29 Harv C.R.-C.L. L. Rev. 1 (1994)
The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice

handle is hein.journals/hcrcl29 and id is 11 raw text is: THE SOCIAL CONSTRUCTION OF RACE:
SOME OBSERVATIONS ON ILLUSION, FABRICATION,
AND CHOICE
Ian F Haney L6pez*
Under the jurisprudence of slavery as it stood in 1806, one's status
followed the maternal line. A person born to a slave woman was a slave,
and a person born to a free woman was free. In that year, three genera-
tions of enslaved women sued for freedom in Virginia on the ground that
they descended from a free maternal ancestor.' Yet, on the all-important
issue of their descent, their faces and bodies provided the only evidence
they or the owner who resisted their claims could bring before the court.
The appellees ... asserted this right [to be free] as having been
descended, in the maternal line, from a free Indian woman; but
their genealogy was very imperfectly stated ... . [T]he youngest
... [had] the characteristic features, the complexion, the hair
and eyes ... the same with those of whites .... Hannah, [the
mother] had long black hair, was of the right Indian copper
colour, and was generally called an Indian by the neighbours
2
Because grandmother, mother, and daughter could not prove they had a
free maternal ancestor, nor could Hudgins show their descent from a
female slave, the side charged with the burden of proof would lose.
* Assistant Professor, University of Wisconsin Law School. B.A., M.A., Washington
University, 1986; M.P.A., Princeton University, 1990; J.D., Harvard University, 1991. Mil
gracias to Terrence Haney, Maria L6pez de Haney, Deborah Drickersen Cortez, Rey
Rodriguez, Juan Zdfiiga, Maria Grossman, Richard Ford, Jayne Lee, Leon Trakman,
Michael Morgalla, Ricardo Soto, and the participants at the Fifth Annual Critical Race
Theory Workshop, in particular John Calmore, Jerome Culp, and Richard Delgado. Dedico
este ensayo a mi hermano, Garth Mark Haney.
I Hudgins v. Wright, 11 Va. (1 Hen. & M.) 134 (Sup. Ct. App. 1806), excerpted in
PAUL FINKELMAN, THE LAW OF FREEDOM AND BONDAGE: A CASEBOOK 22-24 (1986).
Finkelman gives the following background to the case:
Hudgins v. Wright... involved alleged slaves of mixed ancestry. The heritage of
the Wright family was predominantly Indian but also included Europeans and
perhaps Africans. Hudgins planned to remove these slaves from Virginia when
they sued for freedom before Chancellor George Wythe of the Richmond District
Court of Chancery .... [Wythe] examined them and could find no visible Negro
features in them. Thus, he felt they were presumptively free, and it was up to
Hudgins to overcome this presumption, by proving that one of their female
ancestors had been a slave. This Hudgins failed to do.
Id. at 22. In the case at hand, Hudgins appeals Wythe's decision to free the Wrights.
2Hudgins, 11 Va. (1 Hen. & M.) at 134.

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