Absolutely No Excuse

Diary of a Mad Law Professor

by PATRICIA J. WILLIAMS

This article appeared in the December 7, 2009 edition of The Nation.

November 18, 2009

On November 9 the Supreme Court heard arguments in Graham v. Florida and Sullivan v. Florida, a pair of cases asking whether the Eighth Amendment’s proscription against cruel and unusual punishment is violated by sentencing juveniles to life imprisonment with no possibility of parole. No other nation has sentenced juveniles to life. But in the United States there are approximately 2,500 lifers charged while under 18. Of those, 109 are children who committed offenses that did not involve murder;  all of them are kids of color—84 percent black.  Seventy-three of those chilren were 14 or younger when they committed their crimes.  And seventy-seven of those 109 were sentenced in Florida.

One of the named plaintiffs is Joe Sullivan, who was 13 when he was convicted of sexual battery. Terrance Graham, the other named plaintiff, was convicted of robbery when he was 16. He was released on parole, and then given life for a parole violation when he was 17. Sullivan and Graham are imprisoned in Florida, where according to Bill McCollum, the state’s attorney general, there has been a push to crack down hard on youth crime because, after a string of attacks on foreign tourists in the 1990s, the “problem was…threatening the state’s bedrock tourism industry.”

While the definition of “cruel and unusual” is the thrust of what the Court must decide, the racial and geographic makeup of this particular population of juvenile lifers is quite remarkable. Toss in the State of Florida’s conflation of crime and commercial interest, and it adds up to a very large, very cruel and most unusual elephant in the room. But the legal debate has not and will not openly acknowledge race as a factor. Rather, the Court is deeply divided along ideologically colorblind lines, which nonetheless have philosophical underpinnings that allow such inequities to remain uninterrogated.

At the heart of any criminal case is the determination of a defendant’s intentionality, which depends on some consideration of state of mind, or mens rea. There are two ways of expressing the query. On the one hand, we could ask if the act was intentional in a narrow sense: was the crime physically performed by the named defendant without radical chemical imbalances or physical coercion? This way of thinking places great emphasis on the act itself. On the other hand, we could frame the question in such a way that foregrounds the actor and his motives, an approach that requires more examination of the defendant and his thinking about consequences–that is, about meaning, relation, capacity.

Most of us recognize that there is a difference between (a) meaning to put one’s car into reverse; and (b) meaning to put the car into reverse while carelessly failing to check carefully behind it; and (c) meaning to put the car into reverse with the specific purpose of running over one’s cheating spouse. Situations (b) and (c) more or less illustrate the difference between first-degree murder and manslaughter. What the Eighth Amendment was crafted to patrol is punishment based on the bare schematic set out in situation (a)–where there is no possibility of mercy, no adjustment for intended outcome, no consideration of the state of mind of the actor, no tempering based on circumstance. Yet that, unfortunately, has been the direction toward which much of our law-and-order jurisprudence has been moving in recent years: not just trying juveniles as adults but also determinate sentencing in all categories. This is a move toward harsher and more fundamentalist outcomes. It relies on a philosophical equation, ancient as Parmenides, of morality as a pre-existing absolute. It is the reasoning behind such terminology as “the bad seed” or “born bad” or “beyond redemption.”

But that is not the standard by which the Anglo-American justice system operates–at least not since the days when we burned witches. The thought of reducing all guilt or innocence, all probation or prison into a soulless system of automation has been thought of as unjust for at least two centuries. To convict or sentence or execute someone based on resolutely mechanistic determinants is the very definition of unconscionable. Indeed, a system based on the word of the law alone doesn’t really need judges.

Juveniles have always presented a stronger case for mitigation because they are, well, juveniles. We make exceptions for them based on their immaturity, as both a biological and psychological presumption. We know that the prefrontal cortex, which governs executive function, does not fully develop until the early 20s. We know that juveniles are impulsive and are not sufficiently forward-thinking to calculate all the consequences of their behavior. As a legal matter, we take for granted that minors may not drink alcohol, get an unrestricted driver’s license or make a binding contract.

But in an extremely mechanistic view of humans as innately good or evil, social circumstance–including age–means nothing. In the cases now before the Supreme Court, the Eighth Amendment challenge to that way of thinking must also involve conscious consideration of who it is we categorically value as “innately good,” for their heinous acts will not define them ultimately, and who it is we are disposed to see as innately bad, for they will burn in hell. It is manifestly barbarous that children, who by definition are immature and unformed, should be tossed away for life, with no chance for rehabilitation or recognition of the possibility of change. And it is manifestly barbarous that there is such enormous disparity in the racial composition of these particular child defendants. It is barbarous that they are–particularly and glaringly in Florida–consistently and disproportionately deemed so incorrigible as to be throwaways, forever. In a civilized society, we must be able to see the difference between “making excuses” for deadly or criminal behavior and taking such factors as extreme youth into account as a mitigating factor for those who are still becoming legal agents.

