Is Kamala Harris Legally African American, Indian, Both, Neither, or Something Else?

Harris' origins allow her to properly claim Asian or Black/African American legal status, and she has chosen the latter.


Kamala Harris, Joe Biden's pick to be the Democratic Party's vice-presidential nominee, is the daughter of an Indian immigrant mother and a Jamaican immigrant father. Her father, as I understand it, has ancestors of both European and African origin. [Welcome new Volokh readers. FYI, I've been working on a book on the American Law of Race, with this forthcoming article the first relevant output. My own opinion is that Ms. Harris should be deemed American, period, but there is no such box on government forms, and if you decline to state your race, someone will decide for you…]

First things first. There is no multiracial or mixed-race category in American law in any jurisdiction. Nor is there an Indian category. So Harris cannot be legally Indian, nor can she be legally "both."

Indians once had their own census category and at other times were considered legally white. These day, however, they are now firmly in the Asian category. African American or black is defined as anyone with origins in the black races of Africa, so she qualifies as African American as well, even if her father is mostly European genetically, and even though he is an immigrant, not a descendant of American slaves.

Under federal contracting law, which gives preferences to minority-owned companies, Harris could claim Asian American or African American status based on her partial Asian and African ancestry, but she would need to affirm that she holds herself out as a member of the relevant group. Harris asserts a black identity, so legally speaking in the contracting context she would be black/African American and not Asian. (She could also, I should note, properly check the "white" box if she identified as such.)

In some contexts, it would not matter if Harris had any African descent. A Massachusetts court has held that for affirmative action purposes, at least, one can lawfully claim African-American status if one holds oneself out to be African American and others identify you as such. Malone v. Haley, 2 Mass. Civil Service Rep. 1014 (1990).

For federal statistical purposes, however, cultural identification is not required. A person qualifies as "Black" regardless of cultural identification so long as he has origins in a "black racial group of Africa." So, for example, if Sen. Harris filled out a mortgage application and declined to list her race, leaving the mortgage lender with the legal responsibility of checking the right box, the lender would check "African American" if she "looks black," i.e., looks like she has any black African ancestry.

But let's say that Harris herself fills out a government-mandated form, and checks both Asian and Black/African American. Here things get a bit complicated. In the late 1970s, the government mandated that "the category which most closely reflects the individual's recognition in his community should be used for purposes of reporting on persons who are of mixed racial and/or ethnic origins."

In 2000, OMB provided guidance for civil rights monitoring enforcement regarding individuals who check off more than one racial category as follows:

• Responses that combine one minority race and white are allocated to the minority race.
• Responses that include two or more minority races are allocated as follows:
• If the enforcement action is in response to a complaint, allocate to the race that the complainant alleges the discrimination was based on.
• If the enforcement action requires assessing disparate impact or discriminatory patterns, analyze the patterns based on alternative allocations to each of the minority groups.

I've misplaced the citation, but I recall that other federal guidelines state that if a person checks black/African American and another box, she is deemed African American for statistical purposes.

In short, under American law, no one could deny Harris's right to assert that she is half-Indian and less-than-half of African ancestry, but so long as she considers herself, and is considered by others, to be African American, for legal purposes she is black. The major exception would be if she filed a discrimination complaint based on her Asian ancestry. In that case, she would be considered considered legally Asian for purposes of resolving the complain. What, at least at this point, she cannot be is legally Indian, legally mixed-race, or legally no race at all.

UPDATE: I suppose I should have expected that in the partisan thick of a presidential campaign, people would interpret this post as making some political point about Harris. Given that it's supposed to be a partisan "right-wing" site (even though almost none of the Conspirators voted for Trump in 2016), one might expect people to interpret this as an attack on her. It's not. My academic article on the subject, linked above, starts with a discussion of several people of mixed or ambiguous race/ethnicity whose racial or status has been publicly discussed, including George Zimmerman, Tiger Woods, and Rachel Dolezal, and discusses what their status would be under the law. I anticipated there would be similar discussion of Harris. While there was no political point here (other than the implicitly absurdity of having official race categories), I note that several commentators, mostly but not solely on he right, have attacked Harris as not "really" black/African American and is therefore some sort of fraud. Feel free to use this post in her defense. Under the law, which broadly if not precisely reflects (and indeed to a large extent creates) societal expectations and standards, Harris clearly qualifies as black/African American.

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  1. Boy, that didn’t take long.

    1. Well, at least he’s not calling for her to release her long-form birth certificate. Not yet, anyway. Give it time…

      1. Let’s hope the birth certificate issue doesn’t hurt Sen. Harris as much as it hurt Sen. Obama.

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        2. Don’t worry, this bitch is even more unlikable than Hillary. Her birth issues are eclipsed by so many other negatives.

