A review of “Classified: The Untold Story of Racial Classification in America” by David E. Bernstein, Bombardier Books, 208 pages.

The Separation of Race and State

In concluding his brief and indispensable compilation of government race and ethnic classifications David Bernstein proposes a “separation of race and state.” After an exposure to the lobbying, perversity, arbitrariness, and secrecy that produced these government categories his readers should embrace his suggestion as a welcome segregation.

Bernstein, a distinguished University Professor at the Scalia Law School of George Mason University, has published widely on race in law, beginning with his first book on blacks, unions, and the courts from Reconstruction through the New Deal. In Classified: The Untold Story of Racial Classification in America even scholars of race and ethnicity will find astounding instances of government perversity. Other readers will surely be able to add their own appalling examples from experience, some of which may border on Babylon Bee territory. 

Throughout the book and to his credit, Bernstein resists the temptation to explode in indignation. His calm, deliberate manner has the good effect of allowing his readers to come to their own sense of indignation and justified moral outrage, as he exposes instances of caving to political pressure, disregarding principle, and promoting bias and thus producing absurd, racist, and discriminatory policies.

Though the politics of race is not the focus here, the original political context for producing racial categorization must be kept in mind. Bernstein notes, “The [1977 Jimmy Carter inspired] Directive 15 categories, with minor modifications, continue to guide government and government-mandated data collection today.” Carter was leading a Progressive counterattack against the Nixon assault against the Great Society.   

The Obama and Biden White Houses have updated the directive from the Jimmy Carter version.  The categories remain American Indian/Alaska native; Asian or Pacific Islander; “Black,” “White,” and “Hispanic” (“a person of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish culture or origins, regardless of race.”) “Hispanic” is immediately suspect. It is racially fluid. Are Brazilian, Portuguese, or Spanish people “Hispanic”? Haitians or Dominicans? These became points of political and bureaucratic dispute. 

To demonstrate how convoluted this all can become, a white State Department employee I once knew had children born in Peru while he and his Japanese-American wife were on duty there. The children were then regarded as “Hispanic” by the Colorado Springs school system where they eventually moved. On the other hand, a demonstration of real diversity could be seen in the American GI Forum, originally founded by Mexican-Americans who returned from World War II military service and rejected the discrimination they had known prior to the war, but now open to all former military. 

But there are problems with categorizing people “White” and “Black” as well. What constitutes black identity? Appearance? A DNA test? Does absence of a proof of discrimination disprove black identity?

Without delving into the issues Bernstein touches on, I would suggest that a more helpful reference for understanding how to deal with race in government programs would have been an examination of the Civil War Freedman’s Bureau, which although established for the freed slaves, also aided whites. Despite its name, it operated on color-blind principles. It might have better retained its original name, the Bureau of Refugees, Freedmen and Abandoned Lands. 

To reinforce the power of Bernstein’s presentation of the inherent confusion of racial categories, I will focus on two of the groups he portrays—Asian-Americans and American Indians. The numbers (and therefore political influence) of the Asian group can be and is swollen by the presence of South Asians—Indians and Pakistanis. The group once knew the membership of Middle Easterners such as Iraqis and other Asians west of Afghanistan. But no more. So despite their appearance, Indians were once categorized as white, as Arabs are now. But the Asians, while retreating in the West, added the Pacific Islanders and fended off a move to have native Hawaiians counted as Indians (that is, what politically correct language hails as “native Americans,” though it’s still called the Bureau of Indian Affairs). These ways and motivations for counting tend to lay bare the incentives behind them, which have more to do with flexing political power than anything else.

As Justice Clarence Thomas noted in the 2004 Lara case, the Court has failed to deal honestly with the Indian tribes. If the Court did deal honestly with them, “We might find that the Federal Government cannot regulate the tribes through ordinary domestic legislation and simultaneously maintain that the tribes are sovereigns in any meaningful sense.” That is, the tribes are in a lawless situation. Do the civil rights laws apply to them or not? Contrary to its policy of expanding its authority whenever plausible, the Equal Employment Opportunity Commission avoids litigating against Indian tribes in employment discrimination cases. And the federal government continues to treat tribes as though they are sovereigns which can violate the rights of Americans.

This was the situation William B. Allen faced while serving as Chairman of the U.S. Commission on Civil Rights back in 1989. Indian tribal officials had arrested him earlier for seeking to protect the rights of an American citizen who had been adopted outside of the tribe, which offended tribal authorities. Some romantic narrative about Indian tribes has replaced any interest in defending basic natural rights. While the Indian Child Welfare Act was passed by Congress to protect Indian children from kidnapping by non-Indians, it is clear that it permitted abuses in some cases, which Allen was investigating. The blithe Progressive dismissal of any serious discussion of rights in the face of fantastic claims about the powers of the tribes shows how shallow they have driven our discourse about American freedoms by focusing on race.

Likewise, in the Cherokee Freedmen cases, 19th century courts struck down tribal decisions to deny rights to their former black slaves. But more recently the tribes have asserted that their black members who are descendants of those slaves can have no Indian blood and so cannot vote in tribal elections. In America can rights be contingent on some DNA test? Yet, tribes also sell memberships that can mean federal benefits for business owners.

The opportunism of exploiting race for fun and profit should not surprise us. It seemingly justifies politicians, such as Vice President Kamala Harris and others, when they make astounding claims like suggesting disaster relief should be distributed on the basis of “equity” principles—that is, favoring racial and ethnic minorities. 

If the action in the modern administrative state is focused on the redistribution of resources, why not make our bodies and their value in the market one of those bartered commodities?

Recall that in 2016 candidate Trump called a judge hearing a suit against him “a Mexican.” Of course a federal judge cannot be a foreigner, so why defend such name-calling? Yet, the judge was a vocal member of a group called La Raza that affirms the supposed superiority of the mestizo race. And don’t affirmative action classifications of the sort Bernstein describes in this wonderful book ultimately glamorize one’s roots in foreign nations and thus in alien political principles? Indeed, this is why categorizing by race, as Bernstein describes it so well, deserves the harshest condemnation. It is barbaric. 

But it is important in the current bitter debates to aspire to more than merely avoiding the designation “barbarian.” Aristotle aptly described the race and ethnic issue before us when he said, “but it is just not so easy to see the beauty of the soul as it is with that of the body.” That is, we want to know people, so we gaze upon their bodies given that is how they present themselves, at first, to us. But we err when we imagine that is all there is to them. In particular, we want our politicians to be heroic figures. But of course they aren’t. Yet we continue to want to see great warriors or athletes, and, more desperately, actors and entertainers, become politicians. That urge within us, to affirm the connection between attractive bodies and souls, should not be ridiculed outright. That would be to deny democratic dreams.

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About Ken Masugi

Ken Masugi, Ph.D., is a distinguished fellow of the Center for American Greatness and a senior fellow of the Claremont Institute. He has been a speechwriter for two cabinet members, and a special assistant for Clarence Thomas when he was chairman of the Equal Employment Opportunity Commission. Masugi is co-author, editor, or co-editor of 10 books on American politics. He has taught at the U.S. Air Force Academy, where he was Olin Distinguished Visiting Professor; James Madison College of Michigan State University; the Ashbrook Center of Ashland University; and Princeton University.

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