Ian F. Haney López, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE

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

Book (1996), 225pp, available at Auburn University RBD Library. From the Critical America series.

Critical legal theory; a historical and legal examination of the “free white person” prerequisite and racial language in U.S. naturalization law 1790-1952, and the “Prerequisite cases” in U.S. federal courts ruling on the construction of “white” 1878-1952.

Special focus on the early prerequisite cases and then the process leading up to Ozawa and Thind in 1923. Appendix A includes a comprehensive timeline of federal prerequisite cases; Appendix B includes excerpts from some of the major prerequisite cases discussed in the book. The closing chapters include a critical account of the socially constructed nature of race and of Whiteness, the role of legal categorization and legal construction in that process of social construction, an analysis of the persistence of Whiteness despite the removal of explicit racial and color line discrimination from law, etc.

Haney López very much wants to apply the framework he develops in the book to the immigration politics of the mid-1990s and in particular the role of Whiteness and racialized targeting of Mexican Americans and Latinxs broadly in anti-immigrant political movements, focusing especially on the Proposition 187 campaign in California. He also discusses In re Rodriguez (1897), the main federal case to deal with the question of the whiteness of Mexican American immigrants in the prerequisite-case era. But although he clearly takes anti-Mexican immigration politics as a key contemporary parallel to the prerequisite-era debates over whiteness and (mainly) “Asiatic” exclusion, the discussion of Rodriguez is very short, and indeed seems abortive and a bit confused. (Did the ruling hold that Mexicans were white, or that they weren’t white? Haney López seems to say two different things in the main text, the notes and the Appendices.) The case is explicitly treated as exceptional and not integrated into the overarching analysis of the prerequisite cases. (But then, of course, Rodriguez holds the opposite of Mexicans from what they held of Chinese, Japanese, etc. immigrants, and what Haney López takes now to be the case of the treatment of Mexicans in, e.g., California electoral politics. In any case the federal case history itself is pretty limited and confusing, perhaps even itself confused.)

 

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.

“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.

“It is crucial to note that, in constructing race, legal rules operate through violence” (Haney Lopez)

It is crucial to note that, in constructing race, legal rules operate through violence. The legal system enforces rules occasionally through rewards but most often through the threat of application of harm. Such potential or actual harm is often difficult to see. For example, the prerequisite cases seem at first glance to be nothing more than dry exegetical readings of ambiguous legal texts in which it is impossible to find even obscure allusions to coercive force. Nevertheless, violence is there. “A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life,” Robert Cover correctly insists, adding, “[w]hen [judges] have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence.”[11] In the prerequisite cases, we may assume violence, probably literally in the corporeal forms of immigration officers and border guards, certainly figuratively in the form of constrained lives and truncated hopes, and occasionally obviously in the form of suicide. [122] In the law of race more generally, violence is manifest in slavery, in Jim Crow segregation, in police brutality, in the discriminatory enforcement of criminal laws, in the dispossession of Native American land rights, in the internment of people of Japanese descent, in the failures of the law to provide equal justice or to protect against discrimination. In all of this violence, the law not only relied on but also constructed racial distinctions. To say that law constructs races is also to say that races are the product of, not just the excuse for, violence. James Baldwin remarks that “no one was white before he/she came to America. It took generations, and a vast amount of coercion, before this became a white country.”[12] Courts may have been the principal institutional forum for that vast coercion, and laws its principal form of civilized expression.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 121ff.

 

“it appears that the word ‘white’ has been used in colonial practice, in the federal statutes, and in the publications of the government to designate persons not otherwise classified.” (Halladjian, qtd in Haney Lopez)

1909 – Halladjian: “the word ‘white’ has been used… to designate persons not otherwise classified” / WBL p. 99

Science failed to prove what was to the courts eminently obvious, the existence of natural racial differences. In the fifty-two reported prerequisite decisions, only one court concluded that the term “white person” referred not to a natural category but only to a legal one. In this anomalous 1909 case, a federal district court sitting in Boston examined and dismissed various anthropological and geographic definitions of a “white” race before adopting a textual approach to the question of whether Armenians could naturalize. Examining statutes and census documents dating back to the original colonies, the court said “it appears that the word ‘white’ has been used in colonial practice, in the federal statutes, and in the publications of the government to designate persons not otherwise classified.”[57] Since Congress had not designated Armenians as non-Whites, the court concluded, they were still legally White and eligible for naturalization. Every other court deciding a prerequisite case, including the Supreme Court, continued to believe that races were natural and self-evident.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 99.
  1. [57]Halladjiansupra, 174 F. at 843.

“That no judge naturalized a person identified as having dark skin suggests an unwillingness among the courts to find such persons White” (Haney Lopez)

??? What about Rodriguez, seems like an exception here ??? / WBL 69ff

Despite Judge Newman’s assertion in Najour that the term “white person” “refers to race, rather than to color, and fair or dark complexion should not be allowed to control” in questions of naturalization, no judge, not even Judge Newman, was particularly comfortable with this legal point. Instead, the decisions betray judicial antipathy toward allowing dark-skinned persons to naturalize as Whites, a predictable response of the times. This antipathy can be seen in the way the various courts discussed the applicants’ skin color. Consider two decisions denying petitions for citizenship issued by a federal court in South Carolina. In the first, the judge said of the petitioner, “in color, he is about that of a walnut, or somewhat darker than is the usual mulatto of one-half mixed blood between the white and negro races.”[58] In the next, the same judge described another ill-fated applicant as “darker than the usual person of white European descent, and that of tinged or sallow appearance which usually accompanies persons of descent other than purely European.”[59] Though the judge did not identify skin color as a determining factor in his decisions, that the court thought it necessary to describe the applicants’ complexions suggests that this factor contributed to the decisions to deny them naturalization. Concern over skin color also manifests itself, albeit in different form, in those decisions allowing applicants to naturalize. Courts ruling for naturalization either noted the applicants light skin color or remained silent as [69] to physical features. That no judge naturalized a person identified as having dark skin suggests an unwillingness among the courts to find such persons White. This is true even of Judge Newman. In Najour, he wrote of the applicant: “He is not particularly dark, and has none of the characteristics or appearance of the Mongolian race, but, so far as I can see and judge, has the appearance and characteristics of the Caucasian race.”[60] Similarly, another federal court admitting several Armenian applicants remarked that they were “white persons in appearance, not darker in complexion than some persons of northern European descent traceable for generations.”[61] Najour‘s holding that color was legally irrelevant to race proved highly troublesome to the courts considering prerequisite cases, both to those deciding upon the application of persons perceived as dark-skinned, and, to a lesser degree, to those finding the petitioners before them White.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 69ff.
  1. [58]Shahidsupra, 205 F. at 813.
  2. [59]Ex parte Dowsupra, 211 F. 486; In re Dowsupra, 213 F. 355.
  3. [60]Najoursupra, 174 F. at 735.
  4. [61]Halladjiansupra, 174 F. at 835.