Aug 31, 2009

The Daily Beast

Close Encounters

By Patricia J. Williams

Sunday, August 23

Till now, it has been a quiet summer on Martha’s Vineyard—fewer tourists than usual, much more rain than normal, so little sun that fruits have remained hard and small and vegetables have failed to ripen. All that changes the moment the president arrives. The sun breaks out. The ferry disgorges hordes of happy visitors. House rentals are hard to come by. Mopeds clog the little roads. The afternoon lull is broken by the heavy thwumping of military helicopters. People stand on their decks, turn their faces to the sky, and cheer.

Monday, August 24

He’s golfing! The neighborhood is a-twitter. A small crowd gathers round the entrance to Farm Neck Golf Course, cellphones and cameras held aloft. A solemn police officer gently pushes the pack to the far side of the street. Down the road, a woman stands on her lawn putting the finishing touches on an enormous OBAMA sign made entirely of red and white balloons. Up the road, the Portuguese-American Society puts out a sandwich board advertising their weekly “Fish Fry Friday,” but adding, “First Family Welcome.”

A man enters the Bunch of Grapes Bookstore and loudly, aggressively, grandstandingly, demands to know if “you have any books by Ann Coulter. She’s a Republican. Do you people carry books by Republicans?” More quietly, Cindy Sheehan sails back and forth across the pond that the Obamas’ farm overlooks; she is protesting the very notion of a presidential vacation. Locals advise her to bring a pole to the enterprise, that the fishing is good over there. That night, I dream that Obama turns his weary face into his pillow and groans, “I just need a nap.”

Tuesday, August 25

Friends make dinner reservations at the Oyster Bar and Grille in Oak Bluffs. I drive up moments after the president and his entourage arrive at Sweet Life Restaurant, just next door. Circuit Avenue, the town’s main street, is blocked; the sidewalks, the side streets, the little surrounding parks are packed. I stash my car half a mile away, edge my way through to the front of the goggling crowds. I approach a police officer to ask how best to get to the Oyster Bar. He asks if I have a reservation. Yes, I say, and give him my name. He lifts the yellow police tape and ushers me across the street. I feel a small thrill of euphoria: it’s like getting past the velvet rope at some chic New York nightspot. I passed the test! I want to wave in modest condescension to the throngs pressed back behind me.

Our party is well-seated right by the window. We spend the entire meal with our noses pressed to it. The only time we turn our heads is when the chocolate-truffle mud cake arrives. It is at that precise moment the presidential party exits Sweet Life and is hustled into a large, black tank of a car. All we get to see are the tail lights of the president’s SUV as he pulls away. After the police tape is taken down, hundreds and hundreds of people pour into the street, comparing photographs and stories. Circuit Avenue turns into a jubilant street party.

I meet a college classmate who was seated in Sweet Life only a few feet away from the president. We press around her for a firsthand account. She says that the president had steak, the first lady had halibut. Valerie Jarrett wore her hair combed straight back, “very beach-y,” and sported a fashionable pair of little heels. The president’s sister was there with her baby; Malia and Sasha were not. Another friend claims to have taken a good, clear picture of the Obamas with her iPhone, but when she tries to summon it, there is only a blank screen with a blurry spot of light, like all those purported sightings of Jesus Christ and the Virgin Mary. The stores stay open late. We, the people, eat lots of ice cream and dance in the streets.

Wednesday, August 26

I wake up to the news that Senator Ted Kennedy has died.  The railing of August cicadas rises shrill and unbearable. My head throbs. Flags fly at half staff. The cardboard signs welcoming Obama to the island are amended to include messages of condolence to the Kennedy family, as well as defiant messages of support for universal health care. President Obama expresses his sorrow with a short but eloquent statement that renders the island’s media center (otherwise known as the auditorium of the Oak Bluffs Elementary School) a steroidal hive of international satellite activity. Later in the day, he is spotted biking along the beach. The fact that his daughters wear helmets but he does not gives rise to some leisurely tsk-tsk-ing. A hand-painted sign by the side of the road welcomes—then warns—the first family to check their bodies for the Lyme-disease-bearing ticks that abound on the Vineyard. Life feels very fragile.

Thursday, August 27

I travel into Boston for the day. Traffic comes to a standstill as the funeral cortege accompanying Senator Kennedy’s body leaves the family compound in Hyannis Port around noon, winds its way up Route 3, and on through downtown Boston, followed by limousines transporting 85 of his closest relatives. The cortege travels past the Lt. Joseph P. Kennedy, Jr. Memorial School, past the Kennedy Federal Building, past the Rose Fitzgerald Kennedy Greenway (which is built over the old John F. Fitzgerald Expressway), past a landscape rich with the landmarks of intergenerational public service. It is an arresting event, an amazing grace, the miles upon miles of gathered mourners, the miles upon miles of tears and applause. The senator’s family members open the windows of their cars, waving back their gratitude and acknowledgement.

