The Public Policy of Race in America
Past, Present and Future
(footnotes excluded)(for a full copy of the paper, email [email protected])

 The issue of race continues to confound our efforts to realize a “more perfect union.”  No
other issue has the potential to divide loyalties without reference to economic class, religion, or
political belief.  Our nation is dependent upon popular support for its survival, and no republic
can sustain itself when its citizens are permanently divided into immutable groups.  The racial
policy of the United States has failed to reduce race as a salient concept in social grouping.  This
issue is important because America is becoming more diverse all the time and issues of race and
racial division will only increase as the population diversifies1.  The proliferation of groups
clamoring for recognition as races indicates that race is more relevant than ever in dividing
society’s benefits between otherwise similar individuals.   Racial thinking encourages
conceptions of group entitlement to advance politically, reducing America’s cornerstone belief
in individual rights to a second-tier consideration.    Additionally,  the policy of racial
identification in America confounds logical explanation.  Concrete indicia of biological heritage
are discounted in American racial thinking, and only the maximization of minority group
membership is promoted.  Most inexplicably, given our nation’s long-standing commitment to
de-legitimizing race as a tool for discrimination, the decennial census continues to employ the
“one-drop rule”.  Describing citizens from diverse backgrounds in terms of only one race has
hindered the social process of ending racism in America.  Despite evidence to the contrary, the
census continues to employ racial analysis that reinforces racial thinking and unnecessarily
polarizes people along racial lines.
 By studying the current system, and proposing alternatives, this paper will present a
means of getting America back on track to a color-blind society.  America needs a  new
approach if the nation is to break free of the shackles of hard categories and virulent racism.
The American experiment is dedicated to the premise that “All men are created equal.”  Any
system of group entitlement and racialism prevents the realization of that premise.  Only when
race matters as little as eye color will this truly be a land where “children will be judged, not by
the color of their skin, but by the content of their character.”2
 First, what is race?  Race has many conflicting definitions and constantly eludes clear
description3.  Biologically, race was used by some in the past to describe a “subspecies” of
Homo sapiens.  That conception of race still has some adherents, but has fallen out of favor since
World War II4.  Over the last fifty years, most biologists recognize that the genetic variation
within any identifiable race exceeds the variation between the various  races, rendering the term
scientifically meaningless5.  Only a few geographically isolated breeding populations could now
be classified as genuine biological races,  and none of those populations are located in the
United States6.  On the other hand, history, culture, and law continue to use the term race to
denote and promote meaningful differences among people.  Since the definition of race used by
these disciplines vary, society remains confused and public policy continues to  reflect outdated
scientific theories.
 Geneticist James C. King noted the verifiable reality of race, that it is a social and not a
biological construct:
Both what constitutes a race and how one recognizes a racial difference are
culturally determined.  Whether two individuals regard themselves as one of the
same or of different races depends not on the degree of similarity of their genetic
material but on whether history, tradition, and personal training and experiences
have brought them to regard themselves as belonging to the same group or to
different groups....There are no objective boundaries to set off one subspecies
from another.7
 Does this mean then that there is no biological foundation for the concept of race?  No,
anthropologists continue to use race productively to analyze isolated breeding populations in the
past.  In an era of geographical isolation and self-contained national populations, race was a
useful proxy for the breeding population and the idiosyncrasies that emerged after generations of
isolated reproduction.  In the modern era, and particularly in America, the unitary nature of the
human species is increasingly apparent to scientists.  Intermarriage, interbreeding and cultural
assimilation make it impossible to identify true races in a nation like the United States.  Thus,
most scientists are disavowing race as an identifying term.8
 Noted anthropologist Clyde Kluckhohn calls race a “modern myth”, noting that,
In general biology the term ‘race’ or ‘variety’ is used to designate a group of
organisms that physically resemble one another by virtue of their descent from
common ancestors.  Most living species of animals are more or less clearly
differentiated into geographic races.  When races are separated by migration
barriers, the distinctions between them are definite and consistent.  If two or more
races come to inhabit the same territory over a long period of time, the
differences are gradually erased, and the races are fused into a single population
that is more variable than any of the original elements.9
 Anthropologist Stanley Garn has concluded that while it is possible to identify upwards
of thirty human races using visual differences alone, a study of breeding populations will result
in only six or seven races, roughly according with the continents and their broad cultural
 The key foundational concept for separate biological races is that of “multi-regionalism.”
This theory posits that Homo sapiens evolved in several different locations, more or less
simultaneously, and constitute truly unique genetic populations11.   Recently, however,
anthropological digs and genetic studies have come very close to decisively proving the
opposite.  It is now widely believed that Homo sapiens evolved in Africa around 500,000 years
ago, and that the migration out of Africa did not begin until 112,000 to 280,000 years ago12.  As
a result, all non-African racial diversity may not be much older than one hundred thousand
years.  By contrast, man has had almost five hundred thousand years to diversity in Africa.
“Since genetic diversity roughly correlates with time available for evolutionary change, genetic
diversity among Africans alone exceeds the sum total of genetic diversity for everyone else in
the rest of the world combined!”13 Attempting to lump all Africans into one race is problematic
in the extreme then, regardless of visible simplicity that might inhere in such an approach.
 Among humans, the number of hereditary trait-potentialities (or verifiable racial
distinctions) between groups and not individuals is very small.  Anthropologist M.F. Ashley
Montagu estimates that less than 1 percent of the total number of human genes are involved in
the differentiation between any two existent races14.  As a result, some race-conscious thinkers
fight determinedly to preserve “racial purity”.  Unfortunately for these thinkers, the assumption
of racial purity is contradicted by everything that is known about physical heredity15.
 Additionally, there is no biological evidence that race mixture is harmful.  Some
anthropologists even assert that crosses between races produce offspring superior in most
particulars to either parent group, provided that social conditions do not punish the offspring for
the mixture16. In the case of the Romany, or Gypsies, scientists have gone so far as to advocate
intermixture to cure genetic deficiencies17.  This anthropological theory accords with the
general biological phenomenon of “hybrid vigor,” wherein any species that enjoys wide
cross-breeding tends to maximize beneficial traits and minimize harmful ones.
 In general, the, “present arbitrary racial classifications have exceedingly limited
scientific utility, and their popular implications make them socially dangerous.   A hundred
years ago, such terms were a convenience, for in many cases, they indicated not only physical
type but also geographical origin, language, and culture with a fair degree of probability.  Today,
with the shiftings of population and social changes that have taken place these “brand names”
lead more often than not to distorted or mistaken predictions.18”  Socially defined races do not
conform to biological race, and racial purity has not proven to be biologically advantageous,
despite the claims of some race-centered scientists19.
 The idea of race being both real and relevant to social control and individual
achievement finds its roots in  antiquity.  Plato, in the Republic, counseled that the people must
be divided into three permanent, stable classes, and that the only way to accomplish this was to
convince them that they were in fact different species, composed of different materials, and
destined to fulfill different roles20.  While in Plato’s dialectic Glaucon doubted if such a myth
could be accomplished in a single generation, Plato noted that it could be taught to the children,
who would teach their children and within three generations would become reality21.  Of course,
this approach to classifying people was to insure that Plato’s “philosopher kings” would not be
disturbed by the ambitions and factions of the other classes.  By dividing the citizenry into
immutable classes, the ruling class is able to reduce competition for social control.  This drive to
divide people has taken a number of forms over time; race is only one of the most enduring.
Dividing a population against itself is the easiest way for individual leaders to claim a mandate
and demand power.  Religious divisions, encouraged by church bureaucracies, have been very
effective at dividing people and promoting ecclesiastical power.  Only recently in America have
these distinctions faded to insignificance.  National divisions have long stood in the way of
progress in Europe and elsewhere, while in America they have generally been shaken loose after
a few generations of immigration and assimilation.  Race remains a dividing factor in the United
States, and many believe it is inevitable that an immutable characteristic like race should divide
people, even after religion and national origin pass away into social irrelevance.
 While race has proven divisive in modern times, it is not a necessary condition of history.
