Unconvincing

Iowa Law Review

Volumn 81, Issue 5, 1996, Pages 1557-1572

  Kwan, Peter ^a  

^a SANTA CLARA UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 0030344047     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (89)

1. Philip K. Gotanda, Charlie Chan is Alive and Well, AsianWeek, Nov. 10, 1995, at 14, 15.
2. See Jim Chen, Unloving, 80 Iowa L. Rev. 145 (1994).
3. Id. at 150.
4. Id. at 149-54.
5. Id. at 155-67.
6. Id. at 169 ("Race-matching fully collides with Loving and the Creole creed when one considers that intermarried couples might reproduce biologically.") (emphasis added).
7. Chen, supra note 2, at 15. (citing Mari J. Matsuda, Voices of America: Accent Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, 100 Yale L.J. 1329, 1407 (1991)); cf. Peter Brimelow, Alien Nation 17-18 (1995): America at the time of the Revolution was biracial, not multiracial, containing both whites and blacks. But the political nation - the collectivity that took political decisions - was wholly white. And that white nation was multiethnic only in the sense that a stew can be described as half-rabbit, half-horse if it contains one rabbit and one horse. There were a few unusual fragments in the American stew of 1790. But, for better or worse, it tasted distinctly British.
8. Chen, supra note 2, at 15. (citing Mari J. Matsuda, Voices of America: Accent Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, 100 Yale L.J. 1329, 1407 (1991)); cf. Peter Brimelow, Alien Nation 17-18 (1995): America at the time of the Revolution was biracial, not multiracial, containing both whites and blacks. But the political nation - the collectivity that took political decisions - was wholly white. And that white nation was multiethnic only in the sense that a stew can be described as half-rabbit, half-horse if it contains one rabbit and one horse. There were a few unusual fragments in the American stew of 1790. But, for better or worse, it tasted distinctly British.
9. See Chen, supra note 2, at 152 (discussing the "creolizadon" of America's dinner table in terms of the foods brought to the United States by immigrant groups. Foods such as "yams, goober, pretzel, lefse, tempura, bok choi, salsa, . . . lo mein and spaghetti").
10. See id. ("In short, we Americans have 'mixed people as though they were of no more consequence than the swill [we have] slopped together for [our] pigs.' The rest of the world should be so fortunate") (citing O.E. Rölvaag, Peder Victorious 138-39 (Nora O. Sloum & O.E. Rölvaag trans., 1929)).
11. Id. at 150 (citations omitted).
12. Id.
13. See infra notes 13-20 and accompanying text (discussing Chen's notion of "racial fundamentalism").
14. See Chen, supra note 2, at 152 ("Crossbreeding in the Creole fashion is not confined to the garden and to the kitchen. It also extends to the bedroom."); see also id. at 151 ("Five centuries of tempestuous interaction between the Old and New Worlds have spawned countless instances of cross-fertilization, both in ecological terms and in human terms.").
15. Id. at 153.
16. Id.
17. Id.
18. See id. at 152 (drawing the nexus between the cultural benefits of mixing in gastronomy and procreation by praising "America's creolization of the world's palate and population.").
19. Chen states: I therefore write to identify what I call "racial fundamentalism" and to assert my belief that this emerging creed opposes family formation - whether by marriage or adoption - across racial lines. The new dogma rests on racial "classifications so directly subversive of the principle of equality at the heart" of the American enterprise that racial fundamentalism must be condemned as an abandonment of multiracial parity and as an endorsement of racial purity. Chen, supra note 2, at 149 (quoting Loving v. Virginia, 382 U.S. 1, 12 (1967)).
20. Garrett Epps, What's Loving Got to Do With It? 81 Iowa L. Rev. 1489, 1495 (1996).
21. Chen, supra note 2, at 163 (citations omitted).
22. Derrick Bell, Race, Racism and American Law 65 (3d ed. Little Brown 1992) (emphasis added).
23. Id. at 65-66.
24. See Chen, supra note 2, at 167 ("Would some racialists, if forced to make a yes or no decision, reject Loving outright? Perhaps. Deep down, racialism resists exogamy.").
25. Id. at 163 (referring to Bell, supra note 21, at 77).
26. Bell, supra note 21, at 77.
27. Id.
28. Id. at 78-81.
29. Id. at 80.
30. Id. at 81.
31. Chen, supra note 2, at 151 (claiming that "integration nudges social reality toward legal utopia." (emphasis added); cf. Epps, supra note 19, at 1499 (concluding that "to hope that mere intermarriage can dismantle an oppressive scheme of domination is, at best, naive").
