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37 Identity Notes, Part One: Playing in the Light ADRIENNE D. DAVIS "What parts do the invention and development of whiteness play in the construction of what is loosely described as 'American' " ?1 And how does binarism affect law and legal study? ["Binarism" refers to the socially constructed, dualistic black/white paradigm of race, which is dominant in Western culture today. Ed.] The paradigm appears internally neutral, as though blacks and whites were equally situated within it. Yet the cases discussed below suggest that a primary motivation in the crafting of the American racial architecture may not have been a pure desire to have a taxonomy for classifying races, but to define and protect white identity. This search for white identity has been documented by Nobel laureate Toni Morrison. She argues that whiteness as a discrete concept remains largely unexamined in American culture. Her readings of classic nineteenth-century literature indicate that whiteness became defined by its opposite: color, and more specifically, blackness.2 In my seminars on race and law, I routinely ask the students to define "black culture." A variety of attributions pour out: emotion and soul, instinct and intuition, violence and passion, drive and pride, spirituality and strength. Yet when I ask for the attributes of "white culture" the students are stumped, sometimes disturbed. I have yet to have a student attach a meaning that does not refer to a more specific class-based or ethnic culture rather than a more broadranging racial culture of whiteness. I emphasize the void around whiteness to illustrate the embeddedness of polarizing logic in the American racial paradigm. Other racial groups form their identity around shared cultural norms, common histories of immigration, mythologized homelands, or racial oppression. Non-Hispanic white American identity appears to be formed solely around the experience of being not black, Asian, or Latino/a. White Americans do not appear to have a sense of racial identity that is not linked to ethnicity or class, unless juxtaposing themselves against blacks, Asian Americans, or sometimes Latinos/as.3 Hence, the social and legal construction of colored identities is critical to the maintenance of white identity. It is against this backdrop that I will examine two cases in which non-black groups of co.lor negotiated the black/white paradigm in efforts to secure their own civil rights. The appearance of whiteness as an organizing legal principle becomes critical in understanding the maintenance of contradictory rules of law and race. 43 AM. U. L. REV. 695 (1996). Originally published in the American University Law Review. Reprinted by permission . Copyrighted Material 232 Yearning to Be Free Adrienne D. Dqyis One significant question in both cases is who will define and assign racial labels. This power of assigning race suggests a larger question about the role of white identity in these cases. In Virginia in 1806, two enslaved women, Hannah and her daughter, asserted their freedom against the man who claimed them as his slaves.4 Prior to reaching the issue of their status, the court had to decide which party, the alleged slave or claiming master, bore the burden of proof. The political economy of slavery, including the requisite legal regime, sharply restricted the capacity of any black to participate in the production, use, and circulation of texts, especially any that would satisfy legal evidentiary standards. Hence, the designation of alleged slaves as the party with the burden of producing documents would deny to many of them a legal remedy of freedom for illegal enslavement. In Hudgins v. Wrights, the Virginia Supreme Court considered the servitude status of Native Americans. Native Americans were held as slaves throughout the colonial era and early antebellum period. However, Virginia formally recognized by statute Native American enslavement only between the years 1679 and 1705. Because slavery descended matrilineally in the United States, an alleged slave would have to satisfy two prongs of a test in order to be entitled to freedom. First, the slave would have to demonstrate that he or she had a maternal ancestor who was Native American, opening the possibility that the ancestor legally was free. Second, the slave would have to demonstrate that the ancestor was not enslaved between 1679 to 1705, the period of legal Native American enslavement. Hannah and her daughter claimed their freedom through their mother/grandmother, Butterwood Nan. If Butterwood Nan had been held as a slave outside of the statutorily prescribed period in Virginia, the appellees would go free. The judges decided in Hudgins v. Wrights...


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