In the ancient world, only those civilizations that stood at the crossroads and enjoyed a broad
mixture of peoples and races, progressed to the pinnacle of history.  Egypt, Mesopotamia, India,
and Greece were all heterogeneous nations.  China was constantly re-invigorated by invasions
from all directions, and the nation’s greatest periods of advance immediately followed these
incursions by “alien races”.  Even modern Afro-centric historians, committed to re-writing
history in favor of the currently oppressed, have to note that Egypt was a multi-racial nation, and
one where Black and White could equally lay claim to the title of Pharaoh22.    While ancient
Egyptians, of all shades and varieties, considered themselves superior to other cultures, they did
not discriminate internally on the basis of those shades or varieties23.
 Even as late as the Middle Ages, culture was more important than biology in determining
the self-isolation of Jews in  Europe.  Jewish motivations arose from the desire to keep distinct
their way of life and not from a wish to keep their race “pure”24.  Europe saw the first Negroes
as equals, receiving them in the highest households, even intermarriage was not frowned upon25.
Cultures were seen as inviolable, and there was no danger of one culture spreading beyond its
narrowly defined group of origin.  It was only in the nineteenth century that race became the
determining factor we now know.  By then, race offered simple answers for complex problems
of economics, culture, and geography26.  In earlier days, when cultural imperialism was
inconceivable, culture was effective at dividing populations, and racial thinking lay dormant27.
 By the end of the eighteenth and dawn of the nineteenth century, race took a great leap
towards respectability as a distinguishing characteristic with the work of Blumenbach.   This
scientist shifted from the Linnaean four race system28, which saw all four races as equal and
deriving from independent sources, to a five race system29, with four races as “degenerations”
of the initial race, Caucasian30.  While Linnaeus  used cartography as the primary principle for
human ordering , and even began his cataloguing with Native Americans, Blumenbach used
“beauty” as his primary principle.  With that shift from objective location to subjective beauty,
the stage was set to view Blumenbach’s “degenerations” as races that were inferior in fact, as
well as in “beauty31.”  By the time of Darwin’s voyage, the world had largely accepted the idea
of superior and inferior races.  Interestingly, while the belief in God-given superiority of kings
and aristocrats waned, a belief in superior races and nations waxed, supported by the new
science of natural selection and evolution32.  Darwin, as well as Jefferson and Lincoln, believed
in the hierarchy of races.  None of them, however, advocated attaching any meaningful legal
disability to any race33.  By then, however, the hierarchy established by Blumenbach was
culminating in active public policy designed to promote the “natural order”.
 While scientists initially confined race to the “great branches of mankind”, finding only
three to seven races, others expanded the term, sometimes quite broadly.  As Thomas Sowell
noted, “The term race was once widely used to distinguish the Irish from the English, or the
Germans from the Slavs, as well as to distinguish groups more sharply differing in skin color,
hair texture, and the like.34”  Over time, the Irish race was amalgamated into the “White” race
in the United States, and it is the rare person indeed who considers themselves “multi-racial”
whose heritage is German, English, Irish, and Dutch.  Likewise, persons of mixed
Japanese/Korean background would not consider themselves to be multi-racial in the United
States, while in Japan this would most certainly be the conclusion35.  What race a person
belongs to appears to depend on the perspective of the viewer in both time and place.  This
fluidity of racial identification contradicts claims of the “immutability” of race.
 Perhaps due to the concept’s inherent instability, reality has not conformed to the
expectations of those who saw race as destiny.  Different groups of people belonging to the same
race achieved dramatically different results in society.  For example, Japanese settled in both the
United States and Brazil in the early decades of the twentieth century.  In the first case, the
immigrants were composed largely of people disaffected with Imperial Japan, and who sought
an opportunity to build a new life and become loyal members of a new nation.  In the latter case,
the immigrants were aristocratic Japanese, who sought to acquire huge plantations and live as
landed nobility, essentially exporting Imperial Japan into the Western hemisphere.  During
WWII, race-conscious thinkers argued that all Japanese immigrants would rally around Imperial
Japan, and betray their new homes to their ancestral homeland.  Reality did not bear out these
claims.  The American Japanese immigrant, though subjected to horrific discrimination and
internment because of their race, chose to remain loyal to their adopted homeland and produced
some of the finest soldiers in the entire American Army.  On the other hand, the Japanese in
Brazil were fiercely loyal to Imperial Japan and formed many active espionage cells and
conducted vast operations against the Allies36.  While this is only one example, race often
proves to be less meaningful a predictor than culture37.
 Race is, however, of singular value in rallying people to a political ideology.    Nazi
Germany presented the most dramatic example of this claim, where national socialists were able
to attract a plurality of the German people to stand behind the Fuhrer in a race war against Jews,
but it is by no means a singular example.38  The Bolsheviks under Stalin also promoted the
racial ideal of “Pan-Slavism” to bring disaffected ethnic groups into the Soviet fold and suppress
dissent against the regime.    Modern Serbian President Slobodan Milosevic demonstrates a
current approach to this tool, using the Serbian race concept to win followers to his campaign of
aggressive nationalism and genocide39.  Politically therefore, race is, and has been, a tool of
great value.
 In the aftermath of the English Civil War, Oliver Cromwell determined that the best way
to rally the English to his position was to identify an enemy who was both racially and
religiously different from the English.  It was also important that they be vulnerable to English
power.  The ideal target was only an island away--the Irish.  Cromwell’s slaughters and mass
confiscation of land, combined with degrading laws, fastened second-class status on the Irish for
centuries thereafter40.  Into the 20th century, the Irish would be derided as a dirty, filthy race
given over to drunkenness and other vices.   This approach allowed the English to rally behind
the Protestant government of England and forget the reality that most English were no better off
than their Irish “inferiors”.  Additionally, it forced Irish into lower economic roles and
encouraged mass emigration from the United Kingdom.  The United States reaped a rich benefit
from this short-sighted policy, receiving millions of hard-working citizens.  The fact that Irish
Americans are now counted as “White” should not obscure the very real, and long-standing
discrimination they suffered as a result of their race.  When it was politically convenient to
consider the Irish a race, they were so differentiated from the controlling majority and oppressed
for the benefit of a political ideology.
 In America, the ruling class of English colonists struggled to bring coherent communities
out of populations filled with Portuguese, Spanish, French, Turks, Dutch, Blacks, Indians, Irish,
Germans and English.  Initially, economic and social class unified these diverse populations
against the ruling English aristocracy.  As reported by A. Leon Higgenbotham, between 1640
and 1669, White indentured servants rebelled with Black slaves against their common
oppressors,  the land-owning English gentry41.  Very quickly the gentry realized that to secure
their property and political power they needed something to bind their subjects together and
make them ignore commonalties of economics or social standing.  “For the White colonists, the
common object of fear and hate became the Africans in their midst.42”   Over time, slavery was
confined to Africans only to cement the ruling “White” coalition of slave owners and free
laborers43.   This pattern of racializing Africans to promote European immigrants’ loyalty to the
regime was not confined to the future United States.  As Eric Williams wrote, “Slavery in the
Caribbean has been too narrowly identified with the Negro.  A racial twist has thereby been
given to what is basically an economic phenomenon.  Slavery was not born of racism:  rather,
racism was the consequence of slavery.44” Despite the fact that most White southerners  owned
no slaves, the ruling class was able to mobilize vast armies to defend an institution that benefited
only the most wealthy Confederates.  Poor Southerners were incapable of seeing how similar
their lives were to African slaves, and fought instead to protect the system of values and
government created by the slave-owning gentry45.
 Even in 20th century America, racial images are used as ploys to take advantage of racial
stereotypes and prejudices.  In this way, politicians can secure people’s loyalties to partisan
political messages46.  Racial prejudice does not stand alone.  It is part of a chain of biases, and
these biases can, and will, be manipulated by canny politicians to achieve their immediate
objectives47.  A poll conducted in 1945 found that, “the percentage of anti-Semites deviated
from the mean  of 8.8 percent in only three groups:  the extremely anti-British (20.8 percent
anti-Semitic), the rich(13.5 percent anti-Semitic) and Negroes (2.3 percent anti-Semitic)48.