    2. This is how the clingers choose to mark this day?

      Stomping them in the culture war has been and will continue to be as much fun as it is important progress.

      1. It’s my extreme progressive/radical friends who are pointing out on Facebook that she’s not ‘African-American’, because her mother wasn’t a descendent of slaves brought to the US (and no, I’m not making this up, although to protect their privacy I won’t name them). You might call them ‘clingers’, but it’s not the kind of ‘clinging’ you frequently refer to.

        1. That’s…quite a take and not one I often see in the leftist circles I travel in.

          1. To be clear, not calling you a liar, just that your friends’ dumb take is not indicative of leftist thinking broadly.

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        2. Colin Powell had the same bullshit thrown at him, utterly discounting the racism he experienced.

          1. W.E.B. Du Bois: “The black man is a person who must ride ‘Jim Crow’ in Georgia.”

            What makes Harris “black in an American context” is that her phenotype makes her subject to race hierarchy.

            1. “race hierarchy”

              Liberals all sound like Southern politicians circa 1950.

              1. Actually, the word needed is Caste. Caste Hierarchy,can not be changed, ever.

        3. Based on my experience, you’re speaking of Bernie Bros. If accurate, these are people who see no distinctions between Sanders and Trump, like to talk a lot about “morality,” “policy,” and “true progressives,” and are not likely to vote but might make a show of voting for Kanye or something equally idiotic. Even as so-called “Purity Ponies” they’re more closely related to the saw-horse.

          They believe they are the key that turns the engine, that if Trump wins again THAT will be when everyone acknowledges their righteousness, and are nobody who anybody should bother taking seriously.

        4. She was a descendant of slaves brought to Jamaica. But the litmus test is: Would she have had to drink from the Black water fountains or used the Black bathrooms (or lack thereof) in Mississippi in 1950.

    3. I take it this was before he explained the context of this piece.

    4. Professor, at best, you get an “I” for “Incomplete” for your effort here. The U.S. Equal Employment Opportunity Commission clearly includes “Two or More Races (Not Hispanic or Latino)” in its race and ethnicity categories. The “Two or More” category is defined as “All persons who identify with more than one of the above five races.” See:

  2. Just one serious question:

    Who the hell cares?

    Besides the people who keep score about racial purity?

    Like the Democrats.

    1. Talk to Ilya Shapiro.

    2. “Besides the people who keep score about racial purity?
      Like the Democrats.”

      Are you calling Prof. Bernstein a Democrat?

      Until this moment, I genuinely believed that making fun of conservatives was the only thing that could get a commenter banned by the Volokh Conspiracy.

      1. “Until this moment, I genuinely believed that making fun of conservatives was the only thing that could get a commenter banned by the Volokh Conspiracy.”

        Yeah, but that’s just because you’re a fucking moron who believes stupid shit.

        1. I thought he was a parody account until it was explained to me that he came to Reason when TVC did. I doubt anyone could keep up this kind of gag for so many years.

          If he is a parody, it’s of Tony Clifton proportions.

    3. Well, today the far right seems mighty concerned that Sen. Harris is not Black enough. And not dark-skinned enough. And too “ambitious.” And as a young intern, had a fling with a married man. (They are BESIDE themselves about the latter.)

  3. Legally? It shouldn’t matter.

    1. In a country with the 15th Amendment, even asking someone should be a civil rights violation for the government official making the request.

  4. 50% Indian but can’t be an Indian.

    1. Shoulda chosen Lizzie. I’m sure she could find something black in some woodpile somewhere.

      1. Don’t feel too bad for Sen. Warren, who seems destined to be in the Cabinet as of early next year.

        1. I don’t believe Trump will nominate her.

          1. Just not enough poorly educated bigots left in America to position Trump for another Electoral College trick shot, Darth. The electorate’s improvement for four years — more diverse, less religious, less bigoted, less rural, less backward — makes it even tougher for Trump than it was last time (in the general vote and at the Electoral College).

            I caution Democrats against overconfidence, though. If conservatives perfect a machine that mass-produces cranky, old, superstitious, poorly educated, roundly bigoted, easily frightened, disaffected, grievance-consumed, rural, southern, white males — and Republican lawyers figure a way to register those newly minted yahoos to vote — the American mainstream could have a real problem on its hands come November.

            1. You are going to be so disappointed come November.

              1. I focus on the big picture.

                The culture war is not over, but it has been settled.

                My preferences have been winning in America throughout my lifetime and that is destined to continue.

                Another QAnon kook won a Republican congressional primary today. Conservatives’ political future in modern America is a bright spot . . . for the liberal-libertarian mainstream.

