“The US Census… had begun to notice Latin Americans in the 1940s” (?) (Painter)

New new immigrants of the post-1965 era, overwhelmingly from outside Europe, were upending American racial conventions. Asians, greatly rising in number, were rapidly being judged to be smarter and, eventually, to be richer than native-born whites. Latinos formed 13 percent of the population by 2000, edging out African Americans as the most numerous minority.

The U.S. census, without peer in scoring the nation’s racial makeup, had begun to notice Latin Americans in the 1940s by counting up heterogeneous peoples with Spanish surnames and hastily lumping them together as “Hispanics.” Though an impossibly crude measurement, it survived until 1977. By that point, the federal government needed more precise racial statistics to enforce civil rights legislation. To this end, the Office of Management and budget issued Statistical Policy Directive no. 15.

Here was a change worth noting: in the racially charged decades of the early twentieth century, governments at all levels had passed laws to separate Americans by race. […] The Civil Rights Act of 1964 and the Voting Rights Act of 1965 began to change all that, so that by the late twentieth century the rationale for counting people by race had morphed into a means of keeping track of civil rights enforcement. Statistical Policy Directive no. 15 set the terms for racial and ethnic classification throughout American society by directing federal agencies–including the U.S. census–to collect data according to four races (black, [385] white, American Indian/Alaskan Native, and Asian/Pacific Islander–Hawaiian was added later as a concession to protests) and one ethnic category (Hispanic/Latino, which is not racial). Elaboration was good for civil rights, but it opened the way to chaos.

Under these guidelines the Hispanic/Latino classification portended enormous turmoil. Now that there was a “non-Hispanic white” category, did there not also exist Hispanic white people? Yes, no, and other. Faced with the given racial choices on the census of 2000, fully 42.2 percent of Latinos checked “some other race,” rather than “black” or “white,” throwing nearly 6 percent of Americans into a kind of racial limbo.[1]

In addition, the U.S. Census of 2000 had to increase a deeper and more personal recognition of multiracial identities. For the first time, respondents were allowed to describe themselves as belonging to one or more of fifteen “racial” identities.

History of White People, 384-385.

(N.B.: But this account seems confused. The Census didn’t start counting Latinos in 1940, it started counting them in 1930 with the “Mexican” racial category and then switched to the surname method when protest killed the category. The 1930 decision wasn’t initially developed to serve civil rights law; it was part of the racial “darkening” of Latinx people following the 1920s-1930s and heralded the age of mass deportation. Etc.)

  1. [1]Victoria Hattam, “Ethnicity and the Boundaries of Race: Rereading Directive 15,” Daedalus 134, no. 1 (Winter 2005): 61-62, 67.

“Such a conflation created a two-race system–whites and ‘others.'” (Deutsch)

When Harjo and his fellow Snakes returned gunfire, two men, including the son of the sheriff, died in the battle. The white newspapers had a field day, vastly inflating the numbers killed and declaring “WAR WITH SNAKES.” Posses roamed the countryside arresting Indians and blacks. They burned Harjo’s house and looted others, under the guise of putting down a rebellion. White papers demanded “protection and Indian suppression”; the mayor of Henryetta declared, “The Snake Indians and the negroes affiliated with them are a menace to the country and should be captured.”[46] The local federal Indian agent maintained that Harjo would have to admit that “this was going to be a white man’s country.”[47]

The white posse and its allies had strategically conflated freedmen from everywhere, blacks of all sorts, and Creek resisters. Such a conflation created a two-race system–whites and “others.” In this case, “blacks” (unlike in the state’s constitution) became “Indians.” Engaging the script of the Anglo western conquest allowed these whites to pose the eradication of a black settlement as a final Indian engagement, a legitimized whitening of the West against a known external enemy.

Sarah Deutsch, "Being American in Boley, Oklahoma," in Beyond Black and White: Race, Ethnicity, and Gender in the U.S. South and Southwest, ed. Stephanie Cole and Alison M. Parker, 97-122 (College Station: Texas A&M University Press, 204) Deutsch, Sarah. “Being American in Boley, Oklahoma,” in Beyond Black and White: Race, Ethnicity, and Gender in the U.S. South and Southwest, edited by Stephanie Cole and Alison M. Parker, 97-122. College Station: Texas A&M University Press, 2004., 113.
  1. [46]Quoted in Littlefield and Underhill, “The ‘Crazy Snake Uprising,'” pp. 323-24.
  2. [47]Kelsey quoted in Kenneth Waldo McIntosh, “Chitto Harjo, The Crazy Snakes and the Birth of Indian Political Activism in the Twentieth Century” (Ph.D. dissertation, Texas Christian University, 1993), p. 136. The troops never found Harjo, who had sought refuge among the Choctaw Snakes and died in 1911.