32. See infra notes 45-67 and accompanying text.
33. See Epps, supra note 19, at 1490 (stating that of the 196 footnotes contained in Chen's article, "most of them bear no real relationship to the thought for which they are adduced as authority.").
34. See, e.g., Chen, supra note 2, at 155 ("What I call 'racial fundamentalism' rejects my admittedly romantic faith in the rise of the Creole Republic.").
35. Id. at 153.
36. Sister Frances J. Woods, Marginality and Identity: A Colored Creole Family Through Ten Generations 8 (Louisiana State University 1972).
37. Id.
38. Id.
39. Sa Id. at 9.
40. Gary B. Mills, The Forgotten People: Cane River's Creoles of Color xiv (Louisiana State University 1977).
41. Id.
42. Id. at xvi.
43. See, e.g., Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 Cal. L. Rev. 1241, 1266-71 (1993); Neil K. Gotanda, "Other Non-Whites" in American Legal History, 85 Colum. L. Rev. 1186 (1985); Frank H. Wu, Neither Black nor White: Asian Americans and Affirmative Action, 15 B.C. Third World L.J. 225, 225-26 (1995).
44. See, e.g., Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 Cal. L. Rev. 1241, 1266-71 (1993); Neil K. Gotanda, "Other Non-Whites" in American Legal History, 85 Colum. L. Rev. 1186 (1985); Frank H. Wu, Neither Black nor White: Asian Americans and Affirmative Action, 15 B.C. Third World L.J. 225, 225-26 (1995).
45. See, e.g., Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 Cal. L. Rev. 1241, 1266-71 (1993); Neil K. Gotanda, "Other Non-Whites" in American Legal History, 85 Colum. L. Rev. 1186 (1985); Frank H. Wu, Neither Black nor White: Asian Americans and Affirmative Action, 15 B.C. Third World L.J. 225, 225-26 (1995).
46. Wu, supra note 42; see also Chang, supra note 42, at 1258-65 (discussing this treatment of Asian American and the "model-minority myth").
47. Gabriel Chin et al., Beyond Self Interest: Asian Pacific Americans Toward a Community of Justice 26 (Asian Pacific American Public Policy Institute and UCLA Asian American Studies Center 1996) ("We call upon conservatives to ceases using APAs as their 'racial mascot' to arrogate moral authority in furtherance of regressive policies.") reprinted in 4 UCLA Asian Pac. Am. L.J. (forthcoming 1997).
48. Gabriel Chin et al., Beyond Self Interest: Asian Pacific Americans Toward a Community of Justice 26 (Asian Pacific American Public Policy Institute and UCLA Asian American Studies Center 1996) ("We call upon conservatives to ceases using APAs as their 'racial mascot' to arrogate moral authority in furtherance of regressive policies.") reprinted in 4 UCLA Asian Pac. Am. L.J. (forthcoming 1997).
49. Derrick Bell, Faces at the Bottom of the Well: The Permanence of Racism 198 (Harper Collins 1992).
50. Angela P. Harris, Foreword: The Jurisprudence of Reconstruction, 82 Gal. L. Rev. 741, 784 (1994).
51. Chen, supra note 2, at 159.
52. See Chen, supra note 2, at 169 (describing his beliefs as the "Creole creed"). "Creed" has the following definitions: 1. A form of words setting forth authoritatively and concisely the general belief of the Christian Church, or those articles of belief which are regarded as essential . . . . More generally: A formulation of religious belief; a confession of faith, esp. one held as authoritative and binding upon members of a communion . . . . 2. An accepted or professed system of religious belief, the faith of a community or an individual, esp. as expressed or capable of expression in a definite formula. Oxford English Dictionary 1141 (Clarendon Press 1989).
53. Chen, supra note 2, at 153.
54. Id. at 154.
55. Id. at 158.
56. Sir Francis Galton invented the term "eugenics." Galton defined eugenics as "the science which deals with all influences that improve the inborn qualities of a race; also with those that develop them to the utmost advantage." Essays in Eugenics 35 (The Eugenics Education Society 1909). The aim of eugenics, according to Galton, "is to bring as many influences as can be reasonably employed, to cause the useful classes in the community to contribute more than their proportion to the next generation." Id. at 38.
57. See, e.g., Charles B. Davenport, Heredity in Relation to Eugenics 1 (Henry Holt and Company 1911) ("Eugenics is the science of the improvement of the human race by better breeding.").
58. See supra note 6. Chen's use of "Creole creed" echoes Galton's "creed of eugenics" in his chapter titled "Eugenics as a Factor in Religion." Essays in Eugenics, supra note 52, at 68.
