful way is found to resolve this. In fact, political forces
committed to census-race voting have accumulated power for over 30 years in
the Blumenbach "race" check-boxes. The immovable political inertia willing
to block the irresistible force of a blending population might insist five
Blumenbach "races" describe mankind come Hell or high water. If ordering
sewed-on patches is again required to enable the "races" of the future to
tell one another apart, then Hell probably is what will come.
I am also reminded that eventually some minority-protection laws may become
impediments and have to be repealed. (Repeal of state Affirmative Action
legislation already has begun.) Vested interests may vigorously object.
They can be expected to argue the laws' repeal will catapult many back to
the segregated world of Jim Crow discrimination, extant prior to the
mid-1960's. At some point particular legal safeguards against racial
discrimination must be surrendered in order to make way for someone's final
transition from racial "minority" to equality (even if only "one drop"). Of
course, the basic Fourteenth Amendment prohibition of discrimination should
never be repealed. But the "race" element may not always present or need
particular legislated protection authorized in the Constitution. Anyway,
holding some "race" of people permanently protected by law from another
"race" of people will never quite permit full equality in my view of the
meaning of Fourteenth Amendment equality under our Constitution.
Biography: I practice appellate defense law in the California
Fourth Appellate District, the State Supreme Court, and occasionally before
the U.S. Ninth Circuit.
I see two very interesting, converging discussions here. One is the Loving v.
Virginia, 388 U.S. 1, 18 L.Ed.2d 1010, 87 S.Ct. 1817 (1967)
decision, and the other is the Census.Also by George Winkel:
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