Friday, August 28

Senator Kennedy’s body lies in state at the Kennedy Presidential Library in South Boston. Tens of thousands line up to pay their respects as Hurricane Danny moves slowly up the Atlantic seaboard and darkens the sky.

Back on the Vineyard, there are gatherings at many of the local churches. The Kennedys are much loved on this island, and perhaps nowhere more so than among the African-American summer population. Senator Kennedy’s early endorsement of Barack Obama’s candidacy for the presidency meant a great deal. And just as Mayor John Fitzgerald, the senator’s maternal grandfather, was Boston’s first Irish-Catholic mayor, and just as the senator’s brother was our nation’s first Irish-Catholic president—so many African-Americans think of Barack Obama not merely as the first black president, but as “our Kennedy.”

Saturday, August 29

On what would have been the last full day of his vacation, President Obama fulfills the sad task of travelling to Our Lady of Perpetual Help Basilica in Boston to deliver the eulogy at Senator Kennedy’s funeral. Kennedy was “the soul of the Democratic Party,” he says. Offshore, Hurricane Danny is downgraded to a tropical storm but the wind whips ferociously at the welcome balloons and the hand-lettered signs. The Secret Service packs up in the driving rain. I log onto my computer to read the news of the day. It’s a very busy world out there. Somehow I doubt he got to take that nap.

Patricia J. Williams is the author of The Alchemy of Race and Rights; The Rooster’s Egg; and Seeing a Color-Blind Future: The Paradox of Race. She is a also a columnist for The Nation.

http://www.councilforresponsiblegenetics.org/Projects/CurrentProject.aspx?projectId=8

THE ELUSIVE VARIABILITY OF RACE 

Patricia J. Williams, JD 

      The question of race is, at its core, a questioning of humanity itself.  In various eras 

and locales, race has been marked by color of skin, texture of hair, dress, musical 

prowess, digital dexterity, rote memorization, mien, manners, mannerisms, disease, 

athletic ability, capacity to write poetry, sense of rhythm, sobriety, childlike cheerfulness, 

animal anger, language, continent of origin, hypodescent, hyperdescent, religious 

affiliation, thrift, flamboyance, slyness, physical size, contamination and/or presence of a 

moral conscience.  As random as such presumed markers may be in the aggregate, they 

have nevertheless been deployed to rationalize the distribution of resources and rights to 

some groups and not others.  Behind the concept of race, in other words, is a deeper 

interrogation of what distinguishes beasts from brothers;  of who is presumed entitled or 

dispossessed,  person or slave, autonomous or alien, citizen or enemy. 

       In the contemporary United States, race is based chiefly on broad and variously 

calibrated metrics of African ancestry.1  To get a full sense of the ideological incoherence 

of race and racism, however, one must also include the longer history, in other contexts– 

whether the centuries-old Chinese condescension to native Taiwanese Islanders,2 the 

English derogation of the Irish for “pug noses,”3 the plight of the Dalit (i.e., 

untouchables) in India,4 or comprehensively eugenic regimes like Hitler’s that threw into 

the ovens Jews, homosexuals, tinkers, conceptual artists, nomadic peoples, the sick and 

anyone else designated less than “well-born.”5 

       Despite the enormous definitional diversity of what race even means, and despite the 

fact that the biological studies—from Charles Darwin’s observations to the Human 

Genome Project–have patiently, repetitively and definitively shown that all humans are a 

single species, there remain many determined to reinscribe a multitude of old racialist 

superstitions onto the biotechnologies of the future.  Despite that biological evidence– 

and in the social sciences, a towering body of social science that is cumulative 

(observations over time), comprehensive (multiple levels of inquiry) and convergent 

(from a variety of sources, places, disciplines)—still we are asking the same centuries-old 

questions. 

       That said, for purposes of this paper let us stipulate that race is not a “scientific” or 

biologically coherent category.  I ask for such stipulation because it is beyond my scope 

to prove or disprove creationist theories of polygenesis, or theological tracts about God’s 

intention to keep races separate, or essentialist polemics about whether black women are more or less endowed with testosterone than white men. 

          It is true that race-as-biology remains a major hurdle in the cultural imagination: at one extreme, there are those zealots who actively deploy races as the innate mark of beings so different that they constitute another species altogether–aliens, sun or moon types, untouchables, non-persons, beasts. 

And at the other end of the ideological spectrum are those ordinary creatures for whom 

discussions of race remain heavily inflected by assumptions of biological difference, //if// 

as a largely unexamined and unconsciously malleable mush of assumptions about genes, 

social history, law and culture.  

