On Account of Race or Color: Race as Corporation and the Original Understanding of Race

Oh describes this essay as a critique of constitutional and political discourse on "race" and argues that current equal protection doctrine operates under a conception of race that undermines rather than moves forward the goal of achieving racial equality. That understanding defines race solely or primarily as a physical trait or characteristic, and unjustifiably rejects other, more robust notions of race. He argues that the notion of race as physical trait is inconsistent with the historical understanding of race that served as the basis for the Reconstruction Amendments. A careful examination of nineteenth and early twentieth century court decisions, decisions which include Plessy v. Ferguson and Strauder v. West Virginia, suggests that the framers of the Reconstruction Amendments and the Supreme Court Justices of that era thought of race, not as a physical trait, but as an entity with a corporate existence. In other words, they thought of race as corporation.