M. R. Franks*

This article appeared in the 16 September 1994 issue of New Law Journal, published by Butterworths in London. It may be cited as M. R. Franks, Seeing in Black and White, Part I, 144 New Law Journal 1249 (Sept. 16, 1994).

Copyright © 1994, M. R. Franks, Baton Rouge, Louisiana

*Maurice R Franks is Associate Professor of Law at the Université de Cergy-Pontoise, Paris, France, and Assistant Professor of Law at Southern University, Baton Rouge, Louisiana. He holds his Bachelor of Science and Juris Doctor degrees from Memphis State University.

Maurice R Franks examines discrimination by definition

America's definition of "black" is unique in the world and symptomatic of the irrational racial polarisation which afflicts the United States. The tacitly accepted definition of "black" used in America is discriminatory and unconstitutional.

In France, the United Kingdom and most of the rest of the world, including Africa, a person of mixed black and white blood is considered to be just that -- a person of mixed blood. France and francophone Africa use the term métis or métisse to describe a person of mixed African and Caucasian blood. In the United Kingdom and in English-speaking Africa, the term is "coloured".1 Whatever the terminology, most of the intelligent world recognises the reality that the various races are all equally capable of mixing, and the offspring of a mixed union is a mixed child.

But in America, the definitions are different.2 Langston Hughes said it in his book, Simple Takes a Wife:

"Leaning on the lamp post in front of the barber shop, Simple was holding up a copy of the Chicago Defender and reading about how a man who looks white had just been declared officially colored by an Alabama court.

'It's powerful,' he said.


'That one drop of Negro blood - because just one drop of black blood makes a man colored. One drop -- you are a Negro! Now, why is that? Why is Negro blood so much more powerful than any other kind of blood in the world? If a man has Irish blood in him, people will say, "He's part Irish." If he has a little Jewish blood, they'll say, "He's half Jewish." But if he has just a small bit of colored blood in him, BAM! -- He's a Negro!" . . . Even if you look white, you're black. That drop is really powerful. Explain it to me. You're colleged.'"3

The United States, unlike other countries and cultures, no longer even uses terms specifying racial gradations.4 The terms mestizo, mulatto, creole and quadroon have all but disappeared. Not since 1910 has the federal census used an intermediate term.5 Where no legal or social consequences attach to race, the need to cram people into "either/or" classifications simply vanishes. However, straddling or blurring of racial classifications cannot be tolerated where one's legal or social rights depend on one's race. It is almost as if the United States is in a state of perpetual denial: denying to black persons (and only to black persons) the right to mix, denying to persons of part-black ancestry the right to claim mixed ancestry, linguistically denying even the obvious reality that blacks and whites are capable of intermarrying and procreating. Neil Gotanda writes:

"One way to begin a critique of the American system of racial classification is to ask, ‘Who is Black?' This question rarely provokes analysis; its answer is seen as so self-evident that challenges are novel and noteworthy. Americans no longer have need of a system of judicial screening to decide a person's race; the rules are simply absorbed without explicit articulation . . .

American racial classifications follow two formal rules:

1. Rule of recognition: Any person whose Black-African ancestry is visible is Black.

2. Rule of descent: (a) Any person with a known trace of African ancestry is Black, notwithstanding that person's visual appearance; or, stated differently, (b) the offspring of a Black and a white is Black.

Historians and social scientists have noted the existence of these rules, often summarized as the ‘one drop of blood' rule, in their analysis of the American system of racial classification. Anthropologist Marvin Harris suggested a name for the American system of social reproduction: ‘Hypodescent' . . .

The American legal system today lacks intermediate or ‘mixed race' classifications."6

The American psyche seems to demand polarisation, not just along racial lines but along all possible lines. All persons must be divided into warring groups -- blacks against whites, women against men, gays against straights, labour against management, even generation against generation. Persons belonging to any identifiable group are expected to work only through their cause's organised pressure groups, through their supposed spokespersons. Persons in America, white and black, male and female, evidently are presumed incapable of standing up and negotiating for themselves as individuals; instead they are encouraged to derive their sense of identity primarily from their attachments to institutions.