These distinctions, in the hands of a politician seeking to attract wealthy support, allow for a
subtle racial message to garner support for an ideological message.  By playing upon racial
antipathy regardless of issue orientation, political leaders are often able to mobilize followers for
their messages.
 When economic conditions worsen,  the desire to oppress and the search for
“scape-goats” replaces simple political loyalty as the primary support for race-conscious
policies.  The United States did not hesitate to punish a visible minority for membership in a
suspect race.  The Chinese, who emigrated largely to California and the West, built up the
California economy and developed several industries that previously had not existed there.  As
an economic depression engulfed the nation in the aftermath of the Civil War, political pressure
mobilized to remove these productive immigrants because they were “unfairly” competing with
native born labor49.  Eventually, this culminated with the 1882 law prohibiting future
immigration of Chinese, a law that was upheld in the case of Chae Chan Ping v. US 50.  In
language that spoke directly to the racial fears of the time, the Court declared that if the
government, “considers the presence  of foreigners of a different race in this country, who will
not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be
stayed.51”    This occurred despite the complete lack of evidence that the Chinese presented any
danger to peace or security.  The observed lack of assimilation was primarily due to the
determined efforts of California to prohibit assimilation, many of the immigrants wanted
desperately to become American52.
 In 1948, the governors of fourteen southern states signed a regional compact on
education for the purpose of educating Blacks separately from Whites.  A series of recent
Supreme Court decisions were threatening to put teeth into the phrase “separate but equal” and
most of the segregationist states did not have sufficient resources to develop comprehensive
equivalent institutions of higher learning for Blacks.  Accordingly, they decided to share the
load, with each state developing one area of Black education.  Tennessee, for example, received
substantial financial assistance with Meharry Medical College, agreeing that Black medical
students from all over the South would attend Meharry rather than free-standing institutions in
the several states.  This interstate compact was designed to allow the southern states to continue
to discriminate against Blacks, and it did not embrace any predominately White institutions.
Rather than a tool of regional integration, it was solely a tool of racial discrimination53.  In the
aftermath of Brown v. Board of Education54, the Regional Compact was dissolved, its true
purpose having been declared impermissible under the Constitution.
 In America, race has often been employed to single out vulnerable populations for
oppression.   Oppression flows from weakness, and the desire by the ruling class to cement their
advantages in law55.   This oppression can take many forms, but the concept of race makes it
particularly easy to implement along racial lines.56   After a brief experiment with multi-racial
slavery in America, Blacks were singled out as the only race eligible for slavery.  The
immutable nature of Black skin color and the complete lack of political or economic power
among Blacks made them vulnerable for oppression and easily identifiable.  Even after the end
of slavery, Blacks continued to be identified and targeted by groups and institutions intent on
oppressing and repressing accomplishment57.  The racialization of politics has always been
employed to mobilize an indifferent majority in support of an ideological platform at the
expense of an identifiable minority, even if that minority shares common interests with the
indifferent majority.
  The question remains, what causes oppression58?  Inevitably in a discussion of race and
oppression, the example of racially explicit slavery in the United States will be cited to support
the proposition that racism precedes oppression.  This overlooks the historical truth of slavery59.
Slavery has been a part of every culture’s history, and it existed all over the world throughout all
of recorded history.  In fact, only in the last decades of slavery was it confined to one or another
racial group60.  “The very word slave is derived from the Slavs, who were enslaved on a
massive scale and were often sold into bondage all across the continent of Europe and in the
Ottoman Empire61. By 1776, Adam Smith wrote that Western Europe was the only region of the
world where slavery had been abolished altogether62.  In Asia, the various rulers of China raided
parts of China, Korea, and Mongolia for slaves.   It was vulnerability, therefore, that allowed
slavery, and from the enslavement of particularly vulnerable racial groups grew racial animus.63
 As Professor Sowell notes, “Smaller or less advanced groups were set upon by marauders
in many parts of Asia, as they were in other parts of the world--hill tribes, nomadic peoples,
bands of hunters and gatherers, or primitive slash and burn agriculturists being set upon by those
who had reached more advanced stages of development and who had more advanced
weapons64.”  An interesting demonstration of this was the exception of Moors (Black racially
and by operation of law) from the general status of slaves in the British colonies65.     This was
due to the fact that the Moors were Muslims and protected by the Ottoman Empire, a powerful
nation that Britain needed to keep happy.  This pattern of enslaving the powerless then justifying
it with racial-centered conceptions of the so-called “natural order” was repeated throughout
history:  by the Russians in Central Asia, by the Arabs in Africa, by the Europeans in Eastern
Europe, by the colonial powers in Africa, and by the Germans against Jews during the Third
Reich.  Only when an oppressed group gained sufficient power, or a powerful sponsor, was the
urge to oppress checked66.
 United States’ history demonstrates that this pattern applies to oppression generally as
well as slavery specifically67.  The vulnerability of the Chinese to oppression in the United
States can be traced to concrete indicia of weakness in America, not to some pre-existing racial
animus.   For example, Chinese were politically vulnerable insofar as there were few Chinese
persons outside the West Coast, and the country as a whole was ignorant of the way Chinese
behaved; California propagandists could carry the day easily68.  Additionally, China was a
prostrate nation, invaded by foreign powers great and small, and incapable of protesting the
treatment of its overseas citizens69.  Finally, oppressing Chinese gave segregationists in the
South an important political ally in their quest to continue oppressing Blacks70.  The isolated,
contained, and vulnerable nature of the Chinese immigrant opened him up to oppression.  Had a
pre-existing racial animus existed, the Chinese ban on immigration would have been in place
before they presented themselves on the California shores, not after.  In fact, the bias only
emerged when there were enough Chinese to be a visible target for oppression, and when times
were tough for native-born workers71.
 Tampering with voting rights was a particularly effective way of employing race to
perpetuate oppression of minorities.  As Professor Blumstein noted, “A number of states . . .
refused to take no for an answer and continued to circumvent the Fifteenth Amendment’s
prohibition through the use of both subtle and blunt instruments, perpetuating ugly patterns of
pervasive racial discrimination.72”  E. Foner points out that,  “Reconstruction in Mississippi
concentrated the bulk of the Black population in a shoestring Congressional district running the
length of the Mississippi River, leaving five others with White majorities.73”  In Allen v. State
Board of Elections, the Supreme Court recognized that, “the right to vote can be affected by a
dilution of voting power as well as by an absolute prohibition on casting a ballot74.”
 While the courts have recently played an important role in restoring legal dignity to
minority races, it has not been the only, or even most effective, agent of reform.  James B.
Raskin recognized the singular importance of political and legislative action in overcoming
oppression, even in the fundamental area of voting75.  “None of the principal excluded groups
who gained access to the ballot in American history did so by way of judicial action through the
Equal Protection Clause.  Rather, they fought their way in through political agitation.  This
history encloses an important democratic logic:  it is the standing citizenry, after hearing and
debating appeals from the disenfranchised, that must extend rights of political membership to
disenfranchised outsiders seeking entry and equality76.”
 Many of the post-Civil War oppressions heaped upon Blacks simply preyed upon their
vulnerability.  A number of states employed,  “ostensibly race-neutral tests such as literacy tests
with ‘grandfather’ clauses and ‘good character’ provisos to deprive Black voters of the
franchise77.”  Long after slavery had been abolished, many states continued to oppress Blacks.
This oppression was possible because they were identifiable and vulnerable.   White Southerners
understood this and a he all-White primary, literacy tests for voting, segregated schools, poll
taxes, and segregated transportation were all  methods of perpetuating the vulnerability of
Blacks, keeping them undereducated, unrepresented, and poor78.  The vulnerability of Blacks,
and the determination of Southern Whites to keep them vulnerable, created a situation in
America where oppression could endure, at great cost to all parties.