       Ergo, let us just agree that, as hard as many have tried to find it, there is no allele for 

race (as distinct from skin color); there are no separate proteins indicating that some of us 

are chosen by God over others; and there is no distinct cellular pattern that distinguishes 

the tribal intelligence of any one group on the planet as opposed to another.  At the risk of 

being tedious, I underscore this point precisely because it, like some of the most 

reproducible of scientific consensuses–like evolution, climate change and the value of 

vaccinations–remains fiercely disputed as “mere” contestable “theory”.      

         So what is race if not biology? 

         Race is a hierarchical social construct that assigns human value and group power. 

Social constructions are human inventions, the products of mind and circumstance. This 

is not to say that they are imaginary. Racialized taxonomies have real consequences upon 

biological functions, including the expression of genes. They affect the material 

conditions of survival–relative respect and privilege, education, wealth or poverty, diet, 

medical and dental care, birth control, housing options and degree of stigma–freedom 

from stigma being something like permission to be happy, or to live unburdened by the 

constant disapprobation of others.  

           In ante-bellum America, race was determined by a number of variables, 

depending on the state:  color, ancestry, ethnicity, association, behavior, property records. 

During the Jim Crow era, appearance became foregrounded as singularly important. 

Since the civil rights movement, class and speech have sometimes been included among 

the criteria of line-drawing. 

       In the industrialized west, racism (as well as related prejudices like class bias, 

sexism, and religious intolerance) is constructed from a complex intermingling of 

individual vision, historical happenstance, social milieu, political decision-making and 

legal structure.  If not actually rooted in biology, race is nevertheless the subject of 

relentless biologizing.  From the slavery-apologist Samuel Cartwright to Adolf Hitler, 

each generation has brought new utensils to the enterprise of racial demarcation:  calipers 

to measure the size of buttocks or length of leg muscles or circumference of skulls or 

width of noses.6  There have been mathematical models to measure percentages of 

“blood” or wavelengths of skin color or degrees of curvilinearity in the arcs of kinky hair.7  

But over and over, ra ce has been proved and proved again to be illusory as a matter of hard science.  

        Yet still the questions come:  If we are one species, what about sub-species? As in: 

“Blacks, Jews, Asians—you can’t deny they’re different.  It’s like a poodle or a 

dachshund or a St. Bernard is to the species of dog” according to one of my former 

students.   This sort of perception is a not a matter that will be resolved by yet more 

scientific testing. Rather, I think this reiterated resistance to data is testament to the 

persistence of human imagination.  That we still wonder if there aren’t significant 

disparities in human intelligence that might be logically tracked through the randomness 

that is race is testament to the power of belief over documentary evidence. 

       This infernal miasma invites a bit of consideration about the Manichean constructs of 

determinism and free will, mind and body, choice and constraint, illogic and sheer 

destiny.  Like Dostoevsky’s annoying man from the underground we must wonder:  Am I 

a mere piano key, an organ stop?  A mathematical inexorability, or a creation of my own 

intelligent design?  The more we tease this out, the more important becomes the narrative 

lens through which we seek our truths, and the more aware we become of humanity’s 

own constructive power. Am I three fifths of a human?  Ninety-six percent of a 

chimpanzee?  One hundred percent pure tragic mulatta?  One fourth of a nuclear family? 

An atomistic rational actor? A deficit expenditure of an impoverished underclass?  

       What, in other words, makes “race” both so dangerously essentialized as well as so 

fleetingly, maddeningly, beyond definitional containment?  

       Let’s begin with a story.  A few years ago, there was an article in the New York 

Times titled “DNA Tells Students They Aren’t Who They Thought,”8 about a sociology 

class at Pennsylvania State University. Sociology Professor Mark Shriver regularly 

administers DNA tests to students and has them analyzed for what the article calls 

“genetic ancestry.” Shriver is also a founding partner of the now-defunct company 

DNAPrint Genomics, which devised a test that “compares DNA with that of four parent 

populations, western European, west African, east Asian and indigenous American.”   

          The first indication that this was a more romantic than wholly rational enterprise 

is the classification of these as “parent” populations. The four categories are overly broad 

for purposes of meaningful ancestry-tracking, and unduly, randomly narrow in terms of 

geographic exclusivity.  Given the actual diversity of present-day American populations, 

the only logic behind this choice of the four groups is that it roughly segregates according 

to older anthropological descriptions of race-as-color:  white, black, yellow, red.  

           And indeed, that’s exactly what the students in Shriver’s class read into their test results. 

The article in the Times went on for three full columns discussing the degree to which the 

Penn State students were revealed to be “white” or “black.”  