These institutions then are then expected to engage in "positional bargaining". This is a particularly unproductive form of negotiation in which one side makes excessive demands and the other side then resists every demand to the fullest, conceding scorched earth to the perceived opponent one centimetre at a time, and then only when absolutely forced to do so by a court or legislature. Roger Fischer and William Ury of the Harvard Negotiation Project have shown that little gets accomplished with this form of bargaining.7

Indeed, balkanisation of society into rigidly defined and highly organised opposing camps may be a cultural idiosyncrasy that America acquired in the wake of slavery. When appeals to natural justice and reason fell on deaf ears, blacks were forced to demand that which rightly was theirs -- from the right to ride the bus to the right to acquire desirable residential property, from the right to a legal education to the right to vote. The civil rights movement, and to a lesser extent the labour movement, became the model for social change in America: a model of organised demand, obdurate resistance, and little meaningful change.

Demand v resistance is now the ossified, obligatory ritual dance of social change. On all fronts, it seems, Americans debate every issue vociferously, using the rhetoric of polarisation; yet in America little real progress on social issues is made.

The battle of the sexes is illustrative. America has witnessed a strident battle for sexual equality. Those on the demand side of the equation even excoriate the generic use of the article he and exhort writers instead to use the more awkward term he or she. It is chalked up as a victory when road repair signs reading men at work are replaced with ones proclaiming persons at work.

In France, where the national language is even more sexist than English, most women law students gape in incredulity at the suggestion that the word il (he) should be replaced with il ou elle (he or she). The French find it amusing that we in America argue over such things. Yet while our battle stateside continues to rage full force over such trivia, most of the real progress towards equal rights has been made elsewhere: back in the 1960s, when the typical graduating law school class in the United States had perhaps one female member, the legal profession in France was already nearly 50 per cent female. While we in America debated equal rights, women heads of state and heads of government were being chosen, often quietly and with little local fanfare, in Argentina, Bangladesh, Bolivia, Burundi, Canada, Dominica, France, Iceland, India, Ireland, Israel, the Netherlands Antilles, Nicaragua, Norway, Pakistan, the Philippines, Poland, Portugal, Sri Lanka, Turkey, and the United Kingdom,8 but certainly not in the abrasive United States. The Norwegian cabinet today has nine women among its 19 members.

As for national legislatures, one writer notes, "The prevalence of women lawmakers n the US is no greater than in the world's most unliberated societies, for example, Greece, Turkey, and Japan."9

In every area, it seems, America institutionalises the quibbling over marginally relevant minutiae, a diversion perhaps from the unpleasant task of confronting and dealing with the real problems. The more pugnacious fall for the bait and cheerfully begin bickering on cue. The less contentious make perfectly reasonable demands, which predictably are stonewalled. Ostentatious posturing, noisy engine-revving and unproductive wheel-spinning are the order of the day and take precedence over quiet substantive progress.

So too on the racial front. While France and England and most of Europe have been making strides, America has been making noise. What few changes result are mainly window dressing. Reams of paper are churned out on whether our indigenous population should be called "Native Americans" or "American Indians", and whether names of sports teams such as the Washington Redskins are offensive and inappropriate. Meanwhile, back at the reservation, conditions of unmitigated addiction, crime, disease and poverty go largely unaddressed.

In America, according to Andrew Hacker, "racial tensions serve too many important purposes to be easily ameliorated".10

The United States is a racially divided house. Professor Hacker observes:

"It is revealing that so much information about ourselves is classified according to race. We publish separate black and white breakdowns on whether mothers breast-feed their babies, and for persons who have been arrested for embezzlement. The census even has separate racial columns for people who bicycle to work. But it would be a mistake to view such tabulations as depersonalized data. On the contrary, they can tell a very human story."11

Our unique polarisation creates unique social problems. A black youngster asks his mother, "If a third of our city is black, why are most of the doctors, lawyers and other important people white?" The very day a child asks that question, he begins for the first of many times in life to ponder whether hard work and study will ever really pay off for him. The child has just been told, in powerful terms, that the American dream is simply not for him. Small wonder if he begins to tune out on society.

Racism's toll on our economy is unbearable. Schools fails to produce skilled workers who can compete in world markets. Crime and addiction increase. Industry, unable to obtain well-educated, skilled labour, moves to the Pacific Rim or the Caribbean.

The United States is a dysfunctional country. With 6 per cent of the world's population, we consume 60 per cent of the world's illegal drugs.12 Crime, violence and unemployment are all on the rise. America is failing to compete successfully with Japan and now faces new competition for a "United States of Europe" with a present population of 325m which may grow to over 500m if Eastern European countries join the European Community. As the United States loses its world markets in one field after another - garments, electronics, automobiles -- jobs quietly disappear at home one by one, while the dollar declines even further. And how can one even expect the United States to compete successfully in the world when large percentages of its population are alienated, unmotivated in school, and less than optimally utilised in the workforce?