 Nations that employ race-based oppression against minorities often bear tremendous
costs in the pursuit of an ideological or political objective79.  When Spain expelled all Jews
from its borders in 1492, the nation suffered an enduring  loss of human capital that aided all its
competitor nations.   This put Spain on the road to ruin as an imperial power80. Similarly, Nazi
Germany executed, expelled, or imprisoned most of its best physicists and theoretical scientists
because they were Jewish, allowing the United States to develop the atomic bomb while
Germany lost World War II.  Soviet Russia earlier employed the tools of famine and starvation
to bring the unrepentant Ukrainian race81 in line, setting up an agricultural system incapable of
feeding all the nation’s peoples and turning the USSR from a net exporter to a net importer of
foodstuffs for the rest of its existence82.    These nations have all paid heavy costs for their
race-based oppression of others.
 In the United States, while race-based slavery allowed a few landed gentry to live lives
of true privilege and largesse, it also stifled progress in the South.  This cost the South
economically and insured the ultimate destruction of the Confederacy in the Civil War by the
industrialized North83.  Race-based slavery was an innovation in the Americas, for, “the cost of
maintaining slavery and preventing escapes would be lower if the slaves were isolated
individuals with no connection to one another and no incentives to aid one another against the
slave owners84.”  For example, free Blacks could, and did, encourage enslaved Blacks to escape
and provided them with resources to assist in setting up new lives.  It was this extra dynamic of
racial solidarity that encouraged even more oppression of the Blacks in America, to reduce their
potential to assist their captive brethren85.  Additionally, this element of solidarity required that
the slave owners prevent their captives from gaining intellectual skills of any sort.  This was
different from the slave experience in other cultures.  In the Ottoman Empire, for example, a
slave was expected to acquire as many skills as possible, often rising to reign as Grand Vizier in
the Sultan’s court.  Social mobility out of the slave caste was rare, but possible, since the slave
was not marked by race as an inferior.  Additionally, the slave had no incentive to work with
other slaves, since he knew he could rise above he station by cooperating with the system86.
Only in a system where your race marks you indelibly as a slave and as an inferior does every
person who belongs to that race become a threat to the power structure.
 Put most simply, oppressing a people requires effort, and the lost opportunities for both
oppressor and oppressed tend inevitably to reduce the total benefits available to the nation.
When people are viewed as capital assets, and when their potential productivity is
reduced by the need to maintain slavery [or any other form of oppression], then
the purely economic value of that asset can differ considerably according to
whether a given individual works as a slave or a free worker.  Even in the absence
of a desire for freedom, the capital value of the same individual would tend to be
higher as a free worker than as a slave, simply because a wider range of economic
options is available for the use of free labor87.
 Oppression consumes resources and restricts the uses to which the oppressed can be put.
In some cases, this oppression borders on suicidal (in the case of Spain or the Confederate
States) while in others it merely hamstrings the nation’s future progress  (in the case of the
Soviet Union or Nazi Germany), but in all cases it imposes meaningful costs on the nation.  The
amount of time required for these negative results to appear varies, but the verdict of history is
 In light of that history, what would make a nation employ race now?  The claims of
different biology continue to cause some researchers to employ race in the hope of designing
better treatments for different groups of people.  Race is also used to create new groupings of
people in the hopes of achieving political solidarity.  The term has also been used as a proxy for
ethnicity, substituting where an accurate ethnic identification is impossible or difficult to
achieve.  Finally, race is invoked in the name of preventing future oppression or to ameliorate
the consequences of past oppression.
 Medical researchers often claim race is a useful subject for medical research.  In
America, this may indeed be true, as it correlates roughly with the incidence of certain diseases
and proclivities.  The emerging science of genetics, when paired with the traditional exploration
of physical heredity, promises to bring new insights into the different results human beings
achieve in life.  Unfortunately, “heredity acts only in lines of direct descent, and there is no full
unity of descent in any of the existing races88.”  Additionally, while our knowledge of heredity
may be useful for breeding animals or plants, we know much less about the details of human
heredity than about animal heredity89.  Scientists note the long maturation process of human
beings as being a limit on heredity science.  For example, “Since the beginnings of recorded
history in Egypt there have been only 200 human generations, while the mouse has had
24,00090.” While one can point to populations of human beings that have remained isolated for
some short period of time (genetically speaking), the human species is, overall, one of continual
intermixture, even among the most diverse types91.  Race is a particularly bad predictor of
genetics since a racial grouping reflects only a few genes, and only the dominant genes present
of those few at that.  There is not a single individual whose genetic code reflects the “pure”
racial type92.  Race as a predictor of genetics, or even genetic predispositions is extremely
suspect, yet it is still employed in the medical profession because of its illusory simplicity93.
 Politicians also continue to use race to rally political support around an ideology.  Most
recently, that tactic has been used to create the Hispanic race94.  In the 1960 census, people with
Latin-American ancestry were considered White.  By 1970, however, the Supreme Court had
made people of Spanish derivation a protected group, and the census needed a way to count
them95.  Instead of choosing to identify this group by fluency in the Spanish language (which
would have excluded Brazilians and Brazilian descendants but included thousands who learned
Spanish in school but had no ties to Latin American culture and Spaniards who presumably did
not suffer discrimination on the basis of race.) it was determined to consider Latin American
origin as a marker of a legal race96. The problem with that is that there was no empirical
justification other than administrative convenience for calling Hispanics a race.  Hispanics
included Black Dominicans, White Argentines, Native American Mexicans and Guatemalans,
and an overwhelming majority of mixed-race persons, or mestizos.  Additionally, Latin America
employs a fluid concept of race, rather than the rigid American idea of biological race.  Skin
color in Latin America, “is an individual variable--not a group marker--so that within the same
family one sibling might be considered White and another Black.”97
 As a result, despite a complete lack of biological support, and in the absence of a
unifying cultural influence beyond residence in the Americas south of the Rio Grande, a new
race was born.  This brought together all Hispanics in a way that would promote group
solidarity.  In the 20 years since this category was created, Hispanics have organized into
become a potent political force98.  In many ways, this was the result of the imposition of a
Pan-Latin identity by the federal government.  Since the government treated them as one group,
many individuals began to see themselves that way.  One of the most potent of these groups, the
National Council of La Raza, has benefited greatly from the recognition of the Hipanic race and
is now a dogged opponent of any attempt to remove the Hispanic category from the level of race
in the census99. This racial identity has become a rallying point for a host of political agenda:
bi-lingualism, anti-abortion, multi-culturalism, and immigration reform to name only a few.
This is agenda is a reasonable response to our public policy regarding race and the benefits one
can receive for being a member of a recognizable race.  After all, organization as a group often
comes only after the concept of group-related benefits is approved by the government 100.
“There is no such group as ‘Hispanics’ anywhere in the world except in the United States,
because only in the U.S. do government programs recognize such a category, thereby leading to
political ethnic coalitions to capitalize on government grants and appropriations101.”  In the 20
years since the creation of the Hispanic race, remarkable organization and ideology has been
developed to bring this multi-national, multi-lingual, and multi-ethnic people together.  On the
other hand, Hispanics are now more separated than ever from the mainstream of American
culture, and it is very unclear what the ultimate objective of this increased racial differentiation
 Hispanics are not the only group to use race to bind culturally similar people together.
The Jewish culture has been branded a race since the late nineteenth century, despite the broad
collection of peoples comprising the  group.  Abbysinian Jews, Middle Eastern Hebrews,
European Sephardic Jews, Slavic Ashkenazic Jews, and a broad smattering of converts from
various other nations and ethnicities were all branded members of the Jewish race by Nazi
Germany.   This legacy of oppression under the Nazis continues to bind the culture together.
Additionally, Black Africans in America, denied their history for so long by the forced illiteracy
and disconnection of slavery, are reluctant to give up their one seemingly inalterable unifying
characteristic, their race.  Recently, in the  Black Scholar, Professor Jon Michael Spencer
lamented the, “postmodern conspiracy to explode racial identity.”  Igniting a passionate debate
on the topic, Spencer and other scholars like him, believe that race is a useful metaphor because
it allows for cohesion among oppressed peoples102.  Oppressed peoples have often chosen to
cling to any unifying label, even if the label is inaccurate or the product of an oppressor’s
world-view, rather than be divided and oppressed by society again.
