Neil Foley, "Partly Colored or Other White: Mexican Americans and Their Problem with the Color Line," in Beyond Black and White: Race, Ethnicity, and Gender in the U.S. South and Southwest, ed. Stephanie Cole and Alison M. Parker, 123-144 (College Station: Texas A&M University Press, 204), 127.
Most Anglos in the Southwest did not regard Mexicans as white, but they also did not consider them to be in the same category as “Negro.” Before 1930s many Mexicans themselves simply thought of themselves as “Mexicanos”–neither black nor white. In 1930 a sociologist, Max Handman, commented: “The American community has no social technique for handling partly colored races. We have a place for the Negro and a place for the white man: the Mexican is not a Negro, and the white man refuses him an equal status.” As Handman explained, “The Mexican presents shades of color ranging from that of the Negro, although with no Negro features, to that of the white. The result is confusion.” No one has been more confused than whites themselves over the racial status of Mexicans, because some Mexicans look undeniably “white,” while others look almost as dark as–and sometimes darker than–many blacks. “Such a situation cannot last for long,” wrote Handman, “because the temptation of the white group is to push him down into the Negro group, while the efforts of the Mexican will be directed toward raising himself up to the level of the white group.” Mexicans, according to Handman, would not accept the subordinate status of blacks and instead would form a separate group “on the border line between the Negro and the white man.”
California 1855 ‘Greaser’ Act — [using a Texas-origin ethnic slur… -CJ]
Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 144-146.
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  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.” 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  actually discriminatory laws put forward by those who assure us, and are genuinely convinced of, their own good intentions.
- 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).↩
WBL p. 142ff
Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 141-143.
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?
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  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. 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?” 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.” 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!” A 1992 Republican presidential hopeful stated “that immigrants ‘mongrelize’ our culture and dilute our values.” 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  Gerald López seeks to remind us of, that when it comes to immigration, “They are we.”
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. […]
- Illegal Aliens, Ineligibility for Public Services. Verification and Reporting. Initiative Statute, CALIFORNIA BALLOT PAMPHLET, GENERAL ELECTION, NOVEMBER 8, 1994, at 54.↩
- Elizabeth Kadetsky, Bashing Illegals in California, THE NATION, Oct. 17, 1994, at 416, 421.↩
- Elizabeth Martínez, Seeing More Than Black and White: Latinos, Racism, and Cultural Divides, Z MAGAZINE, May 1994, at 56, 58.↩
- 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.↩
- 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.↩
- 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).↩
- Gerald López, Undocumented Mexican Migration: In Search of a Just Immigration Law and Policy, 28 UCLA L. REV. 615, 713 (1981).↩
Immigration laws targeting presumptively Latinx immigrants serve as Haney Lopez’s chief example of facially neutral laws that nevertheless have a racially disparate impact. / WBL 141ff
Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 141ff.
The proposed constitutional amendment to repeal the  Citizenship Clause of the Fourteenth Amendment in order to deny birthright citizenship to children born in the United States to undocumented persons exemplifies current efforts to write facially neutral laws with racially discriminatory effects. So does California’s Proposition 187, the “Save Our State” (S.O.S.) initiative, which makes undocumented persons and their children ineligible for public social services ranging from primary education to non-emergency doctor’s visits and prenatal care. Approved in 1994 by a two-to-one margin but currently blocked by a series of court challenges, S.O.S. is being hailed by some national leaders as a model for the entire country. Its success dramatically confirms the role of unconscious racism in the legal construction of race.
Evolution of ‘white’ from 1790s to 1890s – ‘sociohistorical boundary crossing’ of legal terms. / WBL 126-7.
Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 126-130.
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  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.” 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…]  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  citizenship shall cease to be a citizen of the United States. 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. [… 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  of the most important legal mechanisms in current processes of racial construction.
In early Texas, there are a number of signs that lawmakers were trying to avoid racializing the Tejanx population. Why? 1. To protect marriages, 2. to protect slavery, and 3. to protect allies.
Mr. Navarro said, that if the word white means anything at all it means a great deal, and if it does not mean anything at all it is entirely superfluous, as well as odious, and, if you please, ridiculous. He made no remark with the idea that this question had any relation to the Mexican people, for they are unquestionably entitled to vote. By the application  of the word white, certain persons may be qualified, &c.,–and others, though white as snow, yet not white by descent, be disqualified. That is to say, white negroes or the descendants of Africans, who, in the course of time become so nearly white that no distinction or scarcely any can be made. He was as much opposed to giving the right of suffrage to Africans to the descendants of Africans as any other gentleman. He hoped the Convention would be clearly convinced of the propriety and expediency of striking out this word. It is odious, captious and redundant: and may be the means at elections of disqualifying persons who are legal voters, but who perhaps by arbitrary judges may not be considered as white.
William F. Weeks, Reporter. Debates of the Texas Convention. Houston, Tex.: J.W. Cruger, 1846. 158-159.