                Trump is not likely to win another term but if he does it won’t influence the long-term trajectory of American progress and political battle. The backwater bigots don’t win in America . . . not over time. Just ask the Irish, the Italians, the Jews, the Catholics, the blacks, the gays, the Muslims, the women, the Asians, the Hispanics, the other Asians, the other Hispanics. And our current batch of bigots is nothing special, its reliance on the charms, insights, and integrity of Donald J. Trump notwithstanding.

                I look at modern America, and our country’s course of progress, and our predictable future, and I am content. Content enough that another Trump term would be a speed bump for tolerant, modern, successful, educated, reasoning America.

                1. Keep thinking that. If you keep ‘winning’, real Americans will turn on your kind and wipe them off the map. So when you are facing down a brutal violent death from your betters, remember what I said.

            2. Your reply is as intelligent as Hilary’s calling Trump supporters ‘deplorable’. Underestimating smart, educated people, the ‘silent majority’ who are going to vote for Trump will cause a rude awakening for the arrogant ‘elite’ in November! Thanks to all Democrats for supporting the rioting, you helped Trump tremendously! Biden/Harris the worst ever team!

              1. Education in gender studies does not make one smart; it advertises the opposite. Sort of like a reverse peacock.

              2. Nevermind that Trump supporters can be very well educated and informed, can separate style from actions, and some voted for Obama. One does not have to be a Trump supporter (or 2016 voter) to vote against contemporary Dems as the bigger threat to US long term. On the one hand we have a hyperbolic used car salesman who has generally supported policies within the GOP mainstream. On the other hand a full term Resistance with persistent lies about the-Russians-are-coming, the US-is-uniquely-evil-since-our-1619-birth, racism-causes-widespread-police-violence, and the US-response-to-global-pandemic-is-truly-the-worst.

            3. “cranky, old, superstitious, poorly educated, roundly bigoted, easily frightened, disaffected, grievance-consumed, rural, southern, white males ”

              So, Biden is out?

          2. Great answer, couldn’t stop laughing!

    2. She can pick Asian or African American. African Americans are beneficiaries of affirmative action, whereas Asians are among those disadvantaged in compensation for the advantage of African Americans. So of course she chose to be African American. It’s to her advantage.

    3. I suppose we should require 23-and-Me profiles from all candidates now.

  5. Isn’t a dual citizen of Jamacia? Based on her dad’s citizenship when she was born.

  6. We just can’t stop ourselves, can we? Everyone needs to be slotted into the proper category so we can decide how we feel about them. She’s an accomplished lawyer and elected official. Can’t we simply judge her on how she’s lived her life and performed her jobs? Whether you like her policies and history or not, what the hell difference does it make where she’s from or what her genetic makeup is? Grow up and enjoy the 21st Century.

    1. Bernstein is still hurting from Elizabeth Warren getting elected senator.

      1. I think that’s Zywicki, who disappeared from here shortly thereafter, leaving the position of dumbest conspirator open.

      2. I doubt it. The Conspirators know they have lost the war and are mostly going through the motions for career purposes. They ‘can’t even feel the pain no more.’

        Well, except for Blackman. He seems to genuinely believe the culture war hasn’t been settled and that conservatives might have a chance to prevail. His eventual recognition of reality likely will be mind-bendingly painful.

    2. If by “we” you mean democrats, no.
      “Whether you like her policies and history or not, what the hell difference does it make where she’s from or what her genetic makeup is? ”
      Then if you disagree with her policies, you are a racist.

      (Of course, the real response is she is an American. No hyphens. The Rev Martin L. King approach)

    3. What exactly has she accomplished? Banging her way into government? Putting black men in jail for smoking weed? Lying about integrating a school in California which never had Jim Crow style segregation?

      1. 1. Causing one IceTrey to panic.
        2. And flail around in wild incoherence.

        That’s two accomplishments right there….

        1. 1. The only way Biden beats Trump is if Trump is dead.
          2. Those things didn’t happen?

        2. Of course GRB won’t respond to your points, as he is a lying piece of dogshit that has no argument or facts to back him up.

      2. She is an accomplished lawyer and former district attorney and state attorney general. She is a United States Senator. She seems likely to be the next vice president. She is on the right side of history.

        She makes you look like a paltry person.

        1. List her accomplishments. What’s her signature legislation as a Senator?

          1. I avoid performing basic research for ignorant, bigoted, right-wing culture war casualties.

            Carry on, clinger . . . but only so far and so long as your betters permit. Six months, most likely.

            1. So you called her accomplished but don’t know any of her accomplishments off the top of your head. I guess you’re just a liar.

              1. He is absolutely a liar. Arty has never been able to back up a single claim he has ever made. Really he’s a punchline to a bad joke.

            2. “I avoid performing basic research.”