          ”About half of the 100 students tested this semester were white,” according to an 

instructor. “And every one of them said, ‘Oh man I hope I’m part black,’ because it would 

upset their parents… People want to identify with this pop multiracial culture. They don’t 

want to live next to it, but they want to be part of it. It’s cool.”9  

          But the test purported to show (albeit flawed) geographic origins; it is interesting 

to see how quickly that was conflated with the matter of color and then from there into 

the politics of exoticized inclusion against a backdrop of ritual exclusion. 

      There is no allele for race, however. As a sociological matter, skin color is a 

presumptive indicator but historically it is not the exclusive marker.   And as a biological 

matter, melanin concentration merely reveals how one’s ancestors adapted to more or less 

sunny climates—and dark skin is more or less distributed around the equator, no matter 

which continent.  Similarly, evolutionary selection for sickle cell anemia, often 

mischaracterized as a “black” disease, is an inherited defensive response to having 

ancestors who lived among malarial mosquitoes.  

         That Shriver’s test could reveal ancestry based on broad migratory patterns over 

human history is not a surprise. Certain clusterings of genetic mutations over millennia 

occur more frequently among specific populations.   But those kinship populations cannot 

be scientifically correlated to the malleable social designations of race.  

          There is, nevertheless, a remarkable persistence in re-inscribing race onto the 

narrative of biological inheritance. This science is always pursued for only the noblest of 

reasons:  in Shriver’s instance, “the potential importance of racial or ethnic background to 

drug trials.”10 I will save for another paper my concern about the feckless commercial 

competition for “race-specific” medicines and suggest only that a more coherent 

enterprise might center on individualized genomic medicine rather than on the ever- 

changing political variables of racialized bodies.  

        For now, consider the description of one student who “discovered” she was “58 

percent European and 42 percent African.” The young woman “has always thought of 

herself as half black and half white because her mother is Irish-Lithuanian and her father 

West Indian.”11 Yet the “parent populations” tested for were described only as “western 

European” and “west African.” Lithuania is generally considered a part of Eastern 

Europe, and therefore not technically part of the population tested for. While “West 

Indian” is clearly used as a cipher for her African ancestry, one can be “white”–like 

Alexander Hamilton–while being West Indian. And the Irish were not considered white 

in colonial times. 

       Similarly, East Asians have gone in and out of being considered white in our history. 

South Asians, many being the closest descendants of the original “Aryans,” are generally 

not thought of as white in this country. Yet the incoherent use of Aryan is apparent in any 

dictionary, to wit, Webster’s: “1. Indo-European…. 2. Nordic… 3. Gentile….” 

       The degree to which these invisible habits of thought work despite us, or 

unintentionally, is perhaps evident in what the Irish-Lithuanian-West Indian student–the 

one who thought she was half and half–had to say about the test results: “I was surprised 

at how much European I was, because though my father’s family knows there is a great- 

great-grandfather who was Scottish, no one remembered him… I knew it was true, 

because I have dark relatives with blue eyes, but to bring it up a whole 8 percent, that was 

shocking to me.” What is remarkable—yet not uncommon as a cultural construct–is her 

flat conception of half and half ancestry, a kind of assumed “purity” of blackness and 

whiteness. One side had to be entirely African by her measure, one side entirely 

European. If she’s 58 percent European, she assumes the embodied 8 percent must be on 

the “black” side. The discussion never moves into the more difficult recognition that most 

West Indians probably have more than 8 percent European ancestry (but, like so many 

American families, hers might “know” but “not remember” the complicated, often 

clandestine couplings of the slave trade among Europeans, Africans and indigenous 

island peoples). It certainly does not seem to occur to anyone that her white parent might 

also have an African ancestor. 

       The jumble of who we are, particularly as residents of the New World, with its 

centuries of rapid, recent migrations, is not explored in the Times article. The single 

mention of migratory patterns is misleading: The students whose DNA revealed both 

African and European ancestors were described as “members of the fastest-growing 

ethnic grouping in the United States…mixed race.” But to the extent that a DNA swipe 

shows “mixing,” there is nothing “new” about it; our ancestors have been mixing it up 

since the first mothers left central Africa–in the long-ago, ancient sense, of course, we 

are all “African.”  

           Not only do genes not assign race, neither do they have anything to say about the 

cultural practices we usually refer to as ethnicity or identity.  The absurdity of thinking 

otherwise is highlighted by one of the Penn State students, a warm-brown-colored young 

man pictured in cornrows, who said that even though he tested at “48 percent European” 

he values his blackness, since “both my parents are black.” He went on to muse: “Just 

because I found out I’m white, I’m not going to act white.” The article ended with an 

observation that “whatever his genes say,” the young man will likely always “be seen as 

black–at least by white Americans.”  

         Consider the narratives therein: Genes “speak” race; whiteness is a biological 

inheritance that can be consciously “acted”; blackness is defined by the eye of the white 

beholder. 