59. Galton believed that eugenics "must be introduced into the national conscious, like a new religion." Essays in Eugenics, supra note 52, at 42. Further, Galton saw "no impossibility in Eugenics becoming a religious dogma among mankind." Id. at 43.
60. See Galton, supra note 52, at 47 (concluding that "equally strict limitations to freedom of marriage [as those imposed on polygamy] might, under the pressure of worthy motives, be hereafter enacted for Eugenic and other purposes.") Another notable eugenist; Caleb Williams Saleeby (who dedicated his book, Parenthood and Race Culture (Moffat, Yard 1911) "to Francis Galton the August master of all eugenists") was even more explicit in his suggestion of harnessing the institution of marriage for eugenic purposes: Marriage a eugenic instrument. - It has definitely to be stated, then, that the abolition of marriage and the family is in no degree whatever a part of the eugenic proposal. We desire to achieve race-culture by and through marriage, on the lines which indeed many lower races of men successfully practice at the present day. We must make parenthood more responsible, not less so. It will afterwards be shown that the suggested incompatibility between marriage and the family, on the one hand, and race-culture on the other, does not east. It will be shown that we have in marriage not only the greatest instrument of race-culture that has yet been employed - half-consciously - by man, but also an instrument supremely fitted, and indeed without a rival, for the conscious, deliberate, and scientific intentions of modern eugenists. Id. at 192.
61. Chen, supra note 2, at 153.
62. Similarly, reverse discrimination is not equivalent to anti-discrimination. The eugenics movement has fortunately not survived in any robust form. If it had, however, it is quite likely that one who espoused social reform through interbreeding and inter-marriage, such as Chen's Creole Republicanism, would find himself warmly embraced by the eugenics movement See, e.g., the inclusion of a paper by E.M. Vicari called Hybridization and Behavior, in a volume of Scientific Papers of the Second International Congress of Eugenics (2 Eugenics in Race and State 75 (Williams & Wilkins 1923)). In this paper, Vicari reports on an experiment that the author carried out. The experiment tested three groups of mice on a maze problem. The first two groups were of two different types of mice (Japanese waltzing and albino mice) whose "purity of the race" was assured by inbreeding them for twenty generations. The third group of mice were hybrids of the Japanese waltzing (the author later referred to these as "the japs") and the albino mice. The author discovered something "surprising" when he compared the maze problem results of these three groups of mice: "10 per cent of the [hybrid] mice make more perfect trials than either parent race in the number of consecutive perfect trials." Id. at 76. Vicari concludes that "the hybrids have combined the dominant and more vigorous characters from each parent and the result is that a larger number of vigorous characters are represented in them than in either parent." Id. at 77. Unlike Chen, Vicari did not extrapolate from these results any social claims regarding the desirability of interbreeding. Other eugenists published also in that volume, however, were less reticent. For example, Frederick L. Hoffman in his paper, "Negro-White Intermixture and Intermarriage" referred to his earlier published paper wherein he denounced interbreeding, concluding that "the crossing of the negro race with the white has been detrimental to its true progress, and has contributed more than anything else to the excessive and increasing rate of mortality from the most fatal diseases, as well as to its consequent inferior social efficiency and diminishing power as a force in American national life." Id. at 182. Thus, it seems that although one who extolled the virtues of interbreeding rather than intrabreeding would not be in the mainstream of the eugenics movement, he would nevertheless be considered one of its members - a reverse eugenist rather than an anti-eugenist.
63. See, e.g., Michael Omi & Howard Winant, Racial Formation in the United States 64-65 (Routledge 1994).
64. Chen, supra note 2, at 159.
65. Norimitsu Onishi, Japanese in America Looking Beyond Past to Shape Future, N.Y. Times, Dec. 25, 1995, at A1; see also Chen, supra note 2, at 154.
66. Chen, supra note 2, at 154.
67. See, e.g., id. ("Through the intensity and virtual involuntariness of the bonds created by marriage or parenthood, family relationships hold the key to the resolution of racial conflicts.").
68. For discussion and description of the rising level of anti-Asian violence in contemporary U.S. society, see generally, Sucheng Chan, Asian Americans: An Interpretive History 175-79 (Twayne 1991) (referring to a 1986 report by the U.S. Civil Rights Commission to conclude that "the issue of violence against Asian Americans is national in scope"); United States Commission on Civil Rights, Civil Rights Issues Facing Asian Americans in the 1990s, 22-49 (1992); Note, Racial Violence Against Asian Americans, 106 Harv. L. Rev. 1926 (1993); Kenneth B. Noble, Attacks Against Asian-Americans Are Rising, N.Y. Times, Dec. 13, 1995 at A16 (noting community groups who say that "success has not bred tolerance; [Asian-Americans] have assimilated into many communities but are still the objects of hate").
