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This Article is concerned with the constitutive power of the census with respect to race. It is an examination of the U.S. Census as an aspect of what Angela Harris calls race law, "law pertaining to the formation, recognition, and maintenance of racial groups, as well as the law regulating the relationships among these groups." While others have noted and explored the epistemological and constitutive functions of the census race categories, my aim is to unpack this insight in the context of two specific examples of categorical change and contest: the addition of a Chinese racial category in 1870 and the debate over a multiracial category in 2000. In addition, I analyze the differing sites of categorical reimagining in each instance, further exploring how the census has been deeply influential in two different directions: informing, defining and naming the racial identity of specific groups, and informing an imagined racial identity of "the nation." The census is a kind of mass public performance of nationality; it is both a legal and cultural mechanism for imagining the American nation, a nation that has always represented itself with racial specificity. Over 200 years the content and significance of its racial categories have varied considerably, but the census appears to consistently play a crucial role in both constructing and reinventing a national identity and influencing the self-definition and identity of a number of subnational groups. In short, this paper is about how census classifications have contributed to our understanding of race, to the grammar and logic of identity discourse, and to a particular way of imagining the nation. Its primary aim is to explore some of the dynamics between official racial counting, popular conceptions of race, and racialized views of the nation. In doing so, it will address a series of questions. When do census or other legal categories seem to drive popular notions of race? When do popular understandings of race seem to drive official categorization? When and how are the politics of racial classification mobilized toward national inclusion or exclusion? A secondary aim of this Article is to aid in enlarging our sense of what "law" is by investigating alternate legal forms; in this case, by pursuing how a state apparatus like the census is not just legal by virtue of its constitutional and statutory origins, but in the way it generates and enforces cultural norms, race-based rights and disabilities, and the boundaries of identity.


Reprinted by special permission of Northwestern University School of Law, Northwestern University Law Review.

Publication Citation

97 Nw. U. L. Rev. 1701-1768 (2003)