 Race can help the oppressed overcome their situation once racial identity is tied to
programs that uplift individuals.  It is for that reason that race is most often invoked in modern
America.    In the modern context, concepts of race most often support affirmative action
programs and other remedial projects103.  Title VII of the Civil Rights Act of 1964 creates the
statutory authority, but most specific use of race comes in the form of executive orders
governing the grant of federal contracts104.  Race has been even more explicitly employed to
promote political results in the voting context.  Over a thirty  year span, the Supreme Court has
read the Voting Rights Act to require a wide variety of different approaches to protecting
minority voting rights105.  From time to time, the Court has hinted at something akin to a
“proportionality principle”.  Such a principle claims that quotas or affirmative action are
appropriate to insure minorities the proportion of public goods they would receive in a
non-racial system.  Such quotas must be equal to their percentage of the relevant population
group to remain just106.  Despite compelling logical support, this “proportionality principle” has
been relegated largely to footnotes107.    In the absence of such a proportionate quota system,
the government employs a wide variety of approaches to redress past oppression108.  No
unifying theoretical approach draws these programs together, aside from the use of race to
identify populations of individuals for special solicitude and protection.  This piecemeal
approach would achieve impressive short-term gains for minorities, but have proven difficult to
sustain over the long-term.
 In light of the conscious choice to use race in American public policy, what are the
results of this policy?  Has the use of race resulted in the kind of benefits, effectively distributed
with fairness and integrity that the nation wants?  Is this public policy likely to produce the sort
of society that will benefit the republic in the coming decades?  While claims of benefit are
easily made, they are occasionally difficult to prove.   Some members of minority racial groups
have benefited from these policies.  On the other hand, the benefits have been concentrated in
the hands of the few who possess the greatest human capital to begin with.  Poor, unskilled
Blacks and Hispanics have not reaped the benefit of three decades of race-conscious programs.
Instead, their needs remain unmet109.  This should come as no surprise.  A policy that fails to
consider individual circumstances cannot help but fail to assist individuals truly in need.  When
group entitlement is the only relevant concern, individual needs are often lost in the analysis.
 Such group based approaches may actually hinder progress towards a society free of
racial animus by reinforcing conceptions of racial difference.  In Richmond v. J.A. Croson
Co.110 the Supreme Court noted that express racial classifications are suspect because, “there is
simply no way of determining what classifications are ‘benign’ or ‘remedial’ and what
classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial
politics.”  Additionally, in another case,  Justice Brennan noted  that, “A purportedly preferential
race assignment may in fact disguise a policy that perpetuates disadvantageous treatment of the
plan’s supposed beneficiaries111.”
 Inadvertently, some race-conscious programs may work to stigmatize minority group
members and mark their achievements as questionable.  Professor Goldman relates a classic
anecdote illustrating this problem when he recounts the testimony of one black law student in
the 1970s, “Traditionally, first-year law students are supposed to be afraid, or at least awed;
but our fear was compounded by the uncommunicated realization that perhaps we were not
authentic law students and the uneasy suspicion that our classmates knew that we were not,
and like certain members of the faculty, had developed paternalistic attitudes toward us112.
Minority group members who feel that affirmative action is owed to them, as compensation for
past oppression, are unlikely to have this view, after all, one does not question something owed
to them113.  Key to the idea of justice, however, is that compensation is paid to those who
actually suffered the wrong.  As time continues to pass, and people move farther and farther
away from the days of slavery and segregation, the claim to compensation is weakened.  As a
result, for those who have never actually experienced personal discrimination or oppression, it is
likely that such stigmatization will occur, since the sense of entitlement is collective, and
therefore weaker, than a personal one rooted in tangible suffering114.
 Additionally, the possibility of backlash against such programs increases when the
program is seen as benefiting those who have not personally suffered.    This backlash is most
often discussed by critics of race-conscious policies, and is just as often dismissed as a “straw
man” by supporters115.  Charles Murray argued that affirmative action remedies perpetuate a
feeling of inferiority among Blacks, and a suspicion of Black inferiority among Whites.
Opponents of this view dismiss the current real political backlash against such programs,
claiming that “Success surely breed confidence, and failure, especially repeated failure, just as
surely shatters confidence116.”  But even these doubters of a backlash concede that, “where
affirmative action hiring goals are met in crude and mechanistic ways, the beneficiaries of those
hiring goals may well wonder if they were hired on their own merits117.”  Additionally,
supporters of race-centered programs can offer no better explanation for the current backlash
than racism.  If racism is still so powerful after two decades, are these programs truly working to
cure racism?  In our current monochromatic view of race and racial identity, is it possible to
create any sort of hiring goal other than a “crude and mechanistic” one?  Indeed, the current
backlash seems to serve as proof that our current policies have had just the effect feared by
proponents:  that of making both beneficiaries and others suspect real inferiority without
addressing the legacy of past oppression118.
 Finally, there is the message such policies send to the youth of today.  As Thomas Sowell
What all the arguments and campaigns for quotas are really saying, loud and
clear, is that Black people just don’t have it, and that they will have to be given
something in order to have something.  The devastating impact of this message
on Black people--particularly Black young people--will outweigh any few extra
jobs that may result from this strategy119.
  The youth of tomorrow need role models and our policies must be viewed in light
of the role models they provide.  On the one hand, race-conscious policies have provided a
mechanism for some members of a previously oppressed group to achieve true prominence.
Supporters argue, “Affirmative action will not today open up opportunities for the poor and
uneducated and the unskilled.  But it will change how they look at the world, and it will say, by
word and deed, that hard work pays off and skills matter120.”  How can it do this when even the
most qualified, who alone can benefit from these policies, are themselves questioning their
achievements?  It is cavalier to dismiss the questioning first-year law student out of hand, her
experience as a role model should be considered in the equation.  A very real backlash against
race-based policies is afoot in the land, and it is sustained by the doubts of beneficiaries as well
as the suspicions of non-beneficiaries.
 By the 1980s, the Supreme Court recognized the danger in using race labels even for
remedial purposes.   In Croson, Justice Brennan noted that, “Even 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 needs121.”  A multi-racial nation like
the United States exacerbates racial tension at its peril.  “By creating social-welfare programs
based on race rather than on need, the government sets citizens against one another precisely
because of perceived racial differences122.”  History is full of nations  where racial or ethnic
polarization has produced the disintegration of the nation123.  Political leadership is often at the
root of such polarization, as opportunistic leaders see the chance for self-aggrandizement in the
polarization of their communities.124  Such leaders have no reason to concern themselves with
the well being of the nation as a whole, rather they have a concentrated self interest that makes
polarization a benefit.
An Idi Amin or Adolf Hitler could hardly expect to acquire enough economic
skills to rise from unpromising beginnings to anything resembling the
prominence they achieved in politics.  Groups or nations that are generations
behind others in economic skills may also seek political shortcuts to importance,
whether through ideology, symbolism, confiscations, terrorism, or war.   The
issues they raise may be highly effective for political mobilization purposes,
without being either the real cause of the problems their groups experience or the
means of solution to the malaise they feel.  The [racial] turmoil, which others
seek to end in rationalistic ways, may in fact be the very basis of the power held
by political leaders125.
 In 1961, Martin Luther King recognized the deleterious effect racial polarization could
have on a minority group.  He noted that, “Negroes constitute 10 percent of the population of
New York City and yet they commit 35 percent of the crimes.  Missouri Negroes constitute 26
percent of the population and yet 76 percent of the persons on the list for Aid to Dependent
Children.... We’ve got to lift our moral standards at every hand and at every point126.”  These
statistics have not changed meaningfully in the intervening 37 years.   Oppression cannot be the
only cause for this difference in achievement.  Some groups have seen much oppression (in
America: Blacks, Chinese, Irish, and Southern/Eastern Europeans especially), while others have
suffered comparatively less oppression (Hispanics, Koreans,  Jews)127.  There is no historical
correlation at all, with the exception of Black Americans, between social and legal oppression
and the long-term vulnerability of the people to future oppression.   Thomas Sowell claims that
this is due to the differing cultures of the various oppressed groups128.  For example, the
Chinese, Jews, and Koreans have all tended to occupy the position of “middleman minority”,
operating on the fringes of capitalism for a generation or two and accumulating sufficient wealth
to alleviate their vulnerability to oppression129.  Other groups, such as the Irish,
Southern/Eastern Europeans, and Hispanics, have tended to work their way up through the class
structure by promoting strong family and ethnic associations that work to support each other130.