Haney Lopez, WHITE BY LAW, further discussion and reading references on In re Rodriguez (1897)

White By Law, p. 242. Notes to Chapter 3.

35. In re Rodriguez, 81 F. 337, 349 (W.D. Tex. 1897).

36. Id. at 354. Despite the admission of Rodriguez to citizenship, Mexicans in the Southwest suffered considerable legal repression in the decades after the U.S. conquest of that region. See generally RODOLFO ACUñA, OCCUPIED AMERICA: A HISTORY OF CHICANOS (3rd. ed. 1988). The history of legal resistance to such repression is examined in George Martínez, Legal Indeterminacy, Judicial Discretion and the Mexican-American Litigation Experience: 1930-1980, 27 U.C. DAVIS L. REV. 555 (1994).

37. The Supreme Court subsequently drew into question the holding in Rodriguez. Morrison v. California, 291 U.S. 82, 95 n.5 (1933). The Court wrote: “Whether a person of [Mexican] descent may be naturalized in the United States is still an unsettled question. The subject was considered in Matter of Rodriguez, but not all that was there said is consistent with later decisions of this court.” For a commentator’s criticism of Rodriguez on the grounds that Mexicans are not “white persons,” see Gold, supra, at 499-501.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 242.

“‘White’ is an idea, an evolving social group, an unstable identity subject to expansion and contraction, a trope for welcome immigrant groups, a mechanism for excluding those of unfamiliar origin, an artifice of social prejudice… ‘White’ is not a biologically defined group, a neutral designation of difference, an objective description of immutable traits, a scientifically defensible division of humankind, an accident of nature unmolded by the hands of people.” (Haney Lopez)

Becoming White, then, is not an either/or proposition, but rather it is an uneven process, resulting in racial identities that change across contexts and time. Thus, in the 1920s eastern and southern Europeans could be White for purposes of naturalization, but still racial inferiors in the close context of immigration and the more general milieu of social relations. […] Recall now the question that opened this book. Judge [107] Smith in Shahid asked: “Then, what is white?”[81] The above discussion suggests some answers. Whiteness is a social construct, a legal artifact, a function of white people believe, a mutable category tied to particular historical moments. Other answers are also possible. “White” is an idea, an evolving social group, an unstable identity subject to expansion and contraction, a trope for welcome immigrant groups, a mechanism for excluding those of unfamiliar origin, an artifice of social prejudice. Indeed, Whiteness can be one, all, or any combination of these, depending on the local setting in which it is deployed. On the other hand, in light of the prerequisite cases, some answers are no longer acceptable. “White” is not a biologically defined group, a neutral designation of difference, an objective description of immutable traits, a scientifically defensible division of humankind, an accident of nature unmolded by the hands of people. In the end, the prerequisite cases leave us with this: “white” is common knowledge. “White” is what we believe it is.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 80-81.

 

  1. [81]Ex parte Shahid, 205 F. 812, 813 (E.D.S.C. 1913).

“The yellow or bronze racial color is the hallmark of Oriental despotisms…” / “The White race was … ‘peculiarly fitted for self-government'” (Haney Lopez)

(Cf. 1836 Declaration from Texas on “unfit to govern themselves,” etc., which is cited in briefs in In re Rodriguez.)

The prerequisite cases also naturalized Whiteness by linking cognitive and cultural traits to physical difference. The prerequisite courts tied temperament, culture, intellect, political sophistication, and so on to physical features, treating questions of behavior as innate elements of human biology rather than as aspects of acquired identity.[16] Reconsider the justification offered by one court for the racial bar on Asian naturalization: “The yellow or bronze racial color is the hallmark of Oriental despotisms.”[17] This language draws a direct link between race and political temperament, thereby making culture a function of racial rather than social variability. This view of race seems to undergird the prerequisite laws, rendering fitness for citizenship not a question of learned behavior but of innate predispositions. To see this, contrast the remark about “despotism” with the view commonly held at the turn of the century that the White race was, as a leading scholar put it, “peculiarly fitted for self-government. It submits its action habitually to the guidance of reason, and has the judicial faculty of seeing both sides of a question.”[18] Whites qualified for citizenship because they were fit by nature for republican government; non-Whites remained perpetual aliens because they were inherently unfit for self-rule. Putative differences in temperament and culture were naturalized as “racial” differences.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 162.

