“The Third Enlargement of American Whiteness,” post-1945 (Painter)

“The Third Enlargement of American Whiteness,” post-1945. “Included now were Mexicans and Mexican Americans … Since the mid-1930s, federal and Texas state laws had defined Mexicans as white and allowed them to vote in Texas’s white primary.”

The Second World War rearranged Americans by the millions. […] Louis Adamic had dreamed of a second, more homogenized immigrant generation, and one had already started in the Civilian Conservation Corps, fruit of the New Deal’s earliest days. Now, a decade later, millions rather than tens of thousands left home.

Let us remember that this mixing occurred with several notable exceptions. Black Americans–who numbered some 13.3 million in 1940–were, of course, largely excluded. Their time would come much later, and with revolutionary urgency. But also excluded were Asian Americans. Even so, other Americans–provided they qualified as white for federal purposes–experienced a revolution of their own. Indeed, the white category itself had expanded enormously, well beyond European immigrants and their children. Included now were Mexicans and Mexican Americans.

[360] The handsome Julio Martinez from San Antonio plays a leading role in the multicultural Army squad of Norman Mailer’s best-selling war novel The Naked and the Dead (1948). […] Since the mid-1930s, federal and Texas state laws had defined Mexicans as white and allowed them to vote in Texas’s white primary.[4] While Asian American and African American service personnel were routinely segregated and mistreated, Mexican Americans fought in white units and appeared in the media of war, witness the boom in popular war movies like Bataan (1944), staring the Cuban Desi Arnaz (who in the 1950s would become a television star as Lucille Ball’s husband in the long-running I Love Lucy series).

Nell Irvin Painter, The History of White People (New York: W.W. Norton & Company, 2010), 359-360.

(N.B.: this account is largely wrong, and symptomatic of an all-too-frequent mistake in the historical studies of expanding constructions of whiteness)

  1. [4]Thomas A. Guglielmo, “Fighting for Caucasian Rights: Mexicans, Mexican Americans, and the Transnational Struggle for Civil Rights in World War II Texas,” Journal of American History 92, no. 4 (March 2006): 1215-16. After 1945, Native American Indians were included with Caucasians (1232).

“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.

“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.

 

“this sociohistorical boundary crossing is normal to law” (Haney Lopez)

Evolution of ‘white’ from 1790s to 1890s – ‘sociohistorical boundary crossing’ of legal terms. / WBL 126-7.

In addition to legitimating race, legal rules operate as an idea-system to construct races in a second way. Though race as a social concept has some autonomy, it is always bounded in its meanings by the local setting. Laws help racial categories to transcend the sociohistorical contexts in which they develop. For example, the original prerequisite statute was written in 1790, when popular conceptions of race on the eastern seaboard of North America encompassed only Whites, Native Americans, and Blacks. As a legal restriction on naturalization, however, the “white person” prerequisite of 1790 was imposed on Bhagat Singh Thind on the West Coast of the United States in 1920. It is most unlikely that those who wrote the first prerequisite law intended either to include or to exclude South Asians, for that group almost certainly existed outside the realm of their world knowledge. […] Nevertheless, partially by its institutionalization in law, the category of ‘white persons’ transcended the local boundaries of time, place, and imagination in which it had one meaning, persisting and expanding into [127] remarkably different locales, where, though with a facade of continuity, it took on various new definitions.

This sociohistorical boundary crossing is normal to law.. One of the defining elements of law is its universal aspiration, its will to apply equally in all cases and across all situations. However, the pursuit of universality in law can make it a profoundly conservative force in racial construction. Here, the role of precedent is particularly important. Racial lines are prevented from shifting to the extent that past racial definitions control decisions about race in the present. “Reasoning by analogy to precedent cases creates a false historicity in that it perpetually reclaims the past for the present: in theory a dispute in 1989 can be resolved by reference to cases from 1889 or 1389.”[23] Of course, the dead hand of the past does not completely control the present; precedent is often manipulated, and such manipulation is central to legal change. Nevertheless, by giving great weight to superannuated racial definitions, precedent keeps alive restrictive notions of race.

