Determining the (In)Determinable: Race in Brazil and the United States

53 Pages Posted: 18 Sep 2009 Last revised: 1 Jan 2015

See all articles by D. Wendy Greene

D. Wendy Greene

Drexel University Thomas R. Kline School of Law

Date Written: May 5, 2009


Recently, the Brazilian states of Rio de Janeiro, São Paulo, and Mato Grasso du Sol have implemented race-conscious affirmative action programs in higher education. These states have established admissions quotas in public universities for Afro-Brazilians or afrodescendentes. As a result, determining “who is Black” has become a complex yet important undertaking in Brazil. Contrary to many scholars’ advancements race in Brazil is skin color or physical appearance, whereas in the United States race is based on ancestry, this Article advances the notion that in both American countries one’s physical appearance is the primary determinant of Blackness. Furthermore, when U.S. courts have been charged with determining Blackness, racial constructs based on physical appearance - not the rule of hypodescent -- have steered their legal pronouncement of race. This Article first offers a necessary survey of African slavery in Brazil and the United States. This Article demonstrates that despite the contrasts in demography, slave law, and ensuing racial ideology - “racial democracy” in Brazil and “racial purity” in the United States - the enslavement and subordination of Africans and their descendants spawned a common racial hierarchy and assembly of phenotypes designating Blackness and whiteness. Moreover, this Article surveys historical and contemporary racial determination cases which demonstrate the salience of physical appearance in determining race in the United States and debunks the notion that the hypodescent rule is applied to determine “Blackness”. These cases additionally illuminate the paradoxical nature of race - specifically Blackness and whiteness - in the Americas; race is contextual, subjective, and malleable yet simultaneously fixed, as physical constructs of Blackness and whiteness have transcended geography, time, ideology, and demography. Ultimately, this exploration of racial determination cases imparts insight and guidance to Brazilian arbiters currently determining who is Afro-Brazilian for affirmative action purposes.

Keywords: race, slavery, comparative slavery, comparative race relations, Brazil, United States, Latin America, racial determination cases, legal history, affirmative action, colonial United States, race conscious affirmative action, physical appearance, phenotype, rule of hypodescent

Suggested Citation

Greene, D. Wendy, Determining the (In)Determinable: Race in Brazil and the United States (May 5, 2009). Michigan Journal of Race & Law, Vol. 14, p. 143, 2009, Available at SSRN:

D. Wendy Greene (Contact Author)

Drexel University Thomas R. Kline School of Law ( email )

3320 Market Street
Philadelphia, PA 19104
United States

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