Racial Norms and Legal Classifications

SpearIt, Saint Louis University School of Law, has published Enslaved by Words: Limits and Liminalities of 'Post-Racial' Language. Here is the abstract.

This article examines racial language in the legal institutions of the United States to show how the law is instrumental in establishing linguistic norms about race. By examining federal and state constitutions, Supreme Court opinions, and government surveys like the U.S. Census, the article unveils a hidden transcript embedded in normative language and attempts to describe how legal classifications work to subordinate minority groups. Racial language is legalized and normalized in society by the force of law, which has institutionalized words like “Indian,” “colored,” and other seemingly innocuous terms like “black” and “white.” Yet, despite their politically correct appeal, these terms effectively subordinate groups, create false binaries, and reinforce racial hierarchies like the “one drop rule.” They are words of everyday parlance that exert an invisible, yet powerful, negative force on minorities. In this census year, for example, who is formally “Hispanic,” “Latino,” or “Spanish” can be people whose “origin” derives from Cuba, Puerto Rico, Mexico, Spain and a whole host of other countries, yet determining the principles which guide the U.S. Census in combining these nationalities under a single banner is a more daunting task. Even more challenging is trying to determine how a “Latino” must then pick between “white” and “black” on the census survey to describe “race” since “Latino” is not a race, but “black” and “white” are. The logic of these divisions is puzzling, yet their negative effects are clear; racial language is never “only words,” but instead can become a conceptual building block of slavery, colonialism, and other forms of subjugation. Terms of today’s common speech can embody the very epitome of discrimination - hegemonic words of the slave master that are still alive and captivate minds in the present. To remedy these iniquities, the article concludes by offering a set of ideas to move beyond the trappings of contemporary racial language and closer to
true freedom of speech.

The full text is not available from SSRN.