       If history has shown us anything, it’s that race is contradictory and unstable. Yet our 

linguistically embedded notions of race seem to be on the verge of transposing 

themselves yet again into a context where genetic percentages act as the ciphers for 

culture and status, as well as economic and political attributes. In another generation or 

two, the privileges of whiteness may indeed be extended to those who are “half” this or 

that.  Indeed, some of the discussions about candidate Barack Obama’s “biracialism” 

seemed to invite precisely such an interpretation. Let us not mistake it for anything like 

progress, however: biracialism always has a short shelf life, and by the time he was 

elected, President Obama not our first “half and half president” but had become all 

African-American all the time.  Indeed, Obama himself seemed to acknowledge the more 

complex reality of his own lineage in an off-the-cuff aside, when, speaking about his 

daughters’ search for a puppy, he observed that most shelter dogs are “mutts like me.” 

          In fact, of course, we’re all mutts. And as Americans, we’ve been mixing it up 

faster and more thoroughly than anyplace on earth. At the same time, we live in a state of 

tremendous denial about the rambunctiousness of our recent lineage. The language by 

which we assign racial category narrows or expands our perception of who is more like 

whom, tells us who can be considered marriageable or untouchable. The habit of burying 

the relentlessly polyglot nature of our American identity renders us blind to how 

intimately we are tied as kin, as family, and as intimates. 

           In the United States’ vexed history of color-consciousness, anti-miscegenation 

laws (the last of which were struck down only in 1967) enshrined the notion of 

hypodescent. Hypodescent is a cultural phenomenon whereby the child of parents who 

come from differing social classes will be assigned the status of the parent with the lower 

standing. There are many forms—most parts of the Deep South adhered to it with great 

rigidity, in what is commonly called the “one drop and you’re black” rule. Take for 

example, New York Times editor Anatole Broyard, who denied any relation to his darker- 

skinned siblings and “passed” for most of his adult life: there were many who expressed 

shock when it was uncovered that he was “really” black. Some states, like Louisiana, 

practiced a more gradated form of hypodescent, indicating hierarchies of status with 

vocabulary like “mulatto,” “quadroon,” and “octaroon.” And even today, and despite our 

diasporic, fragmented, postmodern cosmopolitanism, there is a thoughtless or 

unconscious tendency to preserve these taxonomies, no matter how incoherent. Consider 

Essie Mae Washington-Williams, the daughter Senator Strom Thurmond had by his 

family’s black maid. She lived her life as a “Negro,” then as an “African American,” and 

attended an “all-black” college. But in her 70s, when Thurmond’s paternity became 

publicized, she was suddenly redesignated “biracial.” Tiger Woods and Kimora Lee 

Simmons are alternatively thought of as African-American or “biracial,” but rarely as 

“Asian-American.” 

          In contrast, many parts of Latin America, like Brazil or Mexico, assign race by 

the opposite process, hyperdescent. That’s when those with any ancestry of the dominant 

social group, such as European, identify themselves as European or white, when they 

may also have African or Indian parents. As more Latinos have become citizens of the 

United States, we have interesting examples of this cultural cognitive dissonance: Just 

think about Beyoncé Knowles and Jennifer Lopez. Phenotypically they look very, very 

similar. Yet Knowles is generally referred to as black or African-American; Lopez is 

generally thought of as white (particularly among her Latino fan base) or Latina (among 

the rest of us), but she is never called black or even biracial. 

         Among Native Americans in the United States there is a combination of both 

hypo- and hyperdescent, encouraged by the interventionist history of the Bureau of 

Indian Affairs. Anita Hill, for example, is part Creek, but the narrative about her is 

entirely about African-American origin. And membership in many tribes remains closed 

to those who have any discernable mixture of African ancestry, but not to those with 

European ancestry. 

           The New York Post regularly offers up fascinating tabloid renderings of these 

contradictions in our culture. When Angelina Jolie adopted her son Pax from Vietnam, 

the Post featured a breathless front page story, complete with what was described as “a 

stunning mother-child portrait” of the two.12  Their faces were aglow with interracial 

bliss. 

          But the lower half of that day’s very same front page was given over to a second, 

more somber story.  Entitled “Baby Bungle: White Folks’ Black Child,” it trumpeted “a 

Park Avenue fertility clinic’s blunder” that “left a family devastated–after a black baby 

was born to a Hispanic woman and her white husband.”  Long Islanders Nancy and 

Thomas Andrews had had trouble conceiving after the birth of their first daughter. They 

employed in vitro fertilization and baby Jessica was born. Jessica is darker skinned than 

either of the Andrewses, a condition their obstetrician initially called an “abnormality.” 

She’ll “lighten up,” said that good doctor. Subsequent paternity tests showed that Nancy’s 

egg was fertilized by sperm other than Tom’s. The couple sued. 