69. For discussion and description of the rising level of anti-Asian violence in contemporary U.S. society, see generally, Sucheng Chan, Asian Americans: An Interpretive History 175-79 (Twayne 1991) (referring to a 1986 report by the U.S. Civil Rights Commission to conclude that "the issue of violence against Asian Americans is national in scope"); United States Commission on Civil Rights, Civil Rights Issues Facing Asian Americans in the 1990s, 22-49 (1992); Note, Racial Violence Against Asian Americans, 106 Harv. L. Rev. 1926 (1993); Kenneth B. Noble, Attacks Against Asian-Americans Are Rising, N.Y. Times, Dec. 13, 1995 at A16 (noting community groups who say that "success has not bred tolerance; [Asian-Americans] have assimilated into many communities but are still the objects of hate").
70. For discussion and description of the rising level of anti-Asian violence in contemporary U.S. society, see generally, Sucheng Chan, Asian Americans: An Interpretive History 175-79 (Twayne 1991) (referring to a 1986 report by the U.S. Civil Rights Commission to conclude that "the issue of violence against Asian Americans is national in scope"); United States Commission on Civil Rights, Civil Rights Issues Facing Asian Americans in the 1990s, 22-49 (1992); Note, Racial Violence Against Asian Americans, 106 Harv. L. Rev. 1926 (1993); Kenneth B. Noble, Attacks Against Asian-Americans Are Rising, N.Y. Times, Dec. 13, 1995 at A16 (noting community groups who say that "success has not bred tolerance; [Asian-Americans] have assimilated into many communities but are still the objects of hate").
71. See Onishi, supra note 61, at A1 ("[B]ecause of ethnic and racial intermarriages, a rising number of [Japanese American] children are of mixed ancestry - more than two thirds, or 8,000 of the 12,000 children born to at least one Japanese parent in 1993.").
72. See id. (quoting David Miyahara, a yonsei sociology professor, who "worries about the survival of the rituals that have kept his large family close.").
73. Chen, supra note 2, at 158.
74. Kenneth L. Karst, Myths of Identity: Individual and Group Portraits of Race and Sexual Orientation, 43 UCLA L. Rev. 263, 284, 298 (1995).
75. Id. at 296.
76. Id. at 298.
77. Id. at 297.
78. Chen, supra note 2, at 154.
79. See, e.g., id. ("Nearly four centuries of positive lawmaking by the United States and its predecessor sovereigns have contributed less toward overcoming racial tensions at the person-to-person level, at the level that counts, than discrete acts of family-building across racial lines.").
80. Id. at 153.
81. See supra note 64 and accompanying text (citing materials which outline the rising level of anti-Asian violence in the U.S.).
82. See supra notes 48-51 and accompanying text.
83. Chen, supra note 2, at 154.
84. See, e.g., Martha Fineman, The Neutered Mother: The Sexual Family and Other Twentieth Century Tragedies 157-58 (Routledge 1995) (discussing the "legal category" of marriage and its impact on the hierarchy of families).
85. As of October 10, 1996, 16 states have passed legislation prohibiting same sex marriages or blocking the recognition of same sex marriages enetered out of state: Alaska, Arizona, Delaware, Georgia, Idaho, Illinois, Kansas, Michigan, MIssouri, North Caolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, and Utah. Lambda Legal Defense and Education Fund, Anti-Marriage Bills: State-by-State Status Report (Oct. 10, 1996).
86. The so-called "Defense of Marriage" Act, Pub. L. No. 104-199, 110 Stat. 2419 (amending in 1 U.S.C. § 7, 28 U.S.C. § 1738C).
87. See generally Margaret M. Russell, Lesbian, Gay and Bisexual Rights and 'The Civil Rights Agenda,' 1 Afr.-Am. L. & Pol'y Rep. 33 (1994); Note, American Wedding: Sam-Sex Marriage and the Miscegenation Analogy, 73 B.U. L. Rev. 93 (1993).
88. See generally Margaret M. Russell, Lesbian, Gay and Bisexual Rights and 'The Civil Rights Agenda,' 1 Afr.-Am. L. & Pol'y Rep. 33 (1994); Note, American Wedding: Sam-Sex Marriage and the Miscegenation Analogy, 73 B.U. L. Rev. 93 (1993).
89. Harlon L. Dalton, Racial Healing 96-101 (Doubleday 1995).