 

  1. [16]SMEDLEY, supra, at 27.
  2. [17]Terrace v. Thompson, 274 F. 841, 849 (W.D.Wash. 1921).
  3. [18]FRANCIS PARKMAN: REPRESENTATIVE SELECTIONS 380-82 (William Schram ed., 1938), quoted in THOMAS GOSSETT, RACE: THE HISTORY OF AN IDEA IN NORTH AMERICA 95 (1963).

“The prerequisite cases show that race is a social construct fabricated in part by law.” (Haney Lopez)

The prerequisite cases show that race is a social construct fabricated in part by law. More than this, these cases specifically illuminate the construction of Whiteness, constituting that rare instance when White racial identity is unexpectedly drawn out of the background and placed abruptly in question. Moving away from legal theory, it is useful to ask what the prerequisite cases tell us about Whiteness. It may seem that these cases say relatively little, both because the courts failed to offer a developed definition of White identity, and also seemed to concern themselves much more with who was not White. In the end, however, it is exactly these practices that tell us most about the nature of White identity today, drawing into view both the maintaining technologies of transparency and the relational construction of White and non-White identity.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 155.

“Racism and prejudice, it is clear, played a fundamental role in encouraging mob violence against Mexicans … [1920s] ‘I would not think of classifying Mexicans as whites'” (Carrigan and Webb)

1920s: “I would not think of classifying Mexicans as whites.” / BB&W 50 (From Taylor interviews.)

Economic competition, although a significant force, does not sufficiently explain the history of anti-Mexican or anti-black mob violence. If mobs had considered only economics, they would have been just as likely to murder or expel any group standing in their way. But, in fact, mobs specially targeted Mexicans in the southwestern United States. Racism and prejudice, it is clear, played a fundamental role in encouraging mob violence against Mexicans. Mexicans were portrayed as a cruel and treacherous people with a natural proclivity toward criminal behavior. Racist stereotypes abounded in private correspondence, contemporary literature, and the popular media. “The lower class of Mexicans, on the west coast, appear to be a dark, Indian-looking race, with just enough of the Spanish blood, without its appropriate intelligence, to add a look of cunning to their gleaming, treacherous eyes, wrote Theodore T. Johnson in 1849.[54] In April, 1872, the Weekly Arizona Miner exclaimed: “Bad Mexicans never tire of cutting throats, and we are sorry to be compelled to say that good Mexicans are rather scarce.”[55] These assumptions, legitimated by pseudoscientific research, remained prevalent well into the twentieth century. A track foreman interviewed in the late 1920s in Dimmit County, Texas, observed: “They are an inferior race. I would not think of classing Mexicans as whites.”[56]

William D. Carrigan and Clive Webb, "Muerto por Unos Desconocidos (Killed by Persons Unknown): Mob Violence against Blacks and Mexicans," in Beyond Black & White: Race, Ethnicity, and Gender in the U.S. South and Southwest, edited by Stephanie Cole and Alison M. Parker (College Station: Texas A&M University Press, 2004), 50.

 

 

  1. [54]Theodore T. Johnson, Sights in the Gold Regions and Scenes by the Way (New York: Baker and Scriber, 1849), p. 240. Another early example of Anglo prejudice against Mexicans can be found in T. J. Farham, Life, Travels, and Adventures in California and Scenes in the Pacific Ocean (New York: William H. Graham, 1846), pp. 356-57.
  2. [55]Weekly Arizona Miner, Apr. 26, 1872.
  3. [56]Paul S. Taylor, Mexican Labor in the United States: Dimmit County, Winter Garden District, South Texas (Berkeley: University of California Press, 1980), p. 446 (quote). For additional accounts of prejudicial views towards Mexicans, see Robert Lee Maril, Poorest of Americans: The Mexican Americans of the Lower Rio Grande Valley of Texas (Notre Dame, Ind.: University of Notre Dame Press, 1989), pp. 10-11, 30, 33, 41-47, 49, 51-54, 79, 81, 151-55; Américo Paredes, “With His Pistol in His Hand,” in Chicano: The Evolution of a People, ed. by Renato Rosaldo, Robert A. Calvert, and Gustav L. Seligmann, Jr. (Malabar, Fla.: Robert E. Krieger Publishing Company, 1982), p. 101; Richard Griswold del Castillo and Arnoldo De León, North to Aztlán: A History of Mexican Americans in the United States (New York: Twayne Publishers, 1996), p. 30; Frank W. Johnson, A History of Texas and Texans (Chicago: American Historical Society, 1914), vol. 1, p. 516; Mark Reisler, “Always the Laborer, Never the Citizen: Anglo Perceptions of the Mexican Immigrant during the 1920s,” in Between Two Worlds: Mexican Immigrants in the United States, ed. by David G. Gutierrez (Wilmington, Del.: Scholarly Resources Inc., 1996), pp. 25-29.

“The role of nonlegal actors in the legal construction of race can be understood as a question about whether people obey or acquiesce to the law.” (Haney Lopez)

Non-Whites

Judges and legislators continue to participate in the legal construction of race, if for some only through the internalization [147] of socially prevalent racist beliefs. But what of non-legal actors? The role of nonlegal actors in the legal construction of race can be understood as a question about whether people obey or acquiesce to the law. To obey suggests a rational, considered relation to law in which the law coerces through threats and rewards that are evaluated and form the basis for decisions about how to act. Acquiescence suggests a more complex relationship with law, one in which the actor accepts the norms and assumptions underlying law as legitimate or at least binding, leading to behavior conditioned, not just through a rational calculus of rsisk and rewards, but through subscription to the normative world of the legal regime.[67] This question of obedience or acquiescence among nonlegal actors is central to assessing the intractability of existing racial categories. If people merely obey the law, then altering laws might promise quick changes in racial construction; however, change might be more difficult if through a lifetime of acquiescence people have fully embraced the assumptions about races embedded in current laws. Questioning whether people obey or acquiesce to law takes on a significantly different character, however, when posed in a discussion about the role of people of color in the legal construction of race. In this context, the question becomes one of complicity: If rather than simply obeying the law we have acquiesced to it, are we complicitous in our own oppression?

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 146-147.

 

“In the western states, racial discrimination against Mexicans shares an almost equally long history, appearing for example in California’s 1855 ‘Greaser Act'” (Haney Lopez)

California 1855 ‘Greaser’ Act — [using a Texas-origin ethnic slur… -CJ]

It may be that those who draft or support such laws are unconscious racists in the sense that they operate under the influence of prevalent social prejudices but cannot admit even to themselves the racial antipathies that rule their fears and desires. Racial prejudice against immigrants is a long tradition in the United States, evident [145] certainly in the prerequisite cases. In the western states, racial discrimination against Mexicans shares an almost equally long history, appearing for example in California’s 1855 “Greaser Act,” an antiloitering law that applied to “all persons who are commonly known as ‘Greasers’ or the issue of Spanish and Indian blood . . . and who go armed and are not peaceable and quiet persons.”[65] Prejudice forms an established part of the contemporary social fabric, even as it stands in contradiction to society’s expressed disapproval of racial discrimination. Racial prejudice, though not consciously recognized as such, exists at a level that motivates and directs social hostility, giving it rhetorical and, more importantly, legal form.

The relative lack of intentional racial animus behind Proposition 187 and similar anti-immigrant legislation does not reduce the effect such laws have in maintaining and deepening racial hierarchies. […] Anti-immigrant laws, drawing on deep social beliefs in racial hierarchy, give effect to and entrench those same social beliefs.

The prevalence and daily material reinforcement of racist beliefs in our society ensure the continued legal construction of race in the form of ostensibly neutral but [146] actually discriminatory laws put forward by those who assure us, and are genuinely convinced of, their own good intentions.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 144-146.

 

  1. [65]Act of April 30, 1855, ch. 175, § 2, 1855, Cal. Stat. 217, excerpted in ROBERT F. HEIZER and ALAN J. ALMQUIST, THE OTHER CALIFORNIANS: PREJUDICE AND DISCRIMINATION UNDER SPAIN, MEXICO, AND THE UNITED STATES 151 (1971).

“The issue was not immigration, it was Mexicans…” – demography, fertility, “mongrelization” (Haney Lopez)

WBL p. 142ff

The racial animus behind Proposition 187 is painfully evident in the imagery and language used by the proponents of the measure. Consider the questions posed in rhetorical support of S.O.S. in the official state ballot pamphlet:

Should those ILLEGALLY here receive taxpayer subsidized education including college?

Should our children’s classrooms be over-crowded by those who are ILLEGALLY in our country?

Should our Senior Citizens be denied full service under Medi-Cal to subsidize the cost of ILLEGAL ALIENS?[56]

Even in the context of a ballot pamphlet, where one might expect carefully considered advocacy, the structure and language of these questions betrays the stark us-versus-them distinctions that mark racial divides, creating an unbridgeable gulf between “them,” the illegal aliens, and “us,” the taxpayers, parents, and senior citizens. Undocumented people, whether tourists who overstayed their visas or wage laborers who crossed the border for work, are cast as a single, homogenous, undeserving, uppercase [143] OTHER bent on victimizing the variegated but relatively defenseless and lowercase “we.”

Not surprisingly, the less-restrained public campaign for Proposition 187 echoed and amplified these overtones of racial bias. In the public campaign, the issue was not immigration, it was Mexicans. In television commercials linking his bid for reelection to support for S.O.S., California Governor Pete Wilson repeatedly ran prime-time images of people running in pandemonium through a Tijuana-San Diego border checkpoint, powerfully transforming the anti-immigrant initiative into an anti-Mexican campaign.[57] As Elizabeth Martínez writes, “Wilson has almost single-handedly made the word ‘immigrant’ mean Mexican or other Latino (and sometimes Asian). Who thinks of all the people coming from the former Soviet Union and other countries?”[58] Wilson is not alone in race-baiting through the language of immigration reform. Evidence of racial bias also abounds in the comments of others who support restrictionist immigration policies. One grass-roots organizer argues that with immigrants, “[i]t’s like animals. When there’s scarcity, they don’t breed. When there’s plenty, they breed.”[59] A founder of the prominent restrictionist lobby, the Federation for American Immigration Reform, asks: “Will the present majority peaceably hand over its political power to a group that is simply more fertile? . . . On the demographic point, perhaps this is the first instance in which those with their pants up are going to get caught by those with their pants down!”[60] A 1992 Republican presidential hopeful stated “that immigrants ‘mongrelize’ our culture and dilute our values.”[61] The divisive rhetoric of us and them, the repeated depictions of Mexicans rushing across the border, and the invective about breeding and mongrelization all slander the reality of immigration to this country in the hostile terms of racial inferiority. This language completely disregards the reality [144] Gerald López seeks to remind us of, that when it comes to immigration, “They are we.”[62]

In light of these xenophobic comments and the long history of nativism in the United States, it is difficult to conclude that anything but racism provides the primary force behind anti-immigrant measures such as Proposition 187. Nevertheless, it must be noted that the vast majority of those supporting such legislation insist that they are not driven by racism. Thus, the proponents of the S.O.S. initiative stress that race is irrelevant to their concerns, and that they are solely interested in curtailing the flow of undocumented migration. […]

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 141-143.
  1. [56]Illegal Aliens, Ineligibility for Public Services. Verification and Reporting. Initiative Statute, CALIFORNIA BALLOT PAMPHLET, GENERAL ELECTION, NOVEMBER 8, 1994, at 54.
  2. [57]Elizabeth Kadetsky, Bashing Illegals in California, THE NATION, Oct. 17, 1994, at 416, 421.
  3. [58]Elizabeth Martínez, Seeing More Than Black and White: Latinos, Racism, and Cultural Divides, Z MAGAZINE, May 1994, at 56, 58.
  4. [59]Amy Chance, Controls Defended as Economic, Not Racist, SACRAMENTO BEE, Jan. 24, 1993, at A10, quoted in Kevin Johnson, Los Olvidados: Images of the Immigrant, Political Power of Noncitizens, and Immigration Law and Enforcement, 1993 B.Y.U. L. REV. 1139, 1165 n.95.
  5. [60]Amy Chance, Illegal Aliens Increasingly Blamed for State’s Problems, SACRAMENTO BEE, Jan. 24, 1993, at A1 (quoting John Tanton), quoted in Johnson, supra, at 1165 n.95.
  6. [61]Bill Ong Hing, Beyond the Rhetoric of Assimilation and Cultural Pluralism: Addressing the Tension of Separatism and Conflict in an Immigration-Driven Multiracial Society, 81 CAL. L. REV. 863, 870 (1993) (quoting David Duke) (citation omitted).
  7. [62]Gerald López, Undocumented Mexican Migration: In Search of a Just Immigration Law and Policy, 28 UCLA L. REV. 615, 713 (1981).