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“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.

“Frustrated at having been beaten out by the lower prices of their Mexican rivals, white competitors resorted to murdering cartmen, driving off their oxen and burning their carts and freight. Economic rivalry with Mexicans continued to inspire retributive action by whites throughout the late nineteenth and early twentieth centuries.” (Carrigan and Webb)

1857: Cart War in context of Anglo lynchings of Mexicans. / BB&W 49

Although the California gold rush witnessed some of the worst acts of mob violence against Mexicans, whites also resorted to savagery–in order to secure economic supremacy–on other occasions. Actions during the Texas “Cart War” of 1857 exemplify this. During the 1850s, Texas businessmen developed a freight-hauling service between Indianola and San Antonio. Frustrated at having been beaten out by the lower prices of their Mexican [50] rivals, white competitors resorted to murdering cartmen, driving off their oxen and burning their carts and freight. Economic rivalry with Mexicans continued to inspire retributive action by whites throughout the late nineteenth and early twentieth centuries. In 1898, a group of Gonzales, Texas men–probably poor white sharecroppers in competition with Mexican immigrants–posted this warning: “Notice to the Mexicans. You have all got ten days to leave in. Mr. May Renfro and brother get your Mexicans all off your place. If not, you will get the same they do. Signed, Whitecaps.” In the 1920s, alarm at the increasing number of Mexican laborers who settled in the Rio Grande valley contributed to the growth of the local Ku Klux Klan.[53]

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), 49ff.
  1. [53]Waco Times-Herald, Feb. 17, 1898; David J. Weber, ed., Foreigners in their Native Land: Historical Roots of the Mexicans (Albuquerque: University of New Mexico Press, 1973), p. 153; George P. Garrison, Texas: A Contest of Civilizations (Boston: Houghton Mifflin Co., 1973), p. 274; Frank W. Johnson, A History of Texas and Texans (Chicago: American Historical Society, 1914), vol. 1, pp. 515-16; J. Fred Rippy, The United States and Mexico (New York: F. S. Crofts & Co., 1931), pp. 179-80; Charles C. Alexander, The Ku Klux Klan in the Southwest (Lexington: University of Kentucky Press, 1965), p. 24. For further evidence of economic competition precipitating mob violence, see Mary Romero, “El Paso Salt War: Mob Action or Political Struggle?” Aztlán 16, nos. 1-2 (1985): 119-38.

“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) Haney López, White By Law  , 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).

“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) Haney López, White By Law  , 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) Haney López, White By Law  , 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) Haney López, White By Law  , 122ff.