              That was all you needed to write. Then, it at least would have been the truth.

              Fucking moron.

      3. This Harris is a slut thing is not a good look.

        1. You appear to misapprehend the Republicans’ target audience. Most of them recall fondly the days when a guy could smack his wife around without having some busybody neighbor call the police.

        2. “Harris is a slut”

          I believe he called her a prostitute, not a slut.

          Sluts do it for fun, she got paid for her work.

          1. Really leaning into the misogyny, huh?

            1. I recall how Sarah Palin was treated. Turnabout is fair play.

              1. Principled conservatives are now the ones who look for pretexts.

                1. Principles in politics are for losers.

                  1. At least you’re honest about it, though it’s a kind of opportunistic self-justifying you-guys-did-it-first honesty which isn’t honesty at all just the closest you can get to honesty. When you elect Trump you don’t get to claim to be principled or honest.

                    1. “When you elect Trump you don’t get to claim to be principled or honest.”

                      I didn’t elect Trump. The good people of Wisconsin, PA and Michigan did.

                      Still a better choice than Clinton though to be honest.

                    2. Just what you’d expect someone who has denied his principles because they are politically unpopular to say.

                    3. “denied his principles”


                      I don’t claim any political principles

                  2. Donks have no Principles, only Principals.

                    Hence, Harris can now ignore her “belief” in Biden’s sexual harassment accusations.

              2. Palin was treated as an idiot, and rightly so.

            2. It isn’t misogyny. Horizontal Harris just happens to be a sleaze. It sure is funny how indignant progtards become when someone turns their own shot back on them.

              Progressives being hypocrite trash.

        3. Republicans are big on sexual morality.

          They would never support a candidate with even a hint of improper behavior in their past.

    4. Are you just going to ignore that she was picked for her skin color and sex?

      1. Meh. Clarance Thomas was not the most qualified when he was nominated. He was not the 25th most qualified. But, he was qualified…and, he was a deeply and reliably conservative black judge, and that is what the president was looking for at the time. And no Republican at the time was saying, “Thomas was absolutely the most qualified to be the nominee.”

        You look for people who are good enough. And then, from that population, you pick one of them. You think it’s more admirable to pick a very religious VP candidate just because you are 100% non-religious and you need the evangelical vote? Or to pick someone just because he is sentator/governor of State X that you need to carry?

        But your faux outrage is duly noted.

        1. Scepter Harris isn’t even qualified for any job she’s ever had. Her track record proves that. Of course, progressives fail upwards.

      2. Running mate selections (Harris) and political appointments (Thomas) are inherently political, and political considerations will always play a role. Just keep the politics in mind when you vote.

      3. Well, so was Pence, so what?

        1. Pence was picked because he was one of the few prominent GOPers Trump was sure would accept.

          Being an evangelical was second.

          1. Lol as if those two things and his race and sex weren’t all tied up together.

    5. Who cares about her race – at some point the bigots and clingers will judge a person by the content of their character.

      1. That day has not yet arrived although in response to my point below, it appears David thinks it has.

      2. That will not happen until the final Democrat breathes their last.

    6. The Dems seem worried about labels. Everyone here is knocking her record.

    7. Sorry, you’re way too rational to be commenting here.

  7. Mostly a cop who put 2000 in jail for marijuana violations.

    1. then lit up a joint for herself and called it a day

    2. You have data? Because yesterday I saw data that suggested that she under-prosecuted weed offenses. I’ll go look for mine.

  8. This makes me sad.

  9. Kudos to Bernstein for asking the question that nobody cares about other than hardcore racists and himself.

    1. He’s been pointing out the oddities of American racial classification law all year. Its his new project.

      1. It’s funny how all the usual suspects don’t seem to have noticed. It’s almost like the blog content doesn’t matter, they are just here to say the same nonsense regardless.

        1. You must be new here 🙂

      2. I’m well aware of his current research project. And I hope he enjoys the praise he’ll receive from the alt-right and other neo-Nazis when it gets published by Encounter or some other right-wing boutique publisher.

        1. So far, first installment being published by USC’s Southern California Law Review. But sure, altright blah blah blah

    2. Kinda funny, because it was down to Klobucher and Harris, or so all the pundits said, until the former pulled out, stating that Biden should choose a “woman of color,” and that the two finalists were black women because (a) Biden promised to appoint a woman; and (b) recent events made it seem politically unwise to appoint anyone but a black woman. So yeah, lots of people care what race Harris is, most of them Democrats. But me, I’m only interested in the legal angle.

      1. Geez, how pathetic. it’s been well over two months since any pundit (much less “all the pundits”) believed Klobucher was under serious consideration as Biden’s VP pick.

        Is that how far Bernstein has to go to create his narrative? You have to wonder why he bothers.