A final group of cultures (Black Americans, Malays, Turks) have tended to demand “protection”
from the unfair competition of others, refusing to adapt their cultures to more successful models
of operation131.
 Our current approach to race also produces inaccurate statistical conclusions.  By
imposing a fixed biological conception of race as a proxy for a fluid social concept statistics
tabulating racial tendencies are effectively meaningless.  Recently, a study by the National
Center for Health Statistics found that 5.8% of the people who called themselves Black were
seen as White by the census interviewer.  Additionally, nearly a third of those identifying
themselves as Asian were seen  as White or Black by independent observers.  Nearly 70% of
Native Americans were independently evaluated as either White or Black132.  Our society
requires the child of a mixed-race couple to belong to one race or the other, regardless of their
subjective reality.  Tiger  Woods is an example of this conundrum.  In America, Mr. Woods is
classified as “Black” because he some African parentage.  On the other hand, he is also White,
Asian, and Native American133.
 For many others, the situation is even more stark.  As Michael K. Frisby reported, a three
year-old girl named Madeleine Gantt was declared “Black” by a government employee while
her mother attempted to obtain a Social Security card for her.  Madeleine’s mother is White, but
her father is Black; to which race does she more properly belong134?  Despite proposals to
include a multi-racial category on the 2000 census, the federal government has decided to
continue to employ the “one-drop rule”135, whereby a  person who checks any minority group
as part of their heritage is counted fully as a member of that group.  The result of this is,
logically, the over-counting of minority group populations.  Many individuals who do not
experience the difficulties and oppressions of an oppressed racial group will nonetheless be
included as such by the government.136 This approach was settled upon after concerns were
expressed by various minority political groups that their clout would be eviscerated by a
meaningful multi-racial option137.  For example, it is estimated that from 75 to 90% of people
who now check the Black box could check Multi-racial138.  Professor G. Reginald Daniel of
UCLA notes the oddity of our statistical approach to race, specifically with regard to people of
African descent.  While his comments are now outdated, and more groups are counted using this
method than ever before, it is still a valid critique of the theory of hypo-descent.
We are the only country in the world that applies the one-drop rule, and the only
group that the one-drop rule applies to is people of African descent.  But the
one-drop rule is racist.  There’s no way to get away from the fact that it was
historically implemented to create as many slaves as possible.  No one leaped
over into the White community--that was simply the mentality of the nation, and
people of African descent internalized it.  What this current discourse is about is
lifting the lid of racial oppression in our institutions and letting people identify
with the totality of their heritage.  We have created a nightmare for human
dignity.  Multiracialism has the potential for undermining the very basis of
racism, which is its categories139.
 Continued recognition of race as a useful distinction also bedevils any hope of continued
integration in society.  Hard racial categories ignore the fact that multi-racialism is on the rise.
“The number of children living in families where one parent is White and the other is Black,
Asian, or American Indian, to use one measure, has tripled from fewer than 400,000 in 1970 to
1.5 million in 1990--and this doesn’t count the children of single parents or children whose
parents are divorced140.”  The best estimate is that only 10% of Blacks would choose
“multi-racial” if it were offered, resulting in a small reduction of the numbers of Blacks on
paper141.  That number could become larger, however, and eventually approach the potential
maximum of 75-90%.   By prohibiting any recognition of multi-racial persons, however, we
continue to endorse the rigid racial classifications that were created to perpetuate slavery and
racism.  Is it possible to cure the concept of its heritage without discarding its discriminatory
use?  While at one point there was no meaningful cultural race “White”, such persons being
divided into the German, English, Irish, French and other races, now anyone asserting the
uniqueness of any individual European cultural group as a distinct race in America is ignored.
Culturally, assimilation has removed the barriers of discrimination between the various White
ethnicities.  Similarly, despite a history of animosity much longer than that of White/Black, the
religious persuasion of an American is largely viewed as irrelevant; Christian, Jew, or Muslim,,
Catholic or Protestant, it is just not important in modern America which name one assigns to
God.  Even atheists and agnostics are not subjected to any real social opprobrium.  Two hundred
years ago, such a statement would be viewed as ridiculous.   Despite the real and tangible
efficiencies and national potential142 such assimilation has made possible, the move now is to
discard such devices in favor of a permanent “multi-culturalism”.  The older process of
reconciliation among different groups, now derisively called assimilation or “cultural
imperialism” has in fact been a key to America’s success.  The melting pot is in danger of being
replaced by a tossed salad where the remaining distinctions, largely racial and therefore artificial
and intractable, will be recognized into the foreseeable future.
 Recorded history spans thousands of years, and has seen the rise and fall of not only
empires and peoples, but also concepts of race and identity143.  All peoples have borrowed from
all other peoples, and in the march of time some concepts have proven more useful and
workable than others.  Just like the numbering system that arose in India eventually came to
displace all others (under the name “Arabic numerals”, denoting those who copied it first) and
printing and paper from China replaced all other forms of recording information, so too might
the present conception of race be replaced by something better144.
 The competitions of cultures stand at the root of racial thinking.  When a culture’s grasp
was limited to an  island or small geographic area, each competing culture was described as a
race.  The Irish, Scot, and Welsh races were all, at one time,  distinct from the English race145.
Similarly, the ancient Middle East was comprised of well over a dozen races, if Biblical
accounts are to be believed as reflecting accurately the impressions of the people of Israel.  As
cultures expanded, initial racial distinctions collapsed and the term race came to denote broad
geographical or cultural groups.  The Alpine, Nordic, and Mediterranean races of 18th century
Europe stand as hallmarks of this period in racial thinking146.  By this time, the Middle East’s
various peoples had been collapsed into two races:  Arab and Jew.  Similarly, the indigenous
peoples of Africa could be divided into Negro, Bushman, and Pygmy races147.   In the 19th
century, races could be presented in a series of roughly ten, including Caucasoid, Mongoloid,
Negroid, Semitic,  Pygmy, and Australian aboriginal, among others148.    The Holocaust of
European Jews during World War II forced a drastic reconsideration of traditional race science
and has resulted in the explicit disavowal of race by the United Nations and many scientists149.
By the 20th century, the current conception of race had solidified, presenting three great races:
Caucasian, African Black, and Asian150.  Within these three races a number of cultures are
blended together to attempt to conform to the current breeding population theory about race.151
The current concept, while useful insofar as it claims to offer visual characteristics for
differentiation, is no more valid than any of those that preceded it.  In each case, the term race
depends upon the social and cultural context in which it operates for its meaning.  Race has been
a fluid term, shifting to suit the needs of the society that uses it.
 In modern usage, race is most often employed to attempt to identify the victims of past
oppression.  Unfortunately, even defenders of the modern race-based system of remediation
recognize that race is a poor fit once individuals are considered in the system.  The rise of the
Black middle class and the recent immigration of well-educated Black Africans has produced a
situation where someone who is visibly Black may not bear the burden of past oppression152.
This is because oppression follows vulnerability, not race.  Race merely allows an oppressor to
easily categorize and divide their victims into smaller, more manageable groups153.    Our
current program has proven inadequate in eliminating the enduring badges of oppression
because it has not addressed the oppression directly, instead allowing race to endure as a proxy
for inferiority and oppression.