Prosperity occurs in a country only when men and women enjoy freedom, hope and a sense of equality -- and when all segments of society have an incentive to pull the nation's economic wagon in unison. These qualities are sorely lacking in America today, and our national harvest is one of crime, drugs, unemployment and industrial "downsizing".

Indeed, the South for decades has been at the economic bottom and the criminal top of the country's statistics, and only those Southern cities and states that have taken aggressive steps to overcome prejudice have risen from the economic mire.

America's simplistic, black-and-white mentality exacts a terrible toll not only on the economy but also on society. America by its attitude has created an underclass. Simply put, overweening racism breeds despair and elicits violence, all the more so in a country where citizens of every colour already have a higher-than-normal predisposition to violence.

America now has per capita murder and rape rates ranging from two to 21 times those of Europe.13 Our murder rate is 324 per cent that of Europe as a whole,14 and our rape rate is 549 per cent that of France and 21.62 times higher than Ireland's.15 Nor is America's propensity for violence and crime limited to the black community. Even predominantly white states such as Idaho, Maine and Montana, where well under half a per cent of the populace is black, are still more violent than most of the civilised world and hardly suitable role models for the rest of the country. We should not be surprised that our national obsession with violence manifests itself most visibly in the underclass that we have created.16

Myopic eyes see no solutions other than more police, larger prisons and stricter punishment. America cheerfully pays more per capita than any other country for the care and feeding of the world's largest prison population, still growing. According to author Michael Wolff:

"The US imprisons more people than any other country, surpassing even the most repressive police states . . . Even in its totalitarian heyday, the Soviet Union jailed nearly 40 per cent fewer of its citizens. Beyond the issue of expense -- $16 billion annually, with the yearly cost per prisoner approximating the tuition for a year at a top private college - imprisonment breeds repeated imprisonment."17

Nationwide, the United States has 455 prisoners per 100,000 population;18 in California, the figure jumps to 635 per 100,00019 -- that is, 2 per cent of adults over the age of 18,20 that obviously must be fed, housed and clothed by the remaining 98 per cent of adults, reducing national productivity on just this one account by nearly 4 per cent.21 Perhaps it is less than coincidental that it is South Africa that comes in, second only to the United States, at 311 prisoners per 100,000. Canada, with an "enviable record" on racial matters,22 imprisons only 111 persons per 100,000. The People's Republic of China also imprisons only 111 persons per 100,000. Trailing the list, the Netherlands comes in at 46, followed by Ireland and Sweden at 44, and Japan at 42.23

The gnashing of teeth we hear is the sound of our own intolerance as we discover that dodging bullets while living under constant fear of violent crime in our paradisiacal cesspit of apartheid is harvest and punishment fitting indeed for the centuries of racist iniquities that have culminated in this, our perfectly polarised paradise.

America's "one drop" approach is music to polarising ears. It is also demeaning to persons of African and part-African ancestry, since it treats black blood differently from any other blood, stigmatising it as a contaminant. And the unique inability of Americans to see colour in any terms other than black and white exacerbates racial tensions in what surely is already one of the most race-conscious countries in the world.24

Part 2 will appear next week



1Not to be confused with the obsolete American word colored, the British word clearly denotes only someone of mixed blood.

2Cf Plessy v Ferguson, 163 US 537, 16 Sct 1138, 41 Led 256 (1896)(tacitly accepting that a person one-eighth black and seven-eighths white is legally black). Volumes could be, and have been, written on regional and national differences in the definitions of "black," and on the history of racial teminology as it evolved in America and other countries over the course of several centuries. The purpose of this article, however, is to deal with the present-day reality without embarking on a fascinating but potentially voluminous digression. For excellent brief histories of racial classification in the United States, see Raymond Diamond & Robert Cottrol, Codifying Caste: Louisiana's Racial Classification Scheme and the Fourteenth Amendment, 29 Loyola L Rev 255 (1983); Paul Finkelman, The Crime of Color, 67 Tul L Rev 2063, 2106-2111 (Jun 1993).

3Langston Hughes, Simple Takes a Wife 85 (New York: Simon and Schuster, 1953), quoted in part in: Neil Gotanda, A Critique of "Our Constitution is Color-Blind," 44 Stan L Rev 1, 26 n101 (1991)(emphases in original).

4Andrew Hacker, Two Nations: Black and White, Separate, Hostile, Unequal 11-12 (New York: Charles Scribner's Sons, 1992).