        1. You think it’s entirely a coincidence that the two leading candidates for the vice presidency were both black women, one of whom has never held elective office? Even when every media story for the last two months about the vice presidency have talked about how Biden was under huge political pressure to choose a black woman? Did you just fall off the turnip truck?

          1. You seem surprised that Biden allowed politics to influence his choice of a running mate. Just out of curiosity, how many nominees for president didn’t?

          2. Speaking of politics, I wouldn’t be surprised to see Mike Pence become a one-term vice president. Trump and his strategists are likely to be taking a good, hard look at Nikki Haley tonight. But, of course, politics would never enter into that decision.

            1. You are delusional.

              1. Well, it’s Trump we’re talking about. And Nikki has certainly been everywhere this month.

          3. I don’t think it’s a coincidence at all.

            Neither do I think it’s a coincidence that Trump selected a white evangelical Christian as his VP.

            Neither do I think it’s unusual to choose a VP candidate based on appeal to some demographic or other, rather than purely by merit. It’s commonplace, but when Biden does it, it’s suddenly terrible and discriminatory and whatnot.

            1. I think it was dumb to limit himself to women, and that Booker would have been a better potential president than Harris, but of course politics is a primary reason people are chose to be veeps.

              1. Maybe. Who knows?

                My real point is that jumping up and down and screaming (which you are not doing) about how Biden chose Harris solely because of her sex and/or race is really pretty stupid, since VP candidates are often chosen to appeal to certain constituencies.

                Besides, she plainly has appropriate credentials, whatever one thinks of her views.

                1. She was a diversity hire, make no mistake. She was picked in particular because Obama wanted her, and Obama runs the party.

      2. “But me, I’m only interested in the legal angle.”

        The “legal angle?” What is the legal angle with respect to today’s nomination, other than a vehicle for strange meanderings at a “colorblind” blog?

        1. I assume you support the American racial classification system, which underpins both civil rights enforcement, such as it is, and affirmative action. If you are offended by open discussion of that system, then you are a hypocrite. But in fact, that’s true of almost all defenders of the current system, because almost none want it discussed publicly, and any discussion meets with censorship attempts, precisely because it’s both arbitrary, indefensible, and, most of all, as the Harris example shows, absurd.

          1. That this is what you chose to write immediately following the announcement that Sen. Harris would be former Vice Pres. Biden’s running mate is illuminative.

            What did you write about Pres. Trump’s selection of Sen. Pence, who was chosen to punch the ‘intolerant, backwater, religious, white, male’ boxes?

            1. Gov. Pence.

            2. Harris was not exactly a surprise. I can back that up with the money I made betting on her on Predicitit.

  10. “A Massachusetts court has held that for affirmative action purposes, at least, one can lawfully claim African-American status if one holds oneself out to be African American and others identify you as such. Malone v. Haley, 2 Mass. Civil Service Rep. 1014 (1990).”

    What if one holds oneself out to be a woman but others identify you as a man? lol poor transes

    1. Worked for Rachel Dolezal. At least for a little while…

  11. Legally speaking I believe she is a Halfrican.

    1. These are your peeps, Conspirators.

      This is why conservatives are outliers on strong faculties. This is why conservative-controlled campuses are such lousy performers. This is why others have shaped American progress against your efforts and preferences throughout your lifetimes.

      Appeasing bigots has consequences. And should.

      1. Because Kamala is half African? Seems like a lot to attribute to the race of just one person.

        1. Keep talking, Jimmy. There might be a few younger, educated, decent Americans out there who haven’t quite established their lifelong voting patterns yet, and need to hear more about the Republican-conservative-bigotry-backwardness connection.

          1. I don’t see how acknowledging K-money is half African will do any of that, but if you say so.

            1. Rev’s got a stick up his ass. He’s one of those people who thought Keith Olbermann was the next Murrow until he exploded. He’s a miserable cuck with delusions of grandeur. Kinda like antifa, or the bernie bros. And he’s a dog-hating copsucker to boot!

              1. Yeah, he thought it was ok for a cop to shoot a little nine pound dog.

                I hope someone tortures Arty to death very slowly. Ideally one of his own kind. Which is likely. Probably some antifa losers.

      2. LOL. Some dude tells an old joke on a forum and you go apeshit. What were you, the hall-monitor? Grow up, you fucking loser.

  12. We get it. You want it to be harder to detect systemic racism.

  13. And your point is that racial classifications are nonsense legally. Yeah, well.
    Or, do you think there is really no biological reality to how people are classified by race? Well, I go along with that.
    But, if you are suggesting that how someone looks or presents or is presented in racial terms makes no real difference in America today, then in the words of our next President “C’mon man”.