 Legal efforts to remove race from the law reached their high-water mark in the mid
1960s.  The Voting Rights Act of 1965, the Civil Rights Act of 1964 and other legislative
pronouncements made effective the promise of the 14th Amendment to the Constitution that
race would not be an acceptable tool for making distinction between people.  For example, in the
voting rights area, while in 1964 Mississippi had a 6.7% registration rate among Black voters, by
1967 the rate had risen to 59.8%, roughly equivalent with the nation as a whole154.  In the
educational arena, the mean difference in schooling between Blacks and Whites narrowed from
3 years in 1940 to just 1.2 years in 1970155.  The specific forms of oppression embodied in the
uses of race addressed by the law have been reduced, but the lingering effects of oppression
continue.   Blacks continue to economically lag behind the rest of the national average in
educational attainment, per capita income and life expectancy156.  This is due to the fact that
race-centered policies inevitably focus their benefits on the best-qualified and most talented
members of the target race.  While educated, middle-class Blacks have benefited from American
affirmative action, the vast majority of uneducated, poor Blacks remain untouched157.  Since the
leadership of most racial groups tends to come from the sub-group that benefits from such
policies, there has been an understandable failure to address the systemic vulnerability of the
majority of the group members158.  Thus vulnerability to oppression persists, even if the legal
vehicles for oppression have been removed.
 As a political matter, the continued use of race  divides communities of interest along
racially constructed lines.  Racial polarization is different from racism in that groups that are
equally positioned in life can still be polarized along racial lines.  During the riots in Los
Angeles, angry Blacks took out their frustration over continued poverty and urban blight on the
visible Korean minority in their midst, rather than joining with them and the Hispanic
community to improve the situation.  Additionally, while Appalachian Whites and inner city
Blacks both suffer the same educational disadvantages as a result of the way public schools are
funded in the United States, efforts to bring the two groups together have been persistently
thwarted by Black leaders, who fear dilution of “racial unity”159.  This polarization often stands
in the way of disadvantaged groups combining to act in their common interest,  and while it
tends to benefit the specific leaders of these groups politically, the group generally fails to see
any benefit from the polarization.  Common problems remain unaddressed, and oppressive
systems endure160.
 Often those in the racial majority who have not achieved success in life feel pressured by
the benefits extended to racial minorities.  In India, French Canada, Lithuania, South Africa,
France, and the United States nativist movements have arisen in times of economic pressure to
blame racial minorities for the difficulties experienced by undersuccessful members of the racial
majority161.  In none of these cases was the economic reality ever discussed openly:  that
economic wealth was often created by the targeted minority or immigrant group, and that the
lack of success of the majority group was more attributable to a discontinuity between their
skills and the market’s demands than to any external group’s presence or absence162.
 Inevitably, the use of race divides people into unalterable groups, one of which will
always be larger than another (although the specific race on top can shift).  In ancient Egypt, and
Turkey, the employment of race to divide peoples eventually resulted in the expulsion of the
losing group from the nation163.  Polarization, once begun, is difficult to reverse, and few
nations have survived the experience164.  At its most basic, racial division allows the majority to
mark out, in clear terms, who belongs and who does not.  Thus, the benefits received by the
minority group depend upon the continued sufferance of the majority group.  This is a tenuous
claim to benefit.  Motivated self-interest will not cause a majority group to be gentle with a
minority group when there is no chance that a member of the majority will become a member of
the minority165.   This is the single most important feature of the concept of race:  immutability
for any given individual.  While the term has changed over time, any individual is locked into
one race or another by the society that employs the concept.  As such, there is no logical way out
of the dilemma.  As long as one recognizes race, someone will be inalterably trapped in the
minority, and thus identifiable as a potential target for oppression166.
 Even when racial animus endures, a population that is not vulnerable cannot be
oppressed for long.  This has been the case for Jewish people in a variety of contexts and
settings.  In the United States, while anti-Semitism occasionally produces ugly incidents of
violence, wholesale oppression is impossible because the Jewish community has access to a
variety of recourses such as the legal system and political process.  Media power, economic
influence, and political capital can all be brought to bear to stamp out any attempts to
institutionalize anti-Semitism.  Similarly in the Middle East, while Israel is surrounded by
nations that are committed to its extermination, the state remains secure and prosperous because
it is not vulnerable to those external threats.  Oppressed groups in America have always
recognized the benefits of concerted action, but it is difficult to achieve the necessary strength,
and it is only one road out of oppression.
 There is a final route to eliminate vulnerability:   blending in with the majority.  This is
the path followed by all the various national groups that now comprise the so-called White race.
While Irish, Italians, Poles, and Portuguese were all subject to determined discrimination and
oppression on the basis of national origin and race, they have all amalgamated sufficiently to be
indistinguishable from any other group of the White race167.  This path of amalgamation and
acceptance requires concerted effort by the minority group to remove the group vulnerability.
Collective action and rising living standards are key parts of ending oppression.  Additionally,
however, it requires a willingness on the part of all parties in society to allow blending to occur,
and racial polarization stands in direct opposition to the process of amalgamation.
 It is possible, however,  to employ legal devices to combat racial animus and to fight
oppression.  This has been done a number of times, and in a variety of contexts.  When President
Truman ordered the desegregation of the military in 1947, he began a process of opening doors
to oppressed Blacks in American society168.  This process has now produced a military force
that is the envy of the world, and even had a Black man as its chief uniformed officer.  In the
military, there is no question of racial equality; it is demonstrated every day in the field and
proclaimed by official policy169.  Additionally, even before the landmark case of Brown v.
Board of Education, the Supreme Court addressed segregation in a number of contexts, reducing
the oppression Blacks suffered in America incrementally170.
 The law has proven most effective, however, at providing contemporary justice.  Specific
individuals who are the victims of demonstrable racism and oppression are now able to seek
redress in the courts and receive compensation for their suffering.   As Professor Goldman states,
“An individual harmed in violation of his rights should be restored by the perpetrator of the
injury to the position he would have occupied, had the injury not occurred171.”  This kind of
legal redress is widely supported and has not produced any additional division or polarization in
society172.  Various provisions of the US Code grant liberal opportunities for people to seek
redress for specific grievances, and there is ample proof that these mechanisms are working to
reduce racial animus and improve efficiency in society173.
 Unfortunately, this kind of justice is insufficient to address the long-term disadvantages
experienced by the children of slaves and segregated Blacks.   “How can we compensate the
denial of the right to vote in the past--by granting two votes in the next election?  It makes even
less sense to talk of vicarious compensation for such people through preferred treatment for
some unrelated person for some position that the original victim neither knows nor cares
about174.”  While some have argued that race-conscious affirmative action programs that act
merely to ensure the proportional distribution of benefits across all identifiable groups is fair175,
many still concede that the avoidance of the appearance of justifiable discrimination is as
important as the compensation itself176.   As advocates of race-conscious policies know,
American morality centers around the conception of the individual.  Group entitlement,
however, is a requirement for the theory of compensatory justice to have any moral force177.  It
is this moral disconnect that causes the long-term difficulties of race-based policies in this
 Since group entitlement theories racial polarization have led to social conflict and
disintegration in other nations, is there another way to restore the oppressed to a state of equal
opportunity here?  Race-based thinking, whether ameliorative or oppressive, tends to cement
racial identification in people’s minds, any real solution must go beyond race to succeed.  The
willingness to look past social categories has been the key to eliminating various forms of
oppression and discrimination in the past.  Religious animosities, ethnic conflicts, and even
sexual stereotypes  have all been quelled  by policies that acted outside the categories that were
socially imposed in earlier days178.  Just as those concerns were viewed as inalterable before,
yet proved remarkably supple with time, so too can race be reduced to a tractable level.
 Is it possible to design programs to address the continuing disparities in American
society without using racial categories?  The political support to seek such an alternative is
growing.  As an entire generation of Americans confronts life without legal segregation and
oppression, the question of how to address inter-generational poverty and disproportionate
impact moves to the center of the debate.  The census is only the first public policy to be fought,
but the formation of political coalitions and a recognition of economic common interest will all
go a long way towards ending the race-conscious approach to oppression that has characterized
so much of America’s history.   Race draws its power as a public policy tool from its usefulness
as a predictor for performance; as the accuracy of race as predictor has declined, so too should
its use in public policy.
