2/3: legal construction of race pt 2

describe how law shapes ideology

• legitimizes the existence of races

• helps racial categories transcend the sociohistorical contexts in which they develop

• reifies racial categories (i.e. makes racial categories concrete

one example of how the law legitimates the existence of racial categories

census!

• always asking about race/demographics

• lots of groups weren’t covered in data or history

example #2 of how the law legitimates the existence of racial categories

civil rights legislation

• in order to make claims about discrimination, individuals much identify as part of a minority group

helps racial categories transcend the sociohistorical contexts in which they develop

example #3 of how the law legitimates the existence of racial categories

mashpee wamanoag indian tribe

• 1976 the mashpee community in cape cod sued to recover tribal lands through the indian non-intercourse act

  • statute (written in 1790) required that they first prove they were a tribe within the meaning of the word as defined by the supreme court

  • bc they didn’t meet the 1901 standard, their suit was denied

• fyi in 2007 the mashpee tribe became a federally recognized tribe and was able to start re-acquiring land

  • has real world consequences

describe the role of legal and non-legal actors in reifying racial categories as concrete

• unconscious bias in application of laws

• helps the design and promulgation of facially neutral laws likely to have racially disparate effects

• complicit in racially institutions?

which one?

describe how judges can play a role in prerequisite decisions to make racial categories concrete

• they can be immoral actors who are racist and are willing to violate public norms of anti-racism

• cynical public manipulators who are aware of their racist actions and of the public’s dislike of racism and thus use reasoning to manipulate the public

• unconsciously biased actors who are unaware of their racism and will thus claim that their racist thinking/justifications are nonbiased

brumfiled v cain (2015)

1993: kevan brumfiled (black male) and another person murdered betty smothers (black woman), an off-duty police officer. brumfield argues that his sentencing was unfair bc he hadn’t been able to establish. mental impairment

dissenting opinion

• focuses on dunn’s “racial exceptionalism” indicating that those, like brumfield, who don’t fit this mold are undeserving