         If this were the end, the story might simply fall within the growing body of other 

technological mix-ups resulting in what are sometimes called “wrongful birth” suits, for 

lost eggs, failed vasectomies, malpractice, broken contract and so on. There is, after all, a 

legally recognized expectation that a certain standard of care will be observed in the 

handling of genetic material.  

          What was distinctive about the Andrews case was that the parents also tried to cite 

(ultimately without success) Jessica’s pain and suffering for having to endure life as a 

black person. The Andrewses expressed concern that Jessica “may be subjected to 

physical and emotional illness as a result of not being the same race as her parents and 

siblings.” They were “distressed” that she is “not even the same race, nationality, 

color…as they are.” They described Jessica’s conception as a “mishap” so “unimaginable” 

that they had not told many of their relatives. (Telling the tabloids all about it must have 

come easier.) “We fear that our daughter will be the object of scorn and ridicule by other 

children,” the couple said, because Jessica has “characteristics more typical of African or 

African-American descent.” So “while we love Baby Jessica as our own, we are reminded 

of this terrible mistake each and every time we look at her…each and every time we 

appear in public.” 

          One wonders what this construction of affairs will do to Jessica when she is old 

enough to understand. But here’s the really interesting part. When I turned to other media 

accounts I found a picture of the family–from a 2006 greeting card, no less.13 And Jessica

looks exactly like her mother and elder sister. It is true that Jessica is slightly 

darker than her mother and that her hair is curlier than her sister’s, but all three females 

are pretty clearly African-descended. As one of my students put it, if anything it is the 

paleness of the father’s skin that marks him as the “different” one. 

           The picture underscored the embedded cultural oddities of this case, the invisibly 

shifting boundaries of how we see race, extend intimacy, name “difference.” According 

to The Post, Ms. Andrews was “Hispanic” and apparently, by the Post’s calculations, one 

Hispanic woman plus one white man must equal “a white couple.” The mother is “a light- 

skinned native of the Dominican Republic,” which seemed to indicate that while she may 

not be “white,” she’s also not “black.”  

          No matter which of many media accounts I looked at, each narrative implied that 

if the correct sperm had been used, the Andrewses would have been guaranteed a lighter- 

skinned child. But as most Dominicans trace their heritage to some mixture of African 

slaves, indigenous islanders and European settlers, and as dark skin color is a dominant 

trait, it could be that the true sperm donor is as “white” as Mr. Andrews. But that 

possibility is exiled from the word boxes that contain this child. Not only was Jessica 

viewed as being of a race apart from either of her parents; she was even designated a 

different nationality–this latter most startling for its blood-line configuration of 

citizenship itself.  According to this logic, discrimination is no longer a social problem 

that implicates all of us and our institutions as unloving or under-inclusive. 

Discrimination becomes destiny, the normative response to biologized “abnormality.” 

Racial constructions not only oppress by normalizing inequality, they can also 

make the lie of race seem liberating, attractive, romantic.

           A small digression to clarify what I mean:  a few years ago, there was an interesting convergence of inquiries into the nature of truth. James Frey published his book A Million Little Pieces, a wholly fictional account that he proffered as personal memoir.  When the fraud was discovered, he defended himself saying that the book was concerned with “emotional truth” rather than literal truth.  This triggered deep epistemological soul-searching about whether simple 

lies can signify, represent, or constitute any kind of figurative truth at all. After a swirl of 

media confusion, a sound tongue-lashing from Oprah Winfrey seemed to seal up the 

answer as a resounding Not On My Dime. 

           At the same time that Frey’s soap opera was playing itself out, researchers in 

France were searching for any charred relics at the site where Joan of Arc was said to 

have been burned at the stake. They wanted to subject any putative remains to DNA 

testing. Why one would want to do this became something of an issue in the European 

media: She didn’t have children, the site of her martyrdom is in dispute, and the 

legitimacy of any so-called relic would be highly contested. But the pursuit of “the truth” 

in so attenuated a context raised questions about the hunger for certainty in the face of 

such uncertainty. What are the limits of historical insight? How many graves shall we dig 

up to settle old scores? What are the possibilities of knowing absolutely? 

          At the same time, there was a similar pursuit unfolding in the American media.   

Harvard Professor Henry Louis Gates was hosting a series exploring his roots and those 

of a handful of other prominent African-American figures, including comedians Chris 

Tucker and Whoopi Goldberg, scholar Sarah Lawrence-Lightfoot and, of course, Oprah 

Winfrey. It was a fascinating series of TV programs, particularly from the perspective of 

the discipline of history. It revealed the peculiar difficulties of tracking lines of descent 

through slavery–the sales of human beings that acknowledged no family ties, the absence 

of last names, the absence of first names in some cases and the necessity of consulting 

not just census records but also “the master’s” property holdings for listings of possible 

relatives. The reconstruction of family history was like an archeological dig, part 

intergenerational storytelling, part study of migratory patterns, part recovery of 

commercial transactions, and part science. 