    1. Well, I don’t agree with the last statement. But racial identification, whether by government (the topic of my research) or self, is a fascinating topic. Depending on the lighting and how tan she is, I could place Harris by looks on a very broad ethnic spectrum, but she chose to identify as black, and in the U.S., if you have any African heritage and identify as black, you are. In just about every other country, there are various multiracial identities one can adopt, or that can be imposed on you. Multiracial activists have tried and failed to get official multiracial categories adopted by the government. If they ever succeed, in the ensuing decades someone like Harris will likely identify herself, and be identified by others, as multiracial/mixed race.

      1. OK. I take it you at least agree with the first two statements. I do find it strange that you cannot acknowledge that in America today how a person is treated is frequently a function of how people, not just Governments, perceive them in racial terms. It is not just the Police in their interactions, although they are problematic enough, nor is it just how store employees react to customers based on their racial perceptions. not is it the unfortunate consequence of affirmative action, as explained by Justice Thomas, that leads to the belief that any Black person that succeeds, does so based on AA and not their own merit. I wish it weren’t so, but to believe that it is not is staggering. People in America are treated differently based on how people perceive their race. Really!

        1. “People in America are treated differently based on how people perceive their race. ”

          To some extent, yes. But they’re treated differently differently by different people. The same perception means nothing to one person, hurts you with another person, and helps you with a third person.

          I would say that only the first response is actually appropriate, outside of very narrow circumstances. The second is almost universally acknowledged to be bad.

          The third, strangely enough, is widely treated as though it were acceptable, even though it’s logically indistinguishable from the second in any zero sum situation; You can’t discriminate in favor of one person without discriminating against another.

          1. I would love to believe that in 2020 in America everyone is colorblind and they are all judged by the content of their heart and not the color of their skin. But that is not reality. It is not just “to some extent” but in many, many interactions how one is treated is colored by what people believe a person’s race, or religion, or national origin, or myriad other facts might be.

            You mention a zero sum gain which I take to relate to affirmative action programs. I think that AA creates a whole range of problems, not just that advantaging one disadvantages another. I agree with Justice Thomas that the most pernicious aspect of AA is it leads people to believe that only AA accounts for a Black person succeeding.

            What I am really looking at is not discrimination of one versus another but the ongoing discrimination in housing, schooling, policing, employment where there is only disadvantage to the discriminated against group. It still exists and it is hard to believe that anyone can’t see just how prevalent that is.

            1. I’m not denying that people are treated differently based on the color of their skin. I’m just pointing out that Harris is not “black” because people would obviously identify her as such based on how she looks, which could be many things, but because she so identifies.

            2. “I would love to believe that in 2020 in America everyone is colorblind and they are all judged by the content of their heart and not the color of their skin. But that is not reality. ”

              It’s not only not reality, it’s getting further from reality with each passing year, as we’re forced to pay attention to skin color, and anybody who refuses to is accused of racism.

              1. ‘we’re forced to pay attention to skin color,’

                Brett knows there are non-white people in the US, but you can’t make him like it, dagnabit!

            3. there are a lot of people with identical skin tones who are treated differently based on their perceived race

              1. But people with identical skin tones may be Hispanic, Indian, Jewish, Iranian, Arab, etc.

  14. David, I have a tangentially relevant question. Which of the following statements is true:

    1. Obama’s, but not Trump’s, lawlessness is so intolerable I feel compelled to write a book about it.

    2. I (David Bernstein) am not a partisan.

    Frankly, I find both implausible. But making allowance for the mysteries of bias, my own included, I can drag myself to accept you might argue either with a straight face, but not both.

    How am I wrong?

    1. I had a year of (unpaid) free time on my hands on returning from Peru in Summer 2013, and an offer of a grant to write a book on Obama and the Constitution, with no editorial oversight by the grantee. If you will find someone who is similarly pay me to write a book on Trump, and will buy out my teaching for a year, I promise to do so.

      1. That’s a fair explanation of #1. Thanks.

        I still think #2 is false. ☺

      2. I had a year of (unpaid) free time on my hands on returning from Peru in Summer 2013, and an offer of a grant to write a book on Obama and the Constitution, with no editorial oversight by the grantee.

        And then you immediately lost all interest in the problem of Presidential assaults “on the Constitution and the Rule of Law.”

        1. No shortage of professors taking on Trump (unlike Obama), and no one is offering me an unrestricted grant to write about Trump, so I moved on to other things, beyond occasional tweets or blog posts.

  15. I see that the supporters of America’s legal system of racial classifications have showed up to answer Bernstein with detailed, rational arguments giving a point-by-point rebuttal to the system’s critics.

  16. And all this matters because…?

  17. Biloxi, 1957. Which fountain is she allowed to drink from?

    There’s your answer as to her race.

