In significant ways, legal texts produce a narrative of national identity. They weave stories about who we are, what we are committed to, and what we expect of one another, individually and collectively. The concept of justiciability can be understood as a set of rules determining what stories courts are allowed to tell about who we are and who we can be. In this sense, Ronald Dworkin's account of judging as writing ongoing chapters in a chain novel provides a compelling conception of law as both describing where we have been and directing where we are going. If the salience of national identity is derived, in significant part, from our membership in an imagined community, then the production of a national symbolic through legal storytelling is an appropriate and legitimate role for courts – particularly in a nation as large as ours. In this process, certain foundational fictions, like "We the People," provide the glue that over time binds a people to its past and to one another as a nation.
But should law play the same role with respect to other aspects of human identity? I think not. Current debates surrounding affirmative action, congressional redistricting, the Million Man March, and the appointment of Clarence Thomas to the Supreme Court all represent cultural flashpoints in an ongoing national discussion about two fundamental questions: what does it mean to have a race or be a member of a particular race, and who has the authority to decide?
In the service of enslaving, segregating, and subordinating African Americans, law has claimed for itself the authoritative license to tell the story of racial meaning in this country – whether by declaring a certain race of people the status of property, by defining as negro any person who has one drop of negro blood, or by determining that race is a factor that may not be taken into account in the distribution of social goods or political rights because our Constitution is color-blind.
Therefore, I have selected Sunseri v. Cassagne as my favorite judicial opinion. It represents an absolutely fascinating judicial confrontation with the problems of proof that arise when racial identity is litigated in a manner similar to that of, say, quieting title. In Sunseri the Louisiana Supreme Court considered an appeal from a trial court order granting the request of Cyril Sunseri, a white man, that his marriage be annulled because, he maintained, his wife was legally negro. Verna Cassagne, the woman Sunseri married and who all agreed was phenotypically white, sought a divorce and alimony because, she insisted, she was white. In 1935, when the couple was married, the state of Louisiana prohibited and rendered void the marriage of any white person to any person having a trace of negro blood.
The court was thus faced with adjudicating Vema Cassagne's racial identity. It was presented with this problem only because it took it as given that looking like and identifying as a white person did not mean that one was a white person. Several interesting consequences flow from this conception of racial identity: if a person could look white, but not be white, then what does it mean to be white? Could one be white but not look white? Perhaps looking white is a necessary yet not sufficient condition of being white. What does a white woman look like anyway? If phenotype is not what racial identity means, then is how you look a representation of racial identity? If so, a representation of what? Finally, who should decide the answers to any of these questions?
Law | Law and Gender | Law and Race | Law and Society
Katherine M. Franke,
What Does a White Woman Look Like? Racing and Erasing in Law,
Tex. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/497