           The science du jour is, of course, DNA testing. On the one hand, DNA testing can 

be quite useful in establishing certain kinds of family relation. (Since the program aired, 

Gates has set up his own ancestry-tracking company, AfricanDNA.)  Gates’ own test 

results showed that he had no relation to Samuel Brady, the white patriarch he’d grown 

up “knowing” as the man who impregnated his great-great-grandmother. Nothing had 

prepared him for Brady’s not being his direct ancestor. Indeed, one of Gates’s cousins 

remained adamant that the test must be wrong. If the test was right, he insisted, there 

would have to be “two truths”: One would be the story he grew up with, the other what 

the DNA says. 

           Somewhere in between what the DNA says and what shaped the family account is 

a gap that is something like a lie. A secret passing from black to white? An act of 

assimilation or aspiration? A myth to hide some shame, some rape? A change of identity 

to escape to freedom? Yet I do hesitate to think of it as precisely on the same moral level 

as the kind of “lie” that James Frey is said to have told in his book. There is something 

very human about the repetition of family stories until they become epic rather than 

literal, the burying of family secrets, the lying of ancestors, the reinventions of migrants, 

the accommodations of raw ambition, the insulations from terrible shame. This is, I 

suppose, distantly related to James Frey’s addled manipulations; it might also be related 

to, but of a different order than, the magical thinking of mental patients or character- 

disordered people or victims of great trauma.  

           There is something so commonplace about the kinds of family mysteries that 

Gates’ inquiries reveal–particularly in the American context. It is part of how many, 

many of our ancestors, regardless of where they came from, reinvented themselves in the 

New World. New York University Law School Professor Jessie Allen describes the 

“magic” of legal remediation as follows: “What ought to have been prevails over the 

past.” Family stories ritualize the past in a very similar way. It is part of what Professor 

Robert Pollack, head of Columbia University’s Center for the Study of Science and 

Religion, calls the “eschatology of repair.” 

            If there is value to this kind of “emotional truth”–if I can be permitted that term– 

it is important not to confuse it with the sort of truth that DNA tells us. So while DNA 

can undoubtedly pinpoint certain aspects of our ancestry through sequencing and 

matching mitochondrial DNA, it does not make literal sense to say, as Gates did to Oprah 

Winfrey at one point: “You’ve got education in your genes.” Of course, he was speaking 

metaphorically at that moment, using the human genome as a metaphor for a pattern of 

socialization, a family habit, a thirst for knowledge modeled by parents.  

          But at other points in the program as well as in our daily parlance, that metaphoric 

dimension is applied rather more carelessly–and more dangerously. We have a long 

history of thinking of identity as genetically based, but again, there is no more an allele 

for being “white” or “Latina” than there is for “education.” These are malleable political 

designations that expand and contract with time and human circumstance.  

          It behooves us to be less romantic about what all this DNA swabbing reveals. I 

worry about the craving to “go back to Africa,” to “connect with our Yiddishkeit” or to 

feel like new doors have been opened if we have an Asian ancestor. The craving, the 

connection, the newness of those doors is in our heads, not in our mitochondria. It is a 

process of superimposing the identities with which we were raised upon the culturally 

embedded, socially constructed imaginings about “the Other” we could be. The fabulous 

nature of what is imagined can be liberating, invigorating–but it is fable. If we read that 

story into the eternity of our blood lines, if we biologize our history, we will forever be 

less than we could be. 

References 

1 

 For a history of ante-bellum litigation about what constituted “whiteness,” see Ariella 

Gross,  What Blood Won’t Tell: Racial Identity on Trial in America, (Harvard Press, 

2008) 

2 

 Brown, Melissa, “On Becoming Chinese,” in Melissa J> Brown (Ed.) NEGOtiating 

Ethnicities in China and Taiwan, (University of California Press, 1996) 

3 

 Gilman, Sander, Making the Body Beautiful:  A Cultural History of Esthetic Surgery, 

(Princeton University Press, 1999) 

4 

 Samaddara and Shah,  Dalit Identity and Politics (Sage Publications, 2001) 

5 

 Gilman, Sander, The Jew’s Body (Routledge Press, 1991) 

6 

 For an excellent compendium of such experiments, see Harriet Washington, Medical 

Apartheid:  The Dark History of Medical Experimentation on Black Americans From 

Colonial Times to The Present (Doubleday, 2006) 

7 

 Ibid 

8 

 Daly, “DNA Tells Students They Aren’t Who They Thought,” New York Times, April 

13, 2005 

9 

 Id. 

10 

 Id. 

11 

 Id. 

1 

1 

2 

 “Title,” New York Post,  March 22, 2007 

3 

 The Daily News