  18. This reminds me a little of a South African comedian from back in the Apartheid days. As part of his act, he’d read off a list of official government racial re-classifications. It really was a great way of pointing out just how ridiculous the system was.

  19. There’s something a little chilling about just casually discussing America’s legal racial classification system. Maybe if there’s some confusion about who fits where, we could have some system of identifying patches sewn onto clothes or tattoos on people’s forearms so we all know who is what.

    1. Trying to casually discuss the legal racial classification system in this country is definitely disturbing. I think that has two sources. 1) Discussing how race as a large category applies in legal terms does lead immediately to irrationalities, and this occurs at the same time as race is leading to a vast range of real consequences in real people’s lives. (Kwame Anthony Appiah “Lies That Bind” is very interesting.)
      2) Just as some people in the US are becoming more comfortable discussing race, the consequences of discussing it incorrectly have grown. These consequences vary depending on which social group a person has membership in. For example, using the n-word; if you are old enough to remember before hiphop was on mainstream radio, you will remember the gears grinding when nonblack listeners were exposed to the range of lyrical uses of the n-word. Then, a generation grew up listening to these songs on purchased, non-censored media and singing along, which is what people do with songs, and a younger white generation became comfortable with saying the n-word. Then the contemporary African American generation made the social point that really, people who are not black should never say the n-word, regardless of how many lyrics they’ve listened to or how cool they think they are. Then some people become uncomfortable with hearing a word all the time that they cannot say culturally. Basically everyone was played by the recording industry regardless of racial group; making money off of cultural production was the point, not positive social change. I don’t remember anyone saying, when those “explicit lyrics” labels were introduced, “In twenty years there will be a generation of white people who think using racial slurs socially is normal.” Unintended consequences. People who objected over the years were written off as uncomfortable with hiphop. There have been in the background people who do think it’s okay to use the n-word, people with individual racism. It has become a project to not empower them while still listening to the lyrics. The recording industry got away with playing us like this because of how uncomfortable Americans are talking about race.
      When I lived in a conservative flyover state I met some kids who were 100% birthers. Kids of color growing up in conservative white communities, kids of mixed background growing up in these families. It opened my eyes; people say the next generation is guaranteed liberal, but that’s naive. Political principles and strategies have to be taught anew to each generation; there’s no magic wand that makes all kids of color progressive and older adults of color may become cynical about the vagaries of the progressive/democratic system. The “culture war” is a facet of American existence; (Kendi points this out in “Stamped from the Beginning” that one side or the other is very unlikely to win, based on ideological patterns in American history.)

      I see the current historical moment regarding awareness of race and racism as having some similarities with the entrance of the n-word into mainstream radio. Unfamiliar forms of communication are moving through society; this includes discussions about race and identity. What the results – plural – will be long term is something we can’t know. I think the best thing we can do is to become more familiar with the general contours of the discussion (s) and figure out how to bring respect for difference, and listening skills, to the table. I am not a fan of “call-out” culture. Humans hold a vast array of irrational beliefs, often earnestly. Deputizing every wellmeaning person to verbally confront people they disagree with is a recipe for disaster, kindof like leading thousands or millions of white kids to sing out the n-word for a decade. We have to be able to respectfully have the conversations, period.

    2. I had no idea there was a legal classification system. On forms I just want to check Vulcan but it is never a choice.

      In biology what we call race is a myth. So what do I care what some lawyers say.

  20. A wee slice of history dating back to the 70s. I’ve worked with Jamaicans including a
    female educated in the British Jamaican educational system who was of Indian, Black, European, perhaps Spanish heritage. She dismissed any suggestion that she was African American. In the 60s and 70s successful Jamaicans as well as other Caribbeans, may have been as likely as not to view themselves as superior to Americans. Also, for many a basic Jamaican education was far superior to an average American education.

  21. The true reveal is not the position one takes on an issue but what one thinks is an issue.

    1. Well said. What an odd topic for such a very clever man to write about.

  22. I get what Prof. Bernstein is saying – not that this distinction is important to him, but that when it’s important to the law the answer is not coherent across different legal arenas.

    Except coherency across many disciplines is not a quality our legal system has.
    Indeed, statues and regulations generally contain their own definitions of words at the beginning, just in case they’re using them differently than some other statue.

    There is no federal uniform glossary.

    1. Except there actually is a uniform, official federal glossary on race and ethnicity, known as OMB Statistical Directive No. 15. It’s not universal, but it’s close.

      1. Cool!
        This Directive provides standard classifications for record keeping, collection, and presentation of data on race and ethnicity in Federal program administrative reporting and statistical activities. These classifications should not be interpreted as being scientific or anthropological in nature, nor should they be viewed as determinants of eligibility for participation in any Federal program. They have been developed in response to needs expressed by both the executive branch and the Congress to provide for the collection and use of compatible, nonduplicated, exchangeable racial and ethnic data by Federal agencies.