5Ibid at 12.

6Neil Gotanda, A Critique of "Our Constitution is Color-Blind," 44 Stan L Rev 1, 23-25 (1991)(footnotes omitted)(sic as to Professor Gotanda's stylistically curious decision to capitalise"Black" while correctly not capitalizing "white"; see, eg The Associated Press Stylebook and Livbel Manual 26, 141 (rev ed 1987)).

7Roger Fischer & William Ury, Getting to Yes Boston: Houghton Mifflin Company, 1981).

8Isabel Peron in Argentina, Begum Khaleda Zia in Bangladesh, Lidia Gueiler in Bolivia, Sylvie Kinigi in Burundi, Kim Campbell in Canada, Mary Eugenia Charles in Dominica, Edith Cresson in France, Vigdis Finnbogadottir in Iceland, Indira Ghandi in India, Mary Robinson in Ireland, Golda Meir in Israel, Maria Liberia-Peters in the Netherlands Antilles, Violeta Chamorro in Nicaragua, Gro Harlem Brundtland inNorway, Benazir Bhutto in Pakistan, Corazon Aquino in the Philippines, Hanna Suchocka in Poland, Maria de Lourdes Pintasilgo in Portugal, Sirimavo Bandaranaike in Sri Lanka, Tansu Ciller in Turkey, Margaret Thatcher in the United Kingdom.

9Michael Wolff, Peter Rutten & Albert Bayers, Where We Stand: Can America Make It in The Globl Race for Wealth, Health, and Happiness? 189 (New York: Bantam Books, 1992)[hereinafter "Wolff"].

10Hacker, supra, note 4, at xiii.

11Ibid at xi.

12Denny Boyd, Turning to Uncle Sam in Time of Crisis is a Turn for the Worst, Vancouver Sun, January 31, 1992, at B1; accord, Philadelphia Tribune, November 10, 1992, at 5A.

13See Wolff, supra, note 9, at 289.

14See Wolff, supra, note 9, at 289. In addition, as one comparison, New Orleans saw 389 murders in 1993. Paris, France, saw 135 murders during 1992 (the last year for which figures had been compiled at the time of the author's interview of the public affairs officer of Interpol in Paris). That's in a city of 8.7 million -- seven times larger than New Orleans. The murder rate in Paris is only 4.96 per cent of the murder rate in New Orleans. Thus, one's chances of being murdered in New Orleans are 20 times one's chances of being murdered in Paris.

15See Wolff, supra, note 9, at 289.

16See eg Andrew Hacker, supra, note 4.

17Wolff, supra, note 9, at 297.

18Aaron Epstein, US Locks Up Role as World'sTop Jailer, Houston Chronicle, Feb 11, 1992, at A2.

19Vincent Schiraldi, In One Area, California Still Leads the Country; Prisons: Our System is Gargantuan, Yet Hasn't Impacted Crime, LA Times, March 22, 1993, at B7, col 1 (Home Edition -- Metro).

20Vera Ward & Jack Foley, Take Knife to Recreation Budget and Repent at Leisure, LA Times, July 25, 1993, at B15, col 1 (Metro).

21If the 2 per cent of adults in prison consume that which is producedby a corresponding number of persons outside prison, the total loss of production would be equal to about 4 per cent of the state'sgross domestic product (that which would be produced by the 2 per cent of the adult population in prison plus that which actually is produced by the 2 per cent of the population on the outside whose output supports, feeds,houses and clothes the 2 per cent inside).

22"[W]hile there is still racism anddiscrimination here, Canada has an enviable record. Toronto, in particular, is arguably the world's most successful multiculturalsociety. Racists have made little progress in recruiting a popular following, in stark contrast to the experience of countries such as France, Germany, Britain and the US." Martin Loney, Equity Overkill -- New Ontario Bill on Employment will Fuel Hatred, Ottawa Citizen, Aug 19, 1993, at A11. For a brief history of blacks in Canada, see Valerie Vaz, The Black Presence in Canada: Follow the North Star, Essence, Oct 1993, at 87. For an inspiring account of a small Ontario town's encounter with skinheads and neo-Nazis, see Lesley Simpson, How a Village Got the Grit to Chase Away Armed Racists, Vancouver Sun, June 18, 1993, at A10

23Epstein, supra, note 18.

24The only other real contender for the title is South Africa -- another polarised country that curiously is second only to the United States in the percentage of its population that is incarcerated.

Continue on to Seeing in Black and White, Part II

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