 Race is no longer a useful proxy for oppression.  Generations of civil rights agitation
have culminated in a society where race is no longer legitimately used as a tool for oppression.
Oppression still exists, and it does impact individuals in disproportionate ways, but that does not
require the conclusion that race is the root of oppression.  Instead, members of all races are now
able to achieve success in society, and while some races lag behind others in the aggregate,
programs that focus on the race of an individual fail to help those most in need.
 What then to put in race’s place?  In the America of the 21st century, economic status
and the access to education that wealth permits seem far better predictors of performance.
Appalachian Whites and inner-city Blacks do equally poorly on standardized tests and have the
highest rates of inter-generational poverty despite dissimilar racial backgrounds179.   Black
African immigrants constitute the single wealthiest identifiable group in American society, due
in no small measure to their high rate of post-graduate education, despite similar racial traits
with inner-city Blacks180.   Middle class Americans of all racial backgrounds present similar
economic and educational profiles, and race no longer separates the middle class in terms of life
options.   Economics and education seem to divide people more clearly than any conception of
 An effective public policy must recognize this shift in society.  By focusing on economic
empowerment, through the use of IRS and AFDC data, a new affirmative action could be
crafted, one that targets benefits on those members of society who need it most181.  In the
educational context, this would be particularly salutary, for while it is possible to identify and
deride a Black student as being the beneficiary of a “quota”, absent some special information it
is nearly impossible to identify a  student on the basis of wealth.  This distinction alone could
allow students to proceed free of stigma and act with less doubt in following their talents.   Most
colleges employ need-based financial aid programs already, and a shift to need-based admission
programs would not require major  re-structuring.  By focusing affirmative action on those who
are most in need of help, a more effective public policy to address the challenges of oppression
is achieved.
 A second, and perhaps even more important, goal is bringing an end to the process of
creating new races and establishing a broad recognition of the indivisibility of the human
species.  As the Interracial Voice, the leading publication for multi-racial individuals, declares,
Race is an artificial construct, not a biological reality at all.   Race has no basis in scientific
fact182.”  In September 1996, the American Anthropological Association rejected race as an
inevitably racist concept, ranking individuals based on their appearance183.  The AAA
recommended the Census Bureau eliminate race and replace it with “ethnic origin” since many
Americans confuse race, ethnicity, and ancestry.   As the example of the Hispanic race
demonstrates, once a race is “created”, polarization and self-identification as a member of that
group follows.  Such a process atomizes the American polity, and results in the fracturing of
potential majorities into dozens of permanent minorities.  California is already composed of
many races, none of which comprise a majority184.  The nation must move away from race, lest
the use of race permanently divide America into warring camps, all composed of numerical
minorities and none able to look beyond race to form a governing coalition.
 The “one-drop rule” must also be abolished if there is to be any hope of racial
reconciliation.  This rule of hypo-descent posits that a person with “one drop” of blood of a
minority race, (especially the so-called “Black race”) belongs to that race.  This rule is unique to
America, and has its roots in a slave culture which encouraged White masters to increase their
slave stock by impregnating their female slaves185.  After the Civil War, hypo-descent was used
to prevent multi-racial persons from achieving social equality, often to the fourth generation of
interbreeding186.  Even today, while the Census Bureau has agreed to allow individuals to select
more than one race, it will count all individuals who select “Black” as wholly Black, regardless
of the number or distribution of other choices187.  Interestingly, while in the past the rule of
hypodescent was used by White oppressors to keep their race “pure”, now it is used by Black
leaders to protect their political gains188.  Artificially inflated numbers cannot lead to sound
national policy, and all racial categories are inaccurately tabulated under the rule of
hypodescent.  Regardless of who defends the rule, it exists to deny multi-racial persons some
measure of their heritage and perpetuate the myth of racial purity189.  Because neither of these
purposes has any place in a society committed to the goal of equality of opportunity, the rule of
hypodescent must be abolished.
 While race will not be wished away simply because it is no longer productive, it is
possible to put it on the path to obsolescence.  Racial reconciliation is not an hopeless idea.
History serves as a guidepost to the process:  just as none speak of the Irish race anymore, it is
conceivable to think of a day when there is no White or Black race.  To de-legitimize race as a
concept, the attack must be mounted by a broad assortment of persons.  Multi-racial persons190
have perhaps the best position to lead this challenge.  As Professor Spickard noted, “An even
stronger challenge to race can come from people at the margins to all racial centers; that  is,
from people expressive of multiracial existence and evident human variation, who resist efforts
to be subdued and brought within racial orders191.”
 Additionally, those who suffer under the current race-centered system can be enlisted to
reduce the salience of race.  Just as labor organizers brought together Hispanics and poor Whites
to fight against the system of capitalist exploitation in California, so too could an anti-racist
today bring together Asian Americans, middle class Whites, and multi-racial persons to strike
out against race-centered public policy.   The current race-centered is particularly vulnerable to
such an attack since  its benefits are concentrated so narrowly upon the best educated and
wealthiest members of beneficiary races.  Once the disproportionate benefits of race-centered
policies are exposed, it is entirely possible that the rank-and-file members of beneficiary races
will desert their leadership192.
 Additionally, a focus on economic indicia of oppression will allow numeric minorities to
combine in communities of common self interest.  Poor Whites, Native Americans, and Blacks
have much in common that goes unnoticed now.  All three groups suffer diminished life
expectancy, reduced earning capacity, and inadequate educational resources.  In a
race-conscious public policy, these groups will forever be divided into separate camps, unable to
pool their resources and muster a compelling political coalition.  In an economic-conscious
public policy, these groups would be united by common interest, and able to negotiate for a
greater share of society’s benefits on far better terms than they are able to now.  Now, to win any
concessions from the wealthy majority, each group must somehow tug on the guilty conscience
of the majority.  It is this phenomenon that explains the rise of the “victim mentality” and the
increase in the number of “oppressed peoples”.  Such a position, however, is fundamentally one
of weakness, and one that depends on the philanthropic spirit of the majority.  More importantly,
the majority need never fear becoming one of the “oppressed peoples”, for the racial markers
delineate forever who is and who is not a part of the majority.  By removing race from the
balance, the political strength the underpowered can muster is increased and the ability of the
powerful to view the situation as one of “us” and “them” is destroyed.
 In conclusion, race has become a loaded concept, fraught with historical bias and current
social  impact, yet largely devoid of constructive purpose or biological meaning.  In the law,
race has, and is, being used to sort out special populations of citizens to receive special benefits
denied to others, with the necessary result of dividing citizens without reference to their
individual situations or experiences.  The benefits of such policies have been concentrated in the
hands of a select few, while inter-generational poverty remains largely unaddressed.  By
focusing on compensation and group entitlement instead of reconciliation and individual rights,
our policy has failed to bring people together.  In fact, these policies are widening the gulf that
was narrowed when the policy was simply to remove racial disabilities.  In order to progress, we
must move beyond these inappropriate terms and approach oppression and disenfranchisement
from a new perspective, an economic perspective that more accurately reflects the opportunities
individuals  encounter in life.  By doing this, we can restore the “melting pot” and bring all
Americans into a fuller realization of their personal and family heritage without polarizing
society and artificially limiting people’s options of self-identification.  Multi-racial individuals,
in truth most Americans, will finally be able to express the full breadth of their cultural heritage,
without being forced into one or another racial category.  The Census and our public policies on
affirmative action are the ideal place to begin this work.
 Race remains a central issue for the American republic, and only by transcending a
dialogue fraught with racial animus can we ever achieve a “color-blind” society.   As long as
race is employed in public policy, Booker T. Washington’s question of the Plessy decision
remains unanswerable:  “Why cannot the courts go further and decide that all men with bald
heads must ride in one car and all with red hair still in another?  Nature is responsible for all
these conditions193.”  Lest we go the way of ancient Egypt, post-colonial India, Nazi Germany
and modern Yugoslavia, the United States must turn away from its race-centered policy.  Only
by embracing the idea that “all men are created equal” can this nation expect to endure.