        I’m not sure I’m in favor of a directive to universally adopt without more information why the various components made the decisions they did.

        1. Believe it or not, the “Hispanic” category was almost entirely the creation of three junior bureaucrats represented each of the major Spanish-speaking groups of the time–one Cuban, one Puerto Rican, one Mexican.

          1. Though by far the leading advocate of creating a trans-spanish heritage category to begin with, whatever the ultimate name, was none other than… drumroll please…. Richard Nixon, who one Mexican American writer dubbed the “father of Hispanic” or something like that.

  23. Kamala’s race and sex seem to be the first and foremost thing that Democrats and their lapdog media likes to mention and talk about.

    1. Apparently race and sex are subjects too terrifying for Republicans and libertarians to engage with except in terms of legal definitions and visceral disgust.

      1. Biden limited his VP selection to “woman” and “person of color” and somehow it is the Republicans who are bad on this in your mind?

      2. Apparently race and sex are subjects too terrifying for Republicans and libertarians to engage with except in terms of legal definitions and visceral disgust.

        You are absolutely right: I experience visceral disgust and terror at the idea that in 2020, anybody still goes around trying to make laws that classify human beings based on their race and sex.

        It is particularly disgusting and terrifying that Democrats and progressives do this today, having been responsible in the past for slavery, segregation, eugenics, forced sterilizations, and the destruction of the black family.

    2. Mostly seeing it coming from the right, actually.

      1. Yup. Do not need to look far for that.

        So she is, a she, Indian and Jamaican parents, married to a Jew.

        I see how this is going to shape up in the election.

        “The “suburban housewife” will be voting for me.”

        Donald Trump POTUS

        Calling June Cleaver.

    3. Joe Biden first held up some Sherwin Williams color samples to decide if she was the right shade and then did the Tara Reade probe to make sure the genitals were acceptable.

  24. She was born in Oakland, CA. Which is irrelevant and some familial lineage seems incidental. Great you have caramel skin color. Hope that helps with skin cancer, otherwise means nothing to me.

  25. What ever happened to the idea of treating people equally? Judging based on content of character? Oh silly me.

  26. The fact that a racial/ethnic classification can give one a different legal status is the problem.

  27. Affirmative action was justified as a means of providing redress for the effects of past and/or current discrimination. Someone who is neither descended from black Americans nor looks black to most Americans does not fall into either of these categories. For someone like Kamala Harris to be legally considered “African American” is an absurdity in light of the objectives of these laws. And that’s not taking into account the massively privileged environment that Harris actually grew up in.

    However, any racial classification of citizens, even if well-intentioned, is repugnant. People should be treated as individuals, not as members of racial groups. The fact that Harris wallows in her shifting racial identities makes her an utterly unsuitable candidate for any political office in the US.

  28. There’s an interesting twist in this logic – anyone can be black. There is no real qualification. It’s just a menu item you choose, and no one can deny you that claim. That’s how absurd identity politics will be….white women like Liz Warren are hopi Indians, and Kamala the Tamil raised west coaster, is now Harriet Tubman.

  29. There’s an interesting twist in this logic – anyone can choose to be black. There is no real qualification. It’s just a menu item you choose, and no one can deny you that claim. That’s how absurd identity politics will be….white women like Liz Warren are hopi Indians, and Kamala the Tamil raised west coaster, is now Harriet Tubman.

  30. So she identifies as black. Why would she do that if blacks are so persecuted?

    Obama, mixed race,
    Kaepernick, mixed race

    Both raised by white people “privileged, never mention it

    1. All of these labels are ones imposed on them. The fact that people treat them worse because of their skin color is why having a white parent doesn’t confer white privilege. You’re treated the same as a slave descendant even if you were adopted by Angelina Jolie. Get rid of the racists, get rid of race. The concept of race was invented by white people.

      Almost all black people are Democrats so you can’t very well tell Democrats to be the first to start ignoring race.

  31. Try She might be Scottish.

  32. Given that it’s supposed to be a partisan “right-wing” site (even though almost none of the Conspirators voted for Trump in 2016) […]

    … do you actually read Blackman’s posts that go up under your banner? If people think the “Volokh Conspiracy” is conservative/right-wing, it’s not because a lack of effort on y’all’s part.

  33. Someday (hopefully) others are going to look back and wonder how we used such fucking racist and outdated concepts….is she x or y or z. What does it fucking matter. Why don’t we just start examining the bumps and shape of her head and then classify her? Under progressive ideology I would think phrenology is ready for a comeback.

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