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.

Other Readings to Track Down from Haney Lopez footnotes

‘Other Non-Whites’ reading ref.

White By Law, p. 238, Ch. 2, n. 36. Neil Gotanda contends that separate racial ideologies function with respect to “other non-Whites,” meaning non-Black racial minorities such as Asians, Native Americans and Latinos. Neil Gotanda, “Other Non-Whites” in American Legal History: A Review of Justice at War, 85 COLUM. L. REV. 1186 (1985). Gotanda explicitly identifies the operation of this separate ideology in the Supreme Court’s jurisprudence regarding Asians and citizenship. Neil Gotanda, Asian American Rights and the “Miss Saigon Syndrome,” ASIAN AMERICANS AND THE SUPREME COURT: A DOCUMENTARY HISTORY 1087, 1096-1097 (Hyung-Chan Kim ed., 1992).

Mexican Americans as a legally cognizable class / Civ. Rights Act of 1866.

White By Law, p. 251, Ch. 5, n. 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).

“‘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.

“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).

“to deny birthright citizenship … exemplifies current efforts to write facially neutral laws with racially discriminatory effects” (Haney Lopez)

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

The proposed constitutional amendment to repeal the [142] 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.[54] 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.[55] 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.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 141ff.

 

  1. [54]H.R.J. Res. 129, 103d Cong., 1st Sess. (1993). See chapter 2.
  2. [55]Proposition 187: Text of Proposed Law, CALIFORNIA BALLOT PAMPHLET, GENERAL ELECTION, NOVEMBER 8, 1994, at 91.

“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.