Consider the Mashphee Indian case. [… difficulty of proving they were a “tribe” according to Supreme Court standards from 1901…] [128] In this way the use of precedent in law provides a conserving, stabilizing force in racial construction by preserving the relevance of past racial definitions, thereby allowing such categories to transcend their local settings.

Law frees racial categories from their local settings in another, quite distinct sense, as well: it occasionally provides new language with which to construct racial differences. Legal terms that do not refer explicitly to race may nevertheless come to serve as racial synonyms, thus expanding in often unpredictable ways the form and range of racial categorization. This possibility is evident in the prerequisite cases, though it is much more relevant to the legal construction of race today. The prerequisite laws spawned a new vocabulary by which to mark racial difference, the phrase “alien ineligible to citizenship.” Congress and a number of states used this phrase to avoid the Fourteenth Amendment’s bar against invidious race-based discrimination. In 1922 Congress proscribed the marriage of U.S. citizen women to non-White aliens by providing that “any woman citizen who marries an alien ineligible to [129] citizenship shall cease to be a citizen of the United States.[28] Two years later Congress relied on the same phrase to ban unwanted races from the country, mandating that “[n]o alien ineligible to citizenship shall be admitted to the United States” except under restrictive circumstances.[29] [… use in alien land laws, struck down eventually in Oyama …] Legal language can allow ideas of race to transcend their historical context through precedent, and also can contribute to the construction of race by providing a new vocabulary with which to take note of, stigmatize, and penalize putative racial differences. Law thus frees racial categories not only from contextual bounds, but also from the bounds society places on the use of race. […] As will be emphasized later, the law’s ability to provide seemingly neutral synonyms for race may be one [130] of the most important legal mechanisms in current processes of racial construction.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 126-130.

 

  1. [23]Carol Greenhouse, Just in Time: Temporality and the Cultural Legitimation of Law, 98 YALE L.J. 1631, 1640 (1989).
  2. [28]Act of Sept. 22, 1922, ch. 411, § 3, 42 Stat. 1021.
  3. [29]Act of May 26, 1924, ch. 190, § 13(c), 43 Stat. 153.

“some may suggest that legal rules patrol only the borders between races” — “construct races only at the margins” (Haney Lopez)

Irrespective of the use of violence, however, it may seem that at this coercive level laws construct races only at the margins. Granting that races are social constructions, some may suggest that legal rules patrol only the borders between races, resolving just those rare cases not already clearly defined within the underlying social systems of racial division. Arguably, only the person not clearly White or Black has her race determined in a prerequisite case or by her neighborhood. However, a focus on the coercive aspect of law seems to explain more than just the legal construction of race at the margins. Certainly the prerequisite cases legally established the legal identity of groups we now regard as firmly at the core of racial categories, for example the Japanese, and Jim Crow laws were indispensable in maintaining and even extending the social differentiation established through the slave codes and threatened during Reconstruction. Nevertheless, the explanatory power of this model should be questioned. How does law-as-coercion explain the continuing significance of race in a [123] postsegregation era? If races have been created through coercion, why hasn’t the end to the legal enforcement of racial differences been followed by a collapse in racial systems? Or, what can such a model tell us about the prevalent belief that races are legally fashioned? If races have been imposed, why is it that the vast majority of people embrace race so willingly? And why do these same people so vigorously deny that they have been coerced into a racial identity? Races are much more deeply embedded in our society than a theory of law-as-coercion would seem to explain. If law is a full participant in the construction of races, it must fashion races through some additional mechanism besides simple direct behavioral control.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 122ff.

“In this context, consider the pull of antidiscrimination laws in moving people to frame their identities in terms of the racial categories recognized by law” (Haney Lopez)

Civil rights law as logic now governing racial categories / WBL p.101, pp. 125-126.

The pull of antidiscrimination laws:

In both the strong and weak sense, contemporary laws continue to legitimate races. This is most evident in the continued legal reliance on rigid racial categories. Racial classification remains legally permissible and in fact necessary to efforts aimed at remedying the legacy of racial discrimination in this country. … Vindicating the rights of minorities has required maintaining a legal system that distinguishes between Whites and non-Whites.[19] The necessary persistence of racial categories in law lends legitimacy to the notion that races exist in fact, leading people to think not only of others but of themselves in racial terms. In this context, consider the pull of antidiscrimination laws in moving people to frame their identities in terms of the racial categories recognized by law. At the level of both individuals and groups, people must conform their identities to these rigid categories if they seek legal protection from discrimination. Thus, some legal scholars [126] have tried to frame Mexican American identity as a specifically racial, rather than ethnic or cultural, identity for the purposes of securing constitutional or statutory protection against discrimination.[20] It is not unreasonable to argue that “races may be defined in America in some significant part by their relationship to antidiscrimination law in addition to constituting an independent influence on that body of law.”[21] The necessary persistence of legal classifications of race gives law a continuing role in the construction of racial identities by legitimating the practice of categorization and by limiting possible conceptions of who we are.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 125-126.

DOMINGUEZ = DOMINGUEZ, VIRGINIA, WHITE BY DEFINITION: SOCIAL CLASSIFICATION IN CREOLE LOUISIANA (1986)

KELMAN = KELMAN, MARK. A GUIDE TO CRITICAL LEGAL STUDIES (1987).

Cf. on the contrary pull of naturalistic conceptions in law, but also the development of St. Francis College v. Al-Khazraji:

Naturalistic understandings of race persist as well, [101] though again not surprisingly, in law and common knowledge. Few in this society seem prepared, at the beginning of this century or now, fully to relinquish their subscription to biological notions of race. This is particularly true of Congress and the Supreme Court. Congress makes clear its anachronistic understanding of race in a recent statute that defines “the term ‘racial group’ [as] a set of individuals whose identity as such is distinctive in terms of physical characteristics or biological descent.”[64] The Court, although purporting in its recent discussions to sever race from biology, also seems incapable of completely doing so. In a 1987 case, Saint Francis College v. Al-Khazraji, the Court addressed whether a U.S. citizen of Iraqi descent could recover damages for racial discrimination.[65] Answering in the affirmative for a unanimous Court, Justice Byron White seemed initially to abandon biological notions of race in favor of a sociopolitical conception. “The particular traits which have generally been chosen to characterize races have been criticized as having little biological significance,” he wrote. “These observations have led some, but not all, scientists to conclude that racial classifications are for the most part sociopolitical, rather than biological in nature.”[66] Despite this initial rejection of biological race, however, Justice White continued, “The Court of Appeals was thus quite right in holding that [the law] reaches discrimination against an individual ‘because he or she is genetically part of an ethnically and physiognomically distinctive subgrouping of homo sapiens.'”[67] Justice White’s use of the lower court’s talk of genetics and distinctive subgroupings demonstrates a continued reliance on biological notions of race.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 100-101.
  1. [19]DOMINGUEZ, supra., at 5.
  2. [20]See, e.g., Richard Delgado and Vicky Palacios, Mexican Americans as a Legally Cognizable Class Under Rule 23 and the Equal Protection Clause, 50 NOTRE DAME LAW. 393 (1975); Gary A. Greenfield and Don B. Kates, Jr., Mexican Americans, Racial Discrimination, and the Civil Rights Act of 1866, 63 CAL. L. REV. 662 (1975).
  3. [21]KELMAN, supra., 255. See also Martha Minow, Identities, 3 YALE J. L. & HUMAN. 97, 111 (1991) Minow writes: “The use of a specific notion of identity to resolve a legal dispute can obscure the complexity of lived experiences while imposing the force of the state behind the selected notion of identity.
  4. [64]Genocide Convention Implementation Act of 1987, 18 U.S.C. § 1093 (1988).
  5. [65]Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987).
  6. [66]Id. at 610, n. 4